MACA Nos. 324 of 2008 and 327 of 2008 (Biju v. Prasannan T.M. and others; Devarajan’s wife and children v. National Insurance Co. Ltd. and The United India Insurance Co. Ltd.)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 5TH DAY OF OCTOBER 2016/13TH ASWINA, 1938 MACA.No. 324 of 2008 ( ) ------------------------AGAINST THE AWARD IN O.P(M.V)No.690/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 30-08-2007 APPELLANT/APPLICANT: ------------------------- BIJU, S/O.THILAKAN, VADAKKEPUTHENPURAKAL HOUSE, KOTAMALA KARA P.O., VAGAMON VILLAGE, NOW RESIDING AT VADAKKEPUTHENPURAKAL HOUSE, VAZHIKADAVU, TEEKOY VILLAGE. BY ADVS.SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G RESPONDENTS/RESPONDENTS: ---------------------------------- 1. PRASANNAN.T.M., KARUTHAPARAYIL HOUSE, ETTUMANOOR P.O., KOTTAYAM. 2. PHILIP.C.JOHN, CHIRACKAL HOUSE, AMAYANOOR P.O., KOTTAYAM. 3. NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, KOTTAYAM. 4. YASHODHARAN, S/O.VELAYUDHAN, ARACKAPARAMBIL (H), VAGAMON P.O., 2ND DIVISION, KOTTAMALA, IDUKKI. 5. THE UNITED INDIA INSURANCE COMPANY LTD., MOOVATTUPUZHA. R3 BY ADV. SRI.P.JACOB MATHEW R3 BY ADV. SRI.MATHEWS JACOB (SR.) R5 BY ADV. SRI.RAJESH THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05-10-2016, ALONG WITH M.A.C.A.NO.327 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------------ M.A.C.A.Nos.324 & 327 of 2008 ------------------------------------Dated 5[th] October, 2016 ## **JUDGMENT** ## **Ravikumar, J.** These appeals arise from a common judgment passed by the Motor Accidents Claims Tribunal, Pala. The former appeal arises from the judgment and award in O.P(M.V)No.690 of 2005 and the latter appeal arises from the judgment and award in O.P(M.V)No.694 of 2005. Both the claim petitions were filed under Section 166 of the Motor Vehicles Act. The accident which led to the filing of the claim petitions occurred on 9.6.2005 at about 9.45 a.m. O.P(M.V)No.690 of 2005 was filed by the injured Biju seeking compensation for the injuries sustained by him in the said accident. O.P(M.V)No.694 of 2005 was filed by the wife and children of deceased Devarajan who was also a passenger in one of the vehicles involved in the accident. The deceased and the injured claimant were passengers in the Jeep bearing Reg.No.KL-5/C7626. When it reached near Kismath Padi in Pala - Ettumanoor road a bus bearing registration No.KL-7/N-5310 came from the opposite direction and dashed against it. The appellant in M.A.C.A.No.324 of 2008 and the aforesaid Devarajan sustained injuries and as noticed M.A.C.A.Nos.324 & 327/2008 2 hereinbefore, Devarajan succumbed to the injures sustained in the accident. It is in the said circumstances that the above mentioned claim petitions were filed. As per the impugned award the Tribunal granted a total compensation of Rs.1,73,780/- in O.P.(M.V)No.690 of 2005 and granted a total compensation of Rs.2,53,000/- in O.P(M.V)No.694 of 2005. It is dissatisfied with the quantum of compensation that the captioned appeals have been filed seeking enhancement of the quantum of compensation. 2. Before the Tribunal the case of the claimants/appellants was that the accident occurred solely due to the negligence from the part of the driver of the bus bearing Reg.No.KL-7/N-5310 driven by the first respondent. Respondents 1 and 2 filed a joint written statement refuting the aforesaid contention. Separate written statements were filed by respondents 3, 4 and 5. Before the Tribunal respondents 1 to 3 took up the contention that the accident occurred due to the negligence on the part of the driver of the Jeep in which the claimants were travelling. Respondents 4 and 5 contended that the accident occurred solely due to the negligence of the first respondent, the driver of the aforementioned bus. Based on such rival contentions the Tribunal considered the question who was responsible for the accident and M.A.C.A.Nos.324 & 327/2008 3 ultimately found that it is a case of composite negligence and the drivers of both the vehicles had contributed to the cause of the accident. Consequently, the Tribunal found contributory negligence on the part of the drivers of both the vehicles and apportioned the negligence on the part of the driver of the Jeep as 25% and that of the driver of the bus as 75%. Despite such findings and apportionment of negligence made by the Tribunal, none of the respondents had preferred any appeal or cross objection challenging the said finding and consequential apportionment. Hence, the findings of the Tribunal had become final as there is no challenge against the finding and consequential apportionment of the degree of negligence, in this appeal as well. 3. Upon hearing the learned counsel on both sides and perusing the impugned judgment dealing with the aforesaid aspects we do not find any reason to interfere with the finding of the Tribunal that the cause of the accident is nothing but the composite negligence of the drivers of both the vehicles. We also found no reason to interfere with the apportionment of negligence by the Tribunal. In such circumstances, the only question to be considered in these appeals is regarding the entitlement of the claimants for enhanced compensation, M.A.C.A.Nos.324 & 327/2008 4 as there is no dispute regarding the insurance coverage of the vehicles involved. ## M.A.C.A.No.324 of 2008 4. This appeal arises from the judgment and award in O.P. (M.V)No.690 of 2005. The injured appellant was aged 25 years at the time of the accident. The main grievance of the appellant is regarding the fixation of his monthly income by the Tribunal for calculation purpose. Evidently, the appellant had not adduced any evidence to establish his occupation and income. The Tribunal took the monthly income of the appellant for calculation purpose as 2,000/-. Taking₹ into account the fact that the accident occurred in the year 2005 and also taking note of the age of the appellant on the date of the accident we are of the considered view that there is substance in the contention of the appellant that the monthly income taken by the Tribunal is too low. The said contention has to be upheld in the light of the decision of the Hon'ble Apex Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC**_ _**236)**_ wherein, in the case of a coolie who met with an accident in the year 2004 the Hon'ble Apex Court fixed the monthly income as ₹ 4,500/- for calculation purpose. In this case, the accident in question occurred after an year since the accident involved in the decision in M.A.C.A.Nos.324 & 327/2008 5 _**Ramachandrappa's**_ case. In such circumstances, we are of the considered view that the monthly income of the appellant for calculation purpose, even in the absence of any evidence regarding his occupation and income, can be fixed notionally for calculation purpose as ₹ 4,500/-. Accordingly, it is fixed as such. There is no dispute regarding the multiplier adopted by the Tribunal. In fact, it was correctly fixed with reference to the age of the injured. As per Ext.A11 disability certificate the Medical Board assessed the permanent disability of the appellant as 30% and the entire 30% was accepted and taken by the Tribunal for assessing compensation. In such circumstances, the compensation payable for permanent disability has to be re-assessed only by substituting the refixed monthly income. Based on such reassessment the appellant would be entitled to get an amount of ₹ 1,53,000/- (4500 x 12 x 17 x 30/100 - 122400) additionally. Evidently, the appellant sustained multiple facial bone fracture. Ext.A11 would reveal that he suffered primary optic neuropathy in the right eye, choroidal tear and chorioretinal atrophy in the right eye. Taking note of the injuries sustained and the period of convalescence and also the parts on which the injuries sustained we are of the view that the appellant is entitled to get enhancement of compensation under the heads `pain and sufferings' and also `loss of amenities'. We are M.A.C.A.Nos.324 & 327/2008 6 inclined to grant 5,000/- additionally under the head `pain and₹ sufferings' taking into account the enormous pain endured by the appellant and 10,000/- towards `loss of amenities' acknowledging₹ that he must have been deprived of pleasures and enjoyment of life for quite a long period. Evidently, 2½ months was taken as the loss of earnings by the Tribunal. Based on the re-fixed monthly income the appellant is entitled to get a proportionate enhancement under that head and accordingly, he is entitled to get 6,250/- more under that₹ head. It is granted. The appellant had been an inpatient for a period of 18 days. Taking note of the year of the accident we are inclined to fix the rate as 200/- per day towards `bystander's expenses' and₹ ₹ 100/- per day towards `extra nourishment'. The Tribunal has granted only an amount of 1,500/- under the head `bystander's expenses'₹ and 250/- towards `extra nourishment'. In such circumstances, an₹ amount of 2,100/- is awarded under the head `bystander's expenses'₹ and 1,550/- towards``extra nourishment', additionally. Towards₹ `damages to clothing', the Tribunal granted only an amount of 250/-.₹ The nature of the injuries would indicate damage to the dresses worn by the appellant at the time of the accident. Hence, we are inclined to grant 750/- more under that head. Towards `transportation to₹ hospital' only an amount of 500/- was granted. The nature of the₹ M.A.C.A.Nos.324 & 327/2008 7 injuries and the treatment underwent would undoubtedly suggest that the appellant must have had more than one visit to the hospital in connection with the treatment. In such circumstances, we are inclined to award 1,500/- more under that head. It is awarded. In the light of₹ the enhancement/re-assessment made by us the appellant is entitled to get an additional compensation of 1,80,150/-. It is awarded.₹ ## M.A.C.A.No.327 of 2008 5. This appeal arises from the judgment and award in O.P. (M.V)No.694 of 2005. The wife and children of one deceased Devarajan filed the said claim petition seeking compensation for his death in the aforesaid motor vehicle accident. The Tribunal granted a total compensation of 2,53,000/- as per the impugned award. The main₹ grievance of the appellants is that though it is specifically stated in the claim petition that deceased Devarajan was working as a Supervisor in a plantation and was earning 4,500/- per month the Tribunal₹ discarded the said averments and took the monthly income notionally at ₹ 2,000/-. That apart, it is contended by the learned counsel for the appellants that only meagre amounts were awarded under the heads `funeral expenses', `loss of love and affection' and `loss of consortium'. Per contra, the learned Senior Counsel appearing for the M.A.C.A.Nos.324 & 327/2008 8 3[rd] respondent contended that the Tribunal cannot be found fault with in fixing the monthly income of the deceased notionally at 2,000/- as the₹ claimants had failed to adduce evidence in support of their contentions in regard to the occupation and income. Evidently, the appellants/claimants had failed to adduce any evidence to establish their averments regarding occupation and income of deceased Devarajan. Though they had produced Ext.A7 certificate it was not proved before the Tribunal. In such circumstances, the fixation of the monthly income notionally for calculation purpose cannot be said to be an error warranting appellate interference. But, at the same time, taking note of the year of the accident and the age of the deceased we are of the considered view that the monthly income fixed by the Tribunal is too low. The deceased Devarajan was aged 49 years at the time of his death. As noticed hereinbefore, the accident occurred in the year 2005. Following the same reasons which we have assigned for fixing the monthly income of the appellant in M.A.C.A.No.324 of 2008 we are inclined to fix the monthly income of the deceased Devarajan as ₹ 4,500/-. In this case, the Tribunal correctly fixed the multiplier and also effected deduction from the monthly income taking note of the number of dependents. In such circumstances, a re-assessment is required only by substituting the re-fixed monthly income. On such re- M.A.C.A.Nos.324 & 327/2008 9 assessment the appellants are entitled to get an amount of 2,60,000/-₹ additionally (4500 x 12 x 13 x 2/3 - 208000) for loss of dependency. In the light of the decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh (2013(3) KLT 89(SC))** the compensation granted under the heads `funeral expenses' and `loss of consortium' require an upward modification. The Tribunal granted only an amount of 3,000/-₹ towards `funeral expenses'. In the light of the decision in **Rajesh's** case (supra) in the absence of evidence for higher expenses a minimum of 25,000/- should be granted towards `funeral expenses'. In such₹ circumstances, an amount of 22,000/- is granted additionally under₹ that head. In the light of the very same decision the surviving spouse in a claim for compensation filed under Section 166 of the Motor Vehicles Act for the death of his/her spouse is entitled to get a minimum of 1,00,000/- towards `loss of consortium'. In this case,₹ the Tribunal granted only an amount of ₹ 15,000/-. In such circumstances, the first appellant who is the widow is entitled to get an amount of 85,000/- additionally. It is granted. The age of appellants₹ 2 and 3 are not specifically mentioned in the claim petition. That apart, the cause title in O.P.(M.V)No.694 of 2005 itself would reveal that the claim petition was filed by them in their individual capacity and therefore, it can only be taken that they became _sui juris_ at the time of M.A.C.A.Nos.324 & 327/2008 10 filing of the claim petition. In such circumstances, we are inclined to grant only an amount of 5,000/- additionally under the head `loss of₹ love and affection'. In the light of the aforesaid discussion, the appellants are entitled to get a total additional compensation of ₹ 3,72,000/-. It is made clear that the first appellant alone is entitled to get the additional compensation of 85,000/- granted under the head₹ `loss of consortium' and appellants 2 and 3 are entitled to get the additional compensation of 5,000/- granted under the head `loss of₹ love and affection.' The balance amount additionally granted alone shall be available for apportionment amongst appellants 1 to 3. It is made clear that the additional compensation has to be apportioned between appellants 1 to 3 in the ratio 60 : 20 : 20. 6. The additional compensation awarded in both the appeals will carry interest at the rate of 8% per annum from the date of petition till realisation. Since we have maintained the finding of the Tribunal regarding composite negligence and also the apportionment of contributory negligence the additional compensation awarded shall be deposited by the insurance companies viz., respondents 3 and 5 in the ratio 75 : 25. The liberty granted to the 5[th] respondent to recover the amount paid by it from the 4[th] respondent is also maintained. The M.A.C.A.Nos.324 & 327/2008 11 additional compensation awarded in these cases shall be deposited by respondents 3 and 5, in terms of this judgment, within two months from the date of receipt of copy of this judgment. The appeals are allowed as above. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS