Mallika Sreedharan & Others v. M.A. Varghese & New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939 MACA.No. 2420 of 2012 OP(MV) 1986/2011 of M.A.C.T.,ERNAKULAM DATED 24-04-2012 ## APPELLANTS/PETITIONERS ## 1 MALLIKA SREEDHARAN AGED 50, W/O. LATE C.V.SREEDHARAN EMBRANTHIRI, CHERUPARAMBU MADAM, CHOTTANIKKARA P.O, KUREEKKADU VILLAGE, ERNAKULAM DISTRICT, PIN 682 312. ## 2 SREEKALA C.S AGED 26, D/O. LATE C.V.SREEDHARAN EMBRANTHIRI, CHERUPARAMBU MADAM, CHOTTANIKKARA P.O, KUREEKKADU VILLAGE, ERNAKULAM DISTRICT, PIN 682 312. ## 3 SREEKUMAR C.S AGED 24, S/O. LATE C.V.SREEDHARAN EMBRANTHIRI, CHERUPARAMBU MADAM, CHOTTANIKKARA P.O, KUREEKKADU VILLAGE, ERNAKULAM DISTRICT, PIN 682 312. ## 4 SREERAJ C.S - AGED 21, S/O. LATE C.V.SREEDHARAN EMBRANTHIRI, CHERUPARAMBU MADAM, CHOTTANIKKARA P.O, KUREEKKADU VILLAGE, ERNAKULAM DISTRICT, PIN 682 312. ## 5 BHAGEERATHIYAMMA VENKITAN - AGED 79, M/O. LATE C.V.SREEDHARAN EMBRANTHIRI, CHERUPARAMBU MADAM, CHOTTANIKKARA P.O, KUREEKKADU VILLAGE, ERNAKULAM DISTRICT, PIN 682 312. ADDL. 6 TO 9 6. VASANTHY C.V. D/O.LATE BHAGEERATHIYAMMA VENKITAN, SREE NILAYAM, ARIMBOOR, THRISSUR DISTRICT. 7. RAJESWARY C.V. - D/O.LATE BHAGEERATHIYAMMA VENKITAN, 19/101,POOZHIKOL, KOTTAYAM DISTRICT. 8. SARASWATHY DEVI C.V. - D/O.LATE BHAGEERATHIYAMMA VENKITAN, 420(2/623), SAJITH NIVAS, CHOTTANIKKARA P.O., ERNAKULAM DISTRICT. -2- ## MACA.No. 2420 of 2012 9. LAKSHMI DEVI C.V. - D/O.LATE BHAGEERATHIYAMMA VENKITAN, 248 A(12/16), BHARANI, CHERTHALA P.O., ALAPPUZHA DISTRICT. (The legal heirs of deceased 5[th] appellant are impleaded as addl appellants 6 to 9 as per order dated 29.6.2016 in I.A.1954/16 in MACA.2420/12) BY ADVS.SRI.ABRAHAM K.JOHN SMT.C.G.ARUNDHATHI ## RESPONDENTS/RESPONDENTS: 1. M.A.VARGHESE, AGE NOT KNOWN, S/O. ELIAS, HOUSE NO.2/23, MEPPADATHU HOUSE, MARANGATTULLY, THIRUVANIYOOR P.O, PUTHENCRUZ, PIN 682 308. 2. NEW INDIA ASSURANCE COMPANY LTD KANDANKULATHY TOWERS, OPP. MAHARAJAS, PIN 686 101. R2 BY ADV. SRI.M.JACOB MURICKAN BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M.BABU, J.** - - - - - - - - - - - - - - M.A.C.A.2420 of 2012 - - - - - - - - - - - - - - - - Dated : 28[th] February, 2018 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** - 1.A person by name Sreedharan Embrndiri died in a road accident. The accident was on 3.2.2011. He was 51 years old at the time of his death. He was riding on his motor cycle. It collided with a car which came from the opposite direction. The car was driven by the 1st respondent. He drove it in a rash and negligent manner. It was insured with the 2nd respondent. The above are facts either admitted or proved. - 2.Heard Sri.Abraham K.John and Sri.M.Jacob Murickan, the learned counsel for the appellants and the 2nd respondent respectively. - 3.Sreedharan Embrndiri was the victim of the accident. The tribunal found him too negligent. The percentage of negligence attributed to him was 25. The tribunal considered the police papers to find contributory negligence on the victim. **MACA.2420/12** 2 4. I am afraid, the finding of the tribunal is not supportable. The tribunal committed five mistakes in finding contributory negligence. Admittedly the road lies in north-south direction. The tribunal said that the victim was riding his motor cycle from south to north. That was an incorrect finding. Ext A10 chargesheet recites that the 1[st] respondent who was the accused was driving the car from Mulanthuruthy to Chottanikkara. That means the direction of the car was from south to north. The victim was riding his bike in the opposite direction. Necessarily he was riding the bike from north to south. 5. Another mistake of the tribunal was its finding that the width of the tarred portion of the road was nine metres. It was 9.7 metres as seen from Ext A5 scene mahazar. If the width of the road was nine metres, the collision was more or less on the middle of the road. But the width of the road was 9.7 metres. The spot of **MACA.2420/12** 3 accident as shown in the scene mahazar is 4.45 metres to the east from the western tar end. That means the victim was more or less on his left hand side which was the correct side. The car was on the wrong side. It went beyond the middle of the road. 6. Yet another finding of the tribunal was that in the charge-sheet there was a casual reference that the bus (it must be a mistake for car) collided against the two wheeler and the 1[st] respondent had driven the vehicle in a rash and negligent manner. It is not known how that statement can be criticized as a casual statement. That statement is the crucial part of the charge-sheet. The finding of the tribunal that it was a casual reference is not at all understandable. 7. Another mistake committed by the tribunal was its finding that the damage caused to the right door of the car might have been due to a secondary impact since the collision of the **MACA.2420/12** 4 vehicle was a head-on collision. The words 'might have been' used by the tribunal suggest its guess. It was not an inference from any evidence. The tribunal was wrong in relying on its guess to decide a lis in a case. 8.Yet another mistake committed by the tribunal was its finding that there was contributory negligence on the part of the victim since he did not wear a helmet. The failure to wear a helmet can no way contribute to the cause of an accident. Failure to wear helmet may produce more severe injuries on the head. That is an entirely different question. The tribunal went wrong in finding that the failure to wear a helmet was one of the causes of the accident. Even the finding of the tribunal that the victim did not wear a helmet was incorrect. The tribunal lost sight of the recitals in Ext A5 scene mahazar that the helmet of the victim was found on the road and that it was seized. 9. Tribunals should be more careful in deciding **MACA.2420/12** 5 cases. None of the reasons given by the tribunal to find contributory negligence is supportable. I set aside the finding of the tribunal. I find that the negligence was on the 1[st] respondent. The amount of Rs 3,42,259/denied to the appellants by the tribunal on account of the alleged contributory negligence shall be paid to them through the tribunal by the 2[nd] respondent. 10. The victim was a priest in a temple. It is alleged that he was running a cattle farm. According to the appellants, the victim had a monthly income of Rs 10,000/-. But it could not be proved by them. Therefore the tribunal had no go but to go for a notional income. The tribunal had taken it at Rs 4,000/- per month. That was indeed on the lower side. The accident was in 2011. Therefore I find it appropriate to fix notionally Rs 8,000/- per month as the income of the victim. 11. The income of a person is never constant. In **MACA.2420/12** 6 National Insurance Company Ltd v. Pranay Sethi (2017 (5) KHC 350) the supreme court holds that 10% of the monthly income can be added on to it in the case of death of a person of the age of above 50. Adding such 10%, the figure arrived at is Rs 8,800/-. In view of the dictum in Sarala verma v. Delhi Transport Corporation (AIR 2009 SC 3104) , the deduction taking into account the personal expenses should be onefourth as the number of dependents exceeded three. Three-fourth of Rs 8,800/- comes to Rs 6,600/-. The same shall be taken for calculating the compensation for loss of dependency. The amount arrived at is Rs 8,71,200/- (6600 x 12 x 11). The amount of Rs 3,96,000/- awarded by the tribunal shall be deducted. The balance of Rs 4,75,200/- is the enhancement. 12. The tribunals in the country are directed by the apex court in Pranay Sethi's case (supra) that the amount to be awarded as funeral expenses shall be Rs 15,000/- and the **MACA.2420/12** 7 compensation for loss of estate shall also be Rs 15,000/-. It is also held in the same decision that the compensation for loss of consortium to be awarded to the widow of the victim shall be Rs 40,000/-. The tribunal awarded only Rs 7,500/- as funeral expenses. That amount should be doubled. The appellants are entitled to Rs 7,500/- more. The amount awarded by the tribunal as compensation for loss of estate was short by Rs 12,500/-. The appellants are entitled to that amount. The 1[st] appellant was awarded Rs 20,000/- as compensation for loss of consortium. She is entitled to Rs 20,000/- more under the said head. 13. The enhancement in compensation under four different heads totals to Rs 5,15,200/(4,75,200 + 7500 + 12500 + 20000). 14. The appeal is allowed with proportionate costs. The appellants are awarded Rs 5,15,200/- (five lakhs fifteen thousand two hundred only) as **MACA.2420/12** 8 enhanced compensation. The amount of Rs 3,42,259/- (three lakhs forty two thousand two hundred and fifty nine only) denied to the appellants by the tribunal shall also be deposited by the 2[nd] respondent. The said amount as well as the amount awarded as enhanced compensation shall carry interest at the rate of 7.5% per annum. Those amounts shall carry interest for the period from the date of filing of the application before the tribunal to the date of deposit of the amounts before it. The apportionment of compensation shall be in the same proportion adopted by the tribunal. The entitlement of the now deceased 5[th] appellant shall go to her legal representatives. The amounts which should be deposited by the 2[nd] respondent as per this judgment shall be deposited by it within a period of two months from the date of receipt of a copy of this judgment. Sd/- **A.M.BABU Judge** Mrcs/1.3