MACA No. 1552 of 2009

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 ``` ## `MACA NO. 1552 OF 2009` ``` AGAINST THE AWARD DATED 12.12.2008 IN OP(MV)NO. 2100/2002 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR. ``` ## `APPELLANTS/PETITIONERS` - `1 BEENA DAVIS, W/O.LATE DAVIS GEORGE, EDATHIRUTHIKARAN HOUSE, CHERPU, THRISSUR.` - `2 ANIL DAVIS, S/O.LATE DAVIS GEORGE EDATHIRUTHIKARAN HOUSE, CHERPU, THRISSUR.` - `3 ARUN DAVIS, S/O.LATE DAVIS GEORGE EDATHIRUTHIKARA HOUSE, CHERPU, THRISSUR.` ``` BY ADV SRI.DILIP J. AKKARA ``` ## `RESPONDENTS/RESPONDENTS:` - `1 T.K.KOCHUMOHAMMED, THIRUTHIKKATTIL HOUSE, PADIYAM, ANTHIKKAD, THRISSUR.` - `2 MANOJ, PONNATHARA HOUSE, PERINGOTTUKARA, THRISSUR.` - `3 NATIONAL INSURANCE CO. LTD. REP. BY DIV. MANAGER, DIVISIONAL OFFICE, THRISSUR.` ``` BY ADV SRI.JOE KALLIATH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1552/2009 -:2:- Dated this the 29[th] day of March,2022 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV)No.2100/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act,1988(in short ‘Act’), claiming compensation on account of the death of ‘Davis George’(deceased), the husband of the first appellant and the father of the appellants 2 and 3. It was their case that, on 19.02.2002, while the deceased was travelling through the Triprayar-Thrissur road on his scooter bearing registration No.KL-8-G-1604, a bus bearing registration No.KL-8/A-7155, driven by the second M.A.C.A.No.1552/2009 -:3:- respondent in a negligent manner, hit the scooter of the deceased. Even though the deceased was rushed to the Elite Mission Hospital, Thrissur, he lost his life on the same day. The bus was owned by the first respondent and insured with the third respondent. The deceased was a Medical Representative in Jugatt Pharama, Bangalore, and was drawing a monthly salary of Rs.6,000/-. The appellants were the dependants of the deceased. Hence, they claimed a compensation of Rs.10,00,000/- from the respondents. 3. The appellants had also filed O.P.(MV) No.2945/2004 before the same Tribunal, against the respondents, seeking compensation for the damage caused to the car. 4. The respondent Nos.1 and 2 did not contest both the proceedings and were set ex parte. 5. The third respondent/insurer had filed separate written statements in the two claim petitions M.A.C.A.No.1552/2009 -:4:- contending that the accident occurred due to the negligence of the deceased. The third respondent disputed the age, income and occupation of the deceased. The third respondent also stated that the compensation claimed was excessive. 6. The appellants examined a witness as PW1 and marked Exts.A1 to A21 in evidence. The third respondent produced the copy of the insurance policy, which was marked as Ext.B1 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, and particularly taking note of Ext.A3 scene mahazar, arrived at the conclusion that the deceased had contributed to the accident to the extent of 25%. Even though the Tribunal found that the appellants were entitled to a compensation of Rs.4,82,500/-, deducted 25% and permitted them to recover from the third respondent only an amount of Rs.3,61,875/- with interest and proportionate costs. M.A.C.A.No.1552/2009 -:5:- 8. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri.Dilip J. Akkara, the learned counsel appearing for the appellants/petitioners and Sri.Joe Kalliath, the learned counsel appearing for the third respondent-insurer. 10. The points that arise for consideration in the appeal are: - (i) whether the finding of contributory negligence is sustainable in law? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No:(i)** 11. The appellants had specifically contended in the claim petition that the accident occurred due to the negligence of the second respondent. To M.A.C.A.No.1552/2009 -:6:- substantiate their pleading, they had produced the police records in Crime No.72/2002 of the Cherpu Police Station. Ext.A7 charge sheet filed by the police clearly proves that the accident occurred due to the negligence of the second respondent. Nevertheless, the Tribunal, on the basis of Ext.A3 scene mahazar, arrived at the conclusion that the deceased had contributed to the accident to the extent of 25%. 12. The Division Benches of this Court in **New IndiaAssurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648] and **Kolavan v. Salim** [2018 (1) KLT 489], have succinctly held that as a general rule, the production of the charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Act. The charge sheet can be accepted as evidence of negligence against the accused driver. If any party disputes the charge sheet, then the burden is on such party to adduce oral M.A.C.A.No.1552/2009 -:7:- evidence and discredit the charge sheet; only then the charge sheet will fall into a pale of insignificance. It is also held that the Tribunal would not be justified in finding negligence contrary to the finding of the charge-sheet, merely relying on the scene mahazar prepared in the case, without there being any direct or corroborative evidence. 13. In **Jiju Kuruvila v. Kunjujamma Mohan** [(2013)9 SCC 166], the Hon'ble Supreme Court has also held that no inference can be drawn on the basis of a scene mahazar for arriving at the conclusion of contributory negligence. 14. In the case at hand, other than for the bald assertion made by the third respondent in the written statement, that the deceased had contributed to the accident, the respondents have not let in any evidence to discredit Ext.A7 charge-sheet. Therefore, following the principles laid down in the above-cited decisions, M.A.C.A.No.1552/2009 -:8:- and considering the fact that the respondents have not let in any evidence to the contrary, I am of the firm view that the finding of the Tribunal, attributing contributory negligence on the deceased, is erroneous and wrong. Therefore, I set aside the finding of contributory negligence and answer question No.(i) in favour of the appellants. Accordingly, I hold that they are entitled to entire amount of compensation awarded by the Tribunal, i.e., they are entitled to a further amount of Rs.1,20,625/-(i.e., the 25% of the compensation amount that was deducted from the total compensation). ## **Question No:(ii)** ## **Notional Income of the deceased:** 15. The appellants had claimed that the deceased was working as a Medical Representative in Jugatt Pharama, Bangalore, and was drawing a monthly salary of Rs.6,000/-. To substantiate their pleading, M.A.C.A.No.1552/2009 -:9:- they had produced Exts.A16 salary certificate and A17 experience certificate. 16. In Ext.A17, it is stated that the deceased was working in the same company from 09.11.1982 to 19.02.2002 i.e., till the date the deceased lost his life viz., for a period of 20 years. 17. In Ext.A16, the employer has certified that the deceased was earning a Basic Salary of Rs.4,560/and a House Rent Allowance(HRA) of Rs.500/- with monthly commission. 18. The Tribunal, on the ground that the appellants had not proved Exts.A16 and A17 certificates through the competent authority, fixed the ‘notional monthly income’ of the deceased at Rs.4,000/-. 19. It is to be remembered that Exts.A16 and A17 were marked in evidence without any objection or protest from the respondents. It is also trite that a M.A.C.A.No.1552/2009 -:10:- proceeding before the Tribunal is summary in nature. In the said circumstances, I accept Exts.A16 and A17 on its face value. 20. Going by Ext.A16, it is proved that the deceased had drawn a monthly salary of Rs.5,060/- just prior to his death. It is also seen that he was paid commission which kept fluctuating from month to month. Therefore, I decline to accept the commission amount that was paid to the deceased, to fix his monthly income. Accordingly, I fix the monthly income of the deceased at Rs.5,060/-. ## **Multiplier** 21. Admittedly, the deceased was aged 45 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '14'. M.A.C.A.No.1552/2009 -:11:- ## **Personal living expenses of the deceased:** 22. The appellants were the wife and children of the deceased, who are three in number. Following the principles in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680], one-third of the compensation has to be deducted towards the ‘personal living expenses’ of the deceased. ## **Future prospects** : 23. In the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 45 years at the time of his accident/death, I hold that the appellants are entitled to ‘future prospects’ at 25%. ## **Loss of dependency:** 24. Taking into account the above-mentioned factors, namely, the ‘monthly income of the deceased’ at Rs.5,060/-, the multiplier at ‘14’, ‘future prospects’ M.A.C.A.No.1552/2009 -:12:- at 25%, and after deducting one-third of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for ‘loss of dependency’ of the appellants at Rs.7,08,400/-, instead of Rs.4,16,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 25. In paragraph 59.8 of **Pranay Sethi** (supra) it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 26. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd** M.A.C.A.No.1552/2009 -:13:- **and another** [2021 SCC Online SC 1193], the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10% escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 27. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- under the head ‘funeral expenses’ and Rs.20,000/- under the head 'loss of estate'. Thus, I enhance the compensation under the M.A.C.A.No.1552/2009 -:14:- head ‘funeral expenses’ by a further amount of Rs.11,500/- and scale down the compensation under the head 'loss of estate’ by an amount of Rs.3,500/-. 28. The Tribunal has awarded an amount of Rs.15,000/- under the head ‘loss of consortium’. In view of the law laid down in the afore-cited decisions, I hold that the appellants are entitled to an amount of Rs.44,000/- each under the ‘loss of consortium’ i.e., a total amount of Rs.1,32,000/-, instead of Rs.15,000/awarded by the Tribunal. ## **Pain and sufferings and loss of love and affection:** 29. The Tribunal has awarded an amount of Rs.10,000/- under the head ‘pain and sufferings’ and Rs.15,000/- under the head ‘loss of love and affection’. 30. In paragraph 19 of **Sarla Varma** (supra), the Honourable Supreme Court has held that no amount shall be awarded to the dependents of the deceased under the head 'pain and sufferings' in the case of M.A.C.A.No.1552/2009 -:15:- instantaneous death. Thus, I set aside the amount of Rs.10,000/- awarded under the head ‘pain and sufferings’. 31. Likewise,in **New India Assurance Co. Ltd. v. Somwati and others** [(2020) 9 SCC 644], the Hon'ble Supreme Court has held that once the compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount awarded under the head ‘loss of love and affection.’ 32. With respect to the other heads of compensation namely; 'transportation expenses' and 'damage to clothing’, I find that the Tribunal has awarded reasonable and just compensation. 33. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down M.A.C.A.No.1552/2009 -:16:- in the afore-cited decisions, I hold that the appellants/petitioners are entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transportation<br>expenses|1,000|1,000| |2|Damage to<br>clothing|500|500| |3|Funeral<br>expenses|5,000|16,500| |4|Loss of estate|20,000|16,500| |5|Pain and<br>sufferings|10,000|Nil| |6|Loss of<br>consortium|15,000|1,32,000| |7|Loss of love and<br>affection|15,000|Nil| |8|Loss of<br>dependency|4,16,000|7,08,400| ||**Total**|**4,82,500**|**8,74,900**<br>rounded off to<br>**R.8,75,000**| In the result, the appeal is allowed, by enhancing M.A.C.A.No.1552/2009 -:17:- the compensation by a further amount of **Rs.3,92,500/-** and also ordering that the appellants are entitled to the balance amount of Rs.1,20,625/- as found in Question No.(i)(i.e., the 25% compensation deducted towards contributory negligence) totalling to an amount of **Rs.5,13,125/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 43 days (i.e., the period of delay in preferring this appeal and as ordered by this Court on 24.10.2021 in C.M.Appln.No.1/2009) and proportionate cost. The third respondent-insurer is ordered to deposit **Rs.5,13,125/-** with interest and proportionate cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants in the ratio of 40:30:30 and M.A.C.A.No.1552/2009 -:18:- ## in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/29.03.22 //True copy/ P.A.To Judge