M.A.C.A. 2782 of 2012 (Chandran s/o Anjakkallan and others vs Ancilly Devasikutty Thekkumthala Pallathukattil House Cheruvaloor P.O., Abraham, and The Oriental Insurance Co. Ltd.)

M.A.C.A.2782/2012 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944 MACA NO. 2782 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 107/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONERS IN O.P(M.V.):** 1 CHANDRAN, S/O.ANJAKALLAN, KOOTTALAPARAMBIL HO USE, RESIDING AT ELANCHERI DESOM, KORATTY KIZHAKKUMMURI VILLAGE, NALUKETTU P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2 RADHA WO.CHANDRAN -DO- -DO- 3 BIBITHA DO.CHANDRAN -DO- -DOBY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS IN O.P.(M.V.):** 1 ANCILLY DEVASSIKUTTY THEKKUMTHALA PALLATHUKATTIL HOUSE, CHERUVALOOR P.OKORATTY - 680321. 2 ABRAHAM, S/O.ANTHONY, PYNADATH HOUSE, SANJO NAGAR, MURINGOOR P.O., THRISSUR DISTRICT - 680316. 3 THE ORIENTAL INSURANCE CO.LTD. CHALAKKUDY - 680307. BY ADVS. SRI.C.V.MILTON SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI M.A.C.A.2782/2012 2 SMT.LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.2782/2012 3 ## **C.JAYACHANDRAN, J.** **---------------------------------------------M.A.C.A.No.2782 of 2012 --------------------------------------------Dated this the 27[th] day of May, 2022** ## **J U D G M E N T** 1. In respect of an accident which took place on 28.11.2007, the appellants, who are the parents and the sibling of the deceased, challenges the Award dated 04.12.2012 in O.P.(M.V.)No.107 of 2008 of the Motor Accident Claim Tribunal, Irinjalakkuda in the instant appeal. The claim is one under Section 163A of the Motor Vehicles Act. Learned counsel for the appellant addressed this Court on the following points. 2. As regards dependency, learned Tribunal has deducted 50%, as against the permissible deduction of one-third, going by Schedule II to the Act. Medical bills to the extent of Rs.7560/- has not been allowed by the Tribunal; nor is there any discussion in this regard in the impugned Award. Loss of estate to the tune of Rs.2500/- claimed is not awarded. Funeral expenses of M.A.C.A.2782/2012 4 Rs.10,000/- claimed is liable to be allowed in full, in the light of the authoritative pronouncement of the Honourable Supreme Court in **Kurvan Ansari @ Kurvan Ali & Anr. v. Shyam Kishore Murmu & Anr. [2018 KHC 7529].** Finally, learned counsel submitted that the finding of the learned Tribunal assigning contributory negligence on the part of the deceased and the consequent reduction of the Award amount by one-half is unsustainable. In the final report preferred by the investigating agency in the crime registered in connection with the incident, the conclusion is that the accident occurred on account of the negligence on the part of the driver of the bus concerned. No negligence, whatsoever, is sought to be attributed to the deceased in the said final report. No contra evidence has been adduced by any of the respondents. Therefore, the finding of the learned Tribunal as regards the contributory negligence of the deceased can hardly be countenanced, submits the learned counsel. 3. Adv.Latha Susan Cherian appeared for the third ## M.A.C.A.2782/2012 5 respondent/insurance company. The policy is admitted. As against the various claims afore referred, learned counsel opposed the claim in respect of funeral expenses. According to the third respondent, the amount stipulated in the Schedule alone can be granted towards funeral expenses. Learned counsel also pointed out that, a sum of Rs.1000/- granted towards transportation expenses is not a head recognized in schedule II. Therefore, the said amount is not liable to be granted. Finally, learned counsel objected the appellant's claim that there was no negligence on the part of the deceased. 4. Having heard the learned counsel appearing on both sides, this Court finds substantial merits in the arguments advanced by the learned counsel for the appellant. While assessing compensation on account of dependency, the amount liable to be deducted, going by Schedule II, is one-third; and not one-half. The point is found in favour of the appellant. 5. Medical bills were produced as Ext.A11 for a M.A.C.A.2782/2012 6 total sum of Rs.7560/-. This Court perused the bills to find that the original bills are produced. The amount claimed is not seen granted by the learned Tribunal; there is no discussion, either. The course adopted cannot be sustained. The appellant is entitled to a sum of Rs.7560/- towards the medical bills. 6. Likewise, loss of estate of Rs.2,500/-, clearly permissible under Schedule II to the Act, is not granted, which, again is not in accord with law. The same is liable to be granted. 7. Now, the point of controversy is with respect to the finding of contributory negligence on the part of the deceased. Learned Tribunal arrived at such a conclusion finding that the deceased was proceeding in a high speed, whereas the bus in front of him was not. According to the learned Tribunal, if the deceased had kept safe distance from the bus, the accident would not have occurred. I am afraid whether the logic applied by the learned Tribunal is in the teeth of the judgment of the Honourable Supreme Court in **New India Assurance Co.** M.A.C.A.2782/2012 7 **Ltd. v. Pazhaniammal and Others [ 2011(3) KHC 595].** The Honourable Supreme Court held that, production of the police chargesheet is prima facie sufficient evidence of negligence for the purpose of a claim under the Motor Vehicles Act. In the instant case, it is not disputed before me that going by the charge laid by the police, negligence is attributed to the driver of the bus alone. As pointed out by the learned counsel for the appellant, no contra evidence is adduced by any of the respondents, to suggest otherwise. If that be so, reduction of the total amount by 50% on account of the alleged contributory negligence can hardly be sustained. 8. This Court finds force in the submission of the learned counsel for the respondents as well in so far as transportation expenses is concerned, which is not a recognizable ground under Schedule II of the Motor Vehicles Act 1994. The remaining head is the one under funeral expenses. What is stipulated under Schedule II of the Act is Rs.2,000/-. However, in **Kurvan Ansari @ Kurvan Ali's case (supra)** , the Honourable Supreme Court, M.A.C.A.2782/2012 8 in paragraph No.12, took note of the fact that Schedule II to the Act has not been amended for a long time. Relying upon **Puttamma & Ors. v. K.L.Narayana Reddy &** **Anr. [(2013)15 SCC 45]** the Honourabe Supreme Court held that until such amendment is effected, reasonable enhancement can be granted, which in that case was pertaining to notional income. However, I am of the opinion that the same yardstick can be applied to funeral expenses as well. It is to be noted that the amounts stipulated in the Schedule pertains to the year 1994, when the M.V. Act was introduced. The death in the instant case occurred in 2007. In such circumstance, granting a sum of Rs.10,000/- towards funeral expenses, as claimed by the appellant, is nothing but just and proper. It cannot be contended that an amount beyond the one stipulated in the schedule 1994 cannot be asked for, dehors the efflux of time and the undisputed inflation and devaluation of money. So an additional sum of Rs.8,000/- is liable to the granted. In the circumstances, the award is modified as follows: M.A.C.A.2782/2012 9 |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|Loss of estate||2500| |2|Medical expenses||7560| |3|Transportation expenses|1000|Nil| |4|Pain and suffering||Nil| |5|Loss of dependency|356400|480000<br>(Rs.7,20,000x2/3)| |6|Funeral expenses|2000|10000| ||Total|3,59,400/-|5,00,060/-| |Amount enhanced = Rs.5,00,060 – Rs.3,59,400 = Rs.1,40,660/|||| 9. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amount, at the rate of 5% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two ## M.A.C.A.2782/2012 10 months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. **==> picture [34 x 11] intentionally omitted <==** **C.JAYACHANDRAN** **JUDGE** ``` Sbna/ ```