MACA No.72 of 2014 & CO No.57 of 2018

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 28[ TH ] DAY OF MAY 2024 / 7TH JYAISHTA, 1946`** ## **`MACA NO. 72 OF 2014`** ``` AGAINST THE AWARD DATED 11.07.2013 IN OP(MV) NO.299 OF 2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LIMITED, KANNUR 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 & 1ST RESPONDENT:`** - **`1 USHA NANDINI N.M., W/O.LATE V.M.PRAMOD, THRIKOVIL, KOLACHERIPARAMBA, KOLACHERY P.O., PIN - 670 601.`** ``` 2 GOPIKA, (MINOR) D/O.LATE V.M.PRAMOD, REPRESENTED BY HER MOTHER 1ST RESPONDENT, THRIKOVIL, KOLACHERIPARAMBA, KOLACHERY P.O., PIN - 670 601. ``` - **`3 V.M.PARVATHI, W/O.V.K.KESHAVAN NAMBEESAN, THRIKOVIL, KOLACHERIPARAMBA, KOLACHERY P.O., PIN - 670 601.`** MACA No.72 of 2014 & CO No.57 of 2018 ``` 4 PARAMBIL MUHAMMED, S/O.THARI, MARIYAM MANZIL, NEAR KMH SCHOOL, PANNIYAMKANDI, KOLACHERRY P.O., PIN -670 601. ``` ``` BY ADVS. SRI.A.K.SANTHOSH SMT.B.BINDU SMT.DENNIS VARGHESE ``` ``` THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2024, ALONG WITH CO.57/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.72 of 2014 & CO No.57 of 2018 3 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 28 [ TH ] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 ``` ``` CO NO. 57 OF 2018 IN MACA NO. 72 OF 2014 ``` ``` AGAINST THE AWARD DATED 11.07.2013 IN OP(MV) NO.299 OF 2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY ``` ## **`CROSS OBJECTORS/RESPONDENTS 1 TO 3:`** ``` 1 USHA NANDINI N.M., AGED 38 YEARS, W/O. LATE V.M PRAMOD, THRIKOVIL, KOLACHERIPARAMBA,KOLACHERY P.O, PIN 670 601. ``` - **`2 GOPIKA (MINOR),`** ``` AGED 14 YEARS, D/O. LATE N.V PRAMOD, THRIKOVIL, KOLACHERIPARAMBA, KOLACHERY P.O., 670 601, REPRESENTED BY HER MOTHER 1ST CROSS OBJECTOR, USHA NANDINI N.M., W/O.LATE V.M PRAMOD, THRIKOVIL, KOLACHERIPARAMBA, KOLACHERY P.O, PIN 670 601. ``` - **`3 V M PARVATHI,`** ``` AGED 67 YEARS, W/O. V.K KESHAVAN NAMBEESAN, THRIKOVIL, KOLACHERIPARAMBA, KOLACHERY P.O, PIN 670 601. ``` ``` BY ADVS. SMT.B.BINDU SMT.DENNIS VARGHESE ``` ## **`RESPONDENTS/APPELLANT & RESPONDENT NO.4:`** - **`1 NATIONAL INSURANCE COMPANY LIMITED,`** ``` NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G ROAD, KOCHI 35. ``` MACA No.72 of 2014 & CO No.57 of 2018 ``` 2 PARAMBIL MUHAMMED, ``` ``` S/O. THARI, MARIYAM MANZIL, NEAR KMH SCHOOL, PANNIYAMKANDI, KOLANCHERRY P.O, PIN 670 601. ``` ``` BY ADV SRI.P.JACOB MATHEW ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2024, ALONG WITH MACA.72/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.72 of 2014 & CO No.57 of 2018 5 ## **J U D G M E N T** MACA No.72 of 2014 is at the instance of the 2nd respondent in OP(MV)No.299 of 2006 on the file of Motor Accidents Claims Tribunal, Thalassery, challenging the award dated 11.07.2013 on the ground that the company was not liable to compensate the original claimants, as the accident occurred solely due to the negligence of the deceased. 2. One Mr. Pramod, who was aged 32, died in a road traffic accident occurred on 10.07.2005. His legal heirs approached the Tribunal claiming compensation of Rs.8,00,000/-. According to them, while Sri.Promod was riding his motorcycle, he was knocked down by KL-13/H-8296 scooter, ridden by the 1st respondent, in a rash and negligent manner. Though he was taken to Pariyaram Medical College Hospital for treatment, he was declared dead. 3. Learned Tribunal directed the 2nd respondent-Insurer of the scooter to pay compensation to the claimants finding that the accident occurred due to the rash and negligent riding MACA No.72 of 2014 & CO No.57 of 2018 6 of the scooter by the 1st respondent-Insured. 4. The 2nd respondent-Insur er would contend that the accident occurred due to the rash and negligent riding of the motorcycle by the deceased himself and in fact, the 1st respondent was not riding the scooter at the time of accident, and it was parked on the road side, and then the motorcycle ridden by the deceased came and hit against his motorcycle while he was leaning on it. 5. Learned counsel for the appellant would submit that Exts.B4 and B5 copies of final reports in Crime No.287 of 2005 and 406 of 2005 will show that the accident occurred due to the rash and negligent riding of the motorcycle by the deceased, and so, both charges were referred. Relying on the decision **New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648]** , learned counsel for the appellant would submit that Exts.B4 and B5 charge-sheets are sufficient to show that the accident had occurred not due to any negligence from the part of the 1st respondent. So, according to the MACA No.72 of 2014 & CO No.57 of 2018 7 appellant, the award of the Tribunal is liable to be set aside. 6. Learned counsel for respondents 1 to 3 (original claimants) would submit that the refer charge sheet was filed by the investigating officer on 30.09.2005. Thereafter on 04.02.2008 the 1st respondent filed written statement before the Tribunal, admitting that he was riding his scooter observing traffic rules, and even though he applied sudden brake, he could not avoid the unfortunate accident. So, according to them, the 1st respondent in the OP(MV) (the 4th respondent in appeal) himself was admitting the fact that he was riding the scooter, and so the Police case that the scooter was in a stationary condition at the time of accident is not correct. Respondents 1 to 3 (original claimants), apart from opposing the appeal filed by the Insurance Company, filed Cross Objection No.57 of 2018, challenging the quantum of compensation on the ground that it was inadequate. 7. In the appeal, the 4th respondent [the 1st respondent in OP(MV)] was served with notice, but none appeared for him. MACA No.72 of 2014 & CO No.57 of 2018 8 8. The appellant is the 1st respondent in the cross objection filed by the claimants. 9. Heard learned counsel for the appellant and learned counsel for respondents 1 to 3 (claimants). 10. The appellant is challenging the award on the ground that they have no liability to compensate respondents 1 to 3 as the accident occurred due to the sole negligence of the deceased. The appellant is relying on Exts.B4 and B5 copy of charge sheets to say that after investigation, Police found that the accident occurred due to the negligence of the deceased himself. The 4th respondent-rider of the scooter was not negligent, and actually he was not riding the scooter, and it was kept stationary by the road side. The appellant is disputing the finding of the Tribunal that the accident occurred due to the rash and negligent riding of the scooter by the 4th respondent. 11. On going through Exts.B4 and B5 documents, it could be seen that even after re-investigation, Police came to the conclusion that the scooter was in a stationary condition, and MACA No.72 of 2014 & CO No.57 of 2018 9 the motorcycle ridden by the deceased, in a rash and negligent manner, dashed against that scooter. It is pertinent to note that the investigation as well as the re-investigation were done by the very same Police Officer, and normally we cannot expect any variation in his conclusion. The written statement filed by the 4th respondent [the 1st respondent in OP(MV)] will clearly show that he was riding his scooter, and though he applied sudden brake, he could not avoid the accident. The clear admission by the rider himself need not be overlooked to find that the conclusion in Exts.B4 and B5 are true. The oral testimony of PW2 will show that the motorcycle and the scooter were coming from opposite direction and so it was a head on collision. The mahazar also is not specific as to the exact point where the accident occurred. If the scooter was kept stationary by the road side, the place of occurrence would not have been on the road. But from the scene mahazar, one could infer that the place of occurrence was on the road. So, the argument of learned counsel for the appellant that the accident occurred solely due to the negligence of the deceased MACA No.72 of 2014 & CO No.57 of 2018 10 cannot be accepted in the light of the pleadings coupled with testimony of PWs 1 to 3 and Ext.B2 scene mahazar. Since the motorcycle and the scooter had a head on collision, both riders contributed each other for the accident. No clear evidence is available to show the extent of negligence from the deceased as well as from the 4th respondent, the rider of the scooter. So this Court is inclined to fix contributory negligence of the deceased to the extent of 50%. So much so, the compensation awarded by the Tribunal is liable to be deducted by 50%. 12. Now coming to the cross objection filed by respondents 1 to 3 (original claimants), they would claim that the deceased was a 32 year old Electrician, earning monthly income of Rs.5,000/-. But the Tribunal fixed his notional income @ Rs.3,000/-. Relying on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , learned counsel for respondents 1 to 3 (original claimants) would submit that since the accident was in the year 2005, he was MACA No.72 of 2014 & CO No.57 of 2018 11 eligible to get his notional income fixed @ Rs.5,000/-, even if he was taken as a coolie worker. Though there was no document to prove his income as an Electrician, relying on **Ramachandrappa’s case** cited supra, this Court is inclined to fix his notional income @ Rs.5,000/-. Since he was aged below 40, as per the decision **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680]** , he was eligible to get 40% addition towards future prospects. So, his income could have been taken as Rs.7,000/- per month. Since he was having three dependents, **⅓** had to be deducted towards personal expenses. So the balance amount would have been Rs.4,667/-. The multiplier applicable is 16. So, the compensation for loss of dependency could have been assessed as Rs.8,96,064/- (4667x12x16). Since the Tribunal already awarded Rs.5,99,040/-, they are eligible to get the balance amount of Rs.2,97,024/-. 13. Towards loss of consortium, respondents 1 to 3 are entitled to get Rs.40,000/- each amounting to Rs.1,20,000/- in MACA No.72 of 2014 & CO No.57 of 2018 12 total. Thus the amount awarded by the Tribunal, i.e., Rs.50,000/- towards loss of consortium and Rs.60,000/towards loss of love and affection are liable to be deducted. So respondents 1 to 3 are entitled to get Rs.10,000/- as enhancement under the head ‘loss of consortium’. 14. Towards loss of estate and funeral expenses, learned Tribunal awarded only Rs.10,000/- each. Going by **Pranay Sethi ’s case** cited supra, they were entitled to get Rs.15,000/each. So they are eligible to get the balance amount of Rs.5,000/- each under the heads ‘loss of estate’ and ‘funeral expenses’. 15. Since the deceased had an instantaneous death in the accident, the amount awarded by the Tribunal towards pain and suffering, i.e., Rs.30,000/- also is liable to be deducted, as his legal representatives are not eligible to claim that amount. 16. The compensation amount awarded under all other heads seems to be reasonable, and it needs no modification. MACA No.72 of 2014 & CO No.57 of 2018 |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|Rs.5,99,040/-|Rs.8,96,064/-||Rs.2,97,024/-| |Loss of<br>consortium/<br>Loss of love and<br>affection|Rs.50,000/-<br>Rs.60,000/-|Rs.1,20,000/-||Rs.10,000/-| |Loss of estate|Rs.10,000/-|Rs.15,000/-||Rs.5,000/-| |Funeral<br>expenses|Rs.10,000/-|Rs.15,000/-||Rs.5,000/-| |Pain & suffering|Rs.30,000/-||Rs.30,000/-|| |Total|||Rs.30,000/-|Rs.3,17,024/-| |||||| |Enhanced compensation is Rs.2,87,024**/-**(3,17,024 - 30,000)<br>After deducting 50% towards contributory negligence respondents 1 to 3<br>(claimants) will get enhanced compensation of Rs.1,43,512/- (2,87,024 x<br>50%).||||| |After deducting 50% from the amount awarded by the Tribunal, also the<br>claimants will get Rs.3,80,520/- (7,61,040x50%).||||| Enhanced compensation is Rs.2,87,024 **/-** (3,17,024 - 30,000) After deducting 50% towards contributory negligence respondents 1 to 3 (claimants) will get enhanced compensation of Rs.1,43,512/- (2,87,024 x 50%). After deducting 50% from the amount awarded by the Tribunal, also the claimants will get Rs.3,80,520/- (7,61,040x50%). 17. Respondents 1 to 3 (the original claimants/cross objectors) are eligible to get Rs.1,43,512/- (Rupees One Lakh, Forty Three Thousand Five Hundred and Twelve only), as enhanced compensation, and they will get Rs.3,80,520/- from the amount awarded by the Tribunal, on deducting 50% towards contributory negligence of the deceased. So the MACA No.72 of 2014 & CO No.57 of 2018 14 liability of the appellant-Insurer is to pay total compensation of Rs.5,24,032/- (Rupees Five Lakh Twenty Four Thousand and Thirty Two only) to respondents 1 to 3 (original claimants) with interest @ 8% per annum from the date of petition till realisation with proportionate costs. 18. Learned counsel for the appellant submitted that Rs.6,50,520/- was already deposited by them before the Tribunal as directed by this Court, while granting stay in the appeal. The amount already deposited shall be adjusted towards the balance amount due to the original claimants (cross objectors) as stated above. 19. The appellant-National Insurance Company Limited is directed to deposit the balance amount with interest @ 8% per annum from the date of petition till the date of deposit (excluding 1492 days of delay while calculating interest on enhanced compensation of Rs.1,43,512/-) before the Motor Accidents Claims Tribunal, Thalassery, within a period of two months from the date of receipt of a copy of this judgment. MACA No.72 of 2014 & CO No.57 of 2018 Learned Tribunal shall disburse that amount to the cross objectors/original claimants in the ratio 50:30:20, after deducting the liabilities, if any towards tax, balance court fee, legal benefit funds etc. The appeal and the cross objection are allowed to the extent as above, with proportionate costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-