MACA Nos.1962 & 2242 of 2012 (Kunjumole v. Raveendran K. Archana & Branch Manager, New India Assurance Co. Ltd.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** ## **MACA. No.1962 OF 2012** **AGAINST THE AWARD IN OP(MV) NO.212/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR DATED 14.06.2012** ## **APPELLANTS/PETITIONERS:** **1 KUNJUMOLE W/O.LATE JOSE.P.T., PADIKKAL VEEDU, PADINJATTINKARA MURI, KARAVALOOR VILLAGE, KOLLAM DISTRICT.** **2 CHRISTY J.THOMAS AGED 17 YEARS (MINOR), D/O.LATE JOSE.P.T., PADIKKAL VEEDU, PADINJATTINKARA MURI, KARAVALOOR VILLAGE, KOLLAM DISTRICT.** **3 RICHIE J.THOMAS AGED 12 YEARS (MINOR), D/O.LATE JOSE.P.T. PADIKKAL VEEDU, PADINJATTINKARA MURI, KARAVALOOR VILLAGE, KOLLAM DISTRICT.** **4 Y.THOMAS S/O.YOHANNAN, PATTIYOTTU CHARUVIL PUTHEN VEEDU, KARAVALOOR P.O., KOLLAM DISTRICT.** **5 AELIKUTTY THOMAS W/O.THOMAS, PATTIYOTTU CHARUVILA PUTHEN VEEDU, KARAVALOOR P.O., KOLLAM DISTRICT.** **(1ST APPELLANT IS FILING THIS APPEAL FOR HTERSELF AND ON BEAHLF OF MINOR APPELLANTS 2 OR 3 ALSO AS THEIR MOTHER AND NATURAL GUARDIAN).** **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENTS/RESPONDENTS:** **1 RAVEENDRAN.K. ARCHANA, PANACHAVILA, ANCHAL P.O., KOLLAM, PIN 691305.** MACA. Nos.1962 & 2242 of 2012 2 **2 GOPALAKRISHNAN S/O.NARAYANAN, SEEMA BHAVAN, THAZHAMELMURI, NEAR ANCHAL MARKET JUNCTION, ANCHAL P.O., KOLLAM, PIN 691305.** **3 THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LIMITED, IIND FLOOR, KASTHURBA BUILDING, PULAMON P.O., KOTTARAKKARA, KOLLAM DISRTRICT, PIN 691531.** **BY SRI.M.JACOB MURICKAN, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2018, ALONG WITH MACA NO.2242/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. Nos.1962 & 2242 of 2012 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** **MACA. No.2242 of 2012** **AGAINST THE AWARD IN OP(MV) NO.212/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR DATED 14.06.2012** ## **APPELLANTS/PETITIONERS:** **THE BRANCH MANAGER** **NEW INDIA ASSURANCE CO.LTD., II FLOOR, KASTHURBA BUILDING, PULAMON P.O., KOTTARAKKARA, REPRESENTED BY THE DULY CONSITUTED ATTORNEY, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI - 682 011.** **BY ADV. SRI.M.JACOB MURICKAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**KUNJUMOLE.G.**| |---|---| ||**W/O.LATE JOSE P.T., PADIKKAL VEEDU, PADINJATTINKARA,**| ||**MATHRA MURI, KARAVALOOR P.O., PIN - 691 318.**| |**2**|**CHRISTY J.THOMAS (MINOR)**| ||**D/O.LATE JOSE P.T., PADIKKAL VEEDU, PADINJATTINKARA,**| ||**MATHRA MURI, KARAVALOOR P.O., PIN - 691 318.,**| ||**REPRESENTED BY 1ST RESPONDENT HEREIN (MOTHER) AS NEXT**| ||**FRIEND AND GUARDIAN.**| |**3**|**RICHIE J.THOMAS (MINOR)**| ||**D/O.LATE JOSE P.T., PADIKKAL VEEDU, PADINJATTINKARA,**| ||**MATHRA MURI, KARAVALOOR P.O., PIN - 691 318.,**| ||**REPRESENTED BY 1ST RESPONDENT HEREIN (MOTHER) AS NEXT**| ||**FRIEND AND GUARDIAN.**| MACA. Nos.1962 & 2242 of 2012 4 - **4 Y.THOMAS S/O.YOHANNAN, PATTIYOTTU CHARUVILA PUTHEN VEEDU, KARAVALOOR P.O., PIN - 691 318.** **5 AELIKUTTY THOMAS W/O.THOMAS, PATTIYOTTU CHARUVILA PUTHEN VEEDU, KARAVALOOR P.O., PIN - 691 318.** **6 RAVEENDRAN K. ARCHANA, PANACHAVILA, ANCHAL P.O., PIN - 691 311.** - **7 GOPALAKRISHNAN** **S/O.NARAYANAN, SEEMA BHAVAN, THAZHAMEL MURI, NEAR ANCHAL MARKET JUNCTION, ANCHAL P.O., PIN - 691 311.** **BY ADVS. SRI.ANCHAL C.VIJAYAN SRI.B.MOHANLAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2018, ALONG WITH MACA NO.1962/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. Nos.1962 & 2242 of 2012 5 ## **JUDGMENT** **The accident, which gave rise to the award and the consequent appeal, occurred on 24.03.2009 resulting in the death of the rider of a motor cycle. The motor cycle was hit by a bus driven by the 2[nd] respondent in MACA No.1962 of 2012. The claimants have filed the above appeal seeking enhancement of the compensation and the claimants are the wife, two minor children and the parents of the deceased. The Insurance Company has filed MACA No.2242 of 2012 alleging that there can be negligence found on the deceased also as per the scene mahazar.** **2. The contention of the Insurance Company is based on the police records, according to which the place of occurrence is at the middle of the road. It is stated that the scene mahazar indicates the place of occurrence to be on the tarred portion of a road having a width of 4.67** MACA. Nos.1962 & 2242 of 2012 6 **meters. The place of occurrence is stated to be 2.25 meters away from the western tar end. It is hence contended that the vehicle was driven on the right side of the road, since the predecessor of the appellants were coming from north to south. When the deceased was going from north to south, even if the the scene mahazar is looked at, it is discernible that the deceased was riding on the left side of the road, though slightly towards the middle of the road. This alone cannot lead to a negligence being found on the rider. One has also to look at the decision of the Hon'ble Supreme Court in** _**Jiju Kuruvilla v. Kunjunjamma Mohan [**_ **AIR 2013 SC 2293], wherein it was held categorically that when there is head on collision between vehicles, the position of vehicles after the accident cannot be substantial proof of negligence of one or other driver.** **3. The learned Counsel for the Insurance Company relied on** _**Bijoy Kumar Dugar v. Bidyadhar**_ MACA. Nos.1962 & 2242 of 2012 7 _**Dutta & Others**_ **[AIR 2006 SC 1255] to contend that in cases of head on collision, drivers of both vehicles should be held responsible to have contributed equally to accident. In fact this Court would notice that the aforesaid declaration was made by the Hon'ble Supreme Court on the facts as emanating from the said case. Therein a maruti car collided with a bus and it was a head on collision. Though there was evidence that the bus was being driven in an abnormally zigzag manner, the Court found that the driver of the maruti car should have taken precaution as a prudent man having seen the vehicle being driven in a zigzag manner. In any event, there cannot be found a declaration that in all cases of head on collision, there should be a contributory negligence found equally on both the drivers.** **4. This Court also notices that the decision in** _**Jiju Kuruvila**_ **[supra] is a more recent decision and the same was followed by a Division Bench of** MACA. Nos.1962 & 2242 of 2012 8 **this Court in** _**Kolavan v. Salim [**_ **2018 (1) KLT 489], wherein the Division depricated the practice of looking into the scene mahazar to find negligence on a driver, who has not been implicated in the charge sheet. Taking all these considerations, as also specifically looking at the scene mahazar as noticed by the Tribunal, this Court does not find any reason to sustain the negligence of the deceased as found by the Tribunal. The learned Standing Counsel for the Insurance Company also relies on** _**Siby Paul v. Praveen Kumar G.N. & Others**_ **[2009 (1) KHC 264] to contend that there is nothing to show in the scene mahazar that the deceased was wearing a helmet. In fact the decision only lays down the proposition that the Insurance Company can take a contention before the Tribunal that the rider of a bike was not wearing a helmet, in which circumstances, the percentage of contributory negligence would have to be assessed by the Tribunal. Here, no such contention was taken before the Tribunal nor in the appeal** MACA. Nos.1962 & 2242 of 2012 9 **memorandum. In such circumstances, such a contention cannot be countenanced at all, in the hearing of the appeal.** **5. The Insurance Company also has a contention that income tax has to be deducted, which will be considered at the time of considering the claim for enhancement.** **6. The injured in the accident died immediately on the way to the hospital. The deceased was a U.D. Clerk in an aided school aged 43 and Ext.A8 is the Salary Certificate of the deceased. The salary shown in the Certificate is Rs.14,604/-. Considering the age of the deceased, which was at 43, 30% addition was also made to compute the future prospects. The Tribunal deducted 1/3 from this for personal expenses. However, considering the fact that there are five legal heirs, what has to be reduced is only 1/4[th] . The multiplier was taken at 14. With respect to the contention of the Insurance Company that income tax has to be deducted, this Court finds** MACA. Nos.1962 & 2242 of 2012 10 **that the limit for not being assessed under the Income Tax Act, 1961 was Rs.1,50,000/- at that point of time. Even as per the declared income it would reach only slightly above that amount and in which event, the assessee would have been entitled to claim standard deductions for contribution to the Provident Fund and the like, which definitely the assessee would have been making, especially considering the fact that the assessee is an employee in an aided School paid by the Government. Hence there is no reason to reduce the compensation on a computation of the income tax.** **7. For loss of filial consortium the Hon'ble Supreme Court had in** _**Magma General Insurance Co. Ltd. v. Nanu Ram @ Ram & Others [CDJ 2018 SC 958]**_ **held that the parents also are entitled to compensation at Rs.40,000/-, especially noticing that both the parents are alive. On the above reasoning and also considering the binding precedent in** _**National Insurance Company Ltd. v.**_ MACA. Nos.1962 & 2242 of 2012 11 _**Pranay Sethi and Others [2017 (5) KHC 350], t**_ **he following enhancement shall be made on the various heads as has been declared by the Hon'ble Supreme Court as tabulated below:** |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded by**<br>**the Tribunal**<br>`|**Total amount**<br>**after**<br>**enhancement in**<br>**appeal**<br>`| |---|---|---|---| |**1**|**Transportation**<br>**to**<br>**hospital and funeral**<br>**expenses**|**5000**|**5000**<br>**[Transportation**<br>**to hospital]**<br>**15000**<br>**[Funeral**<br>**expenses]**| |**2**|**Damage to clothing**||**1000**| |**3**|**Compensation**<br>**for**<br>**loss of estate**|**2500**|**15000**| |**4**|**Compensation**<br>**for**<br>**loss of consortium**<br>**for the wife**|**7000**|**40000**| |**5**|**Compensation**<br>**for**<br>**loss**<br>**of**<br>**filial**<br>**consortium**||**40000**| |**6**|**Compensation**<br>**for**<br>**love and affection**<br>**to**<br>**the**<br>**minor**<br>**children**|**10000**|**100000**| |**7**|**Compensation**<br>**for**<br>**loss of dependency**<br>**to the petitioners**|**2126376**|**2392320**<br>**[14240*12*14]**| ||**Total**|**2150876**|**2608320**| MACA. Nos.1962 & 2242 of 2012 12 **In such circumstances, MACA No.1962 of 2012 is allowed. The appellants shall produce a copy of a cancelled cheque of the Bank account in any of their their names with copy of AADHAAR before the Tribunal within one month, and authorisation from all, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT of the said account, failing which, the applicants can approach the Tribunal. The appeal of the Insurance Company is unsustainable and the same is dismissed.** **Sd/-** **K. VINOD CHANDRAN** **JUDGE** **sp/06/12/18** //True Copy// P.A. To Judge