MACA Nos. 140 of 2013 and 138 of 2013, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023/7TH AGRAHAYANA, 1945 ``` ``` MACA NO. 140 OF 2013 ``` ``` OPMV 866/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI ``` ## **`APPELLANTS/PETITIONERS 1 TO 3, 5 & 6:`** - `1 MOHAMMED, S/O.MAMMAD 2 SUBAIDA W/O.MOHAMMED 3 RUBEENA D/O.MOHAMMED` - `4 KAMARUNNISA D/O.MOHAMMED` - `5 MOHAMMED SHAFEEK S/O.MOHAMMED` ``` ALL ARE RESDIDING AT PARATHODIKA HOUSE,PALAKKALVETTA P.O., TUVVUR,MALAPPURAM DISTRICT. ``` ``` BY ADVS. SRI.P.VENUGOPAL (1086/92) SMT.T.J.MARIA GORETTI ``` ## **`RESPONDENTS/RESPONDENTS& 4TH PETITIONER:`** - `1 FASALURAHIMAN, NINAKKALARUVIL HOUSE, MANKADA PALLIPPURAMPERINTALMANNA P.O., MALAPPURAM DISTRICT PIN - 679 324.` - `2 ABOO S/O.MOHAMMED, NINAKKALARUVIL HOUSE,MANKADE PALLIPPURAM PERINTALMANNA P.O., MALAPPURAM DISTRICTPIN 679 324.` - `3 NATIONAL INSURANCE COMPANY LIMITED, 2ND FLOOR, KORAMBAYIL ARCADE,PANDIKKAD ROAD,MANJERI P.O., MALAPPURAM DISTRICT, PIN - 676 121.` - `4 KAMARUDHEEN S/O.MOHAMMED PARATHODIKA HOUSE, PALAKKALVETTA P.O.,TUVVUR, MALAPPURAM DISTRICT 679 327.` ``` BY ADV SMT.P.K.SANTHAMMA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2023, ALONG WITH MACA.138/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.140 & 138 of 2013 : 2 : # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY,THE 28[TH] DAY OF NOVEMBER 2023/7TH AGRAHAYANA,1945 MACA NO. 138 OF 2013 ``` ``` OPMV 724/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI ``` ## **`APPELLANT/PETITIONER:`** ``` IRSHAD C., S/O. SAIDALI C., CHERUMALA HOUSE, MAMPUZHA,KARUVARAKUNDU P.O., MALAPPURAM DISTRICT. ``` ``` BY ADVS. SRI.P.VENUGOPAL (1086/92) SMT.T.J.MARIA GORETTI ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1FASALURAHIMAN PALLIPPURAM PERINTHALMANNA, MALAPPURAM DISTRICTPIN - 679 324. ``` - `2 ABOO SO.MOHAMMED NINAKKALARUVIL HOUSE MANKADA PALLIPPURAM, PERINTHALMANNA, MALAPPURAM DISTRICT PIN 679 324.` - `3 NATIONAL INSURANCE COMPANY LIMITED 2ND FLOOR KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI P.O., MALAPPURAM DISTRICT PIN 676 121 MANJERI, MALAPPURAM DISTRICT.` ``` BY ADV SRI.E.M.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2023, ALONG WITH MACA.140/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.140 & 138 of 2013 : 3 : ## JUDGMENT Both these appeals arise from the claim petitions filed in connection with the very same accident. M.A.C.A. No.140/2013 was submitted by the petitioners in OP(MV) No.866/2009, which was filed seeking compensation for the death of one Shamsudheen, who died due to the injuries sustained in a motor accident that occurred on 08.01.2009. M.A.C.A. No.138/2013 was filed by the petitioner in OP(MV) No.724/2009, seeking compensation for the injuries sustained in the very same motor accident. 2. The accident occurred when the deceased Shamsudheen was riding the motorcycle along with the appellant in M.A.C.A. No.138/2013 as a pillion rider, they were hit by a pickup van came from the opposite side. The said pickup van was being driven by the 1[st] respondent, owned by the 2[nd] respondent and was insured by the 3[rd] respondent. The claim petitions were resisted by the 3[rd] respondent, contending that the accident occurred due to negligence on the part of the rider of the M.A.C.A. Nos.140 & 138 of 2013 : 4 : motorcycle, the deceased Shamsudheen. However, they admitted the coverage of the insurance policy in respect of the pickup van. ` 3. In OP(MV) No.866/2009, Exts.A1 to A6 were marked from the side of the claimants, whereas in OP(MV) No.724/2009, Exts.A1 to A5 were marked. The respondents in both the said claim petitions adduced no evidence. 4. After the trial, both claim petitions were disposed of by separate awards, in which it was held that the accident occurred due to negligence on the part of the driver of the pickup van and also on the part of the deceased Shamsudheen. The negligence was thus apportioned among them equally. 5. In O.P. (MV) No.866/2009, the quantum of compensation was fixed as Rs.3,34,000/- and the 3[rd] respondent insurance company was directed to deposit 50% of the said compensation along with interest at the rate of 9% per annum from the date of petition till realisation. In O.P. (MV) No.724/2009, the quantum of compensation was fixed as Rs.58,408/- and 50% of the said compensation was directed to be deposited by the 3[rd] respondent insurance company along with interest at the rate of M.A.C.A. Nos.140 & 138 of 2013 : 5 : 9% per annum. The respective claimants have approached this Court by filing these appeals challenging the finding of the tribunal on the question of negligence and also seeking enhancement of compensation. 6. Heard Smt. Srilakshmi T.S., the learned counsel appearing for the appellants, Smt. P.K. Santhamma, the learned counsel appearing for the 3[rd] respondent in M.A.C.A. No.140/2013 and Sri. E.M. Joseph, the learned counsel appearing for the 3[rd] respondent in M.A.C.A. No.138/2013. 7. The first question to be decided is with regard to the finding of the tribunal on the question of negligence. The accident occurred due to the collision of the motorcycle ridden by the deceased Shamsudheen, with the pick-up van driven by the 1[st] respondent. The tribunal found negligence on the part of both the said persons, mainly on the ground that the final report by the Police had not been produced and no evidence was adduced by the parties concerned, to substantiate the negligence on the part of the 1[st] respondent. However, along with the M.A.C.A. No. 140/2013, the final report submitted by the Police in crime No.9/2009 of Pandikkad Police Station has been placed on M.A.C.A. Nos.140 & 138 of 2013 : 6 : record, which would indicate that after investigation, the Police charge-sheeted the 1[st] respondent for the offences punishable under Sections 279, 338 and 304 A of the Indian Penal Code. Thus, in the light of the aforesaid document, it can be safely concluded that the accident occurred due to negligence on the part of the 1[st] respondent herein. This is particularly because this Court in New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648], categorically held that, in the absence of any contra evidence, the conclusions arrived by the Police can be accepted for determining the question of negligence in a proceeding under Section 166 of the Motor Vehicles Act. Thus, even though the final report has not been produced before the tribunal, as it is produced by the appellant in this appeal, I am inclined to accept the same; being a public document and considering the contents of the same, I deem it appropriate to hold that the accident occurred due to the sole negligence of the 1[st] respondent. Therefore, the finding of the tribunal attributing negligence on the part of the driver of the motorcycle is hereby set aside. 8. The next aspect relates to the quantum of compensation and the observations with regard to the same are M.A.C.A. Nos.140 & 138 of 2013 : 7 : as follows: ## 8.1. OP(MV) No.866/2009 This is a claim petition submitted by the legal heirs of the deceased Shamsudheen seeking compensation. The deceased was aged 20 years at the time of the accident, and he was claimed to be a Madrassa Teacher. The income claimed was Rs.6,000/-. But the tribunal took the monthly income as Rs.3,500/- only. After considering the materials placed on record and the year of the accident, I am of the view that Rs.3,000/- is on the lower side. Of course, it is true that the appellants adduced no evidence to establish the employment of the deceased and the monthly income derived therefrom. However, in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], the Hon’ble Supreme Court fixed the monthly income as Rs.4500/- in respect of an ordinary employee, even without any evidence, in respect of an accident occurred in the year 2004. Therefore, I am of the view that, in this case, the monthly income of Rs.4,500/- can be fixed for the purpose of assessing the compensation. As the deceased was aged 20 years, an addition of Rs.40% of the income has to M.A.C.A. Nos.140 & 138 of 2013 : 8 : be made. Similarly, since the deceased died as a bachelor, a deduction of 50% thereof, needs to be made towards personal expenses. Thus, while reassessing the compensation with the above revised criteria, the compensation under the head of loss of dependency would come to Rs.6,80,400/- [(4500+40%)x 12x18x1/2]. The amount already awarded by the tribunal under this head is Rs.3,15,000/-. Thus the additional compensation would come to Rs.3,65,400/-. 9. The amount awarded by the tribunal towards loss of estate was only Rs.5,000/- whereas, as per National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], the amount to be awarded is Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is awarded under the said head. Similarly, towards funeral expenses, only an amount of Rs.4,000/- is granted and therefore, a further sum of Rs.11,000/- is awarded under the said head. Another head which was omitted by the tribunal was loss of consortium. No amount was awarded under this head. In the light of Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130], and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC M.A.C.A. Nos.140 & 138 of 2013 : 9 : 760], the appellants 1 and 2 being the parents of the deceased, are entitled to compensation at the rate of Rs.40,000/- each. However, it is to be noted that the tribunal awarded an amount of Rs.10,000/- for loss of love and affection. In Satinder Kaur (supra) it was categorically observed by the Honourable Supreme Court that when the compensation under loss of consortium is awarded no separate compensation needs to be awarded towards loss of love and affection. Therefore, the said amount of Rs.10,000/- can be adjusted against the amount awarded by this Court towards the loss of consortium. Thus, the additional amount under this head would come to Rs.70,000/-. In addition to the above, as the appellant died on the next day while continuing the treatment for the injuries, a sum of Rs.10,000/- is granted towards the pain and suffering of the deceased. Thus, the total additional compensation is determined as Rs.4,66,400/(365400+10000+11000+70000+10000) and the total compensation is re-fixed as Rs 8,00,400/- (466400 + 334000) ## 8.2. OP(MV) No.724/2009 (MACA No.138/2013) 10. The appellant, in this case, was 16 years old at the time of the accident. No disabilities were sustained by him. The M.A.C.A. Nos.140 & 138 of 2013 : 10 : tribunal has awarded a total compensation of Rs.58,408/-. On going through the materials placed on record, I find that the amounts awarded under various heads, except pain and suffering, are reasonable in nature. Towards the compensation for pain and suffering, the amount awarded was Rs.7500/- which appears to be on the lower side. Taking note of the injuries and the treatment availed by the appellant, a further amount of Rs.10,000/- is awarded under the said head. Similarly, no amount is seen granted for extra nourishment even though the appellant availed of inpatient treatment for 12 days. Therefore, a further amount of Rs.1,000/- under the said head. Thus, the additional compensation is determined as Rs.11,000/- thereby, the total amount of compensation would come to Rs.69,408/-. In the light of the aforesaid observations and findings, both these appeals are allowed with the following directions: (i) The finding of the tribunal in both the above claim petitions attributing negligence on the part of the rider of the motorcycle, the deceased Shamsudheen, is hereby set aside, and the 1[st] respondent in both the claim petitions, the driver of the pickup van, is solely M.A.C.A. Nos.140 & 138 of 2013 : 11 : held responsible for the accident. Consequently, the entire amount has to be satisfied by the 3[rd] respondent-insurance company. - (ii) The quantum of compensation in OP(MV) No.724/2009 is re-assessed as Rs.8,00,400/- (Rupees eight lakhs and four hundred only), and the said amount shall be deposited by the 3[rd] respondent insurance company along with interest at the rate of 8% per annum from the date of petition till realisation with proportionate costs. - (iii) In OP(MV) No.724/2009, the total compensation is reassessed as Rs.69,408/- (Rupees sixty none thousand four hundred and eight only), and the said amount shall be deposited by the 3[rd] respondent insurance company along with interest at the rate of 8% per annum from the date of petition till realisation with proportionate costs. - (iv) The said deposit shall be made by the 3[rd] respondent within a period of three months from the date of receipt of copy of the judgment. However, it is clarified that M.A.C.A. Nos.140 & 138 of 2013 : 12 : in M.A.C.A. No.140/2013, there was a delay of 188 days in filing the appeal, and therefore, the appellants therein shall not be entitled to interest for the compensation for the said period. In M.A.C.A. No.138/2013, as the appeal was filed with a petition to condone the delay of 155 days, the appellant shall not be entitled to interest for the said period. Sd/ZIYAD RAHMAN A.A. JUDGE ncd