MACA Nos. 1083/2010 & 546/2012 v. K.T. Arun Kumar and The Oriental Insurance Co. Ltd. and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** ## **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944** ## **MACA NO. 1083 OF 2010** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 2120/2005 OF THE PRINCIPAL MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** 1 MRS.DEVI,AGED 40 YEARS,W/O LATE MR.CHANDRAN, POYIL THAZHATHU HOUSE,, ERANHIKKAL POST, MOKAVOOR, KOZHIKODE DISTRICT. 2 MRS.DEEPTHI,AGED 19 YEARS,D/O.LATE MR.CHANDRAN., -DO3 MISS.DEEPA AGED 16 YEARS,D/O.LATE MR.CHANDRAN,, -DO4 MRS.MUTHIYARA,AGED 68 YEARS (DIED) M/O.LATE MR.CHANDRAN,THE APPELLANTS RESIDE IN, POYIL THAZHATHU HOUSE, ERANHIKKAL POST,, MOKAVOOR, KOZHIKODE DISTRICT. ADDL R5. SUNDARAN.P.T, AGED 52 YEARS, S/O. MUTHIYARA,POYIL THAZHATHU HOUSE, EDAKKAD P.O,VIA WEST HILL, KOZHIKODE 673 005 ADDL R6. CHANDRI.P.T, AGED 50 YEARS, D/O. MUTHIYARA,KALLIKOODATHIL HOUSE, KOLAKKADU.P.O, VIA ATHOLI, KOZHIKODE 673315 (ADDITIONAL APPELLANTS 5 AND 6 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED FOURTH APPELLANT VIDE ORDER DATED 19.3.2020 IN IA 1/2020 IN MACA 1083/2010) BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH ## **RESPONDENT/S:** 1 K.T.ARUNKUMAR,S/O GOPALAN, SREENILAYAM,PUURAMERI POST, VATAKARA, KOZHIKODE. 2 THE ORIENTAL INSURANCE CO LTD,SREENIDHI BUILDINGS, NARAYANA NAGAR, VADAKARA,, KOZHIKODE. 3 M P MUSTHAFA,S/O MOOSA,MOOLAPARAMBIL HOUSE,PURAKKADAVU POST,CHEKKIYADU AMSOM,KOZHIKODE DISTRICT (DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 09/09/2021 IN IA 1/2021). BY ADVS. SRI.MATHEWS JACOB SR.-R2 SRI.P.JACOB MATHEW -R2 SRI.T.G.RAJENDRAN -R1 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **31.03.2022, ALONG WITH MACA 546/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA Nos 1083/2010 & 546/2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944** **MACA NO. 546 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 2120/2005 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** **APPELLANT/S:** K.T.ARUN KUMAR,S/O. GOPALAN, SRI NILAYAM, PURAMESI.P.O, VADAKARA, KOZHIKODE. BY ADV SRI.T.G.RAJENDRAN 1 THE ORIENTAL INSURANCE CO. LTD. SREENIDHI BUILDINGS,NARAYANA NAGAR, VADAKARA, KOZHIKODE. 2 M.P. MUSTHAFA (DELETED) S/O. MOOSA, AGED 49 YEARS, MOOLAPARAMBIL HOUSE, PARAKKADAVU.P.O, CHEKKIAD AMSOM, KOZHIKODE. 3 MRS.DEVI ( DELETED) AGED 35 YEARS, W/O. LATE CHANDRAN, POYIL THAZHATHU HOUSE, ERANHIKKAL.P.O, MOKAVOOR, KOZHIKODE. 4 MISS DEEPTHI,AGED 14 YEARS, MINOR, REP. BY GUARDIAN AND MOTHER MRS. DEVI. ( DELETED 5 MISS. DEEPNA MINOR -DO- ( DELETED) 6 MRS. MUTHIYARA AGED 63 YEARS, RESIDING -DO- ( DELETED) * RESPONDENT NO. 2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 9.2.15 IN I.A. NO. 383/15 IN MACA 546/12. * DELETED RESPONDENTS 3 TO 6 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 26/08/2021 IN I.A.NO. 1/2021. BY ADVS. SRI.P.JACOB MATHEW -R1 SRI.MATHEWS JACOB SR.-R1 ## **RESPONDENT/S:** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **31.03.2022,ALONG WITH MACA 1083/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA Nos 1083/2010 & 546/2012 ## **C.S.DIAS, J. ====================== MACA Nos 1083/2010 & 546/2012** **====================== Dated this the 31[st] day of March, 2022.** ## **COMMON JUDGMENT** As the appeals arise out of the same award in OP(MV) No.2120/2005 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Chandran (deceased) – the husband of the first petitioner, the father of the petitioners 2 and 3 and son of the fourth petitioner. It was their case that, on 10.6.2005, while the deceased was crossing the Kozhikode - Kannur National Highway at Koya road junction, a car bearing registration 4 MACA Nos 1083/2010 & 546/2012 No.KLR 4998, driven by the third respondent in a negligent manner, hit the deceased. The deceased lost his life on the same day at the Medical College Hospital, Kozhikode. The car was owned by the first respondent and was insured with the second respondent. The deceased was a coolie cum coconut climber and was earning a monthly income of Rs.6,000/-. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.8,76,000/- from the respondents, which claim was limited to Rs.8,00,000/-. 3. The respondents 1 and 2 had filed separate written statements, inter alia, contending that the accident occurred due to the negligence of the deceased. Hence, they prayed for dismissal of the claim petition. 4. The petitioners had produced and marked Exts A1 to A4 in evidence. The respondents had produced copy of the insurance policy certificate and charge-sheet, which were marked as Exts B1 and B2 in evidence. 5 MACA Nos 1083/2010 & 546/2012 5. The Tribunal, after analysing the pleadings and materials on record, arrived at the conclusion that the deceased had contributed to the accident to the extent of 10%. Therefore, even though the Tribunal found that the petitioners were entitled to an amount of Rs.2,55,940/-, the Tribunal deducted 10% of the said amount and permitted the petitioners to recover from the second respondent an amount of Rs.2,30,346/-, with interest and cost of Rs.750/-. The Tribunal also entered into the finding that, as per Ext A1 FIR, the third respondent did not have a valid driving licence and, therefore, the first respondent had violated the insurance policy conditions. Thus, the Tribunal permitted the second respondent to pay the compensation amount and recover the same from the first respondent. 6. Aggrieved by the finding of the contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 6 MACA Nos 1083/2010 & 546/2012 have filed MACA 1083/2010, and aggrieved by the direction in the impugned award permitting the second respondent to recover the compensation amount from the first respondent, the first respondent has filed MACA 546/2012. 7. Heard; Sri.Jacob Abraham, the learned counsel appearing for the appellants/petitioners in MACA 1083/201, Sri.P.Jacob Mathew, the learned counsel appearing for the second respondent/insurer and Sri.T.G Rajendran, the learned counsel appearing for the appellant/first respondent in MACA 546/2012. 8. The common points that emanate for consideration in these appeals are: (i) whether the finding of contributory negligence is sustainable in law, (ii) whether the direction in the impugned award, permitting the second respondent/insurer to recover the compensation amount from the first 7 MACA Nos 1083/2010 & 546/2012 respondent, is justifiable in law, and, (iii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Point No.(i)** 9. The specific case of the petitioners was that the accident occurred due to the negligence of the third respondent. However, the petitioners had produced only Ext A1 FIR registered by the City Traffic Police, Kozhikode in crime No.923/2005, which was registered against the third respondent for offences punishable under Secs 279, 337 and 304A of the Indian Penal Code. The second respondent/insurer had produced a truncated copy of the final report filed by the Police, which was marked as Ext B2, to substantiate that the third respondent had no driving licence. 10. The Tribunal, after appreciating the Police records, particularly, Ext A4 scene mahazar, found that 8 MACA Nos 1083/2010 & 546/2012 the deceased had crossed the highway nearly 1½ mtrs from the zebra line. Therefore, the Tribunal concluded that the deceased had contributed to the accident to the extent of 10%. Neither the petitioners nor the respondents have let in any oral evidence. 11. The Division Benches of this Court in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648] and in **Kolavan v. Salim** [2018 (1) KLT 489], have categorically held that, as a general rule, the production of the charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Act. The charge-sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept the charge-sheet, the burden is on such party to adduce oral evidence and discredit the chargesheet. 12. In the instant case, even though the petitioners produced Exts A1 FIR and A4 scene mahazar, they have 9 MACA Nos 1083/2010 & 546/2012 refrained themselves from producing the charge-sheet laid by the Police. Therefore, necessarily, I am of the firm view that there is something incriminating in the chargesheet which is against the deceased, which has prevented the petitioners from producing the same. Hence, I draw adverse inference against the petitioners and uphold the finding of the Tribunal. Consequentially, I confirm the finding of the Tribunal and hold that the deceased had contributed to the accident to the extent of 10%. Hence, I answer question No.(i) against the appellants in MACA 1083/2010. ## **Point No.(ii)** 13. The second respondent/insurer had filed a written statement, inter alia, contending that the first respondent had violated the insurance policy conditions, as the third respondent drove the car without a valid driving licence. 14. In fact, the first respondent had filed his written 10 MACA Nos 1083/2010 & 546/2012 statement specifically stating that the third respondent had a valid driving licence. The first respondent had along with the written statement produced the driving licence of the third respondent, issued on 11.5.1998 permitting him to drive a light motor vehicle till 4.11.2009. Unfortunately, the Tribunal did not take note of the original driving licence that was produced before it. 15. On a verification of the lower court records, I have found the original driving licence produced by the first respondent. Hence, I accept the driving licence of the third respondent and mark the same in evidence as Ext B3. 16. The Tribunal, relying on the truncated copy of Ext B2 charge-sheet laid by the Police, held that the third respondent did not hold a valid driving licence. 17. In view of Ext B3, I hold that the third respondent had a valid driving licence and the contention of the second respondent/insurer is incorrect. Therefore, I 11 MACA Nos 1083/2010 & 546/2012 set aside the direction in the impugned award, permitting the second respondent/insurer to pay the compensation amount and recover the same from the appellant in MACA 546/2012/ first respondent . Hence, I answer point No.(ii) in favour of the appellant in MACA 546/2012. ## **Point No.(iii)** 18. The petitioners had stated that the deceased was a coolie worker cum coconut climber and was earning a monthly income of Rs.6,000/-. The petitioners had not produced any material to substantiate their pleading. The Tribunal, fixed the notional monthly income of the deceased at Rs.2,000/-. 19. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 20. Following the yardstick in the aforecited decision 12 MACA Nos 1083/2010 & 546/2012 and considering the fact that the accident occurred in the year 2005, I refix the notional monthly income of the deceased at Rs.4,000/-. ## **Multiplier** 21. The deceased was aged 42 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier to be adopted is '14'. ## **Future prospects** 22. Following the principles laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , and considering the fact that the deceased was aged 42 years at the time of his death, I hold that the petitioners are entitled to future prospects @ 25%. ## **Personal living expenses of the deceased** 23. In the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that 13 MACA Nos 1083/2010 & 546/2012 the petitioners were the wife, children and the mother of the deceased, who are four in number, one - fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Loss of dependency** 24. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.4,000/-, the multiplier at 14, future prospects at 25% and after deducting one-fourth of the compensation towards the personal living expenses of the deceased, I hold that the petitioners are entitled to an amount of Rs.6,30,000/towards loss of dependency, instead of Rs.2,39,940/awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 25. In paragraph 59.8 of **Pranay Sethi (supra)** it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at 14 MACA Nos 1083/2010 & 546/2012 Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 26. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of 15 MACA Nos 1083/2010 & 546/2012 Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 27. In the instant case, the Tribunal has awarded an amount of Rs.2,000/- under the head ‘funeral expenses’ and Rs.7,500/- under the head 'loss of consortum'. 28. Following the parameters laid down in the aforecited decisions, I award the petitioners a further amount of **Rs.14,500/-** under the head ‘funeral expenses’, and **Rs.16,500/-** under the head 'loss of estate'. I also award the petitioners 1 to 3 an amount of Rs.44,000/each, totalling to an amount of **Rs.1,32,000/-** , under the head 'loss of consortium', i.e., an enhancement of **Rs.1,24,500/-.** As the fourth petitioner is no more, I decline to award any amount to her under the head 'loss of consortium'. ## **Loss of love and affection** 29. The Tribunal has awarded an amount of 16 MACA Nos 1083/2010 & 546/2012 Rs.5,000/- under the head 'loss of love and affection'. 30. In **New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644]** the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.5,000/- awarded under the head 'loss of love and affection'. ## **Other heads of compensation** 31. With respect to the compensation awarded under the heads 'transportation expenses', and 'damage to clothing', I find the same to be reasonable and just. 32. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants in MACA 1083/2010/petitioners 1 to 3 are entitled for enhancement of compensation as modified and re- 17 MACA Nos 1083/2010 & 546/2012 ## calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transport to hospital|1,000/-|1,000/-| |2|Damage to clothing|500/-|500/-| |3|Loss of consortium|7,500/-|1,32,000/-| |4|Loss of love and affection|5,000/-|Nil| |5|Funeral expenses|2,000/-|16,500/-| |6|Loss of estate|Nil|16,500/-| |7|Loss of dependency|2,39,940/-|6,30,000/-| ||Total|2,55,940<br>(after<br>deducting 10%<br>towards<br>contributory<br>negligence<br>Rs.2,30,346/-)|7,96,500/-<br>(after<br>deducting 10%<br>towards<br>contributory<br>negligence<br>Rs.7,16,850/-)| In the result, MACA 1083/2010 is allowed by enhancing the compensation by a further amount of **Rs.4,86,504/-** (Rupees Four Lakh Eighty Six Thousand Five Hundred and Four only) and MACA 546/2012 is allowed by setting aside the direction in the impugned award permitting the second respondent/insurer to pay 18 MACA Nos 1083/2010 & 546/2012 the compensation amount and recover the same from the first respondent. Accordingly, the second respondent/insurer is ordered to deposit an amount of **Rs.2,30,346/-** and **Rs.4,86,504/-** totalling to an amount of **Rs.7,16,850/-** with interest at the rate of 6% per annum from the date of claim petition till the date of deposit and proportionate cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Needless to mention that if the second respondent/insurer has already deposited any amount pursuant to the impugned award, the same shall be given credit to. In view of the fact that the first respondent had produced the driving licence along with the written statement, I am of the view that the amount that was deposited by the first respondent to prefer the appeal shall be refunded to him. The first respondent would be at liberty to move the Tribunal, by filing appropriate application, seeking refund of the said 19 MACA Nos 1083/2010 & 546/2012 amount. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants in MACA 1083/2010/petitioners 1 to 3, in the ratio of 40:30:30 and in accordance with law. Sd/- sks/31.3.2022 **C.S.DIAS, JUDGE**