Lalitha M. and Others v. S. Prasad and Others and The Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ## **`THURSDAY, THE 17[TH] DAY OF MARCH 2022 / 26TH PHALGUNA, 1943`** ## **`MACA NO. 2157 OF 2012`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 66/2006 OF ADDITIONAL`** ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA`** ## **`APPELLANT/S:`** - `*1 LALITHA M., AGED 53 YEARS W/O.RAJENDRAN V.K., KARUNALAYM, MSP WARDNO.6, PATHIRAPPALLY VILLAGE, KALAVOOR P.O., ALAPPUZHA.` - `*2 JITHIN K.R., AGED 23 YEARS S/O.RAJENDRAN V.K., KARUNALAYM, MSP WARDNO.6, PATHIRAPPALLY VILLAGE, KALAVOOR P.O., ALAPPUZHA.` - `*3 GOPU K.R., AGED 15 YEARS S/O.RAJENDRAN V.K., KARUNALAYM, MSP WARDNO.6, PATHIRAPPALLY VILLAGE, KALAVOOR P.O., ALAPPUZHA` - `.4 [KAMALAKSHY, AGED 75 YEARS` - `DECEASED M/O.RAJENDRAN V.K., KARUNALAYM, MSP WARDNO.6, PATHIRAPPALLY VILLAGE, KALAVOOR P.O., ALAPPUZHA]` ``` APPELLANT NOS. 1 TO 3 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED APELLANT NO.4 AS PER ORDER DATED 17.03.2022 IN MACA 2157/12. ``` ``` BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ``` ## **`RESPONDENT/S:`** - `1 S.PRASAD S/O.SANKARA PILLAI, PRIYANKA NIVAS, THOOKKUKULAM BHAGOM, VADACKAL P.O., ALEPPY-688 005.` - `2 SASIDHARAN SASI S/O.CHELLAPPAN ETTURATHIL HOUSE, EAST OF KAKKAZHAM MOSQUE,ALAPPEY-688 005.` ``` 3THE ORIENTAL INSSURANCE CO. LIMITED MULLAKKAL, ALAPPUZHA BRANCH, REP. BY ITS MANAGER. PIN-688 001. ``` -2- MACA No. 2157 of 2012 ``` BY ADVS. SMT.C.SEENA SRI.A.R.GEORGE SRI.P.P.THAJUDEEN ``` ## **`OTHER PRESENT:`** ``` SRI.P.P.THAJUDEEN FOR R1 & 2, SRI.A.R.GEORGE FOR R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 17.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- MACA No. 2157 of 2012 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== M.A.C.A. No.2157 of 2012 ============================================================= Dated this the 17[th ] day of March, 2022 ## **JUDGMENT** This appeal is filed by the petitioners in O.P.(M.V.) No. 66/2006 on the file of the Motor Accidents Claims Tribunal, Alappuzha. It is a claim petition filed under Sec.166 of the Motor Vehicles Act. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). 2. The petitioners 1 to 3 are wife and children of deceased Rajendran, who died in a motor vehicle accident. The original 4[th] petitioner died pending the above appeal. On 8.11.2005 at about 11.45 am, while the deceased Rajendran was riding a motor cycle bearing registration No.KL-04/H 8126 from west to east on Savakkottappalam-Bappuvaidyar junction road, a tempo van bearing registration No. KL-02-F/3688 driven by the 2[nd] respondent in a rash and negligent manner -4- MACA No. 2157 of 2012 came from east to west and hit the left side of the motor cycle causing injuries to the deceased. He was taken to the hospital and he died on the way due to the injuries sustained in the accident. The petitioners contended that the accident occurred because of the rash and negligent driving of the 2nd respondent and therefore, all the respondents are jointly and severally liable to compensate the petitioners. 3. To substantiate the case, Exts. A1 to A16 were marked on the side of the petitioners. After going through the evidence and the documents, the Tribunal found that there is contributory negligence on the part of the deceased also, which resulted in the accident. Thereafter, the Tribunal fixed the contributory negligence on the part of the deceased as 25%. Aggrieved by the finding of the Tribunal about the contributory negligence against the deceased and also challenging the quantum of compensation, this appeal is filed. -5- MACA No. 2157 of 2012 4. Heard the counsel for the appellants and the counsel for the 3[rd] respondent. I also heard the counsel for the 1[st] and 2[nd] respondents. 5. The counsel for the appellants submitted that the Tribunal erred in fixing the contributory negligence on the part of the deceased. The main contention of the appellants is that the police after investigation submitted a final report against R2 as evident by Ext.A7 and there is a presumption of negligence on the part of the 2[nd] respondent in the light of the judgment of this Court in **New India Assurance Company Ltd.v. Pazhaniammal [2011 (3) KLT 648]** . I think there is some force in the argument of the counsel for the appellants. Admittedly, the 2[nd] respondent is the accused in the criminal case registered in connection with this accident. Ext.A1 is the FIR in the criminal case and Ext.A7 is the charge sheet. Therefore, there is a presumption of negligence against the 2[nd] respondent in this -6- MACA No. 2157 of 2012 case. No contra evidence is adduced by the respondents to disprove the same. The Tribunal fixed the contributory negligence on the part of the deceased based on the entries in the scene mahazar. When the final report is filed by the Tribunal based on the same scene mahazar, the Tribunal erred in relying the entries in the scene mahazar to conclude the contributory negligence on the part of the deceased. According to me, the finding of the Tribunal attributing contributory negligence on the part of the deceased is unsustainable and that is to be set aside. 6. The next question to be decided is about the quantum of compensation. The learned counsel for the appellants submitted that, while fixing the monthly income, the future prospectus is not considered by the Tribunal. According to me, the Tribunal ought to have fixed the monthly income after taking future prospects also. Admittedly, the deceased was -7- MACA No. 2157 of 2012 aged 46 years at the time of accident and therefore, 25% is to be added towards the future prospects. Hence, in the light of the decision in **National Insurance Co. Ltd v. Pranay sethi [2017(4) KLT 662]** , the monthly income can be re- fixed as Rs.9,375/-. Moreover, while fixing the loss of dependency in this case, the Tribunal need to reduce only ¼ towards the personal expense of the deceased. In this case, 1/3 is reduced. That is also to be corrected. Based on the same, the compensation for dependency is to be re-calculated in the following manner: Rs.9,375 X 12 X 13 X 3/4= Rs.10,96,875/- 7. The amount already given by the tribunal is to be deducted from the above amount. Then the balance amount is entitled by the appellants will be:- Rs.10,96,875-7,80,000 = **Rs.3,16,875/-** -8- MACA No. 2157 of 2012 8. The appellants are the wife and children of the deceased. Deceased 4[th] appellant is his mother. In the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others. [(2018)** **18 SCC 130]** , they are entitled an enhanced consortium @ Rs. 40,000/- each. The deceased 4[th] appellant is also entitled the same, and the said amount will go to appellant Nos.1 to 3. The Tribunal awarded only Rs.15,000/- each in the head of loss of consortium and love and affection. The appellants are entitled another amount of Rs.1,30,000/- towards the loss of consortium, after deducting the amount already awarded towards the loss of consortium and love and affection. The same can be summarised like this: 4 X 40,000 = 1,60,000-30,000 = Rs.1,30,000/- 9. Towards the funeral expenses, the Tribunal awarded only Rs.3,000/-. The appellants are entitled another amount of -9- MACA No. 2157 of 2012 Rs.12,000/- in that head also. Therefore, the total enhanced compensation entitled to the appellants can be summarised like this: |Head|Amount| |---|---| |Loss of dependency|Rs.3,16,875/-| |Loss of consortium|Rs.1,30,000/-| |Funeral Expense|Rs.12,000/-| |**Total**|**Rs. 4,58,875/-**| 10. The appellants are entitled interest at the rate of 7.5% from the date of application till realization. Therefore, the appeal is allowed in the following manner; - 1) The findings of the Tribunal is to the effect that, there is contributory negligence on the part of the deceased is set aside and the appellants are entitled the entire compensation amount awarded by the Tribunal. -10- MACA No. 2157 of 2012 - 2) The appellants are entitled an enhanced compensation of Rs.4,58,875/- with interest at the rate of 7.5% per annum from the date of application till realization. - 3) The compensation is to be distributed equally to all the appellants. sd/- # **P.V.KUNHIKRISHNAN JUDGE** das