M.A.C.A No. 186 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 3[RD] DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943** **MACA NO. 186 OF 2013** **AGAINST THE AWARD IN OPMV 585/2007 ON THE FILE OF MOTOR ACCIDENTS** **CLAIMS TRIBUNAL ,ATTINGAL DATED 15.10.2012.** ## **APPELLANTS/APPLICANTS:** - **1 D. RAJENDRA BABU S/O.DIVAKARAN PILLAI, REJITH BHAVAN, KIZHAKKUMBHAGOM, CHITHARA P.O, VIA KADAKKAL, NOW RESIDING AT CHERADIKUNNU VEEDU, VELLALLOOR P.O, KILIMANOOR.** - **2 T.B.VISALAKSHMI AMMA W/O.RANENDRA BABU, KIZHAKKUMBHAGOM, CHITHARA P.O, VIA KADAKKAL, NOW RESIDING AT CHERADIKUNNU VEEDU, VELLALLOOR P.O, KILIMANOOR.** - **3 AJITH V.R S/O.RAJENDRA BABU, KIZHAKKUMBHAGOM, CHITHARA P.O, VIA KADAKKAL, NOW RESIDING AT CHERADIKUNNU VEEDU, VELLALLOOR P.O, KILIMANOOR.** - **BY ADVS.** - **SRI.C.R.SIVAKUMAR SRI.S.SURESH VAMANAPURAM** ## **RESPONDENTS/RESPONDENTS:** - **1 ROSHAN S/O.SAHADEVAN, KESAVA SADANAM,KILIKOLLOOR P.O, KOLLAM 691 004.** - **2 THE BRANCH MANAGER NEW INDIA ASSURANCE CO. LTD, BRANCH OFFICE, NEAR PRIVATE BUS STAND, ATTINGAL P.O, 695 101.** **BY ADV.P.G GANAPPAN -R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 186 of 2013 **2** ## **M.R.ANITHA, J. ----------------------------------------M.A.C.A No. 186 of 2013 ----------------------------------------** Dated this the 3[rd] day of February, 2022 ## **JUDGMENT** This appeal is filed against the award passed in O.P.M.V No.585/2007 on the file of Motor Accidents Claims Tribunal, Attingal. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) out of death of Ajay, the son of appellants 1 and 2 and brother of appellant No.3. 2. It is alleged that on 11.01.2007 at about 5.00 p.m., while the deceased was travelling on the pillion of motor cycle bearing Registration No.KL-01/N 6905 and reached Kottiyam bypass junction, another motorcyle bearing Registration No.KEO2493 ridden by its rider (Jafar) hit against the motorcyle in which the deceased was the pillion rider, resulting in fatal injuries to him. M.A.C.A No. 186 of 2013 **3** He succumbed to the injuries on the same day. Rs. 8,00,000/- has been claimed in total. 3. Before the Tribunal, 2[nd] respondent insurer alone entered appearance and filed written statement, admitting the policy coverage with respect to the offending vehicle. At the same time, it has been contended that the accident occurred solely due to the negligence of the rider of the motor cycle bearing registration No.KL-01/N 6905 on which the deceased was travelling. It is also contended that the rider, owner and insurer of the motor cycle on which the deceased was travelling are necessary parties in the claim petition. 4. There was no oral evidence on either side. Exts.A1 to A13 were marked from the side of the claimants. Exts.B1 and B2 were marked from the side of the respondents. 5. After evaluation of documents as well as pleadings, the Tribunal came to a conclusion that the rider of the motor cycle on which the deceased was traveling also contributed to the accident. Hence 50% of the compensation arrived at was deducted. The Tribunal fixed a total compensation of Rs.4,07,448/-. M.A.C.A No. 186 of 2013 **4** Deducting 50%, an award of Rs.2,03,724/- was passed by the Tribunal. 6. Aggrieved by the award passed by the Tribunal, claimants came up in appeal before this court for the various grounds stated in the memorandum of appeal. Notice against respondent 1 is dispensed with since the 2[nd] respondent insurer admitted the policy coverage with respect to the offending vehicle. Lower court records was called for. Heard both sides. 7. The main contention of the learned counsel for the appellant is with regard to the finding of the Tribunal with respect to contributory negligence at 50% against rider of the motor cycle bearing registration No.KL-01/N-6905 on which the deceased was the pillion rider. According to the learned counsel, no evidence was adduced from the side for the respondent and Ext.A4 charge sheet was produced from the side of the appellant/claimant would prove that the charge was laid against the rider of the offending vehicle. Hence, the Tribunal went wrong in finding contributory negligence on the part of the rider of the motor cycle on which the deceased was traveling. M.A.C.A No. 186 of 2013 **5** 8. The learned counsel for the 2[nd] respondent insurer on the other hand contended that the rider of the vehicle on which deceased was travelling has not been made a party before the Tribunal. There are materials to prove that there was a smell of alcohol as per the post mortem certificate of the deceased. Hence, finding of contributory negligence by the Tribunal has to be upheld. 9. In _**The New India Assurance Co. Ltd vs Pazhaniammal [2011 (3) KLT 648],**_ a division bench of this court held that production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under section 166 of the Act. In this case charge sheet has been laid against the rider of the offending vehicle. No attempt was made from the side of the respondent to examine the 1st respondent to controvert the police charge and to prove any negligence on the part of the rider of the motor cycle, on which the deceased was travelling. _10._ Production of charge sheet itself will prove the negligence on the part of the driver of the offending vehicle and the party who wanted to challenge it has to adduce evidence. In this case, no attempt was made from the side of the respondent either M.A.C.A No. 186 of 2013 **6** to examine the rider of the offending vehicle and to prove that the charge laid by the police is not correct. The Tribunal found contributory negligence on the part of the rider of the motor cycle on which the deceased was traveling without any materials on mere surmises and conjectures, which cannot be sustained in law. The Tribunal failed to note that police charge has been laid against the rider of the offending vehicle. Mere contentions in the written statement will not constitute evidence to infer contributory negligence. So I am of the view that finding with respect to the contributory negligence on the part of the rider of the motor cycle on which the deceased was traveling is without any factual or legal basis and is liable to be set aside. It is also found that the accident happened only due to the rash and negligent riding of the rider of the motor cycle bearing Reg.No. KEO-2493. 11. The next argument is with respect to the quantum of compensation. Amount awarded by the Tribunal is as follows; |**sl.No**|**Head of Claim**|**Amount**<br>**claimed**<br>**(in**|**Amount**<br>**awarded**<br>**(in**|**Basis-vital**<br>**details in a**<br>**nut shell**|| |---|---|---|---|---|---| M.A.C.A No. 186 of 2013 **7** |||**Rupees)**|**Rupees)**|| |---|---|---|---|---| |**Part-I**||||| |1|Loss of earning|Nil|Nil|The accident-<br>victim died<br>instantaneousl<br>y| |2|Partial loss of<br>earning|Nil|Nil|The accident-<br>victim died<br>instantaneousl<br>y| |3|Transportation to<br>hospital|2,000|3,000|Probable<br>amount<br>including<br>ambulance<br>charges| |4|Extra nourishment|Nil|Nil|The accident-<br>victim died<br>instantaneousl<br>y| |5|Damages to<br>clothing and<br>articles|1,000|500|Probable<br>amount| |Others||||| |I)|Medical expenses|1,000|Nil|No evidence| |II)|Expenses for<br>funeral and<br>bringing in<br>relatives to attend<br>funeral and<br>obsequies|5,000|5,000|Amount<br>applied for<br>granted| |Part-II||||| |6|Compensation for<br>pain and suffering|25,000|Nil|The accident-<br>victim died| M.A.C.A No. 186 of 2013 **8** |||||instantaneousl<br>y| |---|---|---|---|---| |7|Compensation for<br>loss of earning<br>power and<br>dependency<br>benefit|9,52,000|3,48,948|Rs.4,308x12=<br>Rs.51,696-<br>(50%)=<br>Rs.25,848x9=<br>Rs.2,32,632/-<br>plus<br>Rs.1,16,316<br>(50%)=<br>Rs.3,48,948/-| |8|Compensation for<br>loss of love and<br>affection|25,000|20,000|Probable<br>amount| |9|Compensation for<br>loss of expectancy<br>in life|25,000|20,000|Probable<br>amount| |10|Compensation for<br>loss of estate|1,00,000|10,000|| |**Total**||**12,39,000**|**4,07,448**|| |**Claim limited to Rs.8,00,000/- only**||||| 12. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident following the principles in U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors. [1995 (2) KLT 218 (SC) : (1996) 4 SCC 362] as well as the principles laid down in the General Manger, Kerala State Road Transports Corporation v. M.A.C.A No. 186 of 2013 **9** Susamma Thomas [(1994 (1) KLT 67 (SC) : (1994) 2 SCC 176]. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 13. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, M.A.C.A No. 186 of 2013 **10** reasonableness and non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 14. The salary certificate of the deceased has been produced as Ext.A12 which would show that the monthly income of the deceased was Rs.4,308/-per month, that has been accepted by the Tribunal and that can very well be followed here also. 15. In Sarla Verma's case the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years. 16. 16. In Pranay Sethi's case, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component M.A.C.A No. 186 of 2013 **11** in the case of salaried persons. 17. In this case, the deceased was 28 years old and was also a bachelor. He is entitled for 40% enhancement towards future prospects. 18. On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants and where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65). 19. The multiplier adopted by the Tribunal was 9%. As per the dictum laid down in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** and **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** , the suitable multiplier would be 17. 20. Monthly income is already found as Rs.4,308/-. M.A.C.A No. 186 of 2013 **12** Giving 40% enhancement towards future prospects, the monthly income would be 4,308+1723(40% of 4,308). So the total monthly earning of the deceased would be Rs.6,031/-. Since the deceased was aged 28 years old, the suitable multiplier would be 17 instead of 9 adopted by the Tribunal. Therefore, annual income would be 6,031x12x17=12,30,324/-. Being a bachelor, ½ to be deducted towards personal expenses. The balance would be Rs.6,15,162/-. From that the amount already awarded by the Tribunal to be deducted. Though the Tribunal arrived at Rs.3,48,948/- towards loss of dependency, while passing the award 50% of it was deducted towards contributory negligence. Finding with regard to contributory negligence has already been set aside. Hence from Rs.6,15,162/-, ½ of Rs.3,48,948/- ie Rs.1,74,474/- awarded amount towards loss of dependency to be deducted. ie. 6,15,1621,74,474=Rs.4,40,688/-. 21. Next is with regard to the compensation under conventional heads, as per the directions in Pranay Sethi's case followed by Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130), Rs.15,000/- to be awarded M.A.C.A No. 186 of 2013 **13** under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 22. The Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in Pranay Sethi's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/towards loss of consortium. 23. In this context, _**Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr.**_ [CDJ 2021 SC 1024] is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be M.A.C.A No. 186 of 2013 **14** entitled for 10% enhancement of Rs.16.500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. Hence claimants are entitled to get Rs.16,500/- each towards funeral expenses and loss of estate. That will come to Rs.33,000/-(16,500+16,500). 24. Next is with regard to the consortium to be awarded, the law laid down by the Apex Court in Magma General Insurance Co.'s case is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband–wife which allows compensation to the surviving spouse for loss of “company,society, co-operation, affection and aid of the other in M.A.C.A No. 186 of 2013 **15** every conjugal relation”. (Black's Law Dictionary (5th ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 25. In the present case, appellants 1 and 2 are the parents of the deceased, an unmarried son. Therefore, under the head of filial consortium, both of them are entitled to get Rs.44,000/- each. In total, 44,000x2=88,000/-. 3[rd] claimant being the brother of the deceased, no amount need be awarded to him under that head. M.A.C.A No. 186 of 2013 **16** 26. Hence, towards funeral expenses and loss of estate, the claimants are entitled to get Rs.16,500/- each. The Tribunal already awarded Rs.20,000/- towards love and affection. Once amount is awarded under conventional heads, claimants are not entitled to get any amount towards loss of love and affection. (See _**United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and Ors**_ . [AIR 2020 SC 3076 : ILR 2020 3 Ker 334 : 2020 3 KHC 760 SC]). Rs.20,000/- further awarded towards loss of expectancy in life also to be deducted. Further Rs.10,000/already awarded towards loss of estate and Rs.5,000/- awarded towards funeral expenses have to be deducted. 27. The Tribunal awarded Rs.500/- towards damage to clothing and Rs.3000/- towards transportation to Hospital. But while passing award, 50% was deducted towards contributory negligence. Hence 250+1,500 has also to be added while fixing the enhanced compensation. Hence, enhanced compensation would be **Rs.5,08,438/- rounded of to Rs.5,08,450/-** (4,40,688+250+1,500+33,000+88,000-20,000+20,000+10,000+5,000, 5,63,438-55,000) M.A.C.A No. 186 of 2013 **17** 28. In the result the appellants are allowed to realize enhanced compensation of Rs.5,08,450/- (Rupees five lakhs eight thousand four hundred and fifty only) which will carry interest at the rate of 7.5% per annum from the date of petition, till reaslisation. The second respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period two months from the date of receipt of certified copy of this judgment. 29. The disbursement of enhanced compensation to appellants shall be made taking note of the law on the point and in terms of direction issued by the this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-6275/2016 dated 07.11.2019. Enhanced compensation shall be apportioned among the appellants/claimants in the ration 30:50:20. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the date of receipt of a certified copy of this judgment. Parties shall bear their respective M.A.C.A No. 186 of 2013 **18** costs. In the result appeal stands allowed. Parties shall bear their respective costs. SD/- **M.R.ANITHA JUDGE** rps/