MACA Nos. 1700 and 1709 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN SATURDAY, THE 18[TH] DAY OF DECEMBER 2021 / 27TH** **AGRAHAYANA, 1943** **MACA NO. 1700 OF 2011** **AGAINST THE AWARD IN OP(MV) 580/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI** ## **APPELLANTS/PETITIONERS :** **1 HAFSATH, W/O ASSAIN, VELLILA PO, MANKADA, MALAPPURAM DSITRICT. 2 ASARUDHEEN C.K. - MINOR, REPRESENTED BY MOTHER - 1ST APPELLANT. 3 HASNA C.K.- MINOR, REPRESENTED BY MOTHER - 1ST APPELLANT. 4 MOHAMMED ANFAS – MINOR, REPRESENTED BY MOTHER - 1ST APPELLANT. BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH** ## **RESPONDENTS/RESPONDENTS :** **1 SUBRAMANIAN M., S/O.MANI, NORTH STREET, KRISHNAPURAM, GOVINDAPURAM P.O., THURAIYUR TALUK, TRICHI DISTCT, TAMIL NADU, PIN-625 024.** **2 S.SEKAR, S/O.P.K.SENGODAN, D.NO.3141/2, PARALADKA, PUTTUR, DK DISTRICT, KANARA SOUTH, MANGALORE, KARNATAKA DISTRICT, PIN-574 201.** M.A.C.A.Nos.1700 and 1709 of 2011 **==> picture [20 x 8] intentionally omitted <==** **3 THE NEW INDIA ASSURANCE COMPANY LTD., VARIKKODAN BUILDINGS, NILAMBUR ROAD, MANJERI, PIN-676 121. BY SMT.A.SREEKALA, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2021, ALONG WITH MACA.1709/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1700 and 1709 of 2011 ..3.. # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **SATURDAY, THE 18[TH] DAY OF DECEMBER 2021 / 27TH AGRAHAYANA,** **1943** **MACA NO. 1709 OF 2011** **AGAINST THE AWARD IN OP(MV) 581/2007 OF MOTOR ACCIDENTS** **CLAIMS TRIBUNAL, MANJERI** ## **APPELLANTS/PETITIONERS :** **1 AYISHA, W/O.MOIDU, THALAPPIL HOUSE, VELLILA P.O., MANKDA, ERNAD TALUK, MALAPPURAM DSITRICT.** **2 JASEENA, W/O.SHAHUL HAMEED, KOORIMANNIL, KOUKUNNUMMAL, CHITTATH PARA, KADAMBODE, PANDALLUR, MALAPPURAM DISTRICT.** - **3 JASHEETHA, W/O.ABOOBACKER SIDDIQUE, KOORI HOUSE, KOOTTILANGADI, MALAPPURAM DISTRICT.** **BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH** ## **RESPONDENTS/RESPONDENTS :** **1 SUBRAMANIAN M., S/O.MANI, NORTH STREET, KRISHNAPURAM, GOVINDAPURAM P.O., THURAIYUR TALUK, TRICHI DISTRICT, TAMIL NADU, PIN-645 024.** M.A.C.A.Nos.1700 and 1709 of 2011 ..4.. - **2 S.SEKAR, S/O.P.K.SENGODAN, D.NO.3141/12, PARALADKA, PUTTUR, DK DISTRICT, KANARA SOUTH, MANGALORE, KARNATAKA-583 301.** - **3 THE NEW INDIA ASSUIRANCE COMPANY LTD., VARIKKODAN BUILDINGS, NILAMBUR ROAD, MANJERI, PIN-676 121. BY SMT.A.SREEKALA, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2021, ALONG WITH MACA.1700/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1700 and 1709 of 2011 ..5.. ## **M.A.C.A.Nos.1700 and 1709 of 2011** ## **-------------------------------------------------------** ## **COMMON JUDGMENT** The legal representatives of one Assain, who died as a result of a motor accident on 17.12.2006 while riding his motorcycle, preferred O.P.(MV)No.580 of 2007 before the Motor Accidents Claims Tribunal, Manjeri and claimed compensation to the tune of Rs.5,00,000/-. Similarly, the legal representatives of the pillion rider of the above said motorcycle, who also died in the same accident, had preferred O.P.(MV)No.581 of 2007 before the Tribunal. The owner, driver and insurer of the lorry bearing registration No.KA 21/D 7677 were arrayed as the respondents alleging negligence on the part of the first respondent, the lorry driver. 2. Insurance company in both cases filed written statement and admitted the policy. However, serious dispute raised in the matter of negligence by fastening the same solely M.A.C.A.Nos.1700 and 1709 of 2011 ..6.. against the rider of the motorcycle, Assain, despite disputing the quantum of compensation under various heads. 3. The Tribunal tried both cases jointly. PW1 and PW2 examined and Exts.A1 to A3 marked in O.P.(MV)No.580 of 2007 and Exts.A1 and A2 in O.P.(MV)No.581 of 2007 as petitioners' evidence. Exts.B1 to B3 were marked on the part of the third respondent in both cases. 4. Finally, the Tribunal granted Rs.2,38,000/- with 9% interest in O.P.(MV)No.580 of 2007 and Rs.1,66,500/- in O.P. (MV)No.581 of 2007 payable by the third respondent being 50% of the total amount assessed by the Tribunal on the finding that 50% negligence was the contribution of the rider of the motorcycle. 5. The petitioners in the above original petitions are assailing the award mainly on two grounds. According to the appellants, the Tribunal went wrong in fixing 50% contributory negligence on the part of the rider. Secondly, the compensation granted under the various heads is also on a lower side. 6. The first question arises for consideration is M.A.C.A.Nos.1700 and 1709 of 2011 ..7.. whether the Tribunal is justified in finding 50% negligence against Assain, the rider of the motorcycle involved in the accident. 7. It is argued by the learned counsel for the appellants that Ext.A1 FIR is against the first respondent. Further, Ext.B1 police charge is also against the first respondent. However, the Tribunal fastened 50% negligence on the part of the rider of the motorcycle without any basis. Accordingly, the learned counsel canvassed interference in the matter of finding regarding negligence. 8. The learned counsel for the insurance company refuted this contention and submitted that the Tribunal relied on the evidence of PW2 to find 50% negligence on the part of the rider and the oral evidence of PW2, an eye witness was given predominance by the Tribunal. 9. In order to address the rival arguments, I have perused Ext.B1 police charge. In fact, Ext.B1 would go to show that the police registered crime against the first respondent as per Ext.A1 FIR and after investigation, the police laid charge against the first respondent alleging commission of offence under M.A.C.A.Nos.1700 and 1709 of 2011 ..8.. Section 304A of the Indian Penal Code. But, from the side of the petitioners, PW2, an occurrence independent witness was examined to corroborate the police charge. During chiefexamination itself, PW2 given evidence that the rider of the motorcycle attempted to overtake the tanker lorry and he failed to get space in this attempt. Consequently, the lorry hit against the motorcycle and the lorry driven away without stopping. During cross-examination, PW2 given evidence that motorcycle hit on the side of the lorry while attempting to overtake. Thus, it appears that in this case, the evidence of direct eye witness supported negligence on the part of the rider. However, the Tribunal find negligence in the ratio 50% and it was held that the accident was the outcome of 50% negligence on the part of the first respondent. Accordingly, 50% of the amount assessed in each case was granted as compensation along with 9% interest and the said sum was ordered to be realised from respondents 1 to 3. 10. Going by the evidence of PW2, the independent eye witness already extracted, it could be noticed that the major M.A.C.A.Nos.1700 and 1709 of 2011 ..9.. contribution of the accident is on the part of the rider of the motorcycle. When direct evidence is adduced to disbelieve the police charge, the direct evidence would supersede the police charge and the direct ocular evidence would have predominance over the police charge. In view of the above finding, I do endorse the view taken by the Tribunal in the matter of fixation of 50% negligence on the part of the rider of the motorcycle after finding 50% negligence on the part of the first respondent in these cases, where, the legal representatives/legal heirs of Assain (rider of the motorcycle) also are parties. 11. Coming to the quantum of compensation in MACA No. 1700 of 2011(O.P.MV)No.580 of 2007), it is argued by the learned counsel for the appellants that though the income of the deceased was claimed at Rs.5,000/- being coolie worker aged 34 years, the Tribunal fixed only at Rs.3,500/- as the monthly income. In fact, the accident is of the year 2006. Therefore, by applying the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** where, the income of a coolie was fixed at Rs.4,500/- during M.A.C.A.Nos.1700 and 1709 of 2011 ..10.. 2004, Rs.5,000/- claimed by the appellants in O.P.(MV)No.580 of 2007 in relation to an accident during 2006 is just and reasonable. Therefore, I fix Rs.5,000/- as the monthly income in this case to calculate loss of dependency income. Needless to say that 40% addition is also to be made following the ratio in [2017 16 SCC 650], **National Insurance Company Ltd. v. Pranay Sethi & Ors.** Thus, the loss of dependency income is recalculated as under; 7,000x16x12x3/4=10,08,000/- 50% of the same would come to Rs.5,04,000/-. Out of which, Rs.2,24,000/- was granted by the Tribunal. Rs.5,04,000-Rs.2,24,000= **Rs.2,80,000/-** more is granted under the head loss of dependency income. 12. The learned counsel for the appellants canvassed income under the conventional heads also in this case following the ratio in **Pranay Sethi's** case ( _Supra_ ). But the learned counsel for the insurance company pressed for reducing Rs.10,000/- granted under the head loss of love and affection following the ratio in [AIR 2020 SC 3076], **United India** M.A.C.A.Nos.1700 and 1709 of 2011 **==> picture [27 x 8] intentionally omitted <==** ## **Insurance Co.Ltd. v. Satinder Kaur** . 13. In view of this submissions, I have perused the award. It appears that Rs.5,000/- alone was assessed under the head loss of estate and Rs.2,500/- was granted under this head. Therefore, **Rs.5,000/-** (10,000/2) more is granted under the loss of estate. Towards funeral expenses, the Tribunal assessed Rs.3,000/- and granted Rs.1,500/-. Therefore, the appellants are entitled to get **Rs.6,000/-** (12,000/2) more under this head. Towards loss of consortium, the Tribunal granted only Rs.5,000/after assessing the said sum at Rs.10,000/-, though the petitioners 1 to 4 together are entitled to get Rs.1,60,000/-. Therefore, the appellants are entitled to get **Rs.80,000/-** (1,60,000/2) more under the head loss of consortium. Rs.5,000/granted (after assessing Rs.10,000/-) under the head pain and sufferings by the Tribunal, though the same is impermissible as per the ratio in **Satinder Kaur's** case ( _Supra_ ). 14. Coming to O.P.(MV)No.581 of 2007, the Tribunal granted Rs.1,66,500/- as the total compensation by fixing the monthly income of the deceased at Rs.3,500/-. In this case, the M.A.C.A.Nos.1700 and 1709 of 2011 **==> picture [27 x 8] intentionally omitted <==** appellants claimed Rs.5,000/- as the monthly income of the deceased. Following the ratio in **Ramachandrappa** 's case( _Supra_ ), Rs.5,000/- can be fixed as the monthly income in this case also as discussed in the case of Assain. Needless to say that 40% addition is to be made in this matter also. Thus, the loss of dependency income is recalculated as under; 7,000x12x18/2=7,56,000/- 50% of the same would come to Rs.3,78,000/- Out of which, Rs.1,57,500/- was granted by the Tribunal. Rs.3,78,000-Rs.1,57,500= **Rs.2,20,500/-** more is granted under the head loss of dependency income. 15. The learned counsel for the appellants canvassed income under the conventional heads also in this case following the ration in **Pranay Sethi's** case ( _Supra_ ). 16. While addressing the rival contentions, I have perused the award. It appears that Rs.5,000/- alone was assessed under the head loss of estate and Rs.2,500/- was granted under this head. Therefore, **Rs.5,000/-** (10,000/2) more is granted under the loss of estate. Towards funeral expenses, the Tribunal M.A.C.A.Nos.1700 and 1709 of 2011 ..13.. assessed Rs.3,000/- and granted Rs.1,500/-. Therefore, the appellants are entitled to get **Rs.6,000/-** (12,000/2) more under this head. Towards loss of consortium, the Tribunal granted no amount, though the petitioners 1 and 2 (parents of the deceased) are entitled to get Rs.80,000/- at Rs.40,000/- each. Since the Tribunal not granted any amount under this head, **Rs.40,000/-** is granted under the head loss of consortium being 50%. In the result, (i) MACA No.1700 of 2011 is allowed in part. It is ordered that the appellants/claimants in O.P.(MV)No.580 of 2007 are entitled to get enhanced compensation to the tune of Rs.3,71,000/- (Rupees Three lakh Seventy One Thousand only) with interest at the rate of 9% granted by the Tribunal, excluding the amount already granted by the Tribunal, from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellants/claimants in equal proportion within two months from today and on deposit, the appellants/claimants are at liberty to release the same. It is noticed that for the payment of court fee, M.A.C.A.Nos.1700 and 1709 of 2011 ..14.. Rs.5,00,000/- alone was valued by the appellants in O.P. (MV)No.580 of 2007 and they are liable to pay court fee for the enhanced compensation to the tune of Rs.1,090/-. Therefore, the insurance company is directed to deposit Rs.1,090/- in addition to the court fee already ordered by the Tribunal by separate cheque in the name of M.A.C.T. (ii) MACA No.1709 of 2011 is allowed in part. It is ordered that the appellants/claimants in O.P.(MV)No.581 of 2007 are entitled to get enhanced compensation to the tune of Rs.2,71,500/- (Rupees Two lakh Seventy One Thousand Five Hundred only) with interest at the rate of 9% granted by the Tribunal, excluding the amount already granted by the Tribunal, from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellants/claimants in equal proportion within two months from today and on deposit, the appellants/claimants are at liberty to release the same. It is noticed that for the payment of court fee, Rs.4,00,000/- alone was valued by the appellants in O.P. M.A.C.A.Nos.1700 and 1709 of 2011 **==> picture [27 x 8] intentionally omitted <==** (MV)No.581 of 2007 and they are liable to pay court fee for the enhanced compensation to the tune of Rs.380/-. Therefore, the insurance company is directed to deposit Rs.380/- in addition to the court fee already ordered by the Tribunal by separate cheque in the name of M.A.C.T. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj