M.A.C.A. No. 2149 of 2013

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 ``` ## **`MACA NO. 2149 OF 2013`** ``` AGAINST THE AWARD DATED 10.07.2013 IN OP(MV) NO.796/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PALA ``` ## **`APPELLANTS/PETITIONERS:`** - `1 KUNJAMMA GEORGE, W/O.E.J.GEORGE, RESIDING AT EDATTU (H),NAZARETH HILL P.O, KURAVILANGADU, KOTTAYAM-686 633.` ``` 2GIJO GEORGE, S/O.E.J.GEORGE RESIDING AT EDATTU (H), NAZARETH HILL P.O, KURAVILANGADU, KOTTAYAM-686 633, REPRESENTED BY POWER OF ATTORNEY HOLDER TOMY JOHN, S/O.JOHN, RESIDING AT KANJIRATHUNKAL (H), NAZARETH HILL P.O.,KURAVILANGADU,KOTTAYAM-686 633. ``` - `3 GITHIN GEORGE, S/O.E.J.GEORGE RESIDING AT EDATTU (H), NAZARETH HILL P.O, KURAVILANGADU, KOTTAYAM-686 633,` ``` REPRESENTED BY POWER OF ATTORNEY HOLDER TOMY JOHN, S/O.JOHN RESIDING AT KANJIRATHUNKAL (H), NAZARETH HILL P.O.,KURAVILANGADU, KOTTAYAM-686 633. ``` ``` BY ADVS. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE ``` M.A.C.A No. 2149 OF 2013 2 ## **`RESPONDENTS/RESPONDENTS IN O.P.(M.V):`** ``` 1JOSE JACOB, S/O.CHACKO RESIDING AT ANAKUTHICKAL (H), AREEKARA, VELIYANNOOR P.O., UZHAVOOR, KOTTAYAM-686 634. 2NATIONAL INSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, OFFICE OF THE DIVISIONAL MANAGER, KOTTAYAM, KOTTAYAM-686001 ``` - `3 MOHANDAS, S/O. RAJAN RESIDING AT KUNUMGOOMPATHIYIL (H), EDAKKOLY, PALA, KOTTAYAM-686 574.` ``` 4ORIENTAL INSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, OFFICE OF THE DIVISIONAL MANAGER, KOTTAYAM, KOTTAYAM-686 001 ``` ``` BY ADVS. SMT SAHEERA, FOR R2 SRI.P.M.M.NAJEEB KHAN SRI.N.S.NAJEEB FOR R4 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A No. 2149 OF 2013 3 ## **BASANT BALAJI, J.** ## **=========================== M.A.C.A. No. 2149 of 2013 ============================ Dated this the 21[st] day of October, 2022** ## **JUDGMENT** This appeal is filed by the petitioners in O.P.(MV) No.796/2010 on the files of the Motor Accidents Claims Tribunal, Pala. The claim was filed under Section 166 of the M.V.Act. 2. On 12.02.2010 at 9.45 A.M., the deceased E.J.George was riding KL-35/M-8847 motorcycle through Monippally-Uzhavoor public road. He was going from west to east. When he reached Monippally, an auto rickshaw bearing registration No.KL-35-394 hit on the motorcycle of the deceased. As a result of which, he fell down and sustained fatal injuries. Though he was rushed to M.U.M.Hospital, Monippally he succumbed to injuries. The accident happened due to the negligence of the 1[st] respondent who was the driver of the auto rickshaw. The 2[nd] respondent is the insurer of the auto rickshaw. The 3[rd] respondent is the owner of the auto rickshaw. Respondents 1,2 and 4 entered appearance and filed written statement, in which it was contended that M.A.C.A No. 2149 OF 2013 4 the 1[st] respondent had valid licence and the accident occurred due to the carelessness of the deceased. So, even if any compensation is payable, it has to be paid by the 2[nd] respondent. 3. The 2[nd] respondent filed a separate written statement contending that the petition is not maintainable. The description of the accident stated in column No.28 is not correct. The accident happened due to the negligence of the deceased himself. The motor cycle hit against the back side of auto rickshaw proceeding in front and he lost control and thereafter hit against the auto rickshaw which came from the opposite direction. 4. The 4[th] respondent also filed written statement contending that it is not a necessary party to the petition. The accident occurred due to the negligence of the deceased and prayed for dismissal with costs. 5. The Tribunal on an appreciation of facts and circumstances of the case and relying on the oral evidence of PWs 1 to 4, RW1 and Exts. A1 to A14 and B1 entered into a finding that there is a contributory negligence on the part of the deceased to the tune of 50% and awarded compensation M.A.C.A No. 2149 OF 2013 5 of Rs.2,68,514/- with interest at the rate of 7.5% per annum from the date of petition till realisation. Aggrieved by the said award, this appeal is filed. 6. The counsel for the appellants aruges that the finding entered by the Tribunal regarding contributory negligence is wrong. The Ext.A3-Mahazar will go to show that at the place of accident, the width of the road is 5.03 meters. The accident happened 2.48 meters to the south from the northern tar road end. The Tribunal has also entered into finding that the auto rickshaw which came from east to west went passed the middle portion of the road and the accident occurred almost on the middle of the road and therefore the 1[st] respondent is negligent. Thereafter, the Tribunal went on to hold that since the accident happened on the middle of the road, the deceased was also negligent. Hence, the contributory negligence was fixed at 50:50. The Mahazar shows that accident happened from 2.48 meters to the south of the northern tar end. In such situation, it cannot be said that the motor cycle has went passed the middle of the road. In fact, the autorickshaw came from the east to west had crossed middle line and hit against the motor vehicle, thereby M.A.C.A No. 2149 OF 2013 6 the deceased sustained serious injuries and succumbed to death. Relying on Ext.A3 I have no hesitation to hold that the negligence is fully attributed on the 1[st] respondent and there is no negligence on the part of the deceased. Hence, the finding entered by the Tribunal regarding contributory negligence to the tune of 50% is set aside. 7. Regarding the quantum of compensation, counsel for the appellants submits that though the deceased was aged 60 years and of earning pension of Rs.12,153/-, he was still working as the Manager, Kosamattom Finance Pvt. Ltd., and Ext.A11 shows that he was having a monthly salary of Rs.10,000/-. PW4 was examined to prove Ext.A11. But the Tribunal took monthly salary of the deceased as Rs.7,000/When there is a proof before the Tribunal that the deceased was earning Rs.7,000/- by Ext.A11 and the author of the Ext.A11 was examined to prove the same, Tribunal was not justified in reducing the monthly salary from Rs.10,000/- to Rs.7,000/- and calculate the loss of dependency. Hence, the monthly salary for the purpose of calculating the loss of dependency is taken as Rs.10,000/-. **In Shashikala and Others v. Gangalakshmamma and another [(2015) 9** M.A.C.A No. 2149 OF 2013 7 **SCC 150],** the Honourable Supreme Court while selecting the multiplier of the deceased who had completed the age of 45 years, held as follows: - “17. Insofar as appropriate multiplier, the date of birth of the deceased as per driving licence was 16/06/1961. On the date of accident i.e.; 14/12/2006, the deceased was aged 45 years, 5 months and 28 days and the Tribunal has taken the age as 46 years. Since the deceased has completed only 45 years, the High Court has rightly taken the age of the deceased as 45 years and adopted multiplier 14 which is the appropriate multiplier and the same is maintained.” Relying on the decision in **Shashikala (Supra)** multiplier is based on attainment of specified age mentioned in table and not the running at the age into next group. The deceased was aged 60 years and was running 61, hence the proper multiplier is ‘9’. The appellants are entitled to future prospects at 10%. The claimants are three in number. Hence, 1/3rd has to be deducted towards personal living expense of the deceased. Hence, the compensation for loss of dependency can be worked out as 11,000x12x9x2/3 = 7,92,000/- 8. As far as funeral expenses is concerned, the Tribunal has awarded a sum of Rs.25,000/-. Going by the M.A.C.A No. 2149 OF 2013 8 decision in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** , a maximum amount that can be awarded under the said head is Rs.15,000/- plus 10% increase. Hence, the amount of Rs.25,000/- awarded by the Tribunal towards compensation for funeral expenses is scaled down to Rs.16,500/- 9. Towards compensation for loss of estate, the Tribunal has awarded only Rs.5,000/-. The decision in **Pranay Sethi** ( **Supra** ) states that the maximum amount under the head of loss of estate should be Rs.15,000/- plus 10% which is Rs.16,500/-. So the balance amount of Rs.11,500/- is awarded to the claimant. 10. Towards compensation for loss of consortium, against the claim of Rupees One lakh, the Tribunal has awarded entire one lakh. The appellants are wife and children of the deceased. Hence, they are entitled to Rs.40,000/- each plus 10% increase. Thus, the total loss of consortium to the appellants would be Rs.1,32,000/- less what is awarded by the Tribunal. When compensation for loss of consortium is awarded, compensation for loss of love and affection cannot be awarded. Hence, the amount of Rs.5,000/- awarded under M.A.C.A No. 2149 OF 2013 9 the head ‘compensation for loss of love and affection’ is set aside. ## 11. Accordingly, the following enhancements are made to the award made by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt.<br>Enhanced in<br>appeal(Rs.)| |---|---|---|---| |1.|Compensation for loss of<br>dependency|3,92,028|7,92,000| |2.|Compensation for funeral<br>expenses|25,000|16,500| |3.|Compensation for loss of<br>estate|5,000|16,500| |4.|Compensation for loss of<br>consortium|1,00,000|1,32,000| |5.|Compensation for loss of<br>love and afection|5,000|0| ||Total|**5,27,028**|**9,57,000**| ||Amount enhanced – 9,57,000-5,27,028 =**4,29,972/**-||| In the result, the appeal is allowed and the appellants are entitled for enhanced compensation of Rs.4,29,972/- with interest@7.5% per annum from the date of petition till realisation. I already held that the contributory negligence fixed by the Tribunal @ 50% is set aside. Hence, the entire compensation should be awarded to the appellants taking note M.A.C.A No. 2149 OF 2013 10 of the fact the accident happened solely on the negligence of the 1[st] respondent, the 2[nd] respondent shall satisfy the entire award. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month 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 furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. **Sd/BASANT BALAJI JUDGE** nk