MACA Nos.844 of 2008, 605 of 2011 & 707 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940** **MACA. No.844 of 2008** **AGAINST THE AWARD IN OP[MV] NO.2518/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 06-07-2007** ## **APPELLANTS/PETITIONERS:** - **1 M.VAITHILINGAM, AGED 72 YEARS SON OF MUTHUSWAMY, (NO JOB).** - **2 V.SAROJA, AGED 60 YEARS WIFE OF M.VAITHILINGAM (NO JOB)** **BOTH APPELLANTS ARE RESIDING AT DOOR NO.III/73 A, MANNANGADU (SOUTH) P.O., PATTUKOTTAI TALUK, TANJAORE DISTRICT, TAMIL NADU.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI** ## **RESPONDENTS/RESPONDENTS:** - **1 HENRY SILVIN CARDEZ S/O.M.J.ANTONY, MANAPURATH HOUSE, WEST OF RAILWAY GATE, PACHALAM, COCHIN-682 012.** - **2 THE ORIENTAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, ERNAKULAM.** - > 3 **ROSLIN BYUNA KADUTHUZ, W/O.HENRY AGED 45 YEARS, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12 .** * 4 **CLERITA BRYANTIA KADUTHUZ, D/O.HENRY AGED 18 YEARS, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12.** MACA Nos.844 of 2008, 605 of 2011 & 2 707 of 2011 * 5 **CADLIN HEBINA KADUTHUZ, D/O.HENRY AGED 13 YEARS, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12 (MINOR) REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN THE 1ST APPELLANT ROSLIN BYUNA KADUTHUZ,** **NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12.** * **ADDL. RESPONDENTS 3 TO 5 ARE IMPLEADED AS PER ORDER IN I.A. NO.1384 OF 2011 DATED 10.12.2018. BY ADVS. SRI.P.C.HARIDAS SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH MACA NOS.605/2011 & 707/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.844 of 2008, 605 of 2011 & 3 707 of 2011 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940** **MACA. No.605 of 2011** **AGAINST THE AWARD IN OP[MV] NO.1275/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, N. PARAVUR DATED 26-07-2010** ## **APPELLANTS/LEGAL HEIRS OF CLAIMANT:** **1 ROSLIN BYUNA KADUTHUZ, W/O.HENRY AGED 45 YEARS, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12.** - **2 CLERITA BRYANTIA KADUTHUZ, D/O.HENRY AGED 18 YEARS, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12.** - **3 CADLIN HEBINA KADUTHUZ, D/O.HENRY AGED 13 YEARS, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12 (MINOR) REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN THE 1ST APPELLANT ROSLIN BYUNA KADUTHUZ, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12.** **BY ADV. SRI.P.C.HARIDAS** ## **- RESPONDENTS/RESPONDENTS LEGAL HEIRS OF 1ST RESPONDENT:** - **1 M.VAITHLINGAM, S/O.MUTHUSWAMY, AGED 74 YEARS, MANNANGADU (SOUTH) P.O., PATTUKOTTAI TALUK, THANJAORE DIST., TAMIL NADU, PIN-614 613.** - **2 V.SOROJA. W/O.M.VAITHILINGAM, AGED 62 YEARS, MANNANGADU (SOUTH) P.O., PATTUKOTTAI TALUK, THANJAORE DISTRICT, TAMILNADU, PIN-614 613.** MACA Nos.844 of 2008, 605 of 2011 & 4 707 of 2011 **3 VINU.A.R., AMBALAPPARAMBIL HOUSE MUPPATHADOM, PIN-683 110. 4 THE ORIENTAL INSURANCE COMPANY LTD., ALUVA, REPRESENTED BY ITS BRANCH MANAGER, PIN-683 101.** **BY ADVS. SRI.FIROZ K.ROBIN SRI.J.JULIAN XAVIER SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH MACA NOS.707/2011 & 844/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.844 of 2008, 605 of 2011 & 5 707 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940** **MACA. No.707 of 2011** **AGAINST THE AWARD IN OP[MV] NO.2518/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 06-07-2007** ## **APPELLANTS/LEGAL HEIRS OF 1ST RESPONDENT:** **1 ROSILIN BYUNA KADUTHUZ, AGED 45 YEARS, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12.** **2 CLERITA BRYANTIA KADUTHUZ, D/O.HENRY AGED 18 YEARS, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12.** **3 CADLIN HEBINA KADUTHUZD/O.HENRY AGED 13 YEARS, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12 (MINOR) REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN THE 1ST APPELLANT ROSLIN BYUNA KADUTHUZ, NOW RESIDING AT CHERUPUNATHIL HOUSE, NEAR LMC BOY'S SCHOOL, PACHALAM, KOCHI-12.** **BY ADV. SRI.P.C.HARIDAS** ## **RESPONDENTS/RESPONDENTS:** **1 M.VAITHLINGAM, S/O.MUTHUSWAMY, AGED 74 YEARS, MANNANGADU (SOUTH) P.O., PATTUKOTTAI TALUK, THANJAORE DIST., TAMIL NADU, PIN-614 613.** MACA Nos.844 of 2008, 605 of 2011 & 6 707 of 2011 **2 V.SOROJA. W/O.M.VAITHILINGAM, AGED 62 YEARS, MANNANGADU (SOUTH) P.O., PATTUKOTTAI TALUK, THANJAORE DISTRICT, TAMILNADU, PIN-614 613. 3 THE ORIENTAL INSURANCE COMPANY LTD., REGIONAL OFFICE, ERNAKULAM, REPRESENTED BY ITS REGIONAL MANAGER, PIN-682 011. BY ADVS. SMT.K.N.RAJANI SRI.ANIL S.RAJ SRI.G.ARUN GOPAN SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH MACA NOS.605/2011& 844/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.844 of 2008, 605 of 2011 & 7 707 of 2011 ## **JUDGMENT** **These appeals arise from a single accident, which occurred on 03.05.2000 on the EloorKalamassery road by collision of two motor bikes. Henry Silvin Cardez was riding one motor bike and Asokan was riding the other motor bike. Asokan died immediately after the accident succumbing to his injuries. Henry Silvin Cardez was also seriously injured and he died after ten years, allegedly due to the injuries sustained in the accident itself.** **2. MACA No.884 of 2008 is filed by the parents of Asokan for enhancement of compensation awarded. MACA No.605 of 2011 is filed by the legal representatives of Henry Silvin Cardez against the dismissal of their claim petition, finding the negligence on Henry Silvin Cardez, the rider of one motor bike. MACA No.707 of 2011 is an appeal filed by the legal representatives of Henry Silvin Cardez against the award passed in OP(MV) No.2518 of 2000 filed by Asokan's parents. The specific** MACA Nos.844 of 2008, 605 of 2011 & 8 707 of 2011 **challenge is against the negligence found on Henry Silvin Cardez.** **3. Admittedly, the accident occurred when the two bikes collided and though the FIR was registered as against Henry Silvin Cardez, the criminal case ended in an acquittal. I have called for the records of the Lower Court in C.C. No.808 of 2000. The acquittal was on the ground that there was absolutely no evidence against the accused. In such circumstances, though FIR was registered against Henry Silvin Cardez, there was no guilt found against Henry Silvin Cardez. In this circumstances, this Court can only find 50% negligence on each of the drivers of the vehicles.** **4. MACA No.707 of 2011, filed by the legal representatives of Henry Silvin Cardez against the negligence found on their predecessor-in-interest, is allowed, setting aside the finding of absolute and total negligence on Henry Silvin Cardez. This Court, in the circumstances, find 50% negligence on Henry Silvin Cardez and 50% on Asokan.** MACA Nos.844 of 2008, 605 of 2011 & 9 707 of 2011 **5. In this perspective, MACA No.844 of 2008 has to be considered for enhancement, if any, warranted. Asokan was aged 32 years old and a bachelor at the time of this death. He had completed Industrial Training Course in Mechanical Diesel Trade as seen from Ext.A6 Certificate. Ext.A7 was the Salary Certificate produced, which showed an income of Rs.7,500/- per mensum. The Tribunal found that Ext.A7 cannot be fully relied on, since the employer was not examined, nor were the service and wage registers produced. In this context, it has to be found that none were examined before the Tribunal and that the documents were marked on consent. In such circumstances, relying on** _**Thulasi Bai v. Manoharan [1989 KHC 587]**_ **it has to be held that the Insurance Company, at the appellate stage, cannot object to the contents of a document merely on the ground that there was no proof offered.** **6. The learned Counsel for the appellant would contend that the decision of the Hon'ble Supreme** MACA Nos.844 of 2008, 605 of 2011 & 10 707 of 2011 **Court in** _**National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (5) KHC 350]**_ **has to be applied and 40% of the salary has to be increased for future prospects. However, the learned Standing Counsel for the Insurance Company points out that** _**Pranay Sethi**_ **[supra] was a case in which the decision was rendered in 2017 with respect to an accident in 2008. Here, the accident occurred on 2000 and hence there could be no application of the said decision. Further one-half has to be reduced for reason of personal expenses, especially since the deceased is a bachelor, going by the decision of the Hon'ble Supreme Court in** _**Sarla Verma V. Delhi Transport Corporation [2010 (2) KLT 802 (SC)**_ **. However that decision was also in 2010. This Court is not impressed by the arguments put forth by the learned Counsel for the Insurance Company. As long as the Hon'ble Supreme Court has not held the declaration of law to be prospective it has application.** **7. Hence Rs. 7,500/- would be the income** MACA Nos.844 of 2008, 605 of 2011 & 11 707 of 2011 **adopted to which 20% will be the addition made, considering the fact that the accident occurred in 2000. One half will be reduced for personal expenses and hence the income taken for the purpose of computing the future prospects would be Rs.4,500/-. The Tribunal had taken a multiplier of 7, which is wrong, since** _**Sarala Verma**_ **has declared that the multiplier has to be on the basis of the age of the deceased itself. Considering the fact that the deceased was 32 years old, the multiplier to be applied is 16.** **8. The amount awarded for pain and suffering is not liable to be sustained and hence the same is deleted, despite the fact that there is no appeal from the Insurance Company considering that considerable increase has been made on loss of future prospects. Considering the fact that there is scope for compensation on loss of filial consortium, the loss of love and affection can be increased to Rs.50,000/-. Loss of estate also has to be increased to Rs.15,000/-.** MACA Nos.844 of 2008, 605 of 2011 & 12 707 of 2011 ## **9. Hence the following enhancement can be** ## **granted:** |**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**|**Loss of dependency**|**168000**|**864000**<br>**(4500*16*12)**| |**2**|**Transportation**<br>**expenses**|**2500**|**2500**| |**3**|**Funeral expenses**|**2500**|**15000**| |**4**|**Pain and suffering**|**10000**|**10000**| |**5**|**Loss of estate**|**10000**|**15000**| |**6**|**Loss of love and**<br>**affection**|**10000**|**50000**| ||**Total**|**203000**|**956500**| **10. MACA No.844 of 2008 is allowed. The Insurance Company of the vehicle driven by Henry Silvin Cardez shall pay 50% of the amounts as awarded by this Court with interest and cost as directed by the Tribunal. The appellants shall produce a copy of a canceled cheque of the Bank account in their name, or in ones name with authorisation from the other with copy of AADHAAR before the Tribunal within one month, with copy to** MACA Nos.844 of 2008, 605 of 2011 & 13 707 of 2011 **the Insurance Company. The Insurance Company shall credit the amount through NEFT of the said account, failing which, the applicants can approach the Tribunal.** **11. MACA No.605 of 2011 deals with the dismissal of OP(MV) No.1275 of 2003 filed by the legal representatives of Henry Silvin Cardez. The dismissal of the claim petition was on account of negligence found on Henry Silvin Cardez alone. The application was under Section 163A of the Motor Vehicles Act, 1988 [for brevity, the Act] and the further objection to the consideration of the claim petition would be the negligence found on Henry Silvin Cardez in the other OP(MV). However, as of now this Court has found Henry Silvin Cardez to be only 50% negligent. This Court has in** _**National Insurance Co. Ltd. v. Aravindakshan [2016 (2) KLT 711]**_ **found that if the application under Section 163A of the Act is not maintainable, then it has to be considered as to whether the application would be maintainable under Section** MACA Nos.844 of 2008, 605 of 2011 & 14 707 of 2011 **166 of the Act. At the time of dismissal of the claim petition, there could be no such consideration, since the Tribunal in the other OP(MV) had already found that the negligence is completely on Henry Silvin Cardez whose legal representatives had filed the above appeal. This Court in MACA No.707 of 2011 having found 50% negligence on each of the riders of the bikes, it is only appropriate that the matter be remanded back for fresh consideration. The dismissal of OP(MV) No.1275 of 2003 hence would stand set aside and the matter remanded for fresh trial. Ordered accordingly. The parties shall appear before the Lower Court on 15.01.2019.** Sd/- ## **K.VINOD CHANDRAN JUDGE** sp/11/12/18 ## **//True Copy//** **P.A. To Judge**