MACA Nos.1858 and 1933 of 2011

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 30TH DAY OF JANUARY 2012/10TH MAGHA 1933** ## **MACA.No. 1858 of 2011 ( )** ## **------------------------------OPMV.1053/2005 of MOTOR ACCIDENTS CLAOMS TRIBUNAL, NEYYATTINKARA** **................** ## **APPELLANT(S)/APPLICANTS:** **-----------------------------------** ## **1. NANDINI,** **PODIYANIVILA VEEDU, NEAR PUBLIC HEALTH CENTRE KALLUVETTANKUZHI, VIZHINJAM P.O., NEYYATTINKARA.** **2. R.SARATH (MINOR), PODIYANIVILA VEEDU, NEAR PUBLIC HEALTH CENTRE KALLUVETTANKUZHI, VIZHINJAM P.O., NEYYATTINKARA.** **3. RANJINI N., (MINOR), PODIYANIVILA VEEDU, NEAR PUBLIC HEALTH CENTRE, KALLUVETTANKUZHI, VIZHINJAM P.O., NEYYATTINKARA.** **4. SARASWATHY,PODIYANIVILA VEEDU, NEAR PUBLIC HEALTH CENTRE KALLUVETTANKUZHI, VIZHINJAM P.O., NEYYATTINKARA.** **BY ADV. SRI.R.NIKHIL** **RESPONDENT(S)/RESPONDENTS:** - **---------------------------------------** **1. THE MANAGING DIRECTOR, K.S.R.T.C., CHIEF OFFICE THIRUVANANTHAPURAM-695 001.** **2. SADANANDAN, KIRAN HOUSE, NEAR BHADRAKALI TEMPLE, THOZHUKKAL,PERUMPAZHUTHOOR VILLAGE, NEYYATTINKARA-695 121.** **3. SHABURKHAN,THERIVILA VEEDU, KALLUVETTANKUZHI, VIZHINJAM P.O., NEYYATTINKARA-695 521.** **4. THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD. NEYYATTINKARA-695 121.** **R1 BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC SRI.ZIYAD RAHMAN B/O R4 BY ADVS. SRI.KKM.SHERIF** **SRI.LAL K.JOSEPH** **SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-01-2012, ALONG WITH MACA. NO. 1858/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ** ------------------------------------------------------MACA Nos.1858 and 1933 of 2011 -------------------------------------------------------Dated this the 30[th] day of January 2012 ## **JUDGMENT** ## Ramakrishna Pillai, J These appeals are filed by the legal heirs of one Radhakrishnan, aged 36 years and one Sudheer @ Hari aged 23 years who succumbed to the injuries in a road traffic accident occurred on 24.4.2005. 2. Allegedly, the deceased Radhakrishnan of whom the appellants in MACA No.1858 of 2011 are the legal heirs was driving a motor cycle along the ThiruvananthapuramNeyyattinkara National Highway. Sudheer of whom the appellants in MACA No.1933 of 2011 are the legal heirs was on the pillion of the said bike. When they reached near Sree Narayana Guru Mandiram at Mudavoorpara, the bus owned by the first respondent-Corporation and driven by the 2[nd] respondent came from the opposite side and hit the motor cycle. They, who sustained serious injuries, were hospitalised and they succumbed to injuries there. MACA Nos.1858 and 1933 of 2011 2 Allegedly, the accident was due to the negligence of the 2[nd] respondent. 3. The appellants in MACA No.1858 of 2011 claimed a sum of Rs.15 lakhs as compensation under various heads. Against the said claim, the Tribunal has awarded a sum of Rs.6,56,625/-. The appellants in MACA No.1933 of 2011 claimed a sum of Rs.6 lakhs, against which the Tribunal has awarded a sum of Rs.3,12,728/- as compensation. The appellants challenge the adequacy of compensation awarded by the Tribunal. 4. We heard the learned counsel for the appellants as well as the learned counsel appearing for the first and fourth respondents in both the appeals. 5. The main challenge raised in both the appeals is regarding the deduction of compensation arrived at by the Tribunal on account of the contributory negligence of the deceased, who were riders of the motor bike. Allegedly and admittedly too, the deceased were not wearing helmets at the relevant time. This was taken into account by the learned Tribunal while arriving at the final quantum of MACA Nos.1858 and 1933 of 2011 3 compensation that was awarded fixing 15% contributory negligence on each of the deceased. This, according to the learned counsel for the appellants is not at all justifiable. 6. Relying on the decision of this Court in **Siby Paul** v **Praveen Kumar** (2009(1) KLT 322), it was argued that in such cases, there is a burden on the insurer to establish that there was contributory negligence on the part of the injured/deceased. But, the facts and circumstances of the aforesaid case are not squarely applicable to the situation before us. Here, it is admitted that both the deceased were not wearing helmets at the time of the accident. This fact cannot be overlooked by the Tribunal while fixing the amount of compensation that has to be paid to the legal heirs of the victims. However, taking into account the relevant circumstances in these appeals, we are of the definite view that 15% of the contributory negligence fixed by the learned Tribunal is on the higher side. We are of the definite view that it is only just and proper to fix the contributory negligence on the part of the deceased at 7.5% each. MACA Nos.1858 and 1933 of 2011 4 7. Reckoning the contributory negligence of the deceased at 7.5% each, we hold that the amount awarded by the Tribunal to the dependents of the deceased in both cases are to be recalculated. ## **MACA No.1858 of 2011** 8. Allegedly, the deceased Radhakrishnan was a Goldsmith working in Saudi Arabia. Ext.A15 which is a salary certificate said to have issued to the employee was pressed into service at the trial stage to prove that the income of the deceased was Rs.25,000/- per month. According to the learned counsel for the appellants, this should have been accepted for arriving at the quantum under the head 'loss of dependency'. But, it is an accepted principle that the monthly income has to be fixed taking into account the standard of living prevailing in the country to which the injured/deceased belongs. Hence, taking into account the standard Indian conditions, we feel that a sum of Rs.6,000/- fixed by the Tribunal as the monthly income of the deceased is quite reasonable. It was also pointed out by the learned counsel for the appellants that the deceased MACA Nos.1858 and 1933 of 2011 5 was married and he had left behind him four dependents. According to the learned counsel for the appellants, following the dictum laid down by the Apex Court in **Sarla Verma** v **Delhi Transport Corporation** [(2010(2) KLT 802 (SC)], the reduction on account of the amount which the deceased would have spent for maintaining himself has to be limited to 1/4 of the quantum arrived at. In the present cases, as the Tribunal has reduced 1/3[rd] towards the same, the same calls for an interference and requires modification. Recalculated as above adopting the multiplier 15, the compensation under the head 'loss of dependency' would come to Rs.8,10,000/-. It was further pointed out by the learned counsel for the appellants that the death of the deceased was not instantaneous. However, towards pain and suffering, no amount was awarded by the learned Tribunal, though it is in evidence that the deceased died while undergoing treatment in the Taluk Head Quarters Hospital, Neyyattinkara. Considering the fact that the death of the deceased was not instantaneous, we allow Rs.5,000/- for pain and suffering of the deceased. MACA Nos.1858 and 1933 of 2011 6 Recalculating the compensation awarded under the loss of dependency as above and adding an additional sum of Rs.5,000/- towards pain and suffering, along with the amount awarded by the Tribunal under other heads, the total amount of compensation will come to **Rs.8,67,500/-.** Out of this amount, 7.5% has to be reduced on account of the contributory negligence of the deceased. Thus, the appellants are entitled to a sum of Rs.8,02,438.5 (i.e.Rs.8,67,500/- - Rs.65,062.5) as compensation. As the Tribunal awarded only a sum of Rs.6,56,625/-, the appellants in MACA No.1858 of 2011 becomes entitled to a further sum of **Rs.1,45,813/- (Rupees One Lakh Forty Five Thousand Eight Hundred and Thirteen only). MACA No.1933 of 2011** 9. Allegedly, the deceased Sudheer was a Mason by avocation. The monthly income of the deceased was taken as Rs.3,000/- by the learned Tribunal. We are of the view that the monthly income fixed by the learned Tribunal is low. Considering the time of the accident and the avocation of the deceased, we fix his monthly income as Rs.3,500/- for MACA Nos.1858 and 1933 of 2011 7 the purpose of computation of loss of dependency. 10. It was further pointed out that the amount awarded for pain and suffering, loss of love and affection, loss of estate are also low. We find force in the submission of the learned counsel for the appellants and we are awarding Rs.10,000/-, Rs.5,000/- and Rs.5000/- under the heads 'Pain and suffering', 'Loss of love and affection' and Loss of Estate' respectively in addition to the amount already awarded. 11. If the loss of dependency is recalculated adopting the multiplier 18 and reckoning the monthly income of the deceased as Rs.3,500/-, the amount under the head 'loss of dependency' would come to Rs.3,78,000/-. This is after reducing ½ of the income towards the expenses which the deceased would have incurred for maintaining himself (As per Sarla Verma's case). This amount when added to the additional amount awarded under the heads Pain and suffering, loss of love and affection and loss of estate as well as the amount awarded by the Tribunal under other heads will come to Rs.4,41,915/-. After deducting 7.5% of the said MACA Nos.1858 and 1933 of 2011 8 amount towards contributory negligence, the amount of compensation which the appellants are entitled will come to Rs. **Rs.4,08,771/** - (Rupees Four Lakhs Eight Thousand Seven Hundred and Seventy One only). If the amount already awarded by the Tribunal, i.e. Rs.3,67,915/- is deducted from this amount, the additional amount that would be payable to the appellants is **Rs.40,856/- (Rupees** ## **Forty Thousand Eight Hundred and Fifty Six only)** . 12. Both the appeals are allowed as above and the awards under challenge are modified as aforesaid. The additional amount awarded shall carry interest at the rate specified in the award. ## **Sd/- PIUS C.KURIAKOSE, JUDGE** ## **sd/- A.V.RAMAKRISHNA PILLAI, JUDGE** css/ true copy P.A.TO JUDGE