M.A.C.A.No.1246 of 2012

1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 26[TH] DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945 MACA NO. 1246 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 1916/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/PETITIONERS:** - **1 M.J.VARGHESE,** - **S/O.JOSEPH, MANIKKATH HOUSE, VARGHESE THITTEL ROAD,PERUMANOOR P.O., ELAMKULAM VILLAGE, ERNAKULAM.** - **2 JESSY VARGHESE, W/O.M.J.VARGHESE, -DO- -DO-** - **BY ADVS. SRI.P.V.BABY** - **SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** - **1 K.E.CHERIYAN, KIZHAKKEVELIKKAKATHU HOUSE, CHANDIROOR, P.O., CHERTHALA 688 547.** - **2 ICICI LOMBARD GENERAL INSURANCE CO.LTD. III FLOOR, KANNANKERI ESTATE, MARINE DRIVE, SHANMUGHAM ROAD, COCHIN 682 031.** - **3 SHIHAB V.S.,** - **VAZHAKKALAPARAMBIL HOUSE, VAZHAKKALA, THRIKKAKKARA P.O., COCHIN - 682 021.** **BY ADVS.** **SRI.LATHEESH SEBASTIAN NIGI GEORGE** **SAJI.P.JOSEPH(K/817/1994)** - **C.C.MATHEW(K/142/1976) G.MINI (PALATH)(K/1094/1999)** M.A.C.A.No.1246 of 2012 2 **A.SEENA(K/685/2009) K.T.SAJU(K/680/2008) THANKARAJAN P.K.(K/000224/1982) DEEPESH E.S(K/420/2020) DAYANA MATHEW(K/001451/2021)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1246 of 2012 3 ## **J U D G M E N T** Appellants are the petitioners in O.P.(MV). No.1916 of 2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The said claim petition was submitted by them seeking compensation for the death of their son, aged 17 years, due to the injuries sustained in a motor accident that occurred when the scooter ridden by the deceased collided with a tanker lorry at Chandiroor. The tanker lorry was being driven and owned by the 1[st] respondent, and the 2[nd] respondent was the insurer of the said vehicle. The said vehicle stood insured in the name of the 3[rd] respondent. The deceased was a plus-two student at the relevant time. The claim petition was submitted in such circumstances. 2. The 1[st] and 3[rd] respondents did not contest the matter. The 2[nd] respondent Insurance Company filed a written statement admitting the existence of a valid policy with respect to the vehicle. However, they raised a specific contention that the deceased, a minor boy, was riding the scooter without any driving licence, and the accident occurred due to his own negligence. Therefore, they sought complete exoneration from the liability. M.A.C.A.No.1246 of 2012 4 3. The evidence in this case consists of Exts.A1 to A13 from the side of the appellants, and no evidence was adduced from the side of the respondents. 4. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the deceased himself. Therefore, the claim petition was dismissed. This appeal is submitted by the appellants in such circumstances. 5. Heard Sri.A.N.Santhosh, learned counsel for the appellants and Sri.Latheesh Sebastian, learned counsel for the 2[nd] respondent Insurance Company. 6. The specific contention put forward by the learned counsel for the appellant is that the reasoning adopted by the Tribunal while holding that the accident occurred due to the negligence on the part of the deceased was not at all legally acceptable. It was pointed out that as per Ext.A2 final report, the driver of the tanker lorry was charge sheeted and in the absence of any contra evidence, the Tribunal could not have imposed any negligence upon the deceased. It was also contended that the basis of the finding of the Tribunal was the scene mahazar prepared by the Police, and in **Jiju Kuruvila and Others v. Kunjunjamma Mohan and Others [(2013) 9 SCC 166]** , it was M.A.C.A.No.1246 of 2012 5 held by the Honourable Supreme Court that the conclusion as to the negligence could not be arrived at by merely placing reliance upon the scene mahazar. Reliance was also placed on the decision rendered by a Division Bench of this Court in **New India** ## **Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648].** 7. The learned counsel for the 2[nd] respondent Insurance Company would oppose the aforesaid contention. It was pointed out that, from the scene mahazar and the motor vehicle inspection report of both the vehicles, it is discernible that the scooter hit the rear side of the lorry. The accident occurred on a four-lane National Highway, where only one-way traffic was there on the relevant track. Therefore, under no circumstances can the negligence on the part of the driver of the lorry be found, as it occurred due to the negligence of the deceased alone. 8. I have carefully gone through the records. As rightly pointed out by the learned counsel for the appellants, the finding of the Tribunal was mainly based on the scene mahazar prepared by the Police as part of the investigation. Of course, as pointed out by the learned counsel for the 2[nd] respondent, the damages caused to the respective vehicles would also undoubtedly suggest that the scooter hit the rear side of the lorry. However, the M.A.C.A.No.1246 of 2012 6 crucial aspect to be noticed in this regard is that it is an undisputed fact that the accident occurred when the lorry suddenly entered the National Highway from a by-lane, and the scooter hit behind the said lorry. The spot of the accident as is revealed from the scene mahazar also indicates the possibility of such an accident. As rightly pointed out by the learned counsel for the appellant, the reliability of a scene mahazar to adjudicate the negligence was elaborately considered by the Honourable Supreme Court in **Jiju Kuruvila (supra),** and it was observed as follows: “20.5 The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give M.A.C.A.No.1246 of 2012 7 any specific finding about negligence on the part of any individual.” 9. As observed by the Honourable Supreme Court, the final conclusion as to the negligence cannot be arrived at based on the contents of the scene mahazar alone. Several factors have to be considered for the purpose of determining the question of negligence. In this case, it is discernible that the lorry entered the National Highway and therefore, whether the said entry was after giving a proper signal or it entered all of a sudden without properly giving attention to the ongoing traffic, etc., were relevant factors, which may not be reflected in the scene mahazar. Ext.A3 is the final report submitted by the Police in the crime after conducting the investigation. The said document would indicate that, on the basis of the statements of eye witness, the Police ultimately concluded that the accident occurred due to the negligence on the part of the lorry driver. No negligence has been attributed upon the rider of the scooter. In **Pazhaniyammal’s case (supra),** this Court categorically observed that, in the absence of any contra evidence, the conclusion arrived at by the Police in the final report can be accepted to determine the negligence. In this case, Annexure-A2 M.A.C.A.No.1246 of 2012 8 would indicate that the Police charge-sheeted the lorry driver and held him responsible for the accident, but no contra evidence has been adduced by the respondents. Therefore, the question has to be decided based on the principles laid down by this Court in **Pazhaniyammal (supra),** and thus, the driver of the lorry has to be held responsible for the accident. 10. The learned counsel for the 2[nd] respondent would further point out that even if that is to be so, the fact that the deceased was a minor and was not competent to obtain a licence cannot be ignored. At least contributory negligence to some extent on his part has to be imposed, it was contended. However, I am not inclined to accept the said contention as well. The question of negligence, or contributory negligence, as the case may be, cannot be determined merely because of the existence or lack of a driving licence on the part of one of the drivers. The said fact has to be proved by adducing positive evidence in this regard. The mere fact that the person lacked a driving license would not lead to the conclusion that he had contributed to the accident. The contribution to the accident is something which has to be determined by examining the circumstances under which the accident occurred and also taking note of various M.A.C.A.No.1246 of 2012 9 factors such as the speed of the vehicles, position of the vehicles, the traffic at the relevant time, road conditions, weather conditions, etc. Therefore, the mere lack of licence alone is not sufficient to hold a person responsible for the accident. In such circumstances, in the absence of any positive evidence indicating the contribution of the deceased in causing the accident, I am not inclined to accept the said contention. Thus, it is held that the accident occurred due to the sole negligence of the 1[st] respondent, the driver of the lorry and being the insurer of the said vehicle, the 2[nd] respondent is liable to pay the compensation. 11. The next aspect to be considered is the quantum of compensation. As the Tribunal has dismissed the said application, holding that the accident occurred due to the negligence of the deceased, the quantification was not made. Since the deceased was a student aged 17 years with no specific income, I am of the view that the same can be considered in this appeal with the available materials, as a remand of the matter to the Tribunal for adjudicating the quantum of compensation would cause undue hardships to the parties, in view of the fact that the claim itself was of the year 2008. Since the deceased was a nonearning member, the monthly income has to be fixed by making 10 ## M.A.C.A.No.1246 of 2012 some guesswork. For determining the said question, the fact that the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd [2011** **(13) SCC 236]** has taken the monthly income of an ordinary employee even in the absence of any evidence, as Rs.4,500/- in respect of an accident occurred in the year 2004, can be taken into consideration. Similarly, in **Syed Sadiq v. Divisional Manager, United India Insurance Co. [2014 (2) SCC 735],** in the year, 2008, in similar circumstances the monthly income of a vegetable vendor was fixed as Rs.6,500/-. Thus, the standard method of computation of monthly income that this Court usually adopts is to take a monthly income as Rs.4,500/- in respect of an accident in the year 2004 and to determine the monthly income for the subsequent years, Rs.500/- each will be added per year. In this case, in the absence of any better evidence, I am of the view that the said criteria can be adopted, and thereby, the monthly income of the deceased in this case can be taken as Rs.6,500/since the accident was in the year 2008. 12. Considering the age of the deceased, the proper multiplier is '18', and since the parents are claiming compensation towards personal expenses, a deduction of 50% has 11 M.A.C.A.No.1246 of 2012 to be made. Considering the future prospects, 40% of the monthly income also has to be added. Thus, while assessing the compensation with the above criteria, the amount would come to Rs.9,82,800/- [(6,500+40%) x 12 x 18 x 1/2]. In addition to the said amount Rs.15,000/- each has to be awarded under the heads of loss of estate and funeral expenses as held in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)].** Similarly, the appellants, being the parents of the deceased, would be entitled to compensation under the head of loss of consortium at the rate of Rs.40,000/- each, thereby making a total amount of Rs.80,000/-. Similarly, an amount of Rs.5,000/- is to be granted towards pain and suffering and towards transportation expenses, an amount of Rs.1,000/- is awarded. Thus, the total compensation receivable by the appellant is fixed as Rs.10,98,800/- [982800 + 15000 + 15000 + 80000 + 5000 + 1000]. In the light of the aforesaid findings and observations, this appeal is allowed. The award dated 24.11.2011 passed by the Motor Accidents Claims Tribunal, Ernakulam, in O.P (M.V) No. 1916 of 2008, is hereby set aside. The claim petition referred to above is allowed with the following findings. 12 ## M.A.C.A.No.1246 of 2012 - i) The first respondent is held responsible for the accident, and being the insurer of the vehicle owned and driven by the 1[st] respondent, the 2[nd] respondent is held liable to pay the compensation. - ii) The quantum of compensation is fixed as Rs. 10,98,800/(Rupees ten lakhs ninety eight thousand only and the said amount shall be deposited by the 2[nd] respondent, with interest at the rate of 7.5% per annum from the date of petition till realisation. The said amount shall be deposited within a period of three months from the date of receipt of a copy of this judgment. Sd/- ## **ZIYAD RAHMAN A.A. (JUDGE)** DG/26.10.23