MACA No. 276 of 2007 (against the award in OPMV 1658/1999 of MACT, Alappuzha)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937** ## **MACA.No. 276 of 2007 ( )** ## **------------------------AGAINST THE AWARD IN OPMV 1658/1999 of MACT, ALAPPUZHA DATED 02-09-2005** ## **APPELLANTS/CLAIMS APPLICANTS:** **--------------------------------------------------------** **1. SURABHI, W/O.KARUNAKARAN, PADANNEEKATTUVELIL, WARD NO.VII, CHERTHALA TALUK.** **2. SANDHYA, W/O.SHAJI, EDAYADIYIL, C.M.C.WARD NO.XVIII, CHERTHALA.** ## **3. SATHEESH, S/O.KARUNAKARAN,** ## **PADANNEEKATTUVELIL, WARD NO.VII, CHERTHALA.** **4. SUNIL KUMAR, S/O.KARUNAKARAN, PADANNEEKATTUVELIL, WARD NO.VII, CHERTHALA.** ## **BY ADVS.SRI.T.RAJESH SRI.BINNY JOSEPH(PALAMATTOM)** ## **RESPONDENT(S):** - **----------------------------** ## **1. M/S.LANKA TRADERS,** - **BONE MILL TRADERS, 35, V.V.K.ROAD PATTAI, THIRUNELVELI, TAMIL NADU.** ## **2. T.KASSIM, 295, ELLOM VEETIL,** - **PUTHERATHI AMMANKOVIL STREET, THIRUNEL VELI.** **3. THE NEW INDIA ASSURANCE CO.LTD. DOBO 500, 84A, THIRUVANANTHAPURAM ROAD THIRUNELVELI.** ## **R3 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2016, ALONG WITH MACA. 277, 563 & 1938 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPV** ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.Nos.276, 277, 563 & 1938 of 2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 8[th] day of March, 2016** ## **JUDGMENT** ## _**K.Ramakrishnan, J.**_ The claimants in O.P.(M.V.)No.1658 of 1999 on the file of the Motor Accidents Claims Tribunal, Alappuzha are the appellants in M.A.C.A.No.276 of 2007 while the third respondent in that case is the appellant in M.A.C.A.No.563 of 2007. The claimants in O.P.(M.V.) No.1670 of 1999 on the file of the Motor Accidents Claims Tribunal, Alappuzha are the appellants in M.A.C.A.No.1938 of 2007 while the third respondent insurance company in that case is the appellant in M.A.C.A.No.277 of 2007. Since both these appeals arise out of a common judgment, we are disposing of these appeals by a common judgment. 2. O.P.(M.V.)No.1658 of 1999 was filed by the mother and siblings of deceased Santhosh Kumar claiming compensation for the death of Santhosh Kumar who died in a motor vehicle accident occurred on 7.9.1999. O.P.(M.V.)No.1670 of 1999 was filed by the wife and children of Karunakaran who also died in the very same ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:2:-** accident. The common case of the claimants in both the claim petitions was that the deceased Santhosh Kumar was riding a motor cycle with his father Karunakaran as pillion rider and when they reached the place of occurrence, the lorry with registration No.TN72/A-3303, owned by the first respondent, driven by the second respondent and insured with the third respondent, came from the opposite direction and hit against the motor cycle and due to that impact, both of them sustained severe injuries and succumbed to the injuries. According to the claimants, the deceased Santhosh Kumar was aged only 19 years and working in a coir factory conducted by his father getting Rs.4,000/- per month and they claimed a total compensation of Rs.8,75,000/- under various heads for his death. According to the claimants, the deceased Karunakaran was conducting a coir factory getting Rs.5,000/- per month. He was aged 48 years and they claimed a total compensation of Rs.11,25,000/- under various heads for his death. 3. Respondents 1 and 2 in both the cases remained absent. The third respondent in both the cases admitted the insurance of the lorry involved in the accident. But according to them, the accident occurred due to the negligence of the rider of the motor cycle namely the deceased Santhosh Kumar and the lorry did not involve in the ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:3:-** accident. They have further contended that the deceased Santhosh Kumar was not having any valid driving licence and as such, they are not liable to pay any compensation. They have further contended that the amount claimed under various heads are high and the total compensation claimed is also exorbitant. They prayed for dismissal of both the applications. 4. Both the cases were tried jointly. The first claimant in both the cases was examined as PW1 and Exts.A1 to A9 and A1(a) were marked on the side of the claimants. No oral or documentary evidence was adduced on the side of the respondents. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the lorry by the second respondent. 5. In O.P.(M.V.)No.1658 of 1999 the tribunal awarded a total compensation of Rs.2,39,500/- under various heads as follows: |Heads|Compensation awarded| |---|---| |Loss of dependency|Rs.2,08,000| |Loss of love and affection|Rs.20,000| |Pain and suffering|Rs.5,000| |Transport and funeral expenses (Rs.3,000/-<br>each)|Rs.6,000| |Damage to clothing|Rs.500| 6. In O.P.(M.V.)No.1670 of 1999, the tribunal awarded a total ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:4:-** compensation of Rs.3,63,500/- as follows: |compensation of Rs.3,63,500/- as follows:|| |---|---| |Heads|Compensation awarded| |Loss of dependency|Rs.3,12,000| |Loss of consortium|Rs.20,000| |Loss of love and affection|Rs.20,000| |Pain and suffering|Rs.5,000| |Transport and funeral expenses (Rs.3,000/- each)|Rs.6,000| |Damage to clothing|Rs.500| In both cases, the insurance company was directed to pay the amount with interest at 6% per annum from the date of petition till payment. Dissatisfied with the quantum of compensation awarded, the claimants in both the cases have preferred M.A.C.A.Nos.276 and 277 of 2007 respectively. While challenging the quantum of compensation awarded and finding on negligence, the insurance company filed M.A.C.A. Nos.563 and 1938 of 2007 respectively. 7. Heard Sri.Binny Joseph, learned counsel appearing for the appellants/claimants and Sri.Rajan P.Kaliyath, learned counsel appearing for the insurance company/appellant in the other two cases. 8. For the purpose of convenience, we are referring the parties as claimants and insurance company in these appeals. 9. Learned counsel for the claimants submitted that the income taken by the tribunal is very less. No future prospects have been taken into consideration and amount awarded towards pain and ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:5:-** suffering, love and affection, funeral expenses, loss of consortium to the wife, etc. are on the lower side. So according to them, they are entitled for enhancement on all heads. 10. On the other hand, learned counsel for the insurance company submitted that since the insurance company has denied the negligence on the part of the driver of the lorry, it is for the claimants to prove negligence on the part of the driver which has not been done in this case. Further the rider of the motor cycle Santhosh Kumar was not holding any driving licence to drive the vehicle and no damage has been caused to the lorry that falsify the case of the claimants that the accident occurred due to the negligence of the lorry driver. Their enquiry shows that the vehicle skidded and both the riders of the vehicle sustained injuries. So according to him, the finding regarding negligence is not proper and the total compensation awarded is also excessive. 11. It is true that no eye witness to the incident was examined in the case but the claimants have produced Ext.A1 and Ext.A1(a) First Information Report and First Information Statement, Ext.A2 scene mahazar and Ext.A3 final report which will go to show that the driver of the lorry alone was chargesheeted for rash and negligent driving in respect of the incident. Though the counsel for the insurance ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:6:-** company submitted that none of the vehicles sustained any damage in the accident, they have not produced the motor vehicle inspector's report in respect of both the vehicles. Further, the scene mahazar shows that the motor cycle was on the proper side and the accident occurred on the wrong side of the lorry. In the absence of any evidence adduced on the side of the insurance company to prove the manner in which the accident occurred, prima facie the Police records will have to be taken as to how the incident occurred. In such circumstances, the tribunal was perfectly justified in coming to the conclusion that the accident occurred due to the rash and negligent driving of the lorry by the second respondent. So there is no merit in the submission made by the counsel for the insurance company that the accident occurred due to the negligence of the rider of the motor cycle and there was no negligence on the part of the lorry driver and we do not find any merit in the said submission. 12. Further they have not taken any steps to prove that the rider of the motor cycle has no driving licence. Unless it is proved by the insurance company by cogent evidence that non-holding of the driving licence had resulted in the accident and if there was no material to prove the negligence on the part of the rider of the motor cycle, even assuming that the rider of the motor cycle did not hold any ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:7:-** driving licence, alone is not sufficient to come to the conclusion that he had contributed the accident so as to reduce the quantum of compensation payable to them as contended by the learned counsel for the insurance company. 13. As regards the quantum of compensation is concerned, in O.P.(M.V.)No.1658 of 1999, the claimants are the mother and siblings of the deceased. The deceased was aged only 19 years and an unmarried youngster. The mother was aged 45 years at that time. They have produced village officer's certificate to show that the deceased was having yearly income of Rs.36,000/-. Since the village officer was not examined and no other documents were produced to prove his evidence, the tribunal had not relied on that document but fixed the monthly income as Rs.2,000/- per month. We do not find any reason to enhance the monthly income fixed by the tribunal in the absence of any evidence to take a contra view. The Supreme Court has in **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 (SC)] held that even in the case of persons having no permanent income, some amount will have to be added for future prospects and upto the age of 30 years, 50% will have to be added for future prospects. Further in the decision reported in **Amrit Bhanu Shali and Others v. National Insurance Company Limited and Others** [(2012) 11 SCC 738] which was ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:8:-** confirmed in **Munna Lal Jain and Others v. Vipin Kumar Sharma** **and Others** [JT 2015 (5) SC 1] it was held that the age of the deceased will have to be taken for the purpose of selecting the multiplier and not the age of the dependents. If that be the case, applying the multiplier as fixed in **Sarla Verma and Others v. Delhi** **Transport Corporation and Another** [(2009) 6 SCC 121] the multiplier will be 18 and not 15 as taken by the tribunal. Further in **Sarla Verma and Others v. Delhi Transport Corporation and Another** (supra) it has been held that in the case of bachelors, 50% of the monthly income has to be deducted for the personal expenses of the deceased. If a recalculation is made on that basis, the claimants will be entitled to get an amount of Rs.3,24,000/- (Rs.2,000 x 150% = Rs.3,000 x 12 x 18 x 50%) instead of Rs.2,08,000/awarded by the tribunal under the head loss of dependency, thereby, the claimants will be entitled to get an additional compensation of Rs.1,16,000/- under that head. 14. The tribunal had awarded only Rs.20,000/- under the head loss of love and affection. The mother and four siblings were there. So we are inclined to enhance the same to Rs.50,000/-, thereby they are entitled to get an additional amount of Rs.30,000/- under that head. The tribunal has awarded only the sum of Rs.3,000/- towards funeral ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:9:-** expenses, which we are inclined to enhance to Rs.10,000/-. We accordingly award an additional compensation of Rs.7,000/- towards funeral expenses. The tribunal has awarded the sum of Rs.5,000/towards pain and suffering, which we are inclined to enhance to Rs.10,000/-. We accordingly award an additional amount of Rs.5,000/- as compensation under the head pain and suffering, as this court as well as the Apex Court used to award a conventional amount of Rs.10,000/- even in the case of the instantaneous death under the head pain and suffering. We are not inclined to enhance any amount under the other heads as the compensation awarded appears to be just and proper. 15. In all, the claimants in O.P.(M.V.)No.1658 of 1999 will be entitled to get an additional compensation of Rs.1,58,000/- which the third respondent insurer is liable to pay with 9% interest from the date of petition till payment. Since the tribunal has already apportioned the amount in the award passed by it to the other claimants as well, we feel that it is proper to award the entire amount to the mother alone who is the first claimant in the case. 16. As regards the claimants in O.P.(M.V.)No.1670 of 1999 is concerned, they are the wife and children of the deceased Karunakaran. According to them, he was aged 48 years and ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:10:-** conducting a manufacturing unit of coir products and earning a monthly income of Rs.5,000/-. They have produced only village officer's certificate which will go to show that he is getting an annual income Rs.60,000/-. But in the absence of examination of the village officer, the tribunal was perfectly justified in not relying on the same. The tribunal had taken only Rs.3,000/- as his monthly income. Considering the age of the deceased and also considering the fact that he is conducting a manufacturing unit, we feel it proper to fix his monthly income as Rs.3,500/- per month. Applying the principles laid down in **Rajesh v. Rajbir Singh** (supra) 30% will have to be added for future prospects and multiplier will be 13 in view of **Sarla Verma and Others v. Delhi Transport Corporation and Another** (supra) and one-third will have to be deducted for the personal expenses of the deceased as the dependents are four in number. So if a recalculation is made on that basis, the claimants will be entitled to get an amount of Rs.4,73,200/- (Rs.3,500 x 130%= Rs.4,550 x 12 x 13 x 2/3) instead of Rs.3,12,000/- awarded by the tribunal, thereby, they will be entitled to get an additional amount of Rs.1,61,200/under the head loss of dependency. 17. The tribunal has awarded only Rs.20,000/- under the head loss of consortium. The wife of the deceased was aged 45 years at the ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:11:-** time of the accident. They claimed a compensation of Rs.50,000/under the head loss of consortium which appears to be reasonable. So we enhance the same to Rs.50,000/- from Rs.20,000/-, thereby, they will be entitled to get an additional amount of Rs.30,000/- under that head. The tribunal had awarded only the sum of Rs.20,000/- under the head loss of love and affection to the children. We enhance the same to Rs.40,000/-, thereby, they will be entitled to get an additional amount of Rs.20,000/- under the head loss of love and affection on account of the death of their father. The tribunal has awarded only Rs.5,000/- under the head pain and suffering, which we are inclined to enhance to Rs.10,000/-. So the appellants will be entitled to get an additional amount of Rs.5,000/- under that head. The tribunal has awarded only Rs.3,000/- under the head funeral expenses which we are inclined to enhance to Rs.10,000/-, thereby, they will be entitled to get an additional amount of Rs.7,000/- under the head funeral expenses. We are not inclined to enhance any amount under the other heads as it appears to be just and proper. In all, the claimants in O.P.(M.V.)No.1670 of 1999 will be entitled to get an additional amount of Rs.2,23,200/- which the third respondent is liable to pay with 9% interest from the date of petition till payment. Since the tribunal has awarded some amount to the ## **M.A.C.A.Nos.276, 277, 563 & 1938 of 2007** ## **-:12:-** children, we deem it proper to award the entire compensation to the wife alone. Since we have found that the accident occurred due to the negligence of the lorry driver and the claimants are entitled to get enhanced compensation and allowed the appeals filed by the claimants by enhancing the compensation, the appeals filed by the insurance company namely M.A.C.A.Nos.563 and 1938 of 2007 have no merit and the same are hereby dismissed and M.A.C.A.Nos.276 and 277 of 2007 are allowed in part modifying the award of the tribunal as stated above and disposed of accordingly. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- ## **K.RAMAKRISHNAN JUDGE** /true copy/ P.A. to Judge **vpv**