MACA No. 2249 of 2009 & CO No. 130 of 2018 (Common Judgment)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943** ## **MACA NO. 2249 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 75/2002 OF SPECIAL COURT FOR EC ACT** **CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL,TSR, THRISSUR** ## **APPELLANT/3RD RESPONDENT IN THE OP:** **UNITED INDIA INSURANCE CO.LTD. KUNNAMKULAM, REPRESENTED BY THE DEPUTY MANAGER,, UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE, ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI-11.** **BY ADV SRI.S.ARUN RAJ** ## **RESPONDENTS/CLAIMANT & RESPONDENTS 1, 2 AND 4 IN THE OP:** - **1 C.MANI S/O BALASUBRAMANYAN(DIED)CHUTTANATH HOUSE, KAKKUR.** - **2 DEVAKI WO.C.MANI -DO- -DO3 BINDU DO.C.MANI -DO- -DO4 SINDHU DO.C.MANI -DO- -DO5 JANAKI MO.MANI -DO- -DO-DIED DO-DO** - **6 C.M.MOHANDAS SO.MANI -DO- -DO7 DR.K.R.MANOJ DREAM CASTLE KUZHIPARAMBIL HOUSE, PO MULAMKUNNATHUKAVU,, THRISSUR.** - **8 K.M.ABDUL RAHMAN SO.MAKKAR KARUPPAMVEETTIL HOUSE, KOORKENCHERRY,, THRISSUR.** - **9 K.APPU, AGED 60 YEARS, S/O LATE JANAKI,THEKKE KOOTTALATH HOUSE,CHERPULASSERY P.O,PALAKKAD DISTRICT,PIN-679503 (AS PER ORDER DATED 12.07.2021 IN I.A.NO.3/2019 IN I.A.NO.1/2018, THE NAME OF THE 9TH RESPONDENT IS CORRECTED AS T.K.APPU INSTEAD OF K.APPU IN THE CAUSE TITLE AS SHOWN BELOW: T.K.APPU, AGED 70 YEARS,S/O LATE JANAKI,KUTTANATHU HOUSE,CHERPULASSERY P.O,PALAKKAD DISTRICT,PIN-679503** - **10 T.K.UNNIKRISHNAN,AGED 55 YEARS S/O LATE JANAKI,THEKKE KOOTTALATH HOUSE,KARALMANNA P.O,PALAKKAD DISTRICT,PIN-679506** *** ADDITIONAL RESPONDENTS 9 AND 10 ARE IMPLEADED AS PER ORDER DATED 12.07.2021 IN I.A.NO.1/2018** **BY ADVS. BINOY RAM V. SRI.C.A.ANOOP SRI.T.C.SURESH MENON** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON** **12.07.2021, ALONG WITH CO.130/2018, THE COURT ON THE SAME DAY DELIVERED** ## **THE FOLLOWING:** **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943** **CO NO. 130 OF 2018** **AGAINST THE AWARD DATED 20.02.2009 IN O.P.(MV) 75/2002 OF THE MOTOR ACCIDENTS** **CLAIMS TRIBUNAL, THRISSUR** ## **CROSS OBJECTORS/REPONDENT NOS.2 TO 4/PETITIONERS:** - 1 **DEVAKI, AGED 61 YEARS W/O.LATE C.MANI, CHUTTANATH HOUSE, KOKKUR, MALAPPURAM DISTRICT.** - 2 **BINDU, AGED 42 YEARS D/O.LATE C.MANI, CHUTTANATH HOUSE, KOKKUR, MALAPPURAM DISTRICT.** - 3 **SINDU, AGED 40 YEARS D/O.LATE C.MANI, CHUTTANATH HOUSE, KOKKUR, MALAPPURAM DISTRICT. BY ADV V. BINOY RAM** ## **RESPONDENTS/APPELLANT/RESPONDENTS 5 TO 8:** - **1 UNITED INDIA INSURANCE CO. LTD. KUNNAMKULAM, REP. BY THE DEPUTY MANAGER, UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE, ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI, PIN-682 011.** - **2 JANAKI, M/O.MANI, CHUTTANATH HOUSE, KOKKUR, MALAPPURAM DISTRICT, PIN – 680 617 (DIED)** - **3 C.M.MOHNANDAS, S/O.LATE C.MANI, CHUTTANATH HOUSE, KOKKUR, MALAPPURAM DISTRICT, PIN – 680 617 (DIED)** - **4 DR.K.MANOJ, “DREAM CASTLE”, KUZHIPARAMBIL HOUSE, P.O.MULAMKUNNATHUKAVU, THRISSUR, PIN – 680 581.** - **5 K.M.ABDUL RAHMAN, S/O.MAKKAR, KARUPPAMVEETTIL HOUSE, KOORKENCHERRY, THRISSUR, PIN – 680 581.** - **6 T.K.APPU, AGED 70 YEARS, S/O.LATE JANAKI, KUTTANATHU HOUSE, CHERPULASSERY P.O., PALAKKAD DISTRICT -679 503.** - **7 T.K.UNNIKRISHNAN, AGED 67 YEARS, S/O.LATE JANAKI, KUTTANATHU HOUSE, CHERPULASSERY P.O., PALAKKAD DISTRICT -679 503. LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL.R6 & R7 AS PER ORDER DATED 09.10.2019 IN I.A.NO.2/2019 BY ADVS. S.ARUN RAJ SRI.V.BINOY RAM** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2021,** **ALONG WITH MACA.2249/2009, THE COURT ON THE SAME DAY DELIVERED THE** ## **FOLLOWING:** **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **3** ## **COMMON JUDGMENT** The appellant - insurance company – was the 3[rd] respondent in O.P.(MV)No.75/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents 1 to 5 in the appeal were the claimants and the respondents 6 to 8 in the appeal were the respondents 4, 1 and 2, respectively, before the Tribunal. The supplemental respondents 9 and 10 are the legal representatives of the deceased 5[th] respondent. Petitioners in the claim petition have filed C.O.No.130 of 2018 against the respondents. The appeal and cross objection are being jointly heard and are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, inter **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **4** alia, claiming compensation on account of the death of Sri.Krishnadas (deceased). It was their case that on 28.04.2000 while the deceased was driving an autorickshaw bearing registration No.KL-10D-7296 through Kunnamkulam – Changaramkulam road, when he reached Chiyannoorpadam in Malappuram District, a car bearing registration No. KL-8N-4100 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner and at high speed hit the autorickshaw. The deceased succumbed to the injuries on the spot. The accident occurred solely on account of the negligence of the 2[nd] respondent. The offending vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The deceased was a driver by profession and earning a monthly income of Rs.4,500/-. Hence, the petitioners claimed an amount of Rs.6,34,000/- from the respondents as compensation, which was limited to Rs.5,00,000/-. **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **5** 3. Respondents 1 and 2 filed written statement contending that the claim petition was not maintainable. According to them, the accident did not occur on account of the negligence of the 2[nd] respondent, but on the part of the deceased himself. The amount of compensation claimed under the different heads were excessive. 4. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy. Nevertheless, it was contended that the accident was caused on account of the negligence of the deceased. The age, occupation and income of the deceased was also disputed. It was also contended that the 2[nd] respondent did not have a valid driving license. 5. The petitioners produced and marked Exts.A1 to A8 in evidence. The respondents produced and marked Exts.B1 to B3 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **6** allowed the claim petition in part by permitting the petitioners to realise an amount of Rs.2,12,500/- with interest at the rate of 7% per annum from the date of petition till the date of payment along with proportionate costs. The 3[rd] respondent was directed to pay the compensation amount. 7. Aggrieved by the impugned award passed, the 3[rd] respondent - insurance company is in appeal and dissatisfied with the quantum of compensation, the petitioners 2 to 4 have filed the Cross Objection. 8. Heard the learned counsel appearing for the appellant/3rd respondent and the learned counsel appearing for the respondents 2 to 4/petitioners 2 to 4 and learned counsel appearing for the 7[th] respondent/1[st] respondent. 9. The learned counsel appearing for the appellant/3[rd] respondent argued that as per Ext.A3 scene mahazar and A4 AMVI report, it is **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **7** seen that the vehicle driven by the deceased had moved to the other side of the road. Therefore, there was contributory negligence on the part of the deceased. Hence, the compensation awarded by the Tribunal has to be deducted by at least 50%. It was also contended that the Tribunal had failed to consider the fact that the deceased was a bachelor and, therefore, 1½ of the total compensation had to be deducted towards his personal living expenses. 10. The learned counsel appearing for the respondents 2 to 4/petitioners 2 to 4 argued that in view of the final report filed by the Police, wherein it was found that it was the 2[nd] respondent who caused the accident, there is no question of fixing negligence on the deceased. He also contended that respondents 2 to 4 are aggrieved by the notional income of the deceased fixed by the Tribunal, which is on the lower side. Hence the cross objection is being filed. **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **8** 11. The questions that emerges for consideration - in the appeal are : - (1) Whether the deceased can be held to be guilty for the contributory negligence? - (2) Whether the compensation awarded by the Tribunal is reasonable and just? 12. Firstly, the 3[rd] respondent has no such case in the written statement that there was contributory negligence on the part of the deceased in causing the accident. All that was pleaded was that there was negligence on the part of the deceased. However, the respondents did not mount the box and let in any contra evidence to prove the so called assertion in the written statement. It is trite that the pleading is not proof. 13. Ext.A5 final report filed by the Changaramkulam Police Station substantiates the **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **9** fact that the accident occurred solely on account of the negligence on the part of the 2[nd] respondent. 14. This Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011 (3) KLT 648], has held that the production of a charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If any of the parties do not accept such charge sheet, the burden is on such parties to adduce oral evidence and discredit the charge sheet, only then the charge sheet will fall into a pale of insignificance. 15. Admittedly, in the instant case, Ext.A5 charge sheet proves that it was the 2[nd] respondent who was negligent in causing the accident. Neither of the respondents have mounted in the box and let in any evidence to discredit Ext.A5. Therefore, in view of the law laid down in **Pazhaniammal (supra)** , the **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **10** contention of the learned counsel for the appellant is only to be repelled. 16. In **Kolavan v. Salim** [2018 (1) KLT 489], another Division Bench of this Court has held that once charge-sheet is filed, the Tribunal will not be justified in finding negligence contrary to the sheet on the scene charge merely relying mahazar or the AMVI report filed in that case. 17. Thus, even if there is anything incriminating in Ext.A3 scene mahazar and Ext.A4 AMVI report, the same will also fall into a pale of insignificance in view of Ext.A5 report, especially when no contra evidence is let in, hence, I answer question No.1 against the appellant and hold that it was only the 2[nd] respondent, who was negligent in causing the accident. 18. Now coming to the question of 'reasonable and just compensation'. ## **Multiplier** 19. The deceased was born on 05.01.1977 as **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **11** evidenced by Ext.A6 Secondary School Leaving Certificate. The Tribunal on the basis of Ext.A2 postmortem certificate wherein the age of the deceased was noted as 26, fixed the age of the deceased as 26. However, the Tribunal fixed the multiplier at 11 considering the age of the 2[nd] petitioner namely the mother of the deceased. 20. In view of the ration in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802] **and National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] the age of the deceased has to be looked into for the purpose of applying the multiplier. As the deceased was born on 05.01.1977 and was aged 23 years at the time of death, the relevant multiplier is '18'. Hence, I fix the relevant 'multiplier' at '18'. ## **Personal living expenses** 21. Undisputedly, the deceased was a bachelor. In the light of the law laid down in **Sarala Varma** **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **12** (supra) 'one half' of the compensation under the head of 'loss of dependency' has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 22. In **Sarala Varma and Pranay Sethi** (supra) the Apex Court has held that the dependents of the deceased are also entitled for future prospects. As the deceased was aged 23 years, '40%' of the compensation under the head of 'loss of dependency' is to be awarded towards 'future ## prospects'. **Notional Income** 23. The appellants had claimed that the deceased was an autorickshaw driver by profession and that he was earning a monthly income of Rs.4,500/-. Neverthless, the Tribunal fixed the notional income at Rs.2,000/- per month. 24. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** [(2011) 13 SCC 236], the Hon'ble Supreme Court **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **13** has fixed the 'notional income of a coolie worker' in the year 2004 at 'Rs.4,500/-' per month. 25. Following the ratio in the afore-cited decision, I re-fix the 'notional income' of the deceased at 'Rs.2,500/-' per month. 26. Taking into account the relevant multiplier at '18', future prospects at 40%, deducting 50% towards the personal living expenses of the deceased, I re-fix compensation for 'loss of dependency' at 'Rs.3,78,000/-' instead of Rs.1,76,000/fixed by the Tribunal. ## **Conventional Heads of Compensation** 27. In clause (viii) of paragraph 61 of Pranay Sethi (Supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely 'funeral expenses', 'loss of estate' and 'loss of consortium' @ of 'Rs.15,000/-', 'Rs.15,000/-' and 'Rs.40,000/-', respectively. 28. Following the ratio in the afore-cited **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **14** decision, I re-fix the compensation under the head 'funeral expenses' at 'Rs.15,000/-' instead of Rs.5,000/- awarded by the Tribunal. Similarly, I enhance the compensation under the head of 'loss of estate' at 'Rs.15,000/-' instead of Rs.10,000/fixed by the Tribunal. 29. It is seen that only the 2[nd] respondent – mother of the deceased - was dependent on him. His father had passed away. The respondents 3 and 4 in the appeal are his sisters, who are majors and leading independent life. Hence, only the 2[nd] respondent is entitled for compensation under the head of 'loss of consortium'. Hence, I award an amount of 'Rs.40,000/-' to the 2[nd] respondent under the said head. ## **Compensation for loss of love and affection and pain and sufferings** 30. On a perusal of the impugned award, it is seen that the Tribunal has awarded an amount of Rs.10,000/- each under the aforesaid heads. **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **15** 31. In the light of the law laid down by this Court in **Kunjandy vs. Rajendran** : [2020 (2) KLT 315], I hold that the respondents are not entitled for compensation for 'loss of love and affection' as the 2[nd] respondent in the appeal has already been awarded compensation under the head of 'loss of consortium'. 32. In **United India Insurance Company Ltd.** - **Vs. Satinder Kaur @ Satwinder Kaur and others** (2020 (3) KHC 760), the Honourable Supreme Court has held that the dependents of the deceased are not entitled compensation under the head 'paid and sufferings'. Therefore, I set aside the amount of compensation awarded under the said head. 33. 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. 34. On an overall re-appreciation of the **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **16** pleadings and materials on record, and the law laid down in the above referred decisions, I am of the definite opinion that the respondents 2 to 4/ cross objectors/ claimants 2 to 4 are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [372 x 367] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount Amounts<br>No awarded modified<br>by the and<br>Tribunal recalcula<br>(in ted by<br>rupees) this<br>Court<br>1 Transportation 1000 1000<br>expenses<br>2 Damage to clothing 500 500<br>3 Funeral expenses 5000 15000<br>–<br>4 Pain and sufferings 10000<br>–<br>5 Love and affection 10000<br>6 Loss of estate 10000 15000<br>7 Loss of consortium 40000<br>8 Compensation for loss 1,76,000 3,78,000<br>of dependency with<br>future prospects<br>Total 2,12,500 4,49,500<br>**----- End of picture text -----**<br> In the result, the appeal and cross objection are **MACA NO. 2249 OF 2009 & CO NO. 130 OF 2018** **17** disposed of by enhancing compensation by Rs.2,37,000/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting the period of 88 days i.e., the period of delay in preferring the appeal, as ordered by this Court on 12.07.2021 in C.M.Appln.No.2249 of 2009, and proportionate costs. The appellant/3[rd] respondent shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the respondents 2 to 4/ claimants 2 to 4 in accordance with law. Sd/- **C.S.DIAS, JUDGE** AMV/13/07//2021