MACA No. 2209 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937** **MACA.No. 2209 of 2006 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 2354/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 12-05-2006** **APPELLANTS/PETITIONERS IN OP(MV):** **---------------------------------** **1. G.THANKACHAN, S/O.GEORGE, THENGUVILAKIZHAKKETHIL HOUSE, OLLUKKARA, KRISHNAPURAM THRISSUR DISTRICT.** **2. GREENY T.THANKACHAN, (MINOR) AGED 16 YEARS, D/O.G.THANKACHAN THENGUVILAKIZHAKKETHIL HOUSE, OLLUKKARA, KRISHNAPURAM THRISSUR DISTRICT REPRESENTED BY HER GUARDIAN-FATHER IST APPELLANT.** **3. GIFTY T.THANKACHAN, (MINOR) AGED 14 YEARS, D/O.G.THANKACHAN THENGUVILAKIZHAKKETHIL HOUSE, OLLUKARA, KRISHNAPURAM THRISSUR DISTRICT REPRESENTED BY HER GUARDIAN-FATHER IST APPELLANT.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** **RESPONDENTS/RESPONDENTS IN OP(MV):** **----------------------------------** **1. P.J.BIJU, S/O.PUTHENPURACKAL JOSEPH, P.O.CHUVANNAMANNU, PANANCHERY, THRISSUR DISTRICT.** **2. E.K.SURESHKUMAR, S/O.KUMARAN, ERUMBRANELLUR HOUSE, P.O.PERAMANGALAM.** **3. THE MANAGER, ORIENTAL INSURANCE CO.LTD., 3RD FLOOR, MAHESWARI BUILDING, THRISSUR-1.** **4. THE MANAGER, NEW INDIA ASSURANCE CO.LTD., PERINCHERY BUILDING, ROUND NORTH THRISSUR-1. R4 BY ADV. SMT.P.K.SANTHAMMA R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: cl** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- ## **M.A.C.A. No.2209 of 2006** -------------------------------------------------------------Dated this the 2[nd] day of March, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Claimants in O.P.(M.V.)No.2354/2001 on the file of the Motor Accidents Claims Tribunal, Thrissur are the appellants herein. The appellants are the husband and children of deceased Kunjumol @ Annamma, who died in a motor vehicle accident occurred on 19/05/2001 at about 7.00 p.m. 2. The case of the claimants in the claim petition was that, while petitioners along with Kunjumol @ Annamma were travelling in a scooter driven by the first petitioner/husband, the bus with Reg.No.KL-8Q/8449, driven by the first respondent, owned by the second respondent and insured with the third respondent came _**M.A.C.A. No.2209 of 2006**_ 2 from the opposite direction in a rash and negligent manner through the middle portion of the road and in front of the scooter where a vehicle was parked and on seeing the bus, the first petitioner applied brake and due to that, the scooter capsized, the deceased fell on the right side while petitioners fell on the left side of the scooter and on account of the same, the bus ran over the deceased and she succumbed to the injuries. According to the claimants, the accident occurred due to the rash and negligent driving of the bus by the first respondent. The deceased was a seamstress by profession and getting 2,000/- per month,₹ apart from she being a house wife. She was aged only 37 years at the time of the accident. On account of the death, petitioners have lost the love and affection of the deceased. They claimed a total compensation of ₹5,00,000/- on various heads. 3. The fourth respondent was impleaded as _**M.A.C.A. No.2209 of 2006**_ 3 insurer of the scooter in which the deceased was travelling. 4. The third respondent filed counter contending that the bus was insured with them, but there was no accident occurred as narrated by the petitioners. First petitioner who was riding the scooter has no driving licence and experience in driving the scooter. There were four persons in the scooter at the time of accident and it was driven at tremendous speed. The bus driver never hit the scooter. The first petitioner was trying to overtake the vehicle which was going in front of the scooter. On seeing the bus coming from the opposite direction, first petitioner suddenly applied brake and swerve the scooter, due to the application of sudden brake, Kunjumol @ Annmma who was sitting in the scooter fell down on the right side, all these happened in an unexpected and sudden manner. First respondent cannot forsee the accident. The accident occurred on the wrong side of the scooter as per the scene _**M.A.C.A. No.2209 of 2006**_ 4 mahazar. So they are not liable to pay any compensation to the petitioners. They denied the income and occupation of the deceased. According to them, the total compensation claimed is also exorbitant and they prayed for dismissal of the application. 5. Fourth respondent filed statement admitting the insurance and they have also contended that the accident occurred due to the negligence of the first respondent and they are not liable to pay any compensation and they prayed for dismissal of the application. 6. The first petitioner was examined as PW1 and Exts.A1 to A8 were marked on their side. No oral or documentary evidence adduced on the side of the respondents. 7. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of first respondent and the first petitioner and _**M.A.C.A. No.2209 of 2006**_ 5 they are equally responsible for the same and apportioned the negligence in the ratio of 50:50 between them and the tribunal assessed a total compensation of 2,49,000/- on₹ various heads as follows: |**_Heads_**|**_Amount_**| |---|---| |Funeral expenses and conveyance|₹6,000| |Damage to clothing and articles|₹1,000| |Compensation for pain and suffering|₹10,000| |Loss of love and affection|₹20,000| |Loss of estate|₹20,000| |Loss of dependency|₹1,92,000| |Total|₹2,49,000| The tribunal directed the third respondent to pay half of the amount awarded and 50,000/- was directed to be paid to₹ Mariamma Ommen, the mother of the deceased and the balance amount to be apportioned between petitioners 2 and 3. Aggrieved by the same, the present appeal has been preferred by the appellants claimants before the tribunal. 8. Heard Sri.A.M.Santhosh, counsel appearing for the appellants, Sri.George Cherian Thiruvalla, counsel appearing for the third respondent and Smt.Santhamma, counsel appearing for the 4[th] respondent. _**M.A.C.A. No.2209 of 2006**_ 6 9. The counsel for the appellant submitted that the tribunal was not justified in apportioning the negligence equally. Further as far as the deceased is concerned, even if it was assuming that, it was a case of contributory negligence on the part of the rider of the scooter, it is a case of composite negligence as far as the deceased and her children are concerned. So tribunal ought to have directed the third respondent to pay the amount and recover the amount from the other parties. He had also contended that the evidence will go to show that after investigation, the driver of the bus alone was charge-sheeted for negligent driving. So the tribunal was not justified in apportioning the negligence between them. He had also submitted that even assuming the deceased was a house wife, she is entitled to get 3,000/- per month as her monthly income. So the total₹ compensation fixed is also not proper. The amount awarded under the head loss of love and affection is not proper and is _**M.A.C.A. No.2209 of 2006**_ 7 very low. He had also contended that no amount for loss of consortium was awarded to the first petitioner on the ground that he re-married. According to him they are entitled to get enhancement on all other heads. 10. On the other hand, learned counsel for the third respondent submitted that, on the basis of evidence, tribunal was perfectly justified in apportioned the negligence and the total compensation awarded is not just and proper. 11. The counsel for the fourth respondent submitted that the tribunal was not justified in apportioning the negligence between the first respondent and the first petitioner. In view of the police charge, the tribunal ought to have fixed the negligence on the part of the first respondent alone. 12. It is an admitted fact that the deceased and the petitioners were travelling in the scooter driven by the first appellant, who is the husband of the deceased and _**M.A.C.A. No.2209 of 2006**_ 8 father of other petitioners. It is also an admitted fact that while they were travelling in the scooter, there was another vehicle parked on the side of the road on the northern side and the scooter was proceeding from west to east and when the first petitioner was about to pass through a stationary vehicle parked on the side of the road, the bus came from the opposite direction in a high speed and on seeing the bus coming at high a speed, he applied brake, in that process the deceased fell down and ran over by the bus alone. It is also an admitted fact that on the basis of the statement given by the first petitioner, Ext.A1 crime was registered and after investigation Ext.A5 final report was filed against the driver of the bus alone. The first petitioner had gone to the witness box and given evidence regarding the manner in which the incident occurred. He had categorically admitted in his evidence that he was about to overtake the parked vehicle on the side of the road and at that time, the bus _**M.A.C.A. No.2209 of 2006**_ 9 came from the opposite direction through the middle portion of the road and he felt that it is likely to hit against the scooter, he had no option but to apply sudden brake, due to which they fell down and the bus ran over the deceased. 13. It is also seen from Ext.A2 scene mahazar that the accident was on the wrong side of the scooter. But it is seen from the scene mahazar that both the bus as well as the scooter were having straight vision for a long distance. The bus driver also could have seen the scooter coming from the opposite direction trying to overtake the parked vehicle on the side of the road and if he had reduced the speed and applied brake, he could have avoided the accident as well. Even if the first petitioner also anticipated the bus coming and he could not overtake the parked vehicle and stopped the vehicle on the side of the road, this unfortunate incident could have been avoided as well. But at the same time, considering the principle, heavier the _**M.A.C.A. No.2209 of 2006**_ 10 vehicle, the responsibility is more, the anticipation must be more on the side of the driver of the bus than a lighter vehicle like the scooter. So considering these aspects, it cannot be said that there was no negligence on the part of the rider of the scooter, on seeing the bus, he ought to have stopped the vehicle, instead of proceeding further. So the court below was not justified in apportioned the negligence equally among the first petitioner and the first respondent. Considering the circumstances we feel that the negligence can be apportioned in the ratio 25:75 between the first petitioner and the driver of the bus and accordingly we modify the finding of the court below regarding the apportionment of negligence as mentioned above. 14. As regards the liability is concerned, since the deceased was a pillion rider travelling in the scooter and since it was due to the negligence of the first petitioner, who is the rider and insured of the vehicle also that the _**M.A.C.A. No.2209 of 2006**_ 11 accident occurred, in the absence of any plea in the written statement that it is an act only policy and the risk of the pillion rider is not covered, the fourth respondent is liable to indemnify the insured to the extent of liability fastened on the first petitioner who is the first appellant herein. So they are liable to indemnify the insured, first appellant, and pay the amount to the claimants 2 and 3 as there is no liability to pay any compensation to the insured as he being one of the wrong doers was responsible for the accident and claimants two and three are entitled to recover the 25% of the amount to be awarded from the 4[th] respondent as the insurer of the scooter in which their mother was travelling as pillion rider at the relevant time. 15. Regarding the quantum of compensation is concerned, the claimants have claimed in the petition that, the deceased was seamstress by profession and getting ₹3,000/- per month, but court below had taken only _**M.A.C.A. No.2209 of 2006**_ 12 ₹1,500/as her monthly income for the purpose of computing the compensation. But it was settled law as it was held by the Supreme Court that the service of the house wife has to be taken into consideration for the purpose of quantifying the monthly income of the deceased for the purpose of assessing compensation in the case of death of house wife and fixed 3,000/- as the monthly₹ income in that case. Since in the case of a house wife, there is no question of any future prospects arises. So at least the court below ought to have taken 3,000/- as the monthly₹ income of the deceased as the house wife, which is the amount claimed by them in the petition instead of reducing the same to 1,500/- per month. The court below was₹ perfectly justified in deducting 1/3[rd] for the personal expenses of the deceased, as per the the decision of _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121) and the _**M.A.C.A. No.2209 of 2006**_ 13 deceased being aged 37 years and the multiplier applicable will be 15. If a re-calculation is made on that basis, the loss of dependency will come to 3,60,000/-(3000x12x15x2/3)₹ instead of 1,92,000/- awarded by the tribunal and the₹ claimants will be entitled to get an additional compensation of 1,68,000/- under the head loss of dependency. ₹ 16. The court below had awarded only 20,000/-₹ for love and affection of the children. I _**n Kala Devi v. Bhagwan Das Chauhan**_ [2015 (2) SCC 771], the Supreme Court has held that, the compensation to the minor children for loss of love and affection of the mother should be ₹1,00,000/- each. In this case, the children were aged 11 years and 9 years respectively at the time of loss of their mother and they have lost the love and affection of the mother at their young age and they will have to be without the love and affection and care of their mother for the remaining period of their life. Both the children were female _**M.A.C.A. No.2209 of 2006**_ 14 children as well, loss of mother as far as the female children will be a great loss and they have lost the company of their mother during the young age. So considering the tender age of the children we feel that, each minor children can be awarded 1,00,000/- each as compensation for loss of love₹ and affection and thereby they are entitled to get an additional compensation of 1,80,000/- under the head loss₹ of love and affection on account of the loss of their mother. 17. The tribunal had awarded only 6,000/- as₹ funeral expenses and transportation expenses. In view of the dictum laid down in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)] minimum amount 25,000/- will have to be₹ awarded under the head funeral expenses, if there is no contra evidence for higher expenses. Applying that principle, they will be entitled to get an additional amount of ₹19,000/- under that head. Court below had not awarded any amount under the head loss of consortium to the first _**M.A.C.A. No.2209 of 2006**_ 15 petitioner. Though he had re-married, he is entitled to get compensation for loss of consortium and right to claim that arises on the death of his wife, but the quantum of compensation to be awarded under the head can be considered regarding the fact as to whether he remained unmarried or re-marriage has taken place. Even if remarriage is taken place it need not be necessary that the enjoyment that he was having the companionship of his earlier wife will be the same with the second wife as well. So considering these aspects he will be entitled to get at least some amount as compensation under the head loss of consortium, though not as held by the Supreme Court in the decision reported in _**Rajesh v. Rajbir Singh**_ (supra), as that was a case where the spouse was not remarried after the death of the wife. In this case he had re-married after four years of the accident. So we feel that 25,000/- can be₹ awarded under the head loss of consortium to the first _**M.A.C.A. No.2209 of 2006**_ 16 appellant. So in all, the claimants will be entitled to get an additional compensation of 3,92,000/- over and above the₹ compensation awarded by the tribunal. But in view of the fact that 25% was found to be negligence on the part of the first petitioner, he is not entitled to get any compensation out of the compensation awarded as he has contributed to the accident and being a wrong doer he is not entitled to get share of compensation on account of the death of his wife. However, the entire amount can be awarded to the minor children. Since 50,000/- has already been awarded by the₹ tribunal to the mother of the deceased, we do not find it necessary to award any additional amount to the mother of the deceased. Considering the fact that the first petitioner has married again, we feel it appropriate that the entire enhanced compensation and the compensation will have to be realised from the other party also can be payable to the minor children equally. Out of the total compensation fixed _**M.A.C.A. No.2209 of 2006**_ 17 including the additional compensation fixed by this court, 75% of this amount will have to be paid by third respondent and 25% will have to be paid by the fourth respondent and they will have to pay the additional compensation with 9% interest from the date of petition till payment. As regards the other contribution from the amount fixed by the court below is concerned, the same interest rate that has been fixed by the court below will continue. With the above modification of the impugned award of the tribunal, the appeal is allowed in part and disposed of accordingly. _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** // True Copy// P.A. to Judge ss