M.K. Ammini and others v. Ex. Rocky and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944** ## **MACA NO. 2677 OF 2010** ## **OPMV 2102/2003 OF ADDITIONAL DISTRICT COURT / I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,EKM** ## **APPELLANT/S:** - 1 M.K.AMMINI,W/O.ABRAHAM, AGED 35 YEARS,MARIKUDIYIL, THAIPPARAMBIL (H), KIDANGAYAMKARA, KANAYANNOOR VILLAGE. - 2 M.A.JOMON SO.ABRAHAM, AGED 16 YEARS MARIKUDIYIL, THAIPPARAMBIL (H), KIDANGAYAM KARA, KANAYANNOOR VILLAGE,, MINOR REPRESENTED BY MOTHER AMMINI, W/O.ABRAHAM. - 3 M.A.SHYMON SO.ABRAHAM AGED 15 YEARS, MARIKUDIYIL, THAIPPARAMBIL (H), KIDANGAYAM KARA, KANAYANNOOR VILLAGE, MINOR REPRESENTED BY MOTHER AMMINI, W/O.ABRAHAM. BY ADV SRI.P.V.ELIAS ## **RESPONDENT/S:** 1 E.X.ROCKY, W/O.XAVIER, ETTURUTHIL (H), PACHALAM, KOCHI-12, CHERANALLOOR VILLAGE. 2 P.P.GEORGE, S/O.PAILY, AGED 47 YEARS PENNATTU (H), CHOTTANIKKARA, KANAYANNOOR VILLAGE. 3 NATIONAL INSURANCE CO.LTD. MYDHILI MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, KOCHI-682 205. **MACA NO. 2677 OF 2010** -2- BY ADVS. SRI.LAL GEORGE, SC, NATIONAL INSURANCE COMPANY LIMITED SRI.ALEX M.THOMBRA SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2677 OF 2010** -3- ## **J U D G M E N T** (Dated this the 16[th] day of September 2022) This appeal is filed against the award in O.P.(M.V.) No. 2102/2003 on the file of the M A C T Ernakulam. On 23.08.2003 at about 8.40 PM, deceased Abraham was walking through the southern side of the Eruveli- OEN public road from west to east direction. At the place of occurrence, the stage carrier bearing Reg.No. KL-7/A-207, a bus driven by the 2[nd] respondent in a rash and negligent manner, hit against the deceased and he fell down. The back wheel of the bus ran over the head of the deceased, as a result of which he died on the spot. The accident happened due to the rash and negligent act of the 2[nd] respondent. An amount of Rs.5,50,000/- was claimed as compensation. 2. The first respondent is the owner, 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending stage carrier bearing Reg.No.KL-7/A-207. The respondents 1 and 2 are remained ex-parte. The 3[rd] respondent alone **MACA NO. 2677 OF 2010** filed written statement. The policy was admitted by the Insurance Company. It was contented that the accident happened due to the negligence of the deceased himself as he was walking carelessly through the road. As there was contributory negligence on the part of the deceased, the Insurance Company is not liable to indemnify. 3. The Tribunal, on the basis of the oral evidence of PW1 and Exts.A1 to A10, awarded the compensation of Rs.4,29,000/- with 7.5% per annum interest from the date of petition, on the finding that, there was 20% contributory negligence on the part of the deceased. Aggrieved by the said findings, the widow and minor sons of the deceased, filed this appeal. 4. Heard. 5. The main contention raised by the Learned Counsel for the appellants is that the deceased was walking through the road from west to east, and the offending vehicle came in a rash and negligent manner and hit against him and so he died on the spot. According to Ext.A3 scene Mahazar ## **MACA NO. 2677 OF 2010** -5- the width of the road was 3.20 Meters and the road margin was having a width of 1.12 meters. The deceased was walking from west to east along with southern tar end. The Tribunal found that, since the accident happened from the 87 cm from the southern tar end towards the north, there was negligence on the part of the deceased. Hence, contributory negligence was found and 20% was deducted from the compensation as contributory negligence on the part of the deceased. I am afraid, the said finding cannot be sustained, in view of the fact that as per the Ext. A5 charge sheet submitted by the Sub Inspector of police Mulanthuruthy, the stage carriage was proceeding from West through the southern side of the road. vehicle proceeding from West to East shall stick on to the Northern side of the road and should not cross the middle line. According to A3 Mahasar the accident happened 87cm from the southern tar end towards North hence it can be safely concluded that the stage carriage was proceeding through the wrong side and was total negligence. The deceased being a pedestrian was walking through the ## **MACA NO. 2677 OF 2010** -6- southern end which was lying in East - West direction hence no negligence was attributed on deceased. He was a pedestrian walking from the west to east on the southern side of the road and it is only of the rash and negligent driving of the bus that the accident happened. It is true that the spot of the accident happened 87 cm from the southern tar end towards the north. It cannot be said that the said fact cannot be taken as contributory negligence on the part of the deceased to reduce compensation at the rate of 20% and it is only of the rash and negligence of the driver. Hence, the finding regarding contributory negligence of the deceased is set aside and the entire liability is fastened on the 3[rd] respondent Insurance Company. 6. Regarding the loss of dependency, the counsel for the appellants submits that the deceased was a self employed timber merchant earning a monthly income of Rs.5,000. But, he has not produced any proof to show that his income was Rs.5,000/-. In the absence of any proof, going by the decision reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance** ## **MACA NO. 2677 OF 2010** -7- **Company Limited [(2011) 13 SCC 236]** the notional income of a coolie who died in an accident in the year 2003 is to be taken as 4,000/-. Hence, I am taking the monthly income of the deceased as 4,000/-. The tribunal has taken 16 as multiplier, but since the deceased was aged 37 years the correct multiplier to be taken, according to the **Sarla Verma (Smt) and others v. Delhi Transport Corporation and Another [(2009) 6 SCC 121]** 's case, is 15. Since the deceased was having three dependents, one – third of the income has to be deducted towards personal expenses. Hence, the dependency compensation can be worked out as Rs.4000 X 12 X 15 X 2/3, which comes to Rs.4,80,000/-. 7. As far as the compensation for pain and suffering, Tribunal has awarded a sum of Rs.10,000/-. as. As per the decision reported in **Sarla Verma(supra),** no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. Hence, the said amount of Rs.10,000/- granted as pain and suffering is set aside. ## **MACA NO. 2677 OF 2010** -8- 8. With regard to the compensation for loss of estate is concerned, the Tribunal has awarded only Rs.10,000/-. Relying on the decision mentioned in **National Insurance Co. Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , the maximum amount of compensation for lost of estate is Rs.15,000 + 10% escalation for three years which comes to Rs.16,500/-. 9. Towards funeral expenses, the Tribunal has awarded only Rs.3,000/-. In _**Pranay Sethi**_ ( **supra)** , the maximum amount that can be awarded as funeral expense is Rs.15,000 + 10% escalation every three year. So the amount awarded the Tribunal is enhanced as by Rs.16,500/-. 11. As far as loss of consortium is concerned, the claimants are the wife and children of the deceased. They are entitled for Rs.40,000/- each as loss of consortium. The Tribunal has awarded only Rs.15,000/-. As per the **v** . decision reported in _**Magma General Insurance Co.Ltd. Nanu Ram Alias Chuhru Ram & Others**_ [(2018) 18 SCC 130] the loss of consortium to be paid is Rs.40,000/- per **MACA NO. 2677 OF 2010** -9- person. They are also entitled to 10% increase every three years as per the decision reported in _**Pranay Sethi**_ (supra) and thus, the 10% increase would come to Rs.44,000 x 3, i.e., Rs.1,32,000/-. Since, loss of consortium is awarded, they are not entitled for compensation for love and affection. So the amount of Rs.5,000/- awarded as love and affection is also set aside. Accordingly, the following enhancements/deductions are made to the award passed by the Tribunal: |Sl.<br>No|Head of Claim|Amt. Awarded by<br>Tribunal (Rs.)|Amt. Enhanced in<br>appeal (Rs.)| |---|---|---|---| |1|Loss of dependency|3,84,000|4,80,000| |2.|Loss of consortium|15,000|1,32,000| |3|Loss of estate|10,000|16,500| |4|Funeral expenses|3,000|16,500| |5|Love and affection|5000|0| |6|Pain and sufferings|10000|0| ## **MACA NO. 2677 OF 2010** -10- 4,27,000 6,45,000 Total amount enhanced Rs.- 6,45,000-4,27,000= **Rs.2,18,000/-** In the result, the appeal is allowed The finding of the Tribunal that there is contributory negligence of 20% on the part of the deceased is set aside and the entire liability is cast on the Insurance Company. The appellants are entitled to an amount of Rs.2,18,000/- (Rupees two lakh eighteen thousand only). The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not **MACA NO. 2677 OF 2010** -11furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. sd **BASANT BALAJI, JUDGE** _dl/_