M.A.C.A. No.541 of 2005

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937** **MACA.No. 541 of 2005 ( )** **-----------------------------AGAINST THE AWARD IN OPMV 888/2000 of MACT MUVATTUPUZHA, DATED 17-02-2005.** **APPELLANT(S)/APPELLANTS/ADDL.CLAIMANTS IN THE OP: -------------------------------------------------** **1. MUKUNDAN S/O. P.B.MENON, MUTTATHIL HOUSE, ELAMKUNNAPPUZHA, RESIDING AT MIDHUNAM HOUSE, MARADY KARA, MARADY VILLAGE (DIED)** **2. RANI, W/O. MUKUNDAN, MIDHUNAM HOUSE, MARADY KARA, MARADY VILLAGE, MUVATTUPUZHA.** **3. ROHIT MUKUNDAN, S/O.MUKUNDAN, MIDHUNAM HOUSE, MARADY KARA, MARADY VILLAGE, MUVATTUPUZHA (MINOR), REPRESENTED BY MOTHER AND LEGAL GUARDIAN - RANI, W/O. MUKUNDAN.** **4. MAHESH MUKUNDAN, S/O. MUKUNDAN, MIDHUNAM HOUSE, MARADY KARA, MARADY VILLAGE, MUVATTUPUZHA, (MINOR) REPRESENTED BY MOTHER AND LEGAL GUARDIAN - RANI, W/O. MUKUNDAN.** **5. SAROJINIAMMA, W/O. BHANU VIRAMA MENON, MUTTATHIL HOUSE, ELAMKUNNAPPUZHA, ERNAKULAM.** **BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM)** **RESPONDENT(S)/RESPONDENTS 1 & 2 IN OP:** **--------------------------------------** **1. ASHARAF, HOUSEJ NO.15/586, KOCHANGADI, KOCHI.** **2. THE BRANCH MANAGER, THE UNITED INDIA INSURANCE CO.LTD., PALACE ROAD, MATTANCHERRY.** **R2 BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- **M.A.C.A. No.541 of 2005** -------------------------------------------------------------Dated this the 15[th] day of February, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Additional claimants 2 to 5 in O.P.(MV)No.888 of 2000 on the file of the Motor Accident Claims Tribunal, Muvattupuzha are the appellants herein. The appellants are the wife, children and mother of the deceased Mukundan Menon. The original petition was originally filed by deceased Mukundan Menon, for compensation for the personal injuries sustained by him in the accident. The case was that, he was riding the motor cycle with registration No.KL-7U/5531 from south to north and at that time a car with registration No.KL-7G/6280 owned and driven by first respondent and insured with the 2nd respondent came from behind and 2 ## **M.A.C.A. No.541 of 2005** overtook the motor cycle through the wrong side and suddenly turned to the right and hit the left side of the motor cycle. Due to that the motor cycle over turned and the rider and the pillion rider sustained injuries. The rider/deceased Mukundan Menon sustained severe head injuries. While he was alive the claim petition was filed through his wife as he was incapacitated from filing the petition due to his disability, claiming a total compensation of 20,00,000/-. During the pendency of the proceedings,₹ on 16.05.2001, he died due to the injuries sustained in the accident and thereafter additional petitioners 2 to 5 were impleaded as his legal heirs. 2. The first respondent remained absent and 2nd respondent filed written statement contending that there was no negligence on the part of the first respondent and the petitioner is not entitled to claim any compensation. The income, disability, occupation etc., claimed by the petitioner is not correct. The total compensation claimed is **M.A.C.A. No.541 of 2005** 3 also exorbitant according to the 2rd respondent. They prayed for dismissal of the application. 3. PWs 1 to 3 were marked on the side of the petitioners and Exts.A1 to A17 were marked on their side. No evidence was adduced on the side of the respondents. After considering the evidence on record, the court below found that the claimants failed to prove the negligence on the part of the first respondent. The tribunal assessed a total compensation of 16,00,700/- on various heads as₹ ## follows: |**_Sl.No._**|**_Heads_**|**_Amount_**| |---|---|---| |1|Extra nourishment|₹12000| |2|Medical expenses|₹350000| |3|Loss of earnings|₹31200| |4|Pain and suffering|₹50000| |5|Loss of amenities in life|₹20000| |6|Damage to clothing and articles|₹500| |7|Bystanders expenses|₹10000| |8|Transport to hospital|₹3000| |9|Permanent disability|₹936000| |10|Future treatment|₹100000| |11|Extra nourishment|₹50000| ||**_Total_**|₹**_1560700_**| **M.A.C.A. No.541 of 2005** 4 Since the tribunal found that the claimants failed to prove the negligence on the part of the first respondent, dismissed the application. Aggrieved by the same, the present appeal has been preferred by the appellants/additional claimants in the tribunal. 4. Heard Sri.P.V. George Puthiyidom, counsel appearing for the appellants and Sri.M.A.Grorge, counsel appearing for the 2nd respondent as first respondent remained absent. 5. The counsel for the appellants submitted that the tribunal has not properly appreciated the evidence. The documents produced by the claimants will go to show that, the police charge-sheeted the driver of the car and he pleaded guilty and suffered conviction. Further it will be seen from the statement given by the pillion rider of the motor cycle that the accident occurred due to the negligence of the car driver and court below had simply relied on some Motor Vehicle Rules and came to the conclusion that there 5 ## **M.A.C.A. No.541 of 2005** was no negligence on the part of the first respondent and the findings arrived at is not proper. He had also argued that having found that it is a case of death caused on account of the injury sustained, the tribunal ought to have awarded compensation as though it is a death case. But the method adopted for assessing compensation as though it is a personal injury case is also not proper. 6. On the other hand, the counsel appearing for the insurance company submitted that no witnesses were examined to prove the accident. In order to claim compensation under tort, the initial burden is on the claimants to prove negligence on the part of the driver of the vehicle which has not been established in this case. So under the circumstances, tribunal was perfectly justified in coming to the conclusion that the negligence was not proved and as such they are not entitled to get compensation. 7. The counsel for the insurance company also submitted that the court below was not justified in awarding **M.A.C.A. No.541 of 2005** 6 compensation and taking the multiplier, for the entire period taking his age for this purpose, though he died in the year 2001. If it is treated as a personal injury case, then court below ought not have awarded compensation for the entire life of the injured. If it is taken as case of death due to the injury sustained, then the method adopted is not proper and the total compensation awarded is on the higher side and it will have to be re-fixed by this court. If it is taken as a case of death, then 20% will have to be deducted for income tax expenses and also the future treatment expenses given should be deducted. 8. It is an admitted fact that the deceased Mukundan Menon was riding the motor cycle with a pillion rider and the car came from behind, overtook through the left side and then took to the right side and hit against the motor cycle. It is true that no witnesses were examined to prove the incident. But in the written statement filed by the 2nd respondent that there is no allegation that the accident 7 ## **M.A.C.A. No.541 of 2005** occurred solely due to the negligence of the rider of the motor cycle. They have only stated that there was no negligence on the part of the driver of the car. It will be seen from Ext.A1 certified copy of the first information report in Crime No.2168/1999 of City Traffic Police Station, Kochi, that it was registered on the basis of the statement given by the pillion rider against the driver of the car namely the first respondent. Ext.A2 is the final report filed in this case. After investigation, police charge-sheeted the driver of the car for the negligence. Ext.A7 certified copy of the judgment in C.C.No.1354/2000 of the Judicial First Class Magistrate Court -I, Ernakulam will go to show that the driver pleaded guilty and suffered conviction. It is true, at that time the claimant/injured was alive and it was not converted to under Section 304(A) of the Indian Penal Code. But he was charge-sheeted for the offence under Section 279, 337 and 338 of the Indian Penal Code. So under the circumstances, the court below simply relying on certain 8 ## **M.A.C.A. No.541 of 2005** rules of the Motor Vehicles Act and Rules and coming to the conclusion that the rider of the motor cycle was on the wrong side and dismissing the application on that ground appears to be unsustainable in law. 9. In the decision reported in _**Fazal Mahmood M.T. and Others v. Rasheed C.P. and Others**_ (2015 (4) KHC 440), another Division Bench of this court held that, when the final report is filed after investigation against the driver of the offending vehicle, then scene mahazar merges with the same and it need not to be taken into account, unless contra evidence is adduced that the negligence was not on the part of the offending vehicle. This aspect has not been properly considered by the tribunal before coming to the conclusion that the claimants have failed to prove negligence against the first respondent and consequential dismissal of the application by the tribunal is unsustainable in law and the same is liable to be set aside. 10. In view of the discussions made above, we **M.A.C.A. No.541 of 2005** 9 hold that the accident occurred due to the negligent driving of the car by the first respondent as the car overtook the motor cycle through the wrong side and suddenly took to the right and hit against the motor cycle causing damage to the left side of the motor cycle. So the finding of the court below to that extent that the claimants failed to prove negligence on the part of the respondent is set aside and we hold that first respondent was solely responsible for the accident. 11. The evidence of PWs 1 and 2, the doctors who treated the injured will go to show that, he was through out suffering on account of the head injury and the injuries have accelerated his death and the death was due to the injuries caused in the accident. If that be the case, the court below ought to have treated this as a case of death due to the injury sustained in the accident and court below should not have taken this as a case of injury and assessed compensation as done in this case. 10 ## **M.A.C.A. No.541 of 2005** 12. Ext.A13 certificate shows that he was drawing a gross salary of 6,381/- at the time of accident.₹ It is settled law that the gross income has to be taken without any deduction for the purpose of considering the income of the deceased at the time of his death. Further in the decision reported in _**Sarala Verma (Smt) and Others v. Delhi Transport Corporation and Another**_ (2009(6) SCC 121), it has been held that, in a case where the injured is a person getting permanent income, then future prospects will have to be taken into account for the purpose of assessing compensation and between the age group of 41 and 50, the amount will have to be taken as 30% for that purpose. Further it has been held that, if it is not proved by producing document to prove the amount of income tax paid, then 20% from the total compensation awarded under the head loss of dependency has to be deducted from that head. In the same decision, the multiplier to be taken in the case of age group of 41 to 45 is fixed as 14 and in the case **M.A.C.A. No.541 of 2005** 11 of having number of dependents between 3 and 5, then 1/4th will have to be deducted for the personal expenses of the deceased and the balance amount will have to be taken as the loss of dependency of the legal representatives of the deceased. If a re-calculation is made on that basis, then the appellants will be entitled to get a compensation of ₹10,18,962/- (6000x130% = 8087 x12 x 14 x 75%) under the head loss of dependency. From this 2,03,792/- being₹ the 20% amount to be deducted for income tax, then balance is 8,15,170/-. Which the additional claimants will₹ be entitled to get as compensation under the head loss of dependency and we award this amount under this head. 13. In view of the dictum laid in the decision reported in _**Kala Devi and Others v. Bhagwan Das Chauhan and Others**_ (2015 (2) SCC 771), minor children will be entitled to get a compensation of 1,00,000/- each₹ for loss of love and affection caused on account of the death of their father. So we award 2,00,000/- under the head₹ **M.A.C.A. No.541 of 2005** 12 loss of love and affection to the children and we awarded ₹50,000/- to the mother towards loss of love and affection. 14. In the decision reported in _**Rajesh v. Rajbir Singh**_ [2013 (3) KLT 89 (SC)], it has been held that compensation will have to be awarded under the head loss of consortium to the wife at least 1,00,000/-. So we award₹ ₹1,00,000/- under that head and also 25,000/- will have to₹ be awarded under the head for funeral expenses as per the above decision in case where there is no contra evidence adduced to prove the actual expenses for funeral and we award that amount also under that head. The court below had awarded 3,50,000/- being the actual medical expenses₹ incurred proved through PW3, which the legal heirs are entitled to get as the amount spent by him as his estate. The court below has awarded ₹50,000/- for pain and suffering suffered, as he suffered the same as he died after nearly more than two years after the accident. We award ₹10,000/- under the head loss of estate. So the claimants **M.A.C.A. No.541 of 2005** 13 will be entitled to get a compensation of 16,00,170/-. So₹ the amount awarded by the court below is set aside and the amount of compensation is re-fixed as follows: |**_Heads_**|**_Amount_**| |---|---| |Loss of dependency|₹ 8,15,170.00| |Loss of consortium|₹1,00,000.00| |Loss of love and affection for two minor|₹2,00,000.00| |children 1,00,00/- each<br>₹|| |Loss of love and affection to mother|₹50,000.00| |Funeral expenses|₹25,000.00| |Medical expenses|₹3,50,000.00| |Pain and suffering|₹50,000.00| |Loss of estate|₹10,000.00| |**Total**|**₹16,00,170.00**| So the appellants are entitled to get a total compensation of 16,00,170/- together with interest at the₹ rate of 7% from the date of petition till the realisation which third respondent insurance company is liable to pay. Three months time is granted to the insurance company to deposit this amount. Out of this amount 2,00,000/- be paid to the₹ mother of the deceased. Out of the balance amount, 50% of the balance amount be paid to the wife of the deceased and the balance amount be divided among the minor children equally and deposit the amount due to them in a nationalized bank till they attain majority with liberty for the 14 ## **M.A.C.A. No.541 of 2005** mother of the minor children to withdraw the monthly interest accrued for their maintenance and education expenses. With the above modification of the impugned award, the appeal is allowed in part and disposed of accordingly. _Sd/-_ **( P.N. Ravindran, Judge)** _Sd/-_ **(K. Ramakrishnan, Judge)** _//True Copy//_ P.A. to Judge ss