M.A.C.A. No.2064 of 2011 (B)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: **“C. R.”** THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 10TH DAY OF DECEMBER 2014/19TH AGRAHAYANA, 1936 MACA.No.2064 of 2011 (B) ------------------------------AGAINST THE AWARD IN OPMV 1602/2009 of PRL. M.A.C.T.,KOZHIKODE DATED 23-07-2010 -------- APPELLANTS/CLAIMANTS: ----------------------------- 1. M.T.FAZAL MAHMOOD S/O.DECEASED INBICHAYISHABI, 15/1273, M.T.HOUSE KUNDUNGAL, KALLAI P.O., KOZHIKODE. 2. M.T.ABDUL RASHEED S/O.DECEASED INBICHAYISHABI, 15/1273, M.T.HOUSE KUNDUNGAL, KALLAI P.O., KOZHIKODE. 3. M.T.ZALEEKATH S/O.DECEASED INBICHAYISHABI, 15/1273, M.T.HOUSE KUNDUNGAL, KALLAI P.O., KOZHIKODE. 4. M.T.NAZEEHATH D/O.DECEASED INBICHAYISHABI, 15/1273, M.T.HOUSE KUNDUNGAL, KALLAI P.O., KOZHIKODE. 5. M.T.ABOOBACKER KOYA S/O.DECEASED INBICHAYISHABI 15/1273, M.T.HOUSE KUNDUNGAL, KALLAI P.O., KOZHIKODE. ## 6. M.T.RAIHANATH S/O.DECEASED INBICHAYISHABI, 15/1273, M.T.HOUSE KUNDUNGAL, KALLAI P.O., KOZHIKODE. 7. M.T.FATHIMABI D/O.DECEASED INBICHAYISHABI, 15/1273, M.T.HOUSE KUNDUNGAL, KALLAI P.O., KOZHIKODE. 8. M.T.MOHAMED ASHRAF, S/O.DECEASED INBICHAYISHABI, 15/1273, M.T.HOUSE KUNDUNGAL, KALLAI P.O., KOZHIKODE. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA MACA.No.2064 of 2011 (B) -2- ## RESPONDENTS/RESPONDENTS: ------------------------------------ 1. RASHEED C.P. S/O.ALIKOYA C.P., AGED 24 YEARS, PULIKKAL PADAM YMRC, MEENACHANDA, ARTS COLLEGE P.O. KOZHIKODE. 2. SREENIVASAN NAIR, S/O.RAGHAVAN NAIR, AGED 66 YEARS, KARIMBOCHALIL HOUSE KIZHATHAN KADAVU, PAYIBRA P.O., KOZHIKODE-673571. 3. THE UNITED INDIA INSURANCE COMPANY LTD. BRANCH OFFICE, KMO TOWER, MAIN ROAD THAMARASSERY, KOZHIKODE-673004. R3 BY ADV. SRI.P.SANKARANKUTTY NAIR R2 BY ADV. SRI.JACOB ABRAHAM R1 BY ADV. SRI.C.V.MANUVILSAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOTTATHIL B. RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** ------------------------------------------------ M. A. C. A. No.2064 of 2011 -----------------------------------------------Dated this the 10[th] day of December, 2014 **“C. R.”** ## **JUDGMENT** ## **Thottathil B. Radhakrishnan, J.** This appeal is against an award passed by a Motor Accidents Claims Tribunal. Claim petition was dismissed. Heard the learned counsel for the appellants, the learned counsel for the owner of the vehicle against which the claim is raised, and the learned counsel for the insurer of that vehicle. 2. The appellants are the children of Inbichayishabi, who at the age of 65 years, died as a result of the road traffic accident. Their eligibility to claim compensation on such status is not in dispute. 3. The accident was on 17/03/2009 and victim died on 19/03/2009. She was pillion riding on a motorcycle which one of her sons was riding. The offending vehicle belonging M. A. C. A. No.2064 of 2011 -2- to the second respondent was also a motorcycle driven by the first respondent. The Tribunal determined the compensation, but dismissed the application on the ground that the scene mahazar prepared by the police, on appreciation by the Tribunal, tends to show that the accident occurred as a result of the negligence of the rider of the motorcycle on which the deceased was pillion riding. The Tribunal found that a total amount of 1,64,400/- was due as₹ compensation. 4. This appeal stands with twofold contentions. First is against the finding that the application is liable to be dismissed on the aforenoted finding as regards negligence. The second aspect is as to the quantum of compensation. 5. There is no oral evidence on record. The driver of the offending vehicle, who was the first respondent, did not file written statement. The owner and insurer of that vehicle filed written statements. The documentary evidence included Ext.A3, the final report, in terms of Code of Criminal Procedure, in the crime case registered following the M. A. C. A. No.2064 of 2011 -3- incident. That contains the investigator's opinion on the conclusion of the investigation, that the first respondent was at fault and was negligent in driving the motorcycle which he was riding. That being available as the concluding material following the investigation by the police, we are of the view that the Tribunal, without any further material, could not have relied on the contents of the scene mahazar (Ext.B2) to contradict that final report of the investigator to say that the accident occurred due to the negligence of the rider of the motorcycle on which the deceased was pillion riding. We say this pointedly, also because the Tribunal proceeded as if there was evidence as to from which direction each of the vehicles came to the spot of the accident. There is nothing in the scene mahazar indicating this aspect. That being so, the distance of the site of the accident as identified in the scene mahazar with reference to the limits of the road margin is of no significance. On the totality of the materials, including the scene mahazar and the contents of the final report at the conclusion of the M. A. C. A. No.2064 of 2011 -4- investigation, the Tribunal could not have but held the first respondent negligent, to fix tortious liability and the liability regarding the accident in question for compensation. We, therefore, reverse the Tribunal's finding on the issue of negligence and hold that the accident occurred as a result of the negligence of the first respondent in riding the motorcycle belonging to the second respondent. This means that the first respondent is liable to pay compensation and the second respondent is vicariously liable to pay such amount. The insurer, having admitted the policy cover, is liable to satisfy the award. 6. Before proceeding further, we take note of the submission of the insurer that the pillion rider is not at all entitled to the benefit of the insurance cover. Reliance is placed on **Oriental Insurance Co. Ltd. v. Sudhakaran K.V. [(2008) 7 SCC 428]** . That decision was one where the case related to the pillion rider of the vehicle which was involved in the accident and the claim was against the rider of that vehicle and insurer of that particular vehicle. Here, M. A. C. A. No.2064 of 2011 -5- the deceased was pillion riding another vehicle and not the vehicle which was driven by the first respondent. So much so, the deceased is, indisputably, a third party to the contract of insurance as between respondents 2 and 3. Therefore, the legal representatives are entitled to have the award satisfied by the third respondent insurer in terms of law. It is so held. 7. Onto the question of compensation, as already noted, the deceased was 65 years of age. She left behind eight children; their age ranging from 47 to 28 years. We have examined the different heads of claims on which amounts have been found due. We see that enhancement is required under three heads. An amount of 3,000/- has been₹ awarded by the Tribunal as funeral expenses. We are of the view that an amount of ₹10,000/- would be just and reasonable under that head. We, therefore, hold that the appellants are entitled to an additional amount of 7,000/-₹ towards funeral expenses. Towards pain and suffering undergone by the victim, the amount found by the Tribunal M. A. C. A. No.2064 of 2011 -6- is inadequate. The incident was in the night of 17/03/2009. The victim was taken to a local hospital. Thereafter, she was shifted to the Medical College Hospital. She suffered serious injuries. She breathed her last on 19/03/2009. In relation to that, an amount of 15,000/- would be just and reasonable₹ towards pain and suffering. This means that an additional amount of 5,000/- is eligible to be awarded under that₹ head. We grant that. The only other head of claim which requires modification is compensation towards loss of love and affection. We note that the 65 years old woman leaves behind eight children in age ranging from 47 to 28 years. In the claim petition they have expressed that their mother would have been alive till 85 years of age. Notwithstanding any financial contribution, the presence of the deceased as an elder woman in the family, has been lost. We are of the view that in terms of love and affection, the appellants are entitled to an amount of 40,000/-. This means that an₹ enhancement of 35,000/- as compensation towards love₹ and affection is to be ordered. Thus, the appellants are M. A. C. A. No.2064 of 2011 -7- entitled to an enhancement of ₹47,000/-. Thus, the appellants are entitled to a total amount of 2,11,400/- as₹ compensation. In the result, this appeal is allowed setting aside the impugned award and awarding the appellants a total amount of 2,11,400/- (Rupees two lakh eleven thousand₹ and four hundred only) with interest thereon at 9% per annum from the date of the claim petition till realisation. Any amount paid under the award under Section 140 of the M.V. Act will be deducted from the principal amount. The insurer is directed to satisfy the award within two months from today. ## Sd/- **THOTTATHIL B. RADHAKRISHNAN JUDGE** Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A. No.2064 of 2011 -8-