MACA No.1745 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 19TH DAY OF JUNE 2019 / 29TH JYAISHTA, 1941** ## **MACA.No.1745 of 2012** **AGAINST THE AWARD IN OP(MV)No.408/2008 of the MOTOR ACCIDENTS CLAIMS TRIBUNAL, KASARAGOD DATED 09-05-2012** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LTD. PAYYANNUR, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. ROAD, KOCHI -35.** **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 P.A.JOHN, S/O. AUGUSTY, PADINJATEL HOUSE, KANNIVAYAL.P.O, VIA CHETUPUZHA, HOSDURG TALUK - 671 320.** - **2 VALSAMMA JOHN, W/O.P.A. JOHN, PADINJATEL HOUSE, KANNIVAYAL.P.O, VIA CHETUPUZHA, HOSDURG TALUK - 671 320.** - **3 SONIYA JOHN, D/O.P.A.JOHN, PADINJATEL HOUSE, KANNIVAYAL.P.O, VIA CHETUPUZHA, HOSDURG TALUK - 671 320.** ## **BY ADV. SRI.SUBHASH CYRIAC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.1745 of 2012 2 ## **J U D G M E N T** The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the decision of the Tribunal. 2. One Sobin John, aged 21 years died on 04.05.2008, on account of the injuries sustained by him in a motor accident took place on 24.04.2008. Sobin John was riding a motor cycle. The accident took place when another motorcycle covered by a policy of insurance issued by the appellant hit against the motor cycle ridden by Sobin John. The father, mother and sister of Sobin John claimed a sum of Rs.10,00,000/- by way of compensation in the proceedings. The appellant contested the proceedings contending, among others, that the accident occurred on account of the negligence of the deceased also and that therefore they are not liable to compensate the claimants in their capacity as the insurer of the offending vehicle. The Tribunal rejected the contention raised by the appellant and passed an award directing the appellant to M.A.C.A No.1745 of 2012 3 pay to the claimants a sum of Rs.6,64,400/-by way of compensation. The insurer is aggrieved by the said decision of the Tribunal. Hence this appeal. 3. Heard the learned senior counsel for the appellant. 4. The learned senior counsel for the appellant contended that it is a case where police chargesheeted the riders of both the motorcycles including the deceased in the case registered in connection with the occurrence and the Tribunal has ignored the final report laid by the police in this connection and found negligence on the part of the rider of the offending motor cycle alone and it is on that basis that the Tribunal has directed the appellant to pay compensation to the claimants. According to the learned senior counsel, insofar as the police filed a charge sheet against the riders of both the motorcycles, the Tribunal should have presumed contributory negligence on the part of the deceased and should have apportioned the contributory negligence at 50%. In short, the contention of the learned senior counsel is that the Tribunal M.A.C.A No.1745 of 2012 4 should have passed an award against the appellant only for 50% of the compensation. 5. There is no dispute to the fact that a crime was registered in connection with the occurrence and the police, after investigation, found in the said case that the riders of both vehicles were negligent, and a chargesheet was laid not only against the rider of the offending motor cycle, but also against the deceased. Insofar as the chargesheet laid by the Police in the case registered in connection with the accident is part of the records, in the light of the decision of this court in **New India Assurance Co. Ltd.** v. **Pazhaniammal** (2011(3) KLT 648)], what is to be seen is as to whether there is any independent evidence to establish negligence on the part of the rider of the offending motor cycle. One witness is seen examined by the claimants in the proceedings as PW2 to prove the negligence on the part of the rider of the offending motorcycle. I have gone through the evidence of PW2. The evidence tendered by PW2 is not one that inspires the confidence of the court to hold that the deceased was not M.A.C.A No.1745 of 2012 5 negligent in the matter of causing the accident. The claimants have not examined the police officer who laid the charge sheet. In the said view of the matter, I am in agreement with the contention raised by learned senior counsel that the Tribunal should have found contributory negligence on the part of the deceased and should have apportioned the contributory negligence on the part of the deceased, in the absence of satisfactory materials, at 50%. 6. It is seen that the Tribunal has granted compensation for loss of dependency to the claimants reckoning the monthly income of the deceased at Rs.5000/-. The specific pleading in the claim petition as regards the income of the deceased was that he was working in a catering unit and was earning a sum of Rs.8,000/- per month. An authorized representative of the catering unit where the deceased was working was examined as PW3. In addition, a salary certificate issued by the catering unit was also produced as Ext.A5. PW3 has categorically deposed that the deceased was working with him and that the deceased was being M.A.C.A No.1745 of 2012 6 disbursed a salary of Rs.8,000/- per month. Evidence tendered by PW3 was not accepted by the Tribunal and it is in the circumstances that the Tribunal has reckoned the monthly income of the deceased at Rs.5,000/- for the purpose of computing the compensation payable to the claimants for loss of dependency. I do not agree with the view taken by the Tribunal in this regard. Even in the absence of any evidence, in the light of the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited,** (2011) 13 SCC 236 and **Syed Sadiq v. Divisional Manager, United India Insurance Co.** **Ltd.** (2014) 2 SCC 735, where the Apex Court has reckoned the monthly income of persons whose income could not be established by independent evidence at Rs.4,500/- and Rs.6,500/-, in the context of accidents took place in the year 2004 and 2008 respectively, in so far as the accident in the instant case took place in the year 2008, I am of the view that the monthly income of the deceased could have been reckoned by the Tribunal at Rs.6,500/-. In the circumstances, in the light M.A.C.A No.1745 of 2012 7 of the salary certificate and the evidence tendered by PW3, the Tribunal should have reckoned the monthly income of the deceased at Rs.8,000/-. Further, it is seen that the multiplier that should have been applied in the case of a person aged 21 is '18' and the Tribunal has applied the multiplier '14' considering the age of the mother of the deceased. Further, the Tribunal has worked out the compensation payable for loss of dependency without taking note of the future prospects. Since the deceased was a bachelor, one half of the income should have been deducted towards personal expenses instead of 2/3. If compensation payable under the head 'loss of dependency' is worked out reckoning the monthly income of the deceased at Rs.8,000/- and adding 40% to the income towards future prospects and deducting one half of the income towards personal expenses, applying the multiplier '18', the amount would come to Rs.12,09,600/- (Rs.8,000x140/100x 12x18x1/2). As the Tribunal has granted only a sum of Rs.5,60,000/- under that head, the claimants are entitled to a further sum of Rs.6,49,600/- under that head. Further, only a M.A.C.A No.1745 of 2012 8 sum of Rs.10,000/- is seen granted towards funeral expenses. In the light of the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], the claimants are entitled to a further sum of Rs.5,000/under that head. Similarly, only a nominal sum of Rs.15,000/has been granted by the Tribunal towards loss of love and affection. In the light of the decision of the Apex court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), the Tribunal, according to me, could have granted a minimum of Rs.1,20,000/- to the parents and sister of the deceased towards compensation for loss of love and affection. In other words, the compensation granted by the Tribunal under this head is short to the extent of Rs.1,05,000/-. If the aforesaid shortfalls are taken into account, it can be seen that it is a case where the Tribunal could have granted more than double of the compensation now granted in terms of the impugned award. In the said circumstances, I am the view that interference is not called for in the light of the finding that there was contributory negligence on the part of the deceased. In the M.A.C.A No.1745 of 2012 9 said view of the matter, the appeal is only to be dismissed and I do so. All interlocutory applications in the appeal are closed. **Sd/P.B.SURESH KUMAR, JUDGE.** DK