Madhumathy and Others v. Suresh M.S., Rahul Tom and The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 12TH DAY OF DECEMBER 2017 / 21ST AGRAHAYANA, 1939** **MACA.No. 1447 of 2013** **AGAINST THE AWARD IN OP(MV) 104/2012 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANTS/PETITIONERS** ## **1 MADHUMATHY, AGED 44 YEARS,** **W/O.DECEASED K.P.SALI @ SALI, KOORAKKATTU HOUSE, MUNDYACKAL, MEENADOM.P.O., KOTTAYAM.** **2 RAJEEV.K.S, AGED 19 YEARS,** **S/O..DECEASED K.P.SALI @ SALI, KOORAKKATTU HOUSE, MUNDYACKAL, MEENADOM.P.O., KOTTAYAM.** **3 RONA.K.S. (MINOR), AGED 16 YEARS, DATE OF BIRTH 24.06.1995, D/O.DECEASED K.P.SALI @ SALI, KOORAKKATTU HOUSE, MUNDYACKAL, MEENADOM.P.O., KOTTAYAM, 3RD APPELLANT IS REPRESENTED BY HER MOTHER NEXT FRIEND AND GUARDIAN IST APPELLANT MADHUMATHY.** **4 CHELLAMMA, AGED 72 YEARS, MOTHER OF DECEASED K.P.SALI @ SALI, KOORAKKATTU HOUSE, MUNDYACKAL, MEENADOM.P.O., KOTTAYAM.** **BY ADV.SRI.TOMS MATHEW** ## **RESPONDENTS/RESPONDENTS:** **1. SURESH.M.S** **S/O.SREEDHARAN, MYLAMMOOTTIL HOUSE, V.T.R.BHAGOM, ANNYARTHOLU.P.O., VANDAMMEDU, IDUKKI.** **2. RAHUL TOM** **S/O.TOM THOMAS, KONDODICKAL HOUSE, VADAVATHOOR.P.O., KOTTAYAM.** **3. THE NEW INDIA ASSURANCE CO. LTD.** **DIVISIONAL OFFICE, KOTTAYAM.** **R3 BY ADV. SRI.P.MURALEEDHARAN** **R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-12-2017 ALONG WITH MACA NO.1612/2013,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & SHIRCY V.,JJ. ------------------------------------------------------** ## **M.A.C.A.Nos.1447 & 1612 of 2013** **-----------------------------------------------------Dated this the 12[th] day of December, 2017** ## **JUDGMENT** ## **C.K.Abdul Rehim,J.** The challenge in both these appeals is against the award of the Additional Motor Accidents Claims Tribunal, Kottayam in O.P(MV)No.104/2012. 2. The claimants have filed MACA No.1447/2013 seeking enhancement of the amount of compensation, on the ground that the amount awarded is inadequate, insufficient and disproportionate. In MACA No.1612/2013 the insurance company, who was the 3[rd] respondent before the Tribunal, is challenging the award on the ground that the Tribunal ought to have found contributory negligence on the part of the deceased. It is also contended that the amount of compensation awarded is excessive. 3. The accident in question occurred on 8.7.2011. When a bus hit against an autorickshaw driven by the person who died in the accident namely, K.P Sali @ Sali. Wife, 2 children and M.A.C.A.Nos.1447 & 1612 of 2013 2 mother of the deceased are the claimants. The finding of the Tribunal that the accident occurred solely due to the negligence on the part of the driver of the bus is challenged by the insurance company in M.A.C.A No.1612/2013. The claimants have produced various documents pertaining to the criminal case registered with respect to the accident as Exts.A1 to A7. Ext.A1 is the FIR and Ext.A7 is the final report submitted by the police after investigation of the case. Evidently, the Police had registered the case against the driver of the bus and chargesheeted him after investigation, for offences punishable under Section 279 and 304(A) IPC. Therefore, it is to be held that the claimants have discharged their initial burden of proving negligence on the part of the driver of the bus. In a decision of this court in **New India Assurance Co. Ltd. vs. Pazhaniyammal (2011 (5) KLT 648)** it is held that, production of police chargesheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166. It is held that the charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If anyone of the parties do not accept such M.A.C.A.Nos.1447 & 1612 of 2013 3 charge sheet, the burden must be upon such party to adduce oral evidence. In the case at hand, the respondents before the Tribunal has not adduced any evidence to rebut the presumption of negligence proved through the police records produced, including Ext.A7 charge sheet. Therefore, the appellate court cannot interfere with the findings on the aspect of negligence. 4. Learned counsel appearing for the appellant insurance company in M.A.C.A.No.1612/2013 had raised a contention that, going by Ext.A3 Scene Mahazar it is evident that the deceased was negligent in driving the autorickshaw. Referring to Ext.A3 it is pointed out that the tarred road in question at the spot of the accident was having a width of 6.88 metres. The autorickshaw was coming from east to west and the bus was coming from the opposite directin. It is mentioned in Ext.A3 scene mahazar that the accident happened at a distance of 3.73 metres towards north from the southern tarred end of the road. Hence it is argued that autorickshaw had crossed the middle line on the road towards north and therefore it cannot be said that the bus in question was not solely negligent in causing the accident. 5. As already observed, the evidence adduced will establish M.A.C.A.Nos.1447 & 1612 of 2013 4 that the police after investigation had found that the accident occurred solely due to the negligence on the part of the driver of the bus. The appellant insurance company had not adduced any evidence to rebut such evidence. Merely because the Scene Mahazar indicates that the spot of accident is towards north by 0.29 metres, it cannot be presumed that the rider of the autorickshaw had contributed in any manner in causing the accident. It was for the respondents before the Tribunal to establish any such fact through appropriate evidence. Since any such evidence is lacking in the case, we have to uphold the findings of the Tribunal that the accident occurred solely due to the negligence on the part of the driver of the bus. 6. With respect to the quantum of compensation awarded, learned counsel for the appellants in MACA NO.1447/2013 contended that, the income adopted by the Tribunal for computing the loss of dependancy is on the lower side. Per contra, learned Standing Counsel for the appellant/Insurance Company contended that fixation of Rs.10000/- as monthly income is without any basis and is excessive. Evidence adduced in the case include Exts.A10 to A13 certificates, with respect to M.A.C.A.Nos.1447 & 1612 of 2013 5 proof of the income of the deceased. It has come out in evidence that the deceased was the owner of the autorickshaw and he was holding Ext.A1 license to drive the vehicle. It was the case of the claimants that during night time he was plying the autorickshaw for hire and was earning income out of that. It is the case of the claimants that the deceased was running a Stationary Shop namely 'Guredeva stores'. Ext.A13 is the copy of the license issued by the Panchayath in favour of the deceased for running of a provision shop. Apart from that , it was pointed out that the deceased was the vice president of Meenadom grama Panchayath and was getting honorarium at the rate of Rs.3000/per month in the year 2008; and thereafter at the rate of Rs.3300/-. Ext.A2is the certificate issued from a 'Milk Marketing Society' stating that the deceased was working as a part time secretary of the Society and was earning Rs.1500/- per month. The Tribunal, taking into consideration of the above said evidence, had fixed monthly income of the deceased at Rs.10000/-. Learned Standing Counsel contended that, apart from the amount of salary of Rs.1500/- mentioned in Ext.A12, there is no clear evidence with respect to the extent of income M.A.C.A.Nos.1447 & 1612 of 2013 6 derived out of running of provision store or from plying of the autorickshaw. It is pointed out that, at the time of death, the deceased was not a member oif the Grama Panchayath and he was not earning any honorarium. We are of the opinion that the estimation of income made by the Tribunal is quite reasonable taking into consideration of the fact that the deceased, apart from working as part time secretary n the society, was running a provision store and was plying his own autorickshaw during the night time. Therefore, we are not inclined to interfere with the amount fixed as monthly income. 7. Learned counsel appearing for the appellants/claimants contended that, the Tribunal had omitted to grant anything towards future prospects in the income computed. It is pointed out that the deceased was aged 49 years at the time of the accident. According to learned counselm the deceased was a self employed person earning considerable income apart from his occupation as part time Secretary of the Milk Society. Therefore it is argued that reasonable increase in the monthly income towards future prospects need to be added. Even though the deceased cannot be considered as a person having permanent M.A.C.A.Nos.1447 & 1612 of 2013 7 employment or a person drawing fixed salary, he can be categorised as a self employed person, because he was running a provision store and was plying an autorickshaw. Going by the decision of the Honorable Supreme Court in **National Insurance Company Ltd. vs. Pranay Sethi and others (2017** **(4) KLT 662),** 25% of the income can be added towards future prospects in the case of self employed persons having the age of above 40 years. Therefore we are inclined to add 25% of the income fixed at Rs.10000/- towards future prospects. 8. When calculated based on the above findings, compensation awarded by the Tribunal under the head of loss of dependency need to be refixed at Rs.13,00,000/(10000+25%x12x13x2/3). This will entitle the appellants/claimants for an enhancement of Rs.1,30,000/-on that count. We notice that the tribunal had allowed only an amount of Rs.5000/- towards funeral expenses. Taking note of the guidelines fixed by the Honorable Supreme Court in **Pranay Sethi's** case (supra) we are inclined to award a further amount of Rs.10000/- on that count. So also the amount of Rs.10000/awarded under the head of loss of estate need to be increased by M.A.C.A.Nos.1447 & 1612 of 2013 8 a further sum of Rs.5000/-, going by the same decision. Similarly, the amount awarded towards loss of consortium need to be refixed at Rs.40000/- as per the said decision, which will entitle the appellants for a further enhancement of Rs.20000/- on that count. 9. We are of the opinion that the amount awarded towards loss of love and affection for the minor children is on the lower side. We refix the award on that count at Rs.50000/- (25000x2). This will entitle the appellants for an enhancement of Rs.30000/on that count. Likewise, we feel that the amount of Rs.10000/awarded towards loss of love and affection to the mother (4[th] claimant) is on the lower side. We are inclined to grant a further sum of Rs.10000/- on that count. We do not find any ground warranting interference with respect to the award under other heads. Thus we hold that the appellants/claimants will be entitled for a total enhancement of Rs.2,05,000/-. 9. In the result, the above appeals are disposed of as follows; The total compensation awarded by the tribunal is enhanced by a further sum of Rs.2,05,000/-. The said amount will M.A.C.A.Nos.1447 & 1612 of 2013 9 carry interest at the same rate as ordered by the Tribunal from the date of the claim petition till realisation. The enhanced amount shall be apportioned among the claimants at the same ratio as ordered by the Tribunal. The appellant Insurace Company is directed to deposit the balance amount before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. It is made clear that on such deposit the appellants/claimants will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders. ## **C.K.ABDUL REHIM JUDGE** **SHIRCY.V JUDGE** smm