Lipi Biswas and Monisha Biswas (minor) v. Satheesh Kumar; Manu; The Manager, United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 22ND DAY OF MAY 2017/1ST JYAISHTA, 1939 MACA.No. 1242 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 44/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL DATED 28-02-2013 ## APPELLANTS/APPLICANTS: -------------------------------------- 1. LIPI BISWAS, THUNDIL VEEDU, NEAR KSRTC BUS STAND, KILIMANOOR P.O. 2. MONISHA BISWAS (MINOR), THUNDIL VEEDU, NEAR KSRTC BUS STAND KILIMANOOR P.O. (2ND MINOR APPELLANT IS REPRESENTED BY GUARDIAN-MOTHER 1ST APPELLANT) BY ADVS.SRI.C.R.SIVAKUMAR SRI.JOHN THITHEEMOS ## RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. SATHEESH KUMAR, KAVUVILAKUNNIL VEEDU, ADAYAMON, THATTATHUMALA, PIN – 695 614. 2. MANU, S/O SAHADEVAN ASARI, MANU MANDIRAM, PAPPALA, KILIMANOOR P.O., PIN 695 601. 3. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, ATTINGAL P.O., PIN 695 009. R3 BY ADV. SRI.M.A.GEORGE SRI.JOHN JOSEPH VETTIKAD BIMALA BABY, SC, KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **-------------------------------------------------M.A.C.A.No.1242 OF 2013** **-------------------------------------------------DATED THIS THE 22[nd] DAY OF MAY, 2017** ## **JUDGMENT** ## **C.T. RAVIKUMAR, J.** This appeal arises from the judgment and award in OP(MV)No.44/2008 passed by the Motor Accident Claims Tribunal, Attingal. The appellants herein were the claimants and the respondents herein were the respective respondents, therein. The claimants filed the said claim petition under Section 166 of the Motor Vehicles Act seeking a compensation of 10,00,000/- for the₹ death of Sri Sufalkumar Biswas, the husband of the former and the father of the latter. The Tribunal on appreciation of the evidence on record and the rival contentions granted a total compensation of ₹8,92,500/- with interest @ 7.5% per annum from the date of₹ petition till deposit. In case of failure to deposit the amount within the time stipulated in the award, the amount awarded was directed to carry interest @12% per annum. The Tribunal found that the deceased Sufalkumar Biswas had contributed to the accident and the contributory negligence on his part and also on the part of the 2[nd] respondent, the rider of the offending vehicle, was apportioned M.A.C.A.No.1242 OF 2013 -2- equally. This appeal is preferred seeking enhancement of the quantum of compensation on the ground that the appellants are deprived of just compensation and also challenging the finding of contributory negligence against the deceased. 2. We have heard the learned counsel for the appellants and also the learned counsel appearing for the 3[rd] respondent Insurance Company. Though notice was served on respondents 1 and 2, they have not chosen to enter appearance and to contest the appeal. 3. Firstly, we will consider whether the Tribunal is justified in holding that the deceased had contributed to the accident and in apportioning contributory negligence equally amongst the deceased and the 2[nd] respondent. On that fateful day, viz; on 13.12.2007 at 9.15 p.m., the deceased was riding his motor cycle bearing registration No.KL-01/Q-1130 along KilimanoorThattathumala public road. The accident had occurred at a place near Silpa Bar, Kilimanoor. It is alleged in the claim petition that when the deceased turned the vehicle right after showing proper signal, a motor cycle bearing registration No.KL-16-5809 ridden by M.A.C.A.No.1242 OF 2013 -3- the 2[nd] respondent came from behind and dashed against the motor cycle driven by the deceased. Consequently, he was thrown off the vehicle and sustained fatal injuries to which he succumbed on 16.12.2007. It is in the said circumstance that the claim petition was filed seeking a compensation of 10,00,000/-. ₹ 4. The 1[st] and 2[nd] respondents did not contest the matter and they remained ex parte before the Tribunal as well. The 3[rd] respondent Insurance Company resisted the petition. Essentially, they took up a contention that the accident had occurred due to the negligence on the part of the deceased Sufalkumar Biswas. Evidently, the Tribunal had declined to accept the said case of the 3[rd] respondent Insurance Company and at the same time, the Tribunal found that the deceased was guilty of contributory negligence. The reasons that persuaded the Tribunal to arrive at such a conclusion is evident from Paras.7 and 8 of the impugned judgment. The Tribunal, evidently on perusal of Ext.A2 scene mahazar, found that the scene of occurrence was having a width of 8.25 metres and the straight view, on either side of the road, was at a distance of 100 metres/200 metres. In such M.A.C.A.No.1242 OF 2013 -4- circumstances, the Tribunal held that when there was straight view on both sides, unless the deceased was negligent, the accident in question would not have occurred. We are at a loss to understand, as to how can the Tribunal come to a conclusion that with certainty that but for the contributory negligence from the part of the deceased, such an accident would not have occurred solely because straight view available at the scene of occurrence. In such a situation, it is relevant to note that the appellants have produced Ext.A5 which is the charge sheet filed against the 2[nd] respondent, after investigation in Crime No.490/2007 registered in connection with the accident in question. In the light of the decision of a Division Bench of this Court in **New India Assurance Company v. Pazhani Ammal and others** reported in **(2011 (3) KHC 595)** in an application for compensation filed under Section 166 of the Motor Vehicles Act, production of Police charge sheet is prima facie sufficient evidence of negligence. Needless to say that when it can be admitted as a prima facie sufficient evidence, it can be rebutted by adducing proper evidence. But the question is whether the 2[nd] respondent had M.A.C.A.No.1242 OF 2013 -5- adduced any rebuttal evidence. As noticed hereinbefore, the 2[nd] respondent had remained ex parte before the Tribunal and even before this Court despite receipt of notice, he had not chosen to enter appearance. In such circumstances, it is evident that though the appellants had produced prima facie sufficient evidence by way of producing Ext.A5 charge sheet, none of the respondents rebutted such evidence. In such circumstances and in the absence of any other evidence establishing that the deceased had contributed to the accident, the finding of the Tribunal can be taken only as one unfounded on any material. When a conclusion reached is unsupported by materials or against the weight of evidence, it can only be said to be a perverse finding. When it is a perverse finding, this Court, being the first appellate court, has a duty to set it right. In the said circumstances, we have no hesitation to hold that the finding of the Tribunal that the deceased had contributed to the accident and consequently apportioning the contributory negligence in between the deceased and the 2[nd] respondent equally are liable to be interfered with. The said finding and the consequential apportionment are vacated. M.A.C.A.No.1242 OF 2013 -6- Consequently, it is held that the accident in question had occurred solely due to the negligence from the part of the 2[nd] respondent, who was then riding motor cycle bearing Registration No.KL-165809. 5. We will now consider the question whether the appellants are entitled to get enhancement of the quantum of compensation. While the appellants contend that they were deprived of just compensation, the learned counsel appearing for the 3[rd] respondent contends that what was granted by the Tribunal is, just compensation and hence, no appellate interference is called for. It is submitted by the learned counsel for the 3[rd] respondent that though the appellants had produced Ext.A9 certificate to establish that the deceased was working as an Ayurveda Doctor, it was not proved before the Tribunal. In such circumstances, according to the learned counsel, the Tribunal was perfectly justified in fixing the monthly income notionally at 4,000/- for₹ calculation purpose. True that the appellants had not proved Ext.A9 certificate. Ext.A9 is the certificate which was issued by the Kerala Ayurveda Parambarya Vaidya Forum dated 01.03.2002. M.A.C.A.No.1242 OF 2013 -7- What exactly was the qualification of the deceased to practise as an Ayurveda Doctor is not discernible from it. In such circumstances, the learned counsel for the 3[rd] respondent is justified in contending that the appellants had not adduced any evidence to establish the occupation and income of the deceased. But, at the same time, the question to be decided is even in such circumstances, whether the fixation of 4,000/- as the monthly₹ income of the deceased invites interference. We are of the view that in the matters of fixation of monthly income, it is relevant to refer to the decision of the Hon'ble Apex Court in **Ramachandrappa** v. **Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** . In Ramachandrappa's case (supra), in respect of a coolie who met with an accident in 2004 the Hon'ble Apex Court fixed monthly income notionally as ₹4,500. The accident in question which ultimately resulted in the death of Sufalkumar Biswas occurred on 13.12.2007 and he was then aged only 28 years. He was maintaining himself and also his wife and a daughter. In such circumstances, we do not find any justification for fixing any lesser amount than 4,500/- as the₹ -8- M.A.C.A.No.1242 OF 2013 monthly income of the deceased, for calculation purpose. According to us, it is only reasonable to fix the monthly income as ₹5,000/-. We do so. Then the question is whether an addition is to be made to the said income reckoning the future prospects he would have, but for his untimely death. The learned counsel for the 3[rd] respondent submitted that the decision of the Hon'ble Apex Court in **Rajesh** v. **Rajbir Singh [2013 (3) KLT 89 (SC)]** cannot be applied in this case as the deceased is not a salaried person or a self-employed person. We are of the view that those factors by themselves cannot be a reason for not making an addition to the income fixed notionally. Even in the case of salaried person or self-employed person, the factors that persuaded the Hon'ble Apex Court to make an addition, viz; the cost of living, the price index, etc. cannot be said to have any reflexion in the lives of the persons who are eking their livelihood by engaging themselves in other avocations. Necessarily, even in respect of such persons, such circumstances by passage of time, would persuade them to demand increased rate of wages for their service. One other aspect also has to be taken into account in M.A.C.A.No.1242 OF 2013 -9- such circumstances. In the case of such workers there would not be age of superannuation. He could work as long as he is in good health. Though we may not have made an addition of 50% of his income reckoning future prospects, we are of the view that no interference need be made with respect to the addition of 50% made in that regard by the Tribunal, taking into consideration the fact that 1/3[rd] of his income has to be deducted towards his personal and living expenses. In the light of our interference with the finding of the Tribunal holding the deceased of contributory negligence and the modification of the multiplicand, the appellants are entitled to get an amount of 10,20,000/- (7500x12x17x2/3)₹ towards loss of dependency. The Tribunal has already granted an amount of 8,16,000/- under that head. After deducting the said₹ amount, the appellants are entitled to get an additional amount of **₹2,04,000/-** under that head. 6. Then, the question is whether the appellants are entitled to get enhanced compensation under any other head. Though an amount of 50,000/- was claimed towards pain and₹ suffering, the Tribunal had not granted any amount under that M.A.C.A.No.1242 OF 2013 -10- head. Evidently, the Tribunal arrived at a conclusion that the death was instantaneous. In fact, the said finding of the Tribunal is not true to facts. The accident in question occurred on 13.12.2007 and the death had occurred only on 16.12.2007. In such circumstances, it can be said that the deceased must have experienced excruciating pain owing to the injuries sustained. We are inclined to grant an amount of **₹15,000/-** under that head. Towards medical expenses, citing the aforesaid reason, the Tribunal has declined the claim of 15,000/-. Even in the absence₹ of any evidence regarding the actual expenses, we are of the view that once the fact that the deceased was taken to a hospital and died from there is evident, it is reasonable to grant an amount of **₹5,000/-** towards medical expenses. We do so. The Tribunal had granted only an amount of 8,000/- towards funeral expenses and₹ an amount of 30,000/- towards loss of consortium. In the light of₹ the decision of the Apex Court in Rajesh's case (supra), in the absence of evidence of a higher extent, a minimum of 25,000/-₹ shall be granted towards funeral expenses. Since the Tribunal has granted only an amount of 8,000/- towards funeral expenses, we₹ M.A.C.A.No.1242 OF 2013 -11- are inclined to grant an amount of **₹17,000/-** additionally. In a claim petition under Section 166 of the Motor Vehicles Act, for death, the surviving spouse is entitled to get a maximum of ₹1,00,000/- towards loss of consortium going by the decision cited supra. The Tribunal had granted an amount of 30,000/- to the₹ first appellant. In such circumstances, we are inclined to grant an amount of **₹70,000/-** more under that head. Towards loss of love and affection, the Tribunal had granted an amount of 25,000/-.₹ The 2[nd] appellant was aged only three years at the time of death of her father and hence, according to us, she is entitled to get compensation thereunder. Taking note of the fact that the 2[nd] appellant is a female child and she was aged only three years at the time death of her father, we are inclined to grant **25,000/-₹** more under that head. In the light of the modification made by us in regard to compensation under certain heads, the appellants are entitled to get a total compensation of **₹3,36,000/-** (Rupees Three Lakhs Thirty Six Thousand only). The said additional amount will carry interest @8% per annum from the date of petition till realisation. M.A.C.A.No.1242 OF 2013 -12- The 1[st] appellant alone will be entitled to get the additional compensation granted for loss of consortium and the 2[nd] appellant alone is entitled to get the additional compensation granted for loss of love and affection. The balance amount shall be apportioned between the 1[st] and 2[nd] appellants in the ratio of 2:1. In respect of the 2[nd] appellant, the direction of the Tribunal is maintained. The 3[rd] respondent is directed to deposit the additional compensation along with interest thereon as stipulated above within a period of three months from the date of receipt of a certified copy of this judgment. There will be no order as to costs. Needless to say additional court fee payable shall be realised before releasing the additional compensation. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn //True copy P.S. to Judge//