MACA Nos. 1194 of 2014 & 829 of 2016, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** **MACA.NO. 1194 OF 2014** **AGAINST THE AWARD IN O.P.(M.V.) NO.445/2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 27.01.2014** ## **APPELLANTS/PETITIONERS IN O.P.(M.V.) :** - **1 N.DHARMAMBAL,AGED 64 YEARS W/O.R.KRISHNAMURTHI,XL/7106,SAKETH, T.D.ROAD,ERNAKULAM,KOCHI-682035.** - **2 VIDHYA THIRUTHAMARA,AGED 29 YEARS W/O.LATE PRASAD KRISHAMURTHI,C 431 V.V.NAGAR,T.N.H.B.COLONY, GANAPATHY,COIMBATORE-6.** **BY ADVS. SRI.K.L.JOSEPH SRI.V.NAMADEVA KAMATH** ## **RESPONDENTS/RESPONDENTS :** - **1 ANSAR, AGED 30 YEARS, S/O.HASHIM, KANNANTHARAYIL HOUSE, THALAYOLAPARAMBU P.O,KARIPPADAM KARA, VELLOOR VILLAGE, KOTTAYAM, PIN-684331.** - **2 SRI.RAFEEQ, AGE AND FATHER'S NAME NOT KNOWN TO THE PEITITONERS, PROPRIETOR, M/S.UNITY COMMUNICATIONS,UNITY ENCLAVE, CIVIL LANE ROAD, PALARIVATTOM,ERNAKULAM-682024.** - **3 NATIONAL INSURANCE COMPANY LTD., DAWODAR CHAMBERS,STATUE JUNCTION, THRIPUNITHURA,ERNAKULAM,KOCHI-682301.** - **4 BABY,AGED 42 YEARS S/O.OUSEPH, MAMPILLIL HOUSE, CHITTANAD, KUMARAPURAM.P.O,KUNNATHUNADU VILLAGE, ERNAKULAM-682631.** **MACA.NOS.1194 OF 2014 & 829 OF 2016 2** |**5**|**MAMMU HAJI, S/O.ABOOBACKER,**| |---|---| ||**AGE NOT KNOWN TO THE PETITIONERS.**| ||**RESHMINA MANZIL,PUDUPPANAM,**| ||**VATAKARA,KOZHIKODE-683343.**| |**6**|**SHRI RAM GENERAL INSURANCE COMPANY LTD.,**| ||**AZAD TOWER,AMMANCOVIL CROSS ROAD,**| ||**ERNAKULAM,KOCHI-682035.**| ||**BY ADV. SRI.RAJAN P.KALIYATH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.09.2018, ALONG WITH MACA.829/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NOS.1194 OF 2014 & 829 OF 2016 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** **MACA.NO. 829 OF 2016** **AGAINST THE AWARD IN O.P.(M.V.) NO.445/2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM DATED 27-01-2014** ## **APPELLANT/6TH RESPONDENT :** **SHRIRAM GENERAL INSURANCE COMPANY LTD., AZAD TOWER, AMMANCOVIL CROSS ROAD, ERNAKULAM 682035, HEAD OFFICE, SITAPURA, RAJASTHAN, PIN 302022, REPRESENTED BY THE AUTHORISED SIGNATORY.** **BY ADV. SRI.RAJAN P.KALIYATH** **RESPONDENTS/CLAIMANTS 1 AND 2 & ADDL. CLAIMANT (LR OF CLAIMANT-1) AND RESPONDENT 3.:** |**1**|**N.DHARMAMBAL,AGED 64 YEARS,**| |---|---| ||**W/O.LATE R. KRISHNAMURTHY, XI/7106,**| ||**SAKETH, TD ROAD, ERNAKULAM 682035**| ||**(DIED ON 12.10.2015)**| |**2**|**VIDHYA THIRUTHAMARA, AGED 29 YEARS,**| ||**W/O.LATE PRASAD KRISHNAMURTHY,**| ||**C 413, VVF NAGAR, TNHB COLONY,**| ||**GANAPATHY, COIMBATORE PIN-6.**| |**3**|**PRIYA KRISHNAMURTHY,W/O.GANESH V.,**| ||**D/O.R. KRISHNAMURTHY, XL/7106, SAKETH , TD ROAD,**| ||**ERNAKULAM, KOCHI 682035, NOW RESIDING AT G 107,**| ||**PRAKRUTHI ENCLAVE, NT SANDRA, BANGALORE 560075.**| ||**(DAUGHTER OF FIRST CLAIMANT ADDED AS LEGAL**| ||**REPRESENTATIVE)**| **MACA.NOS.1194 OF 2014 & 829 OF 2016 4** **4 NATIONAL INSURANCE CO. LTD., DAMODAR CHAMBERS, STATUE JUNCTION, TRIPUNITHURA, ERNAKULAM 683301.** **BY ADVS. SRI.K.L.JOSEPH SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NOS.1194 OF 2014 & 829 OF 2016 5** ## **JUDGMENT** These appeals are preferred against the award in O.P. (M.V.) No.445 of 2012 of the Motor Accidents Claims Tribunal, Ernakulam. The deceased Prasad Krishnamurthi sustained injuries in a motor accident while riding a motorcycle through Padivattom-Kakkanad road and he died at hospital. The Motor Accidents Claims Tribunal awarded compensation of Rs.33,38,152/- (Rupees Thirty Three Lakh Thirty Eight Thousand One Hundred and Fifty Two only) with 9% interest and proportionate cost. Being dissatisfied with the award amount, the legal representatives of the deceased preferred M.A.C.A. No.1194 of 2014 and the insurer of the lorry preferred M.A.C.A. No.829 of 2016 before this Court. 2. It would be relevant and useful to mention the facts leading to the accident. Claimants case in the lower court was that on 14.02.2011 at 8.30 a.m., the deceased was riding his motor cycle KL-7/AD-6782 through PadivattomKakkanad public road and when he reached at Vazhakala, a car KL-7/BM-7675 proceeding in front of the motorcycle in a ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 6** rash and negligent manner suddenly stopped on the public road thereafter, the driver opened the right front door without any signal, which hit on the rider of the motorcycle, as a result, the deceased Prasad Krishnamurthi fell down with the motor bike on the public road, at that time a tipper lorry KL-18/C-1436 proceeding in the same direction hit against the deceased and he sustained serious injuries in the accident. Immediately he was removed to Sunrise Hospital, Kakkanad, where he succumbed to the injuries. The accident was due to the negligence of the driver of the vehicles KL-7/BM-7675 and KL-18/C-1436. 3. In the lower court, the driver and owner of the car did not dispute the accident. The insurer admitted the insurance of the vehicle, but contended that the accident was due to the negligence of the deceased himself who had not kept safe distance from the car. Moreover, the tipper lorry was also driven in a rash and negligent manner and hit the deceased. The driver, owner and insurer of KL-18/C-1436 were ex parte in the lower court and they did not file any written statement. The evidence consist of oral testimony of ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 7** PW1 and Exts.A1 to A25. 3[rd] party evidence was marked as Ext.X1. Respondents did not adduce any oral evidence, but the copy of the policy was marked as Ext.B1. The learned Tribunal awarded the following amounts as compensation. |Heads|Amount<br>claimed|Amount<br>awarded (In<br>Rs.)|| |---|---|---|---| |Loss of dependency|79,17,104/-|31,21,152/-|16256x12x16| |Cash lost from the deceased<br>at the spot of accident|5,000/-|0|No evidence| |Transport to Hospital and<br>back to home|2,000/-|2,000/-|| |Damages to clothing and<br>articles|5,000/-|0|| |Funeral expenses|5,000/-|5,000/-|| |Compensation for loss of<br>estate|2,00,000/-|10,000/-|| |Medical expenses|0/-|0|| |Compensation for pain and<br>sufferings|50,000/-|0|Died on the<br>spot| |Compensation for mental<br>agonyand shock|2,00,000/-|0|| |Compensation for love and<br>affection|3,00,000/-|1,00,000/-|| |Loss of consortium|5,00,000/-|1,00,000/-|| |Total|91,84,104/-|33,38,152/-|| |Claim<br>limited<br>to<br>Rs.60,00,000/-|||| ## 4. The appellant in M.A.C.A No.1194 of 2014 contended that the deceased was a B.Tech Engineer in Electrical and ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 8** Electronics and he was working as an Assistant Consultant, US Technology International Private Limited, Kakkanad. He was getting a monthly income of Rs.58,214/- per month but the court below took only Rs.18,416/- as his monthly income without any contra evidence. The Motor Accidents Claims Tribunal reduced all allowances while calculating dependency compensation. From that amount, a sum of Rs.2,160/- per month was deducted towards income tax. Moreover, future prospects was not considered and the monthly income was taken as Rs.16,256/-. Claimants are the mother and wife of the deceased. 5. The appellant in M.A.C.A No.829 of 2016 contended that the finding of negligence against the lorry driver was without any evidence. In the lower court the claim was against respondents 1 to 3 alone. The Police charge sheeted the driver of the Innova car, therefore, in the absence of any contra evidence, no liability can be fastened upon the lorry driver. Hence, apportionment of liability equally among the two vehicles is perverse and unsustainable. 6. The insurer of KL-7/BM-7675 contended that the ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 9** death was due to the hitting of the lorry against the deceased and the Tribunal rightly apportioned the liability and no interference is necessary towards the negligent aspect. In the lower court, the driver, owner and insurer of the tipper lorry were ex parte and they have no contention or dispute with regard to the negligence even though the claimant attributed negligence against the driver of the car and the Police filed charge sheet. The Police had not charge sheeted the driver of the lorry is not a ground to absolve the liability of a tortfeasor who caused the death of the deceased. 7. Negligence is a breach of duty or lack of proper care in doing something. It is want of attention and doing something which a prudent and reasonable man would not do. It is settled that the term negligence is an omission to do something, which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of a human being would do or doing something which a prudent man would not do. Criminal negligence is gross and culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury. Negligence in tortuous ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 10** liability involves a person's breach of duty imposed upon him to take care resulting damages to a complainant. That means breach of a duty imposed upon him to take care resulting in damages. When a person is injured as a result of the negligence of two or more wrong doers, each wrong doer is jointly and severally liable for the entire damages. In such a situation, the injured person has a choice to proceed against all or any of the tort feasor and the liability of each wrong doer need not be established in such case separately. This principle was settled by the Supreme Court in **A.P.S.R.T.C. And Anr.** Vs. **K.Hamalata and Ors [2008 ACJ 2170].** 8. In this context, I have gone through the oral evidence with regard to negligence in this case. PW1, the wife of the deceased deposed that the deceased was proceeding in a motor bike KL-7/AD-6782 and when he reached at the place of occurrence, an Innova car KL-7/BM7675 proceeding in front of the motor bike suddenly stopped without showing any signal and the driver opened the front right door, as a result the door hit against the motor bike and he fell on the road with the motor bike. At that time, a lorry ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 11** KL-18/C-1436 which was proceeding in the same direction of the motor bike hit the deceased as a result, the deceased sustained fatal injuries and while undergoing treatment, he died at the hospital. With regard to the accident, Kochi City Police registered Crime No.2150 of 2011, Ext.A1 is the FIR. After completing investigation, the Police filed Ext.A2 final Report before the Judicial First Class Magistrate Court, Aluva. Ext.A6, the postmortem certificate shows that the death was due to injuries sustained in the accident. The wound certificate Ext.A7 issued from Sunrise Hospital, Kakkanad, shows fatal injuries to the deceased. The AMVI Report of the motor bike Ext.A8 and the AMVI Report of the Tipper Lorry Ext.A10 were perused by the lower court and noted the damages of the vehicle. The scene mahazar Ext.A11, corroborates the place of occurrence. A perusal of the documents and the Police records show that the deceased fell down on the road as a result of the hitting of the front door of the Innova car. There is no allegation that the deceased had contributed to the accident. If the deceased, the rider of the motor cycle was guilty of an act or ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 12** omission which essentially contributed to the accident and which resulted in injury and damages, the other tort feasor can attribute negligence against rider of the motor cycle. Here, two vehicles were involved in causing death of the innocent rider of the motorcycle. Therefore, their omission of duty or omission to do, something which a reasonable man is obliged to do contributed for the accident. No absolute standard can be fixed in such a situation or no mathematical formula can be applied to fasten liability in such type of cases to measure out the negligence. 9. When a person is injured without any negligence from his part and subsequently died, but as a result of negligence on the part of both vehicles for the combined negligence of two persons it is just and reasonable to fasten liability upon both vehicles. The appellant in O.P.(M.V.) No.829 of 2016 contended that the charge sheet was against the driver of the Innova car and no liability can be fastened against him, but such a contention was not taken in the lower court to establish the negligence of the other vehicle. On a perusal of the oral testimony of PW1 and the Police records, it is clear ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 13** that the drivers of both vehicles did not take standard of care while driving the vehicles which is expected from a driver. The determination of negligence or rashness would depend upon the facts of each case. The initial burden to discharge proof of negligence is upon the claimant which shows that the burden of proof in a case has two distinct meaning namely; as a matter of law and pleading and secondly as a matter of adducing evidence. Sec.101 of the Evidence Act deals with law and pleading and Sec.102 of the Law of Evidence, which says about adducing of evidence. The first remains constant in a case but the 2[nd] shifts. In a claim application under Sec.166 of the Motor Vehicles Act, 1966, the burden of proof in the first sense is certainly upon the claimants. If the claimant examined himself as a witness and furnishes his evidence, that evidence is found acceptable and a proof against the tortfeasor then the onus shifts on to the tortfeasor to prove the circumstances which remove the assertions and evidence of the claimant. If the tort feasor fails to prove before the court any facts or circumstances which tends to affect the evidence led by the claimant, the ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 14** claimant has a right to contest that he has established his case on the basis of available evidence. 10. It is true that there are two vehicles involved in the accident. Therefore, the burden of proof as a matter of law and pleadings remain constant and the burden shifted to the tortfeasors and when they did not adduce any evidence to rebut the evidence of claimants they have no right to contend that they are not negligent for the tortuous act. Even though City Police filed charge sheet against the Innova driver, the rash and negligent driving and consequent hitting of the lorry against the deceased shows that both vehicles have contributed for the accident and the composite negligence was rightly found by the Tribunal. The liability of the joint tort feasors in a composite negligence case was also settled by the Apex Court in **Pawan Kumar and Anr. Etc.** Vs. **Harikishan Dass Mohan Lal and Ors. [2014 ACJ 704]** in which it reads as follows : The distinction between the principles of composite and contributory negligence has been dealt with in Winfield and Jolowicz on Tort (Chapter 21) (15[th] Edition, 1998). It wound be appropriate to notice ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 15** the following passage from the said work: WHERE two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiff's advantage to show that that he has suffered the same, indivisible harm at the hands of a number of Defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one Defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive fro the point of view of the solvent Defendant, who may end up carrying full responsibility for a loss in the causing of which he ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 16** ## played only a partial, even secondary role. ------- The question of whether there is one injury can be a difficult one. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous..... Therefore, the accident was due to the composite negligence of both vehicles and the liability was fixed 50:50 by the Tribunal and the appellants in M.A.C.A. No.829 of 2016 cannot claim exoneration attributing negligence against the other vehicle, accordingly, I reject that argument. 11. The appellants in O.P.(M.V.) No.1194 of 2014 contended that the deceased was a B.Tech Engineer and earned Rs.58,214/- per month from US Technology International Private Limited, Kakkanad. They produced Exts.A14, A15 and A16 salary certificates from UST Global, but those documents were not properly proved in the lower court. Marking of a document itself is not a proof of the content of the document. The content has to be proved by ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 17** the person who issued such documents. In the absence of such evidence, the Tribunal took Rs.16,256/- after deducting all allowances and Income Tax. The Degree Certificate Ext.A19 issued from University of Calicut, shows that the deceased was a B.Tech degree holder in Electrical and Electronics with first class. The insurers have no dispute with regard to the employment and degree. 12. Now the question is whether the deductions made by the Tribunal on account of HRA, CCA and medical allowance are sustainable in law? and whether it should have been taken into consideration in calculation of the income of the deceased. Apex court in **Sunil Sharma and Others v. Bachitar Singh and Others [2011 (11) SCC 425]** held as follows: Based on the aforementioned judgments, we are of the view that deductions made by the Tribunal on account of HRA, CCA and medical allowance are done on an incorrect basis and should have been taken into consideration in calculation of the income of the deceased. Further, deduction towards EPF and GIS should also not have been ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 18** made in calculating the income of the deceased. In another decision **Raghuvir Singh Matolya and Others v. Hari Singh Malviya and Others [2009 (15) SCC 363]** the Apex Court held that, 'dearness allowance' and 'House Rent Allowance' payable to the deceased should have been included for determining the income of the deceased and consequently the amount of compensation. According to Ext.A14 salary slip, the basic salary is Rs.18,416/- and HRA is Rs.7,366/-. It is stated in Ext.A14 that Rs.24,432/- was given as other allowances, but claimants failed to prove what are the other allowances, therefore, I take Rs.5,000/towards other allowances and the total monthly income is (18416+7366+5000) Rs.30,782/-. 13. Apex Court in **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (SC)]** held that : 61. *** (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 19** of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. ** Hence 40% of the income Rs.12,312.8/- (30,782x40%) has to be added towards future prospects. Hence the total income comes to Rs.43,094.8/- rounded as Rs.43,095/- and the total amount for loss of dependency is (43,095x12x16) Rs.82,74,240/-. 1/3[rd] has to be deducted from that amount and the balance is Rs.55,16,160/-. If 20% (55,16,160x20%=11,03,232) is deducted towards income tax, the balance amount for loss of dependency will be Rs.44,12,928/- (55,16,160-11,03,232). Learned Motor Accidents Claims Tribunal awarded Rs.31,21,152/- and the balance amount comes to Rs.12,91,776/- (44,12,92831,21,152). In view of **Pranay Sethi (Supra),** reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses Rs.15,000/-, Rs.40,000/and Rs.15,000/- have to be given to the claimants respectively. The learned Tribunal awarded Rs.1,00,000/- for Loss of consortium and Rs.1,00,000/- for Love and affection ## **MACA.NOS.1194 OF 2014 & 829 OF 2016 20** to the mother, now she is no more. But her death certificate was not produced before Court. Hence in view of **Pranay Sethi (Supra),** from the conventional amount of Rs.50,000/towards love and affection and Rs.60,000/- from Loss of consortium is deducted. An amount of Rs.5,000/- for Loss of estate, Rs.10,000/- for funeral expenses, Rs.10,000/- for pain and sufferings and Rs.1,000/- towards damages to clothing are awarded. 14. Accordingly, the appellants in M.A.C.A. No.1194 of 2014 are entitled to get an enhanced compensation of Rs.12,07,776/- (Rupees Twelve Lakh Seven Thousand Seven Hundred and Seventy Six only) with 9% interest and proportionate cost in addition to the award amount. The insurer of both vehicles are liable to pay the compensation and enhanced compensation in the ratio of 50:50 to the appellants in M.A.C.A. No.1194 of 2014. In view of the above discussion, M.A.C.A No.829 of 2016 is dismissed. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge NS