MACA No. 88 of 2009 (Rajan and others v. A. Ibrahim and The Oriental Insurance Co. Ltd.)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937 MACA.No. 88 of 2009 ( ) ------------------------ AGAINST THE AWARD IN OPMV 1560/2003 of M.A.C.T.,KOZHIKODE DATED 21-112007 APPELLANT(S):PETITIONERS ------------------------ 1. RAJAN, AGED 47 YEARS, SON OF KANARAN. 2. PANKAJA, AGED 40 YEARS, WIFE OF RAJAN. 3. ROOPESH, AGED 24 YEARS, SON OF RAJAN. 4. RAJESH, AGED 19 YEARS, SON OF RAJAN. (ALL THE APPELLANTS ARE RESIDING AT PUNNAKANDIYIL HOUSE, P.O. EDAKKARA, KOZHIKODE) BY ADVS.SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): ---------------------------- 1. A.IBRAHIM, SON OF AHAMMED, ATHIKKODE HOUSE EYYADU P.O., UNIKULAM, KOZHIKODE. (DELETED) 2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., KINGSWAY BUILDING, MAVOOR ROAD KOZHIKODE. (FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS VIDE ORDER DATD 14.7.2015 IN IA 2331/2015) R,R2 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.88 of 2009** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] February, 2016** ## **JUDGMENT** ## **K. Ramakrishnan, J.** The claimants in O.P.(MV) No.1560 of 2003 on the file of the Motor Accidents Claims Tribunal, Kozhikode are the appellants herein. The appellants are the parents and siblings of deceased Rajesh who died in a motor vehicle accident occurred on 16.3.2003. According to the claimants, the deceased was travelling as a pillion rider in the motor cycle with Registration No.KL 11/H 8780 and when it reached the place of occurrence, a bus with Registration No.KL 11/C 1602 owned and driven by the first respondent and insured with the second respondent came from the opposite direction in a rash and negligent manner and hit against the motor cycle in which the deceased was travelling as pillion rider. The accident occurred due to the negligence of the first respondent alone. According to the claimants, the deceased was a driver by profession and getting Rs.4,000/- per month. The claimants were solely depending on his income. Later, he died from the hospital on account of the injuries sustained. They claimed a total compensation of Rs.5 Lakhs under various heads. 2. The second respondent appeared and filed written statement contending that the accident occurred due to the negligence on the MACA 88/2009 2 part of the rider of the motor cycle while riding after consuming alcohol and there was no negligence on the part of the driver of the bus. It is also contended that he was not having any valid driving licence. So he was solely responsible for the accident. Without impleading the owner, driver and insurance company of the motor cycle, the claim is bad for non joinder of necessary parties. They also contended that the total compensation claimed is excessive and the claimants are not entitled to get any compensation. They prayed for dismissal of the claim petition. 3. No oral evidence adduced on either side. Exts.A1 to A4 were marked on the side of the claimants. After considering the evidence on record, the Tribunal came to the conclusion that the accident occurred due to the composite negligence of both the drivers of the vehicles and awarded a total compensation of Rs.1,78,000/- as follows: Dependency - Rs.1,65,000/Pain and suffering - Rs. 5,000/Love and affection - Rs. 5,000/Funeral expenses - Rs. 2,000/Transportation - Rs. 1,000/----------------Rs.1,78,000/========== MACA 88/2009 3 Though the Tribunal found that drivers of both the vehicles were equally responsible and apportioned the negligence between them as 50 : 50 each, ultimately only 10% was deducted for the purpose of assessing the compensation payable to the claimants and awarded an amount of Rs.1,60,200/- as compensation to the claimants, payable by the second respondent with 7% interest from the date of petition till payment. Dissatisfied with the quantum of compensation awarded and also apportionment of negligence the claimants have filed this appeal. 4. The first respondent was deleted from the party array as per order in I.A.No.2331/2015 dated 14.7.2015. Heard Shri Jacob Abraham, learned counsel for the appellants and Shri A.R. George, learned counsel for the second respondent. 5. Learned counsel for the appellants submitted that he had produced the driving licence of the deceased which will show that he is authorised to drive passenger vehicle as well. The income of the deceased taken by the Tribunal is very less. The question of future prospects has not been taken into consideration by the Tribunal for the purpose of assessing dependency. The amounts awarded under the heads funeral expenses, love and affection, pain and suffering, etc. are also on the lower side. So, according to the learned counsel, the claimants are entitled to get enhanced compensation under the above MACA 88/2009 4 heads. He had also submitted that in view of the dictum laid down in the decision reported in **Khenyei v. New India Assurance Company** **Limited and others** {(2015) 9 SCC 273}, if it is a case of joint tortfeasors, the claimants can proceed against any one of the joint tortfeasors and there is no necessity for the court to apportion the liability. If that be the case, the appellants are entitled to get the entire amount of compensation from the present respondents. 6. On the other hand, learned counsel for the insurance company submitted that the rider of the motor cycle was not having any valid driving licence and it was also seen from the Police records that he had consumed alcohol while he was driving the vehicle and he had contributed to the accident. Further, even in the decision reported in **Sarla Verma (Smt) and others v. Delhi Transport Corporation** **and another** {(2009) 6 SCC 121}, the mother alone can be dependent in the absence of any evidence adduced regarding the dependency and as such there is no necessity to interfere with the compensation awarded by the Tribunal. If, for any reason this court found that the claimants are entitled to recover the entire amount from the present respondents, liberty can be given to the insurance company to realise the excess amount from the other tortfeasors in accordance with law. MACA 88/2009 5 7. It is an admitted fact that the deceased Rajesh was travelling in the motor cycle as a pillion rider and there was a collision between two vehicles, viz. the motor cycle and the bus insured with the second respondent herein. It is also seen from the documents produced that the First Information Report was registered against the driver of the bus. None of the parties have produced the final report before the court. As far as the pillion rider is concerned, he need not allege negligence against any one as according to him, the accident occurred due to the negligence of the driver of the bus and even in cases where two vehicles were involved, he can realise the amount of compensation from any one of the tortfeasors even without impleading the other joint tortfeasors. In the decision reported in **Khenyei's case** {(2015) 9 SCC 273}, the Hon'ble Supreme Court has held that in the case of joint tortfeasors and case involving composite negligence they are jointly and severally liable to pay the compensation and impleadment of all joint tortfeasors is not required. The entire compensation can be awarded against the sole impleaded joint tortfeasor and the inter-se liability of joint tortfeasors is to be worked out independently. If that principle is applied, the Tribunal was not justified in deducting 10% from the total compensation awarded on the ground of composite negligence. Though the Tribunal held that both the drivers were MACA 88/2009 6 equally responsible for the accident, since the other tortfeasor is not on the party array, we are not going into that question in this case. In view of the dictum laid down in the decision mentioned above, the claimants are entitled to recover the entire compensation from any of the joint tortfeasors who have been impleaded in the case and the finding that they are entitled to get only 90% of the compensation is wrong and the same is liable to be set aside. We do so. 8. As regards the quantum of compensation is concerned, the Tribunal had taken the annual income of the deceased as Rs.16,500/and taken the age of the mother for the purpose of selecting the multiplier and awarded the compensation. Future prospects of the deceased has not been taken into consideration at all. The claimants have produced the driving licence of the deceased before this court which will show that the deceased was having driving licence to drive passenger vehicle as well. So, as a driver the monthly income fixed by the Tribunal appears to be less. However, in the absence of any evidence adduced on that aspect, this court feels that the same amount can be taken as the monthly income of the deceased but at the same time, some amount will have to be added for future prospects considering the fact that he was aged only 21 years at the time of accident. 50% can be added as per the decision reported in MACA 88/2009 7 **Rajesh v. Rajbir Singh** (2013 (3) KLT 89 – SC) as even for persons not having permanent income, future prospects will have to be taken into consideration for assessing compensation under the head loss of dependency or permanent disability. Further, in the decision reported in **Sarla Verma's case** {(2009) 6 SCC 121} the multiplier will have to be taken on the basis of the age of the deceased and not on the basis of the age of the dependents. The same view has been further reiterated in the decision reported in **Munna Lal Jain and others v. Vipin Kumar Sharma and others** (JT 2015 (5) SC 1). In this case a three Judges Bench of the Supreme Court has held that for the purpose of selecting the multiplier the age of the deceased has to be taken as there is certainty with regard to it. Further, in **Sarla Verma's case** (supra) it was held that in the absence of any evidence adduced, in the case of a bachelor the mother can be taken as the only dependent and compensation can be awarded on that basis. But 50% will have to be deducted for personal expenses of the deceased. If a recalculation is made taking into account the above aspects, then the claimants will be entitled to get Rs.2,22,696/- as compensation under the head loss of dependency (1375 + 1375 x 50/100 = 2062 x 12 x 18 x50/100) instead of Rs.1,65,000/- awarded by the Tribunal. So, the claimants will be entitled to get an additional compensation of MACA 88/2009 8 Rs.57,696/- under that head. In the decision reported in **Munna Lal Jain's case** (JT 2015 (5) SC 1) the Apex Court has held that an amount of Rs.50,000/- each has to be awarded as compensation for love and affection to the parents. In this case, the Tribunal has awarded only Rs.5,000/- under the head love and affection. So, the appellants will be entitled to get Rs.1,00,000/- under the that head thereby entitled to get Rs.95,000/- more over and above the amount awarded by the Tribunal. The Tribunal has awarded only Rs.2,000/for funeral expenses. As per the decision reported in **Rajesh's case** (2013 (3) KLT 89-SC) in the absence of any evidence adduced on the side of the claimants regarding the actual expenses incurred for funeral, a minimum of Rs.25,000/- will have to be awarded under that head. So, the claimants are entitled to get Rs.25,000/- as compensation for funeral expenses instead of Rs.2,000/- and they will be entitled to get an additional amount of Rs.23,000/-. The Tribunal has awarded only Rs.5,000/- under the head pain and suffering which appears to be very low considering the fact that he died on the next day while he was undergoing treatment in the hospital. So, we enhance the compensation for pain and suffering to Rs.10,000/-. So, in total the appellants are entitled to an additional compensation of Rs.1,90,696/- which we round off to Rs.1,91,000/- which the second MACA 88/2009 9 respondent is liable to pay with interest at 9% per annum from the date of petition till payment. Over and above this amount, the appellants are also entitled to the 10% amount deducted by the Tribunal from the total compensation assessed, viz. Rs.17,800/- more. This amount also the second respondent is liable to pay together with interest as awarded by the Tribunal. The second respondent is at liberty to recover the amount paid over and above that has been directed to be paid by the Tribunal from the other joint tortfeasors in accordance with law. With the above modification of the amount awarded by the Tribunal, the appeal is allowed in part and disposed of accordingly. **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/** The figures Rs.1,90,696/- and Rs.1,91,000/- occurring in the last line of page No.8 of the judgment dated 18.2.2016 in MACA No.88/2009 are corrected as Rs.1,80,696/- and Rs.1,81,000/respectively vide order dated 7.4.2016 in I.A.No.1277/16 in MACA 88/09. ## sd/- Registrar (Judicial) MACA 88/2009 10