High Court of KeralaDivision Bench2014-11-12Appeal allowed to the extent stated: 50-50 liab...

MACA No. 1244 of 2011

Case / Petition Number:MACA.No.1244 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T.R. Ramachandran Nair
P.V. Asha
Judgment Date: 2014-11-12
Court Decision / Holding: The Tribunal’s finding of 30% contributory negligence by the deceased is vacated; liability is apportioned equally between the car and jeep (50% each). The compensation is re-fixed with a higher monthly income for the deceased and enhanced heads of damages, totaling Rs.5,61,000, with 9% interest per annum from the date of filing (following Supeidei (Smt.) and others v. National Insurance Co. Ltd., 2009 (4) SCC 513). Insurers are directed to deposit 50% each within three months, after which the claimants may withdraw.
Final Disposition: Appeal allowed to the extent stated: 50-50 liability between car and jeep; enhanced compensation; 9% interest; insurers to deposit within three months; claimants to withdraw on deposit.

Parties to the Case

Appellants / Petitioners

M. Arumughan
P.M. Sreemat hy

Respondents

MR.EAMDHU, S/O KUNHIMOHAMMED 73-A, CHOLAKKAL HOUSE, TANALOOR POST TIRUR, MALAPPURAM. 676 101
THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, WHITE LINE BUILDINGS, KALLAI ROAD KOZHIKODE. 673 020
HAMZA, S/O UMMUKULZU, VELLIYATH HOUSE, AYYAYA ROAD, ITHIKKAL TANALUR POST, MALAPPURAM DISTRICT. 676 307
SAIDALAVI, S/O MUHAMMED KUTTY, THEKANIYATHI VEEDU, KALLARAMANGALAM, POST MARAKKARA.
K. ABZUL AZEEZ, S/O RAYIN, P.W.D CONTRACTOR, KALLAI HOUSE, KALLARAMANGALAM POST MARAKKARA, RANDATHANI.676 510
THE NEW INDIA ASSURANCE CO. LTD., TIRUR, MALAPPURAM DISTRICT.676 101

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Jacob Abraham

Counsels for Respondents

• Sri. Thomas Mathew Nellimoottil
• Sri. PMM Najee b Khan

Case Synopsis & Summary

Appellants are the parents of Sreejith, who died in a motor vehicle accident on 17/05/2004. They challenge the Motor Accidents Claims Tribunal award that attributed 30% contributory negligence to the deceased and reduced the quantum of compensation. The accident involved a car ahead that stopped suddenly without signaling, causing the motorcyclist to hit its rear. A jeep from the opposite direction then ran over the deceased. The Tribunal found the car driver negligent for not signaling and allocated 30% negligence to the deceased, with the jeep equally negligent, totaling a 50-50 split between the car and jeep. The appellants contend there is no basis for blaming the deceased and that the evidence does not establish any contributory negligence by him. They rely on the car’s failure to signal and on the jeep’s role as the immediate cause of the fatal injury. The High Court agrees there is no evidence of contributory negligence by the deceased and vacates the Tribunal’s finding. It holds both the car and jeep jointly negligent (50% each) and re-computes the compensation, increasing the deceased’s income to Rs.3,000 per month and enhancing several heads of damages. It also directs interest at 9% per annum from the petition date, following a Supreme Court decision, and orders equal liability of insurers for the awarded amount. The appeal is thus allowed to that extent.

Provisions of Law Cited

Rules of the Road Regulations of 1989, Rule 13(b) read with Rule 24

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that no negligence could be attributed to the deceased. The Tribunal’s finding of contributory negligence required clear evidence, which was lacking. The car driver’s failure to signal and the jeep’s role as the proximate cause, not the deceased’s conduct, should guide liability. There was no evidence that the deceased was not maintaining a reasonable distance. Consequently, the 30% contributory negligence should be vacated and liability should be shared between the two vehicles responsible for the fatal outcome.

Contentions of Respondents

The respondents contended that the car driver’s failure to signal and the deceased’s lack of distance contributed to the accident; the Tribunal’s findings were supported by evidence, including the car’s non-signaling and the jeep’s speed. They relied on the Rule 13(b) and Rule 24 assessment and maintained that the deceased bore some responsibility, with the car and jeep jointly liable as per the tribunal’s assessment.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Supeidei (Smt.) and others v. National Insurance Company Ltd. And another	2009(4) SCC 513	Positive	Cited to justify awarding interest at 9% per annum from the date of the petition, aligning with Supreme Court authority.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014/21ST KARTHIKA, 1936** **MACA.No. 1244 of 2011 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 670/2005 of PRL M.A.C.T.,KOZHIKODE DATED 06-02-2010** **APPELLANTS/PETITIONERS:** **------------------------------------------------** **1. M.ARUMUGHAN, AGED 64 YEARS S/O. MADAVAMBATT AYYAPPUTTY, SREE VIHAR, CHALIYAM POST KADALUNDI VILLAGE, KOZHIKODE TALUK.** **2. P.M. SREEMATHY, AGED 49 YEARS, W/O. M. ARUMUGHAN, SREE VIHAR, CHALIYAM POST KADALUNDI VILLAGE, KOZHIKODE TALUK.** **BY ADV. SRI.JACOB ABRAHAM** **RESPONDENTS/RESPONDENTS:** **----------------------------------------------------** **1. MR.EAMDHU, S/O KUNHIMOHAMMED 73-A, CHOLAKKAL HOUSE, TANALOOR POST TIRUR, MALAPPURAM. 676 101** **2. THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, WHITE LINE BUILDINGS, KALLAI ROAD KOZHIKODE. 673 020** **3. HAMZA, S/O. UMMUKULZU, VELLIYATH HOUSE, AYYAYA ROAD, ITHIKKAL TANALUR POST, MALAPPURAM DISTRICT. 676 307** **4. SAIDALAVI, S/O. MUHAMMED KUTTY, THEKANIYATHI VEEDU, KALLARAMANGALAM, POST MARAKKARA.** **5. K. ABZUL AZEEZ, S/O. RAYIN, P.W.D CONTRACTOR, KALLAI HOUSE, KALLARAMANGALAM POST MARAKKARA, RANDATHANI.676 510** **6. THE NEW INDIA ASSURANCE CO. LTD., TIRUR, MALAPPURAM DISTRICT.676 101** **BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R2 BY ADV. SRI.PMM.NAJEEB KHAN FOR R6** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR &P.V.ASHA, JJ.** **------------------------------------------------------------------** ## **M.A.C.A.No.1244 OF 2011** **---------------------------------------------------------------** Dated this the 12[th] day of November, 2014 ## **JUDGMENT** ## **Ramachandran, J.** Appellants are the parents of deceased Sri.Sreejith who died in a motor vehicle accident, which occurred on 17/05/2004. They are mainly aggrieved by the finding attributing 30% negligence on the part of the deceased and the reduced amount of the quantum. 2. We heard the learned counsel for the appellants and the learned counsel for the respondents. 3. He was aged 21 at the time of the accident and while he was riding the motor cycle from Kadalundy to Tirur, a car bearing Reg.No.KL 10G 2800 going in front of the motor cycle stopped all of a sudden without giving any signal which resulted the motor cycle ridden by the deceased hitting the back side of the car and he was thrown off. At that point of time, a jeep bearing Reg.No.KL 3 A 5027 came from opposite direction and ran over him causing serious injuries MACA No.1244/2011 2 to him and he died. 4. We will first consider whether any negligence can be attributed to the deceased. The claimants had produced Ext.A1, copy of the FIR and FIS. Ext.A2 is the scene mahazer. Ext.A3 is the postmortem report. The respondents had produced Ext.B1, copy of the report and charge sheet. 5. The Tribunal has assessed the evidence in paragraph 11 onwards. Going by Ext.A2 scene mahazer, tarred road was having a width of 5.42 metres. The place of occurrence is 3.50 metres away from the eastern tar end. In Ext.B1 charge sheet, the conclusion drawn by the investigating officer is that the accident occurred due to the negligence of the jeep driver. 6. The Tribunal has then gone into the Rules of Road Regulations of 1989. The driver of the car was found negligent for not showing signal to the vehicles coming from the rear side when he suddenly stopped the vehicle. Such a specification is there under Rule 13 (b) read with Rule 24 of the Rules. As regards the deceased what is found in paragraph 12 is that there is nothing in the evidence to show MACA No.1244/2011 3 that he was keeping a reasonable distance from the vehicles going in front. Finally, in paragraph 13, it is found that the jeep driver who was driving the vehicle which was coming from the opposite side had clear visibility in the road and if he was coming in a reasonable speed, he would have been able to avoid running over the deceased by applying brake. He did not file a written statement or disputed the negligence alleged. After stating so, the learned Tribunal has concluded that 30% negligence can be attributed to the deceased and 70% can be attributed equally between the driver of the car and driver of the jeep. 7. We find much force in the submission of the learned counsel for the appellants that no negligence can be attributed to the deceased. The learned counsel for the Insurance Company ( 6[th] respondent herein) submitted that there was a specific contention by the sixth respondent in the written statement that the deceased was not keeping reasonable distance. As regards the said aspect, there was no evidence before the Tribunal. Nothing by way of negligence has been proved against the deceased by adducing evidence. A finding on contributory negligence requires clear evidence. We find no reason to MACA No.1244/2011 4 agree with the findings in paragraph 11 of the award that the deceased is responsible also by way of contributory negligence in causing the accident. Apart from the same, when there is a clear finding in paragraph 13 that the jeep driver, if he had been driven the vehicle in the normal speed, could have avoided the accident, then also, no negligence can be attributed to the deceased. In that view of the matter, we vacate the finding that the deceased had contributed 30% by way of contributory negligence. Hence the drivers of jeep and car will be equally be negligent i.e. 50% each. 8. As regards the quantum, we find that Ext.A5 certificate shows that he was earning Rs.3,000/- per month. He was a Technician of Sigma, Videocon Authorised Service Centre at Tirur. He had passed Diploma in Electronics Engineering. Ext.A6 is the certificate issued by the State Board of Technical Education showing his qualification. Ext.P7 is the SSSLC book of the deceased. But the Tribunal has taken the monthly income as Rs.2,500/- only, which we will modify as Rs.3,000/-. Apart from the same, under the other heads also, we are of the considered view that enhancement is required. MACA No.1244/2011 5 ## 9. The Tribunal has fixed the compensation in the following manner : Transport to hospital - Rs.1,500/Damage to clothing - Rs.500/Funeral Expenses - Rs. 3,000/Pain and suffering - Rs.10,000/Loss of estate - Rs.10,000/Loss of love and affection - Rs.10,000/Loss of dependency - Rs.1,80,000/- - Rs.10,000/- - Rs.1,80,000/- ----------------- Total - Rs.2,15,000/Less 30% - Rs. 64,500/-----------------------Balance - Rs.1,50,500/- ## 10. We re-fix the compensation as hereunder : Transport to hospital Damage to clothing Funeral Expenses Pain and suffering Loss of estate Loss of love and affection Loss of dependency - Rs.1,500/- - Rs.500/- - Rs. 25,000/- - Rs.10,000/- - Rs.100,000/- - Rs.100,000/- - Rs.3,24,000/(3000 x 12 x 18 x 50/100) ----------------- Total - Rs.5,61,000/- ============== (Rupees five lakhs sixty one thousand only) 11. The Tribunal has granted interest only @ 7% per annum. MACA No.1244/2011 6 Going by the decision of the Apex Court in **Supeidei ( Smt.) and others** **v. National Insurance Company Ltd. And another ( 2009(4) SCC 513),** the appellants will be entitled to interest @ 9% per annum from the date of filing of the petition before the Tribunal. 12. The liability to meet the award amount will be apportioned equally between the insurer of the car as well as the insurer of the jeep namely the second and sixth respondents. There will be a direction to the insurers to deposit the amount awarded in tune with their liability ( 50%) within three months from the date of receipt of a copy of this judgment and on such deposit being made, the claimants are entitled to withdraw the amount also. The appeal is allowed to above extent. ## **T.R.RAMACHANDRAN NAIR,JUDGE** ## **P.V.ASHA, JUDGE.** SV MACA No.1244/2011 7