High Court of KeralaSingle Judge2021-07-26Appeal allowed; enhanced total compensation of ...

M.A.C.A. No. 1372 of 2009

Case / Petition Number:M.A.C.A. No. 1372 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.Dias
Judgment Date: 2021-07-26
Court Decision / Holding: The appeal is allowed. The Tribunal’s finding of 25% composite negligence is set aside; the dependants are entitled to the enhanced compensation calculated by the Court. Notional income fixed at Rs.4,000 per month; 17-year multiplier; 40% future prospects; deduction of 1/3 for personal living expenses; enhanced conventional heads: funeral Rs.15,000; loss of estate Rs.15,000; loss of consortium Rs.1,10,000; total enhanced compensation Rs.9,12,600. The 4th respondent to deposit the amount after deducting any already deposited, with interest at 6% per annum, within two months, and the Tribunal to disburse accordingly after lawful deductions.
Final Disposition: Appeal allowed; enhanced total compensation of Rs. 9,12,600; 25% deduction for composite negligence set aside; liability clarified; deposit and disbursement directions issued; deletion of Respondent No.1 maintained; Tribunal to apply payment after deductions within two months.

Parties to the Case

Appellants / Petitioners

Haseena
Muhammed Uvais (minor) represented by mother Haseema
Ayisha kutty

Respondents

The New Indian Assurance Company Limited
K.P. Uma Devi
The United India Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• SMT. LATHA PRABHakaran

Counsels for Respondents

• A.A. Ziyad Rahman
• Sri. P.K. Manojkumar
• Sri. P. Muraleedharan

Case Synopsis & Summary

This Motor Accidents Claims Appeal arises from a common award of the Motor Accidents Claims Tribunal, Kozhikode, in which the dependants of Abdul Gafoor, who died in a February 2003 accident, were awarded Rs 2,22,000. The accident involved a motorcycle ridden by the deceased’s pillion passenger, a lorry and a bus, with drivers blaming one another. The Tribunal held the drivers jointly liable and found the deceased 50% contributorily negligent, deducting 25% for composite negligence. The petitioners challenged the Tribunal’s apportionment and the quantum, arguing that a pillion rider cannot be subjected to composite negligence, and that the compensation was inadequately calculated. During hearing, the first respondent was deleted from the party array on this Court’s order. The High Court found that the Tribunal’s conclusion of composite negligence was unsound in light of Sajad Saheer v. Rajeev, holding that a pillion rider cannot be deemed contributorily negligent. It then reassessed the loss of dependency, fixing the deceased’s notional income at Rs 4,000 per month (instead of Rs 1,500 or Rs 6,000 claimed), applied a multiplier of 17 because he was 30 at the time of death, and allowed 40% future prospects. After deducting one-third for personal living expenses in line with Sarala Varma and Pranay Sethi, the court recalculated loss of dependency at Rs 7,61,600 and added enhanced conventional heads: funeral expenses Rs 15,000, loss of estate Rs 15,000, and loss of consortium Rs 1,10,000. Pain and suffering was set to zero. The total compensation was fixed at Rs 9,12,600, with directions for deposit and disbursement within two months.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Composite negligence cannot be attributed to a pillion rider
Notional income for calculation of damages
Future prospects for dependants
Deduction for personal living expenses (1/3) in loss of dependency
Multiplier principle based on age of the deceased
No restriction in awarding more compensation than claimed (Nagappa v. Gurudwara Singh)
Award considerations from Pranay Sethi and Sarala Varma

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that there cannot be composite negligence attributed to a pillion rider. They challenged the Tribunal’s deduction of 25% for composite negligence, arguing liability should be apportioned to the vehicle drivers rather than penalizing the deceased’s dependants. They also urged re-evaluation of income for calculation, enfatizing higher notional income and enhanced compensation consistent with post- accident jurisprudence.

Contentions of Respondents

The respondents argued the collision involved multiple negligent actors (bus and lorry with the motor cycle rider’s role). They supported the Tribunal’s finding of contributory negligence and the joint liability of the insured vehicles, maintaining the insurance liabilities and the quantum framework under the MACT regime.

Cited Precedents (8)

Case Name	Citation	Treatment	Explanation
Sajad Saheer v. Rajeev	2017 (3) KLT (SN) 34 (Case No.45)	Positive	Supports the proposition that a pillion rider cannot be held contributorily negligent in composite negligence.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	[(2011) 13 SCC 236]	Positive	Supports the use of notional income benchmarks for dependent loss calculations.
Sarala Varma and others v. Delhi Transport Corporation and others	[(2010) 2 KLT 802 (SC)]	Positive	Governs multiplier and dependency calculations in death claims.
National Insurance Company Ltd. v. Pranay Sethi	[(2017) 16 SCC 680]	Positive	Guides notional income, future prospects, and deduction for personal living expenses.
Nagappa v. Gurudwara Singh	[2003 (1) KLT 115 (SC)]	Positive	Affirms there is no restriction in awarding higher compensation than claimed.
Rajesh v. Rajbir Singh	[(2013) (3) KLT 89 (SC)]	Positive	Reiterates approach to compensation under MACT jurisprudence.
United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur	[2020 (3) KHC 760]	Positive	Justifies trimming pain and suffering and adjusting heads of compensation.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	[(2011) 13 SCC 236]	Positive	Noted for notional income framework (duplicate entry to ensure completeness).

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Extracted Judgment Text

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# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 26[TH] DAY OF JULY 2021/4TH SRAVANA, 1943 ## M.A.C.A. NO.1372 OF 2009 AGAINST THE AWARD IN OP(MV)No. 760/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE ## APPELLANTS/PETITIONER IN O.P.(MV): - 1 HASEENA, AGED 31 YEARS. W/O. (LATE) ABDUL GAFOOR. - 2 MUHAMMED UVAIS (MINOR), S/O.(LATE)ABDUL GAFOOR, DOB 3/5/2002, REPRESENTED BY HER MOTHER HASEEMA. - 3 AYISHAKUTTY, W/O.L(ATE) KOYA, AGED 76 YEARS. BY ADV SMT.LATHA PRABHAKARAN ## RESPONDENTS/RESPONDENTS IN O.P.(MV): - *1 M.A.SHAHUL HAMEED, S/O.M.A.VAHAB, RESIDING AT 4/95, MALAMPUZHA POST, PALAKKAD. ( DELETED) - 2 THE NEW INDIAN ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, SILVERPLAZA BUILDING, I.G.ROAD, KOZHIKODE. - 3 K.P.UMADEVI, D/O.K.M.NARAYANAN KUTTY PANICKER, RESIDING AT PERUZHI HOUSE, HOUSE NO.6/168, FEROKE COLLEGE POST, KOZHIKODE. - 4 THE UNITED INDIA INSURANCE CO. LIMITED., DIVISIONAL OFFICE-II, SEEMA TOWER, MAVOOR ROAD, KOZHIKODE. M.A.C.A. No. 1372 of 2009 2 (*RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 31/3/2021 IN I.A. NO. 1/2021 IN THE MACA 1372/2009.) BY ADVS. A.A.ZIYAD RAHMAN SRI.P.K.MANOJKUMAR, SC, UNITED INDIA INSURANCE COMPANY SRI.P.MURALEEDHARAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. No. 1372 of 2009 3 ## **C.S.DIAS, J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1372 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated : 26[th] July, 2021 ## **JUDGMENT** The appellants were the petitioners in O.P.(MV) No.760 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. Pursuant to the direction of this court on 31.3.2021, in I.A.No.1/2021, the first respondent was deleted from the party array. The parties are for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners have filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Abdul Gafoor (deceased) – the husband of the first petitioner, M.A.C.A. No. 1372 of 2009 4 the father of the 2[nd] petitioner and the son of the 3[rd] petitioner. 3. The petitioners had averred in the claim petition that, on 14.2.2003, while the deceased was riding pillion on a motor cycle bearing Registration No:KL-11/N-6476 from Olavanna to Cheruvannur, when they reached the Cheruvannur junction, a bus bearing Registration No:KL11/P-9371 (Bus), hit the motor cycle. The deceased was thrown to the road and a lorry bearing Registration No:KL09/3035 (Lorry) again ran over the deceased. The deceased sustained serious injuries and he was taken to Medical College Hospital, Kozhikode, but unfortunately he succumbed to the injuries on the following day. The accident occurred due to the rash and negligent driving of the drivers of the bus and the lorry. The first respondent was the owner of the lorry and the 2[nd] respondent was the insurer of the lorry and the respondents 3 and 4 were the owner and insurer of the bus. The deceased was employed M.A.C.A. No. 1372 of 2009 5 as a worker in a firm named 'Aroma Electricals', Kozhikode and earning a monthly income of Rs.6,000/- per month. The petitioners were the dependants of the deceased. Hence they claimed a total compensation of Rs.8,00,000/from the respondents. 4. The respondents 1 and 2 filed a written statement contending that the accident was caused due to the negligence on the part of the rider of the motor cycle. 5. The 2[nd] respondent filed a written statement admitting that the lorry had a valid insurance coverage,. However, it is contended that the accident occurred due to the negligence of the rider of the motor cycle. It was also contended that the police have charge-sheeted the driver of the bus in the crime, therefore, it is only the 4[th] respondent who is liable to pay the compensation. 6. The 4[th] respondent filed written statement admitting that the bus also had a valid insurance coverage. Nevertheless, it was contended that the pillion M.A.C.A. No. 1372 of 2009 6 rider/deceased had lost his life on account of the negligence on the part of the lorry, and the rider of the motor cycle had taken a sudden 'U' turn, which resulted in the accident. 7. The rider of the motor cycle also filed O.P(MV)No.798/2003 before the same Tribunal, seeking compensation on account of the injuries sustained by him. 8. The Tribunal consolidated and jointly tried the original petitions. The petitioners produced and marked Exts.A1 & A2 in evidence. The respondents did not let in any evidence. 9. The Tribunal, by a common award, allowed the claim petition filed by the petitioners permitting them to realise an amount of Rs.2,22,000/-. However, the Tribunal reduced the amount by 25% on finding that the deceased was guilty for composite negligence. 10. Aggrieved by the finding that the deceased was guilty for composite negligence, and dissatisfied with the M.A.C.A. No. 1372 of 2009 7 quantum of compensation, the petitioners are in appeal. 11. Heard Sri.Jamaludeen K.N, learned counsel appearing for the appellants/petitioners and Sri.P.K.Manojkumar, learned counsel appearing for the 4[th] respondent/insurance company. 12. The questions that arise for consideration in the appeal are; _(i) Whether the Tribunal was justified in reducing the compensation by 25% by holding that the deceased was guilty for composite negligence?_ _(ii) Whether the compensation awarded by the Tribunal is reasonable and just?_ 13. It is an undisputed fact that the deceased was a pillion rider on the motor cycle. The accident occurred on account of collusion between the motor cycle, a lorry and a bus. The vehicle drivers put the blame on each other. However, the petitioners did not produce the charge-sheet before the Tribunal. The Tribunal based on the pleadings and materials on record arrived at the conclusion that the M.A.C.A. No. 1372 of 2009 8 rider of the motor cycle was guilty for contributory negligence to the extent of 50% and therefore, deducted 25% from the compensation towards composite negligence of the deceased. 14. This Court in **Sajad Saheer v. Rajeev** (2017 (3) KLT (SN) 34 (Case No.45), has categorically held that there cannot be any composite negligence attributed to a pillion rider. 15. In the light of the above enunciation of law by this court, I hold that the finding of the Tribunal that 25% of the total compensation amount has to be deducted due to the composite negligence of the deceased is erroneous and wrong. Therefore, I set aside the said finding and answer Question No.(i) in favour of the petitioners. 16. Question No.(ii) The petitioners had claimed that the deceased was working as a worker in 'Aroma Electricals' and drawing a monthly income of Rs.6,000/-. Nevertheless, the Tribunal fixed the notional income of the M.A.C.A. No. 1372 of 2009 9 deceased at Rs.1,500/-. 17. In **v. Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of the Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional Income** 18. Following the ratio in the afore cited decision and taking note of the fact that the accident had occurred in the year 2003, I am of the firm opinion that the deceased's notional income can safely be fixed to Rs.4,000/- per month. Accordingly, I re-fix the notional income of the deceased at Rs.4,000/- per month. ## **Multiplier** 19. The deceased was aged 30 years as on the date of accident. Following the ratio in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)], the relevant multiplier is '17'. M.A.C.A. No. 1372 of 2009 10 ## **Personal living expenses** 20. The petitioners are the wife, son and mother of the deceased. Therefore, the deceased was maintaining three persons. In the light of the law laid down in **Sarala Varma's** case (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], 1/3[rd] of the total compensation for loss of dependency has to be deducted towards the personal living expenses of the deceased. Hence, I deduct 1/3[rd] of the compensation under the head loss of dependency towards the personal living expenses of the deceased. ## **Future prospects** 21. In **Sarala Varma** as well as **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for future prospects. As the deceased was aged 30 years at the time of death, the relevant multiplier being '17', the petitioners are entitled for 40% future prospects on the compensation M.A.C.A. No. 1372 of 2009 11 for loss of dependency. ## **Loss of dependency** 22. Taking into account the above factors, namely the notional income of the deceased fixed to Rs.4,000/-, the multiplier at '17', future prospects at 40% and deducting 1/3[rd] of the total compensation for loss of dependancy, I re-fix the compensation under the head loss of dependency at Rs.7,61,600/- instead of Rs.2,04,000/- fixed by the Tribunal. ## **Conventional heads of compensation** 23. In Clause(viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are also entitled for the conventional heads of compensation namely funeral expense, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. In such circumstances, I enhance the compensation under the head 'funeral expenses' by a further amount of M.A.C.A. No. 1372 of 2009 12 Rs.13,000/- and fixed Rs.15,000/- towards loss of estate and enhance the compensation under the head loss of consortium by a further amount of Rs.1,10,000/- i.e., Rs.40,000/- each for the three petitioners. ## **Pain and sufferings** 24. In view of the law laid down in **United India Insurance Company Limited v. Satinder Kaur @ Satwinder Kaur and others [ 2020 (3) KHC 760]** , I set aside the amount of Rs.5,000/- awarded under the head pain and sufferings. 25. With respect to the amount of Rs.1,000/awarded under the head transportation, I find the same to be reasonable and just. 26. On a comprehensive re-appreciation of the pleadings and materials on record, and the law referred to in the above cited decisions, I am of the considered opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and M.A.C.A. No. 1372 of 2009 13 ## recalculated as above and given in the table below for easy reference. |Sl. No|Heads of claim|Amount awarded by the Tribunal (in rupees)|Amounts modified and recalculated by this Court| |---|---|---|---| |1|Expense for transportation|1,000/-|1,000/-| |2|Compensation for pain and sufferings|5,000/-|0| |3|Loss of consortium|10,000/-|1,20,000/-| |4|Funeral expenses|2,000/-|15,000/-| |5|Loss of estate|0|15,000/-| |6|Loss of dependancy with future prospects|2,04,000/-|7,61,600/-| ||Total|2,22,000/-|9,12,600/-| 27. Eventhough the petitioners had claimed only an amount of Rs.8,00,000/- towards compensation from the respondents, in the light of the law laid down by the Hon'ble Supreme Court in **Nagappa v. Gurudwara Singh** [2003 (1) KLT 115 (SC)], that there is no restriction in awarding more compensation amount, that what claimed in the claim petition, as just compensation is to be awarded, I hold that the petitioners are entitled for compensation as calculated and re-fixed as above at M.A.C.A. No. 1372 of 2009 14 Rs.9,12,600/-, which is more than the amount claimed in the claim petition. The same view has been reiterated by the Hon'ble Supreme Court in **Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]** . In the result, the appeal is allowed by ordering that the petitioners are entitled to a total compensation of Rs.9,12,600/- i.e., the entire amount of compensation of Rs.2,22,000/- awarded by the Tribunal after setting aside the finding of negligence by the Tribunal and deduction of 25% from the above amount and the enhanced compensation of Rs.6,90,600/-. The 4[th] respondent shall deposit the above ordered amount, after deducting the amount already deposited as per the impugned award, if any, with the interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting the period of 181 days, i.e., the period of delay in preferring the appeal as ordered by this court on 31.3.2021 in C.M.Application No.1/2008, and proportionate costs, within M.A.C.A. No. 1372 of 2009 15 two months from the date of receipt of the certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants/petitioners in accordance with law, after deducting their liability, if any, to pay court fee. _Sd/-_ **C.S.DIAS, JUDGE** ss