MACA No. 28 of 2013 (Jacob G.T. and Others v. Ravindran and Somanathan and The Branch Manager, New India Assurance Co. Ltd.)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939 MACA.No. 28 of 2013 () ----------------------AGAINST THE AWARD IN OPMV 638/2007 of M.A.C.T.,PERUMBAVOOR DATED 14-08-2012 APPELLANT(S)/PETITIONERS: ----------------------- 1. JACOB G.T. - S/O. THARIATH, RESIDING AT GANALLYAN @ NJALIYAN HOUSE, THURAVOOR, ANGAMALY. 2. KUSUMAM, - W/O JACOB G.T., RESIDING AT GANALLYAN @ NJALIYAN HOUSE, THURAVOOR, ANGAMALY. 3. VIPIN JACOB, - S/O JACOB G.T., RESIDING AT GANALLYAN @ NJALIYAN HOUSE, THURAVOOR, ANGAMALY. BY ADV. SMT.ANEY PAUL SRI.PHILIP J VETTIKKATTU RESPONDENT(S):RESPONDENTS ----------------------------------- 1. RAVINDRAN - S/O. KRISHNAN, PANAPARAMBIL HOUSE, PERNGOTTUKARA, THRISSUR, PIN:680 565. 2. SOMANATHAN, S/O. KRISHNAN NAIR, VADAKOOR HOUSE, VALLICHIRA VILLAGE, CHERUSSERY KARA, THAIKKATTUSSERY, THRISSUR-680 584. 3. THE BRANCH MANAGER, THE NEW INDIA INSURANCE CO.LTD., ST. JOSEPH BUILDING, A.M. ROAD, PERUMBAVOOR, PIN:683 542. R3 BY ADV. SMT.T.C.SOWMIAVATHY R3 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.28 OF 2013 ==========================** Dated this the 10[th] day of August, 2017 ## **JUDGMENT** ## _Anil K. Narendran, J._ This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV).No.638 of 2007, an application filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Nobin Joseph, son of appellants 1 and 2 and brother of the third appellant, who died in a motor accident occurred on 26.11.2006 while he was riding his motor cycle bearing Reg.No.KL-7/AC-8057. At the place of accident, the motorcycle was hit by a mini bus bearing Reg.No.KL-8/AC-1519, owned and driven by respondents 1 and 2 and insured with the third respondent. As a result of the accident, the deceased sustained serious injuries. Alleging that the accident **M.A.C.A.28/2013** 2 occurred due to the rash and negligent driving of the mini bus by the second respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.16,50,000/- under different heads, which was limited to Rs.10,00,000/- for the purpose of payment of court fee. 2. Before the Tribunal, respondents 1 and 2 remained ex parte. The third respondent insurer filed written statement admitting insurance coverage of the offending bus. However, the insurer contended that the accident occurred due to the rash and negligent riding of the motor cycle by the deceased, who had taken 'U' turn at the place of accident. The insurer also disputed the age, occupation and monthly income of the deceased and contended that the compensation claimed under different heads is highly excessive and without any legal basis. 3. Before the Tribunal, Exts.A1 to A14 were marked on the side of appellants/claimants and a copy of the insurance policy was marked as Ext.B1 on the side of the respondents. Both sides have not chosen to adduce any oral evidence. **M.A.C.A.28/2013** 3 4. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to contributory negligence on the part of the deceased as well and fixed the negligence between the second respondent driver and the deceased in the ratio 75:25. Under different heads, the Tribunal awarded a total compensation of Rs.2,48,750/-. In view of the finding regarding contributory negligence, the Tribunal held that the appellants/claimants are entitled only for a sum of Rs.1,86,563/-, being 75% of the total compensation, together with interest at the rate of 8% per annum from the date of the petition till realisation with proportionate cost. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads and also challenging the finding regarding contributory negligence, the appellants/claimants are before this Court in this appeal. 6. We heard the learned counsel for the appellants/claimants and also the learned counsel for the third respondent insurer. 7. First we shall deal with the question as to whether the **M.A.C.A.28/2013** 4 Tribunal was justified in arriving at the conclusion as to 25% contributory negligence on the side of the deceased in causing the accident. 8. The materials on record would show that the accident occurred at about 11.30 p.m on 26.11.2006. The deceased was returning to his house in his motor cycle and when he reached in front of KSRTC bus stand, he took a U turn towards south and at that time, the offending mini bus driven by the second respondent coming from from north to south hit against the motor cycle. The bus stopped after dragging the motor cycle to some distance. Exts.A3 and A4 are the inspection reports prepared by the Assistant Motor Vehicle Inspector, which would show the damages caused to the mini bus and the motor cycle. As per Ext.A2 scene mahazar, the Angamaly-Chalakudy NH road at the place of accident is having a width of 8.10 metres and the accident took place on the eastern side of the central median. The spot of accident is located 5.10 metres east from the eastern side of the central median. The offending mini bus was coming from north to south direction and the deceased was riding his motor cycle from **M.A.C.A.28/2013** 5 south through the western half of the road and when he reached the place of accident, he took a 'U' turn to the eastern half going towards south. 9. From the materials on record, the Tribunal noticed that while taking 'U' turn, the deceased was expected to wait for the vehicle passing through northern side. However, due to the rash and negligent manner in which he took 'U' turn, he has gone to 5.10 metres towards east and thus the accident occurred. The Tribunal has also found that if the second respondent driver was driving the bus with due care and caution, the accident could have been avoided. In Ext.A8 charge sheet, the second respondent driver of the bus was charge sheeted for rash and negligent driving. It was after considering the facts and circumstances, as borne out from the materials on record, the Tribunal arrived at the conclusion that there is contributory negligence on the side of the deceased and accordingly, fixed the negligence in the ratio 25:75 between the deceased and the second respondent driver. The said finding of the Tribunal is perfectly legal, which warrants no interference in this appeal. **M.A.C.A.28/2013** 6 10. Now, the question that remains for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under different heads. 11. The compensation awarded by the Tribunal under different heads reads thus:- |**_Head of claim_**|**_Amount_**<br>**_claimed_**|**_Amount_**<br>**_awarded_**| |---|---|---| |Transport to hospital|1000/-|5000/-| |Funeral expenses|10000/-|5000/-| |Damage to clothings|1000/-|250/-| |Pain and suffering|50000/-|5000/-| |Loss of estate|Nil|2500/-| |Loss of dependency|1500000/-|216000/-| |Loss of love and affection|100000/-|15000/-| |Total||248750/-| 12. The accident is of the year 2006 and at the time of accident, the deceased was aged 29 years. The appellants/claimants contended that the deceased was working as a mechanic in a Power Plant in Gulf and earning a monthly income of Rs.30,000/-. However, no evidence was forthcoming as to his technical/educational qualifications for **M.A.C.A.28/2013** 7 working as a mechanic in gulf countries. Other than Ext.A7 passport and Ext.A8 boarding pass, nothing was produced before the Tribunal in order to prove his monthly income. It was in such circumstances that the Tribunal took the monthly income of the deceased notionally as Rs.4,000/- for the purpose of assessing compensation under different heads. 13. In **Abraham Jacob v. Mubarak (2014 (3) KLT 883)** , a Division Bench of this Court in which one among us (Anil K Narendran (J)) was a member held that, to prove the monthly income of a victim in a motor vehicle accident, who claims to be employed abroad, the income has to be proved on the basis of any document authenticated by the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. In the said judgment, this Court has also referred to the judgment of this Court in **Valsamma v. Binu Jose [2014 (1) KLT 10]** , wherein a Division Bench of this Court held that in the case of non-permanent employment in Gulf countries with uncertainty regarding continuance, it is not safe to rely on that income as the basis for calculating compensation payable under different heads. In the **M.A.C.A.28/2013** 8 instant case, the appellants/claimants have not chosen to produce any materials either to prove the alleged employment of the deceased in gulf countries or his technical qualifications. None of the appellants have also not chosen to mount the box. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Apex Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 as Rs.4,500/-. In the instant case, the accident is of the year 2006 and at the time of accident, the deceased was an able bodied person aged 29 years. Considering the economic condition prevailing as on the date of the accident, we deem it appropriate to re-fix his monthly income notionally at Rs.6,000/- for the purpose of assessing compensation under different heads. 15. In view of the judgment of the Apex Court in **Rajesh v. Rajbir Singh [2013 (3) KLT 89],** in the case of self employed person with fixed wages, 50% towards future prospects can be added, if the victim is up to the age of 40 years. However, in the instant case, there is absolutely no reliable materials as to the nature of employment of **M.A.C.A.28/2013** 9 the deceased. Other than the passport and boarding pass, no other materials are placed before the Tribunal to prove the alleged employment. In such circumstances, we deem it appropriate to take only a lesser percentage of income towards future prospects. Accordingly, we deem it appropriate to add 30% of the notional monthly income of the deceased towards future prospects, for the purpose of assessing dependency compensation. 16. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of treatment undergone, the said amount represents just and reasonable compensation, which warrants no enhancement in this appeal. 17. Towards funeral expenses, the Tribunal awarded a sum of Rs.5,000/-. In **Rajesh's case (supra)** , the Apex Court awarded a sum of Rs.25,000/- as compensation under the head funeral expenses. In such circumstances, we deem it appropriate to re-fix the compensation under this head as Rs.25,000/-, resulting an additional compensation of **Rs.20,000/-** . 18. Towards damage to clothing, the Tribunal awarded a sum of **M.A.C.A.28/2013** 10 Rs.250/-. Considering the fact that the accident is of the year 2006, we deem it appropriate to re-fix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.750/-** . 19. Towards pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. Though the deceased succumbed to the injuries on the date of the accident itself, following the law laid down by a Division Bench of this Court in **Jyni and others v. Raphel P.T and others [ILR 2016 (2) Kerala 54]** , we deem it appropriate to grant a sum of Rs.10,000/- under this head, resulting an additional compensation of **Rs.5,000/-** . 20. Towards loss of estate, the Tribunal awarded a sum of Rs.2,500/-. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as Rs.10,000/-, resulting an additional compensation of **Rs.7,500/-** . 21. Towards loss of dependency, the Tribunal awarded a sum of Rs.2,16,000/- taking notional monthly income as Rs.4,000/-, applying the multiplier of 9 applicable to the age group of the first appellant, the father of the deceased and deducting ½ of the monthly income **M.A.C.A.28/2013** 11 towards personal and living expenses of the deceased. ## 22. In **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 54],** the Apex held that the multiplier to be adopted for calculating the dependency compensation should be with reference to the age group of the deceased and not that of his dependents, who are the claimants before the Tribunal. 23. In that view of the matter, since the deceased was aged 29 years, the proper multiplier applicable is 17. Since we have already re-fixed the monthly income of the deceased at Rs.6,000/-, adding 30% towards future prospects, the multiplicand would come to 7,800 (6000+1800). On re-working the compensation under the head loss of dependency with 7,800 as the multiplicand, deducting 50% towards the personal and living expenses of the deceased, since he being a bachelor and applying the multiplier of 17, the amount comes to Rs.7,95,600/- (7800x12x17x½). The Tribunal has already awarded Rs.2,16,000/- under this head. After deducting the said amount, the appellants/claimants will be entitled for an additional sum of **Rs.5,79,600/-** . **M.A.C.A.28/2013** 12 24. Towards compensation for loss of love and affection, the Tribunal awarded a sum of Rs.15,000/-. In **Rajesh's case** (supra), the Apex Court granted a sum of Rs.1,00,000/- under this head. In the said case, the accident was of the year 2007 and the deceased was survived by three minor children. In the instant case, accident is of the year 2006 and the appellants namely, the parents and brother of the deceased were aged 58, 57 and 24 years respectively, as on the date of the accident. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as Rs.75,000/-, resulting an additional compensation of **Rs.60,000/-** 25. In the result, the appellants/claimants will be entitled for an additional compensation of Rs.6,72,850/(20,000+750+5,000+7,500+5,79,600+60,000) in this appeal. In view of the finding regarding contributory negligence to an extent of 25% on the part of the deceased, entitlement of the appellants/claimants for additional compensation awarded is limited to 75% of the aforesaid amount, which will carry interest at the rate of 8% per annum from the date of petition till realisation. **M.A.C.A.28/2013** 13 26. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.28/2013** 14 **C.T. RAVIKUMAR, J.** **JUDGMENT** **M.A.C.A.28/2013** 15 **September, 2010**