MACA Nos. 539/2009 & 1140/2010

MACA NOS.539/2009 & 1140/2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943 MACA NO. 539 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1558/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA, ALAPPUZHA APPELLANT/S:** 1 PREETH XAVIOUR, KEERANGATH HOUSE,, WOMEN'S CLUB ROAD,, TRICHUR. 2 K.C. XAVIOUR S/O.K.P. CHACKO,, KEERANGATH HOUSE,, WOMEN'S CLUB ROAD, TRICHUR. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ## **RESPONDENT/S:** 1 K.P.NATARAJAN, F/O. LATE UNNIKRISHNAN,, USHAS, VAYALAR.P.O,, CHERTHALA. 2 USHA NATARAJAN M/O. LATE UNNIKRISHNAN,, USHAS, VAYALAR.P.O,, CHERTHALA. 3 PARVATHY RAJ SISTER OF LATE UNNIKRISHNAN,, USHAS, VAYALAR.P.O,, CHERTHALA. 4 A. ABDULSALEEM (DELETED) S/O. ABDUL RAHIM,, NO. C 28,, RBI, STAFF QUARTERS, BEASANT NAGAR,, CHENNAI. MACA NOS.539/2009 & 1140/2010 2 5 THE NEW INDIA ASSURANCE CO. LTD. REGINA MANSION, IST FLOOR,, 46 MOOR STREET, CHENNAI. RESPONDENT NO.4 DELETED RESPONDENT NO.4 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER THE ORDER DATED 29/07/2021 IN I.A.NO.1/2021 IN MACA 539/2009. BY ADVS. SRI.N.S.MOHAMMED USMAN SRI.A.N.RAJAN BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021, ALONG WITH MACA.1140/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NOS.539/2009 & 1140/2010 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943** ## **MACA NO. 1140 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1558/2002 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA, ALAPPUZHA** ## **APPELLANT/S:** 1 K.P.NATARAJAN, F/O. LATE UNNIKRISHNAN, USHAS, VAYALAR P.O., CHERTHALA *2 USHA NATARAJAN, AGED 45 YEARS, M/O LATE UNNIKRISHNAN,USHAS, VAYALAR P.O. CHERTHALA. DIED APPELLANTS RECORDED APPELLANTS 1 AND 3 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.2, AS PER ORDER DATED 07.09.2021 IN MEMO DATED 26.08.2021 IN MACA 1140/2010. 3 PARVATHI RAJ, CHANGED NAME AS “POORNIMA NATARAJ” SISTER OF LATE UNNIKRISHNAN, USHAS, VAYALAR P.O. CHERTHALA. BY ADV SRI.A.N.RAJAN BABU ## **RESPONDENT/S:** 1 ABDUL SALEEM, S/O. ABDUL RAHIM, NO.C.28 RBI STAFF QUARTERS, BESANT NAGAR, CHENNAI 2 NEW INDIA ASSURANCE CO LTD. REGINA MANSION, IST FLOOR, 46, MOOR STREET, CHENNAI. 3 PREETH XAVIOUR S/O K.C. XAVIOUR, MACA NOS.539/2009 & 1140/2010 4 KEERANGATH HOUSE, WOMEN'S CLUB ROAD, TRICHUR. 4 K.C. XAVIOUR S/O K.P. CHACKO, KEERANGATH HOUSE, WOMENS CLUB ROAD, TRICHUR BY ADVS. SMT.M.MEENA JOHN SRI.VIJU THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021, ALONG WITH MACA.539/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NOS.539/2009 & 1140/2010 5 ## **COMMON JUDGMENT** The appeals are filed assailing the award in OP(MV) No.1558/2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha. Hence, they are being disposed of by this common judgment. The parties are, for the sake of convenience and wherever the contest so requires, referred to as per the status in the claim petition. 2. The petitioners had initially filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short 'Act'), claiming compensation on account of the death of Unnikrishnan (deceased), son of the petitioners 1 and 2 and the brother of the 3[rd] petitioner. The petitioners had stated that; on 10.09.2001, while the deceased was traveling as a pillion rider on the motor cycle bearing registration no. KL8/F-3873 (motorcycle) ridden by the 3[rd] respondent through Anne Valankanni Church road, when the motor cycle reached in front of the Maharashtra Bank, a collision took place with another motor cycle bearing registration no. TAA – 6921 (offending motor cycle), ridden and owned by the 1[st] MACA NOS.539/2009 & 1140/2010 6 respondent. The riders of both the motor cycles rode the vehicles in a rash and negligent manner. In the impact, the deceased was thrown on to the road and sustained grievous injuries. Although the deceased was rushed to Santhosh Hospital, his life could not be saved. The 2[nd] respondent was the insurer of the offending motor cycle, which was owned and driven by the 1[st] respondent. The 4[th] respondent was the owner of the motor cycle on which the deceased was traveling and ridden by the 3[rd] respondent. Therefore, the respondents 1 and 4 were vicariously liable to pay compensation to the petitioners. As the offending motor cycle was insured with the 2[nd] respondent, the 2[nd] respondent was to indemnify the liability of the 1[st] respondent. The petitioners claimed that the deceased was a MBA student and a businessman, and was earning a monthly income of Rs.10,000/-. The petitioners claimed a compensation of Rs.20,00,000/- from the respondents. 3. During the pendency of the claim petition, the 1[st] petitioner filed I.A.No.2903/2007, seeking leave to amend the claim petition and convert it to a claim petition filed MACA NOS.539/2009 & 1140/2010 7 under Section 163A of the Act, and consequentially to reduce the monthly income of the deceased from Rs.10,000/to Rs.3,333/- and the quantum of compensation to Rs.10,00,000/-. The Tribunal by its order dated 27.10.2007, allowed the application and granted leave to the petitioners to amend the claim petition. Accordingly, the claim petition was amended to one filed under Section 163A of the Act, and reduced the income of the deceased to Rs.3,333/- per month and the total compensation to Rs.10,00,000/-. 4. The 1[st] respondent did not contest the proceedings and was set ex-parte. 5. The 2[nd] respondent filed a written statement contending that the accident occurred due to the negligence of the 3[rd] respondent. Therefore, the 2[nd] respondent was not liable to indemnify the liability of the 1[st] respondent, arising out the accident. However, the 2[nd] respondent admitted that the offending motor cycle had a valid insurance coverage. 6. The respondents 3 and 4 filed a joint written statement contending that the accident occurred due to the MACA NOS.539/2009 & 1140/2010 8 negligence of the 1[st] respondent. There was no negligence on the part of the 3[rd] respondent. The 3[rd] respondent also sustained serious injuries in the accident and was treated as an inpatient. The 3[rd] respondent had filed a claim petition before the Motor Accidents Claims Tribunal, Madras seeking compensation for the injuries that he had sustained. The 1[st] respondent influenced the Police and got a false case registered against the 3[rd] respondent. Nevertheless, the 3[rd] respondent was acquitted by the Metropolitan Magistrate Court, Chennai by its judgment in CC No.7140/2001. Hence, the respondents 3 and 4 are not liable to pay any amount as compensation to the petitioners. 7. The petitioners produced and marked Exts.A1 to A4 in evidence. The 3[rd] respondent produced and marked Exts.B1 to B10 in evidence. 8. The Tribunal, after appreciating the pleadings and the materials on record, allowed the claim petition in part by permitting the 2[nd] petitioner - mother of the deceased – to realise from the respondents 1, 2 and 4 in equal shares an MACA NOS.539/2009 & 1140/2010 9 amount of Rs.2,21,000/- with interest at the rate of 7.5% per annum, from the date of petition till the date of realisation, and a cost of Rs.2,200/-. The prayer of the petitioners 1 and 3 for compensation was declined on ground that only the 2[nd] petitioner – mother of the deceased – was a class -I legal heir under the Hindu Succession Act, 1955, and therefore, only she was entitled for compensation. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal and aggrieved by the rejection of the claim of the petitioners 1 and 3, the petitioners have filed MACA No.1140/2010. Aggrieved by the finding that the 4[th] respondent is liable to pay one half of the compensation, the respondents 3 and 4 have filed MACA No.539/2009. 10. Heard; Sri.P.Gopalakrishnan, learned counsel appearing for the petitioners/appellants in MACA No.1140/2010 and Smt.Shylaja, learned counsel appearing for the respondents 3 and 4 before the Tribunal/appellants in MACA No.539/2009 and Sri.Viju Thomas, learned counsel appearing for the 2[nd] respondent/insurer in both the appeals. MACA NOS.539/2009 & 1140/2010 10 11. Sri.Gopalakrishnan argued that quantum of compensation awarded by the Tribunal is too low. The Tribunal had without the knowledge of the petitioners granted leave to amend the claim petition and convert it to a claim under Section 163A of the Act. The deceased was the only son of his parents and he was an upcoming businessman. He was earning an income of more than Rs.10,000/- per month. Therefore, if the claim was treated as one under Section 166 of the Act, a substantial amount could have been awarded as compensation. He also submitted that the finding of the Tribunal, that the petitioners 1 and 3 are not entitled for compensation is erroneous because the petitioners are all the legal heirs of the deceased and were entitled for compensation in equal shares. He drew the attention of this Court to the memo dated 26.08.2021, placing on record that the 2[nd] petitioner had expired on 09.01.2021, leaving only the petitioners 1 and 3 as her legal heirs. Therefore, the direction that the compensation is to be paid only to the 2[nd] petitioner has now become irrelevant, since the petitioners 1 and 3, who are class II legal heirs of MACA NOS.539/2009 & 1140/2010 11 the deceased, have now become entitled to the compensation amount. Hence, he prayed that the compensation may be enhanced, after treating the claim petition filed under Section 166 of the Act, and paid to the petitioners 1 and 3. 12. Sri. Viju Thomas, the learned counsel appearing for the 2[nd] respondent/insurer contended that the Tribunal had on the basis of Ext.A2 charge sheet arrived at a conclusion that the accident occurred due to the negligence of the riders of both the motor cycles. Hence, there was no illegality in the finding that the compensation has to be paid in the ratio of 50:50 by the respondents 2 and 4. It is in the above circumstances that the insurer did not challenge the award before this Court. 13. Smt. Shylaja, the learned counsel appearing for the 3[rd] respondent contended that, in the light of the acquittal of the 3[rd] respondent, as per Ext.B2 judgment, Ext.A2 charge sheet has fallen into a pale of insignificance and, therefore, it is only the 1[st] respondent who can be held negligent and, 12 MACA NOS.539/2009 & 1140/2010 consequentially, the 2[nd] respondent is to indemnify the 1[st] respondent and pay the compensation amount. Hence, she prayed the direction against the 4[th] respondent to pay 50% of the compensation amount may be set aside. 14. The questions that emanate for consideration in these appeals are: - (i) Whether the finding of the Tribunal that the respondents 2 and 4 have to pay the compensation amount is justifiable or not? - (ii) Whether the direction of the Tribunal that the petitioners are only entitled for compensation under Section 163A of the Motor Vehicles Act,1988 is justifiable? - (iii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.(i)** ## **Negligence** MACA NOS.539/2009 & 1140/2010 13 15. The case of the petitioners in the claim petition was that the accident occurred due to negligence of the riders of the two motor cycles ie. the respondents 1 and 3. The petitioners had specifically averred that on 10.09.2001, while the deceased was traveling as a pillion rider on the motor cycle ridden by the 3[rd] respondent, in a rash and negligent manner and in high speed, a collision took place with the offending motor cycle ridden by the 1[st] respondent, who also rode the vehicle in a rash and negligent manner. In the accident, the deceased lost his life. It was pleaded that, if due care and caution was exercised by the respondents 1 and 3, the accident could have been averted. The petitioners produced Ext.A1 copy of the FIR to substantiate their assertions in the claim petition. They also produced Ext.A2 charge sheet, which was registered by the Police, as against the 3[rd] respondent. The Tribunal after analysing the pleadings and materials on record and taking note of the rigour of Section 163A of the Act, arrived at a conclusion that the accident occurred due to the negligence of the respondents 1 and 3. MACA NOS.539/2009 & 1140/2010 14 16. The Honourable Supreme Court in **United India Insurance Company Ltd. vs. Sunilkumar** [2017 (4) KLT 1093 SC] has held that in a claim under Section 163A, no proof of negligence is required to be proved by the claimants and the defense of negligence cannot be raised. 17. In view of the categoric declaration of the law in the above decision, the specific contention of the petitioners in the claim petition that the accident happened due to the negligence of the respondents 1 and 3 and the respondents 1 and 3 not letting in any contra evidence to refute the assertions in the claim petition, I am of the considered opinion that the finding of the Tribunal that there was composite negligence on the part of the respondents 1 and 3 in causing the accident is justifiable and correct. It is well settled that a proceeding under the Motor Vehicle Act, 1988 is inquisitorial and summary in nature and needs to be proved on the principles of preponderance of probability and not beyond reasonable doubt. In fact, rigour under Section 163A is even lesser. Thus, the acquittal of the 3[rd] respondent is insignificant. Therefore, I confirm the finding of the 15 MACA NOS.539/2009 & 1140/2010 Tribunal that the accident was caused due to the negligence of the respondents 1 and 3. Resultantly, the respondents 2 and 4 are liable to pay the compensation amount. I answer question No.1 accordingly. ## **Question No.ii** 18. Even though the petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, it was at their instance and on their own application, that the claim petition was converted to one under Section 163A of the Act, by limiting the claim to Rs.10,00,000/-, after reducing the monthly income of the deceased to Rs.3,333/-. 19. It is too late in the day for the petitioners to take a volte face and feign that it was without their knowledge, that the application seeking leave to amend the claim petition was filed. 20. The application is seen signed by the 1[st] petitioner on 25.09.2007 and attested by his counsel. If the petitioners had a case that it was without their knowledge that the 16 MACA NOS.539/2009 & 1140/2010 application was filed, they ought to have brought the same to the notice of the Tribunal, then and there or moved the Tribunal in review. 21. At this distance of time, after a lapse of 14 years, the plea of purported fraud in converting the claim to one under Section 163A cannot be raised in the appeal and does not appeal to this Court. 22. On a perusal of the records, I am convinced that it was with the full knowledge of the petitioners that the claim petition was converted from one under Section 166 to Section 163A of the Act, that too after reducing the income of the deceased from Rs.10,000/- to Rs.3333/-. It was in the above situation that the Tribunal also did not go into the question of negligence in greater detail. Therefore, I answer question No.(ii) against the petitioners. ## **Question No.(iii)** 23. The appellants had claimed that the deceased was an MBA student and a businessman, and he was earning a MACA NOS.539/2009 & 1140/2010 17 monthly income of Rs.3,333/-. On a perusal of the written statement filed by the respondents, no serious allegation has been raised challenging or questioning the monthly income of the deceased. Nevertheless, the Tribunal fixed the notional annual income of the deceased at Rs.18,000/- and awarded a compensation of Rs.3,24,000/- but deducted 1/3[rd] of the compensation amount towards the personal living expenses of the deceased to arrive at the figure of Rs.2,21,000/-. 24. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd. :** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. Likewise in **National Insurance Co. Ltd v. Khimli bai and Others [(2009) 10 SCC 648]** , the notional income of a carpenter was fixed in the year 1997 at Rs.3,000/- per month. 25. Following the above benchmark laid down by the Honourable Supreme Court in the afore-cited decision, and MACA NOS.539/2009 & 1140/2010 18 taking into account the fact that the deceased was a businessman and the accident occurred in the year 2001, I am of the considered opinion that his notional income be safely fixed at Rs.3,333/- as claimed in the claim petition. 26. As the accident happened in the year 2001 and the deceased was aged 22 years at the time of his death, the Second Schedule as it then existed is applicable to the facts of the case. Consequently, the petitioners are entitled to an amount of Rs.7,20,000/-, out of which 1/3[rd] has to be deducted towards the personal living expenses of the deceased. Thus, I hold that the petitioners are entitled to a consolidated amount of Rs.4,80,000/- as per the structured formula in Second Schedule of the Act. In addition to the said amount, the petitioners are also entitled to Rs.2,000/towards funeral expenses and Rs.2,500/- towards loss of estate, thus totalling to an amount of Rs.4,85,500/-. 27. In the light of the fact that the 2[nd] petitioner has expired during the pendency of these appeals, and the petitioners 1 and 3 being the father and sister of the deceased and are class – II legal heirs, I hold that they are MACA NOS.539/2009 & 1140/2010 19 entitled to realise the compensation amount of Rs.4,84,500/-. 28. In view of any findings in Question No.(i), I hold that the respondents 2 and 4 are liable to pay the aforesaid amount in the ratio 50:50. However, following the ratio in **Khenyei v. New India Assurance Co. Ltd. and Others** [2015(3) KHC 70], and the fact that the 1[st] respondent and the 3[rd] respondent are joint tort-feasors, I direct the 2[nd] respondent to pay the compensation amount to the petitioners and recover one half of the compensation amount from the 4[th] respondent. 29. On an overall re-appreciation of the pleadings and materials on record, especially the law laid down in the precedents referred to in the judgment and the findings rendered on question nos.(i) to (iii), I hold that the petitioners 1 and 3 are entitled for compensation of Rs.4,84,500/- as ordered above and to be realised in the manner afore mentioned. In the result, MACA No.1140/2010 is allowed by directing the 2[nd] respondent to deposit the compensation 20 MACA NOS.539/2009 & 1140/2010 amount of Rs.4,84,500/- with interest @ 6% per annum from the date of petition till the date of realisation, after deducting the interest for a period of 663 days as ordered by this Court on 08.07.2021 in C.M.Appln.No.1/2021, and a cost of Rs.3000/- before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment and then recover one half of the compensation amount from the 4[th] respondent. The Tribunal shall disburse the compensation amount to the petitioners 1 and 3 in the ratio of 60:40 and in accordance with law. MACA No.539/2009 is dismissed. Sd/- **C.S.DIAS JUDGE** rkc