MACA No. 3004 of 2014 & MACA No. 1127 of 2015 v. Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940** ## **MACA.No. 3004 of 2014** **AGAINST THE AWARD DATED 31.03.2014 IN O.P.(M.V)NO.2317/2004 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,THIRUVANANTHAPURAM** ## **APPELLANT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE COMPANY LIMITED THIRUVANANTHAPURAM NOW REPRESENTED BY ITS ASSISTANT MANAGER,REGIONAL OFFICE, METRO PALACE,KOCHI 18** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 SUDHA S. W/O.LATE R RAJENDRAN,RAJ BHAVAN,KAMUKARA VILAKOM,VILAYILKULAM,KAZHAKKUTTOM P.O,VIA THIRUVANANTHAPURAM PIN 695 320** **2 REMYA RAJ D/O. LATE R RAJENDRAN,RAJ BHAVAN,KAMUKARA VILAKOM,VILAYILKULAM,KAZHAKKUTTOM P.O,VIA THIRUVANANTHAPURAM PIN 695 320 3 RETHIL RAJ S/O.LATE R RAJENDRAN,RAJ BHAVAN,KAMUKARA VILAKOM,VILAYILKULAM,KAZHAKKUTTOM P.O,VIA THIRUVANANTHAPURAM PIN 695 320 4 KRISHNAMMA D/O.LATE RAJAMMA, PUTHIYARMOOLA,VAYAL VEEDU,MELKADAKKAVOOR,KADAKKAVOOR P.O,THIRUVANANTHAPURAM DISTRICT PIN 695 320** **5 SUSEELA R D/O.LATE RAJAMMA, NADALAYAM,THAZHAKKARA,MAVELIKARA,KUNNAM P.O,PIN 688301** **6 THULASI R D/O. LATE RAJAMMA,DARSANA NAGAR,VETTIYAR,THAZHAKKARA,MAVELIKARA P.O,PIN 688 301** MACA 3004/2014 & MACA.1127/2015 2 **7 R PRATHEEPKUMAR PREETHA BHAVAN,AMBEDKARPURAM,PANGAPPARA P.O,THIRUVANANTHAPURAM PIN 695 315** **BY ADVS. R1 TO R4 BY SRI.NAGARAJ NARAYANAN** **R6, R7 BY SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI SRI.SEBIN THOMAS SRI.PRATHAP PILLAI SRI.VISHNU BHUVANENDRAN SRI.VIVEK V. KANNANKERI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2018, ALONG WITH MACA.1127/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 3004/2014 & MACA.1127/2015 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940** **MACA.No. 1127 of 2015** **AGAINST THE AWARD DATED 31.03.2014 IN O.P.(M.V)NO.2317/2004 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,THIRUVANANTHAPURAM** ## **APPELLANTS/PETITIONERS:** **1 SUDHA S, AGED 45, W/O.LATE R.RAJENDRAN, RAJ BHAVAN, KAMUKARTA VILAKOM, VILAYILKULAM, KAZHAKKUTTOM PO, THIRUVANANTHAPURAM DISTRICT. 2 REMYA RAJ AGED 26 YEARS D/O.LATE R.RAJENDRAN, RAJ BHAVAN, KAMUKARTA VILAKOM, VILAYILKULAM, KAZHAKKUTTOM PO, THIRUVANANTHAPURAM DISTRICT. 3 RETHIL RAJ AGED 21 YEARS S/O.LATE R.RAJENDRAN, RAJ BHAVAN, KAMUKARTA VILAKOM, VILAYILKULAM, KAZHAKKUTTOM PO, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SMT.J.KASTHURI SRI.BENOJ C AUGUSTIN SRI.PRATHAP PILLAI SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.VISHNU BHUVANENDRAN SRI.VIVEK V. KANNANKERI** MACA 3004/2014 & MACA.1127/2015 4 ## **RESPONDENTS/RESPONDENTS & ADDITIONAL PETITIONERS 5 TO 8:** - **1 SHAJI MOHAN S/O.KARUNAKARAN, TC 17/328, KONATHU VEEDU, POOJAPPURA, THIRUVANANTHAPURAM-695 014.** - **2 SUDHAKARAN NAIR** - **S/O.THANKAPPAN NAIR, KOTTARA VEEDU NEAR GOVERNMENT LPS, MELKADAKKAVOOR, KADAKKAVOOR P.O., THIRUVANANTHAPURAM DISTRICT-695 306.** - **3 MS.THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE NO.1, THAKARAPARAMBU ROAD, PAZHAVANGADI, THIRUVANANTHAPURAM-23.** - **4 KRISHNAMMA D/O.LATE RAJAMMA, PUTHIYAMOOLA, VAYAL VEEDU, MELKADAKKAVOOR, KADAKKAVOOR P.O., THIRUVANANTHAPURAM DISTRICT-695 306.** - **5 SUSEELA R. D/O.LATE RAJAMMA, NADALAYAM, MAVELIKKARA, KUNNAM PO, THAZHEKKARA, ALAPPUZHA DISTRICT-690 108.** - **6 THULASI R.,D/O.LATE RAJAMMA, DARSANA NAGAR, VETTIYAR, THAZHAKKARA, MAVELIKARA P.O., ALAPPUZHA DISTRICT-690 101.** - **7 R.PRATHEEPKUMAR** - **PREETHA BHAVAN, AMBEDKARPURAM, PANGAPPARA P.O., THIRUVANANTHAPURAM-695 581.** - **R2 BY ADVS.SRI.BABU POTHENCODE** - **R4 TO R7 BY SRI.C.V.SANGEETH** - **R3 BY SRI.P.JACOB MATHEW** - **R2 BY SRI.D.SAJEEV** - **R3 BY SRI.MATHEWS JACOB (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2018, ALONG WITH MACA.3004/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 3004/2014 & MACA.1127/2015 5 ## JUDGMENT The appeals on hand are preferred from the award dated 31.03.2014 of the Motor Accident Claims Tribunal, Thiruvananthapuram (for short 'the Tribunal') in OP(MV) No.2317 of 2004. MACA No.3004/14 was filed by the insurer who was the 3[rd] respondent before the Tribunal and MACA No.1127/15 was filed by the claimants, who are dependants of the deceased in the aforesaid claim petition. 2. Before adverting to the rival contentions advanced by respective counsel on behalf of the appellants in the respective appeals, it is relevant to have a discussion about the facts of the case in brief : One Mr.Rajendran was riding his motor cycle bearing registration No.KL-01-S-1203 with one Mr.Mohanan as pillion rider on 17.10.2004 through Thiruvananthapuram-Kollam National Highway and at about 1.40 p.m., while the motor cycle was passing through the road near SBT at Kazhakkuttom, an Ambassador car bearing registration No.KVB-5717, which was MACA 3004/2014 & MACA.1127/2015 6 proceeding from the opposite direction dashed the same. The accident was occurred due to rash and negligent driving of the ambassador car by its driver who was the 2[nd] respondent before the Tribunal. The rider and pillion rider of the motorcycle were thrown on the road and Mr.Rajendran, the rider succumbed to death then and there due to fatal injuries sustained in the accident. Alleging negligence against the driver of the ambassador car and claiming a sum of Rs.45,00,000/-as compensation, the claim petition as above was preferred by the petitioners before the Tribunal. 3. The driver and owner of the ambassador car who were arrayed as respondents 1 and 2 before the Tribunal, remained _ex parte_ . The sole respondent who had contested the claim petition was the 3[rd] respondent, the insurer of the ambassador car bearing registration No.KVB-5717. The insurance coverage of the ambassador car was admitted by the 3[rd] respondent, but it was contended that the accident as alleged by the claimants was not occurred. It is further contended that after investigation, the Kazhakkootam Police has laid a final report referring the case MACA 3004/2014 & MACA.1127/2015 7 and therefore the accident is a false and foisted one. The 3[rd] respondent pleaded for dismissal of the claim petition for the reasons. Trial was held in the claim petition and on the side of the claimants, a witness claiming to be an ocular witness was examined as PW1 and documentary evidence was adduced as Exts.A1 to A16. On the side of the contesting 3[rd] respondent, evidence was not adduced. 4. The Tribunal had on appreciation of the entire evidence on record arrived at a finding that the driver of the ambassador car bearing registration No.KVB-5717 was responsible for the accident by its rash and negligent driving and that the claimants are entitled to get compensation from all the respondents in the claim petition jointly and severally. Accordingly, a sum of Rs.32,49,750/- was arrived at as compensation payable to claimants and 3[rd] respondent was directed to deposit the same with simple interest at the rate of 9% per annum from the date of the claim petition till the date of realisation. The Tribunal had also permitted claimants to get the cost of the proceedings. Challenging the aforesaid award, the insurer as well as the claimants are before this Court in the respective appeals. MACA 3004/2014 & MACA.1127/2015 8 5. The argument of Sri.Mathews Jacob, the learned Senior counsel for the appellants in MACA No.3004/14 was mainly on two grounds. The first ground was against the finding of sole negligence against the driver of the ambassador car bearing registration No.KVB-5717. According to him, the claimants failed to produce the refer report in the case in evidence and only evidence available before the Tribunal to establish negligence was the oral evidence adduced by PW1, a man claimed to be an ocular witness of the accident. According to him, since the final report was not produced by the claimants, the Tribunal ought not to have found the driver negligent solely based on the oral evidence tendered by the said witness. It is contended by the counsel that the final report being the apt document to establish negligence and when that is not produced, the Tribunal ought to have found contributory negligence on the part of the deceased and the driver of the ambassador car by fixing liability proportionately. The contention secondly advanced by the learned Senior Counsel was against the mode of calculation of compensation adopted by the Tribunal and the exorbitance of quantum of compensation MACA 3004/2014 & MACA.1127/2015 9 arrived at. According to the learned counsel, Ext.A2 salary certificate was produced by claimants to establish the monthly income of the deceased and the gross monthly income was certified therein as Rs.19,497/-. But Ext.A2 does not bear the actual month and year of drawal of the said salary certified therein by the employer. In the aforesaid circumstances that the Tribunal was constrained to fix the notional income of Rs.15,000/- as the monthly income of the deceased for the purpose of calculation of compensation. It is contended by the learned counsel that Tribunal is highly unjustified in fixing Rs.15,000/- as monthly income. It ought to have fixed a lower sum, in the absence of evidence to establish the monthly income. 6. According to the learned Senior counsel, the deceased was survived by four members. Originally when the claim petition was preferred, the mother of the deceased was there in the array of claimants. But later on, during the pendency of the claim petition, she passed away. Without adverting to the said factum, the Tribunal had deducted 1/4[th] from the monthly MACA 3004/2014 & MACA.1127/2015 10 income of the deceased in consideration of his personal expenditure, which ought to have been incurred by him, had he been alive. According to the learned counsel, since the mother passed away during the pendency of the claim petition and at the time when the claim petition was considered, there were only three surviving members for the deceased and the Tribunal ought to have deducted 1/3[rd] in consideration of personal expenditure of the deceased. The counsel pleaded for interference of the impugned award and calculation of compensation by deducting 1/3[rd] from the monthly income towards personal expenditure of the deceased. 7. The learned counsel has also urged that the multiplier of 15 adopted by the Tribunal was without any basis, since materials to establish the age was not produced and marked in evidence by the claimants. According to the learned counsel, for want of age proof, the Tribunal was incorrect in taking the age of the deceased as 40 years, fixing the multiplier as 15 and adding 50% to the monthly income in consideration of future prospects. The learned counsel also pleaded for interference with the impugned award on that count. MACA 3004/2014 & MACA.1127/2015 11 8. It is also contended by the learned counsel that under the head loss of estate, loss of consortium and funeral expenses, the Tribunal has awarded sums excess than that was directed by the Constitution Bench of the Apex Court in **Pranay Sethi** 's case (supra). The counsel seeks for interference and modification on those counts also. 9. Sri.Binoj Augustine, the learned counsel appearing for the appellants/claimants in MACA No.1127/2015 has mainly attacked the impugned award for the reason that the quantum arrived at by the Tribunal as compensation payable to the claimants by the impugned award is totally unreasonable and disproportionate to the actual loss sustained by them. According to him, the Tribunal ought to have relied on Ext.A2, the salary certificate produced and got marked in evidence by the claimants and have taken the salary as shown therein as the monthly income for the purpose of calculation of compensation. According to the learned counsel, Rs.19,497/- was the salary certified by the employer of the deceased in Ext.A2 and the calculation of compensation on the basis of the monthly income MACA 3004/2014 & MACA.1127/2015 12 fixed notionally as Rs.15,000/- is unjust and improper. The learned counsel has also urged for grant of enhanced compensation under the head loss of consortium and loss of love and affection. 10. The contention further advanced was that the compensation awarded by the Tribunal for loss of estate and funeral expenses are also on the lower side. The learned counsel has also contended that the Tribunal is perfectly justified in deducting 1/4[th] of the monthly income in consideration of personal expenditure of the deceased, since at the time when the claim petition was filed, the mother of the deceased was alive and the latter was survived by four members. The learned counsel pleaded for interference of the impugned award on the aforesaid counts. 11. In the backdrop of the rival contentions advanced as above, this court has ventured to analyse the evidence on record critically, to see merits in the contentions. The learned senior counsel appearing for the appellants in MACA No.3004/2014 has canvassed for considering contributory negligence. From the MACA 3004/2014 & MACA.1127/2015 13 evidence on record, it is relevant to notice that the final report was not produced by the claimants and got marked in evidence. Copy of the FIR in Crime No.556/04 of Kazhakkootam Police Station, Thiruvananthapuram is marked in evidence as Ext.A7. Ext.A7 is the primary document to set the law in motion in respect of the motor accident. The marking of Ext.A7 was not opposed by the 3[rd] respondent. As per Ext.A7, the crime was registered against the driver of the Ambassador car bearing registration No.KVB-5717 on the allegation that he was driving the vehicle at the relevant time in a rash and negligent manner and caused the accident by dashing against the motor cycle bearing registration No.KL-01-S-1203 ridden by Mr.Rajendran. A man allegedly witnessed the incident was examined as PW1. PW1 has categorically deposed before the Tribunal that he had witnessed a motor accident involving an Ambassador car bearing registration No.KVB-5717 and it was caused due to the rash and intelligent driving by its driver. Though the witness was cross examined elaborately, his version remained uncontroverted. Therefore, on the basis of Ext.A7 and the uncontroverted oral evidence of PW1 that the Tribunal had MACA 3004/2014 & MACA.1127/2015 14 arrived at the finding that the driver of the Ambassador car bearing registration No.KVB-5717 was responsible for the accident by his rash and negligent driving. Absolutely no evidence is available on record, to find negligence on the part of the deceased as rider of the motorcycle. Therefore, the finding on negligence was correctly arrived at by the Tribunal and this Court finds no reason to deviate therefrom. 12. The quantum of compensation arrived at by the Tribunal was also under challenge. The contention of the learned counsel for the insurer was that the quantum of compensation arrived at is unjust and exorbitant. Whereas the contention of the counsel for the claimants was that the quantum of compensation arrived at is unjust and unreasonable and interference is needed to enhance the same to make it just and reasonable. 13. Salary certificate of the deceased is marked in evidence as Ext.A2. It is dated 04.11.2009 and was issued by the alleged employer of the deceased. It is certified in Ext.A2 that the deceased was drawing a gross salary of Rs.19,497/-. It is also MACA 3004/2014 & MACA.1127/2015 15 disclosed from Ext.A2 that it was issued by the employer on the request of the family members of the deceased. The net salary is not certified therein. The gross salary alone being certified therein, and for want of particulars regarding the month and year of drawal of salary certified therein by the deceased, the Tribunal was not in a position to arrive at a conclusion as to the sums possibly deducted therefrom and the tax payable on its basis. In the aforesaid circumstances that the Tribunal was constrained to fix the notional income of Rs.15,000/- as the monthly income. The gross income certified in Ext.A2 being Rs.19,497/-, it can be gathered that the deceased was an income tax payee. In the absence of any cogent evidence to establish the monthly income that the Tribunal was constrained to fix Rs.15,000/- notionally. This court finds justification in enhancing the monthly income as Rs.16,000/- and to calculate compensation for loss of dependency on its basis. As rightly put forth by the learned Senior Counsel representing the insurer in MACA No.3004/14, the deceased, though was survived by four members at the time of filing of claim petition, at the time of consideration of the same, a reduction was there in the number MACA 3004/2014 & MACA.1127/2015 16 of surviving members in view of death of mother of deceased during the pendency of the claim petition. This Court do not find any error in the Tribunal deducting 1/4[th] from the monthly income fixed by it in consideration of personal expenditure of the deceased, for the reason that at the time of death of the victim, he was survived by four members and was spending sums for meeting their needs. The death of the mother being during pendency of the claim petition, that cannot be taken to have any impact while fixing the contribution of the deceased to the family at the relevant time of his death and arriving at compensation for loss of dependency. For the reason that the deceased was survived by four members at the relevant time of the death of the victim that the Tribunal had opted to deduct of 1/4[th ] of the monthly income fixed, towards personal expenses likely to be incurred by him, had he been alive. It is apparent to note that the legal heirs of the deceased including the mother of deceased Rajendran were brought on record in the claim petition before the Tribunal itself. Therefore, the mother of the deceased can only be taken to have alive at the relevant time of accident. Therefore, the Tribunal is perfectly justified in opting MACA 3004/2014 & MACA.1127/2015 **==> picture [14 x 8] intentionally omitted <==** to deduct 1/4[th] of the monthly income towards personal expenditure of the deceased. This Court do not find merit in the argument advanced by the learned Senior Counsel and is discarded as untenable. 14. Though the factum of adoption of multiplier and addition towards future prospects are disputed by the learned Senior Counsel appearing for the appellant in MACA No.3004/14, this Court finds those devoid of merits and therefore is declined to interfere with. Since it is evidenced from Ext.A5, the Post Mortem certificate that the deceased was aged 40 years at the relevant time of death of the victim, this Court finds no reason to interfere with the adoption of multiplier as 15 and addition of 50% of monthly income in consideration of future prospects of the deceased, had he been alive. In the re-fixation with the monthly income modified as Rs.16,000/- and maintaining the other factors as such, a sum of Rs.32,40,000/-{24,000 [(16,000 + 8,000(50% of 16,000)] - 1/4[th] x 12 x 15} is payable as compensation to the claimants under the head loss of dependency. A sum of Rs.30,37,500/-was already awarded by MACA 3004/2014 & MACA.1127/2015 18 the Tribunal and therefore, the sum payable additionally as compensation under the head is Rs.2,02,500/- 15. Enhancement of compensation under heads, funeral expenses and loss of estate were also sought by the claimants. Under the head funeral expenses, the Tribunal has awarded a sum of Rs.25,000/-. In view of **National Insurance Co.Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)], Rs.15,000/- being the appropriate sum payable under the said conventional head, a sum of Rs.10,000/- is deducted from Rs.25,000/-, the sum already granted by the Tribunal, to make it just and reasonable. The compensation awarded under the head loss of estate being Rs.40,000/- and the sum payable under the head in view of **Pranay Sethi** 's case (supra) being Rs.15,000/-, a sum of Rs.25,000/- is deducted therefrom. 16. The Apex Court has directed in **Pranay Sethi** 's case (supra) that Rs.40,000/- is a fair sum to be paid as compensation for loss of consortium. As per the impugned award, the Tribunal had awarded Rs.1,00,000/- under that head. Therefore, this Court deducts Rs.60,000/- from Rs.1,00,000/- MACA 3004/2014 & MACA.1127/2015 **==> picture [14 x 8] intentionally omitted <==** already granted to make the compensation in tune with that payable. As per **Pranay Sethi** 's case (supra), children are also entitled to get Rs.40,000/- each under the head filial consortium and this Court awards so. Under the head loss of love and affection, the Tribunal has awarded only a sum of Rs.40,000/-, though it is evidenced that the deceased was survived by his wife and two children. Undoubtedly the award of compensation as above is unreasonable and accordingly this Court is inclined to grant Rs.40,000/- each to the children also. Therefore, a sum of Rs.80,000/- (40,000 x 2) is payable additionally under that head. 17. In re-fixation of compensation as above, the petitioners are entitled to get Rs.34,37,250/-(32,40,000 + 1,500+750+ 15,000+5,000+40,000+120,000+15,000). Accordingly, there will be an enhancement of Rs.1,87,500/- in the compensation payable than that was awarded by the Tribunal. Both the appeal stand disposed as above. The claimants are entitled to get interest for the sum arrived at as compensation additionally @ 8% per annum from the date of the claim petition till the date of MACA 3004/2014 & MACA.1127/2015 **==> picture [14 x 8] intentionally omitted <==** realisation. The parties shall bear their respective costs. The appellant in MACA No.3004/14 shall deposit the aforesaid amount within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/-** **MARY JOSEPH** **JUDGE** ttb