M.M. Soman and Beena v. K.R. Abdul Manaf and Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 MACA NO. 3442 OF 2022 ``` ``` AGAINST THE AWARD DATED 19.09.2022 IN O.P(M.V) NO.1486/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1M.M. SOMAN, AGED 69 YEARS, S/O.MADHAVAN, MATTUMMAL VEEDU, VALAM KARA, CHERANALLUR VILLAGE, P.O. SOUTH CITTOOR, ERNAKULAM,, PIN - 682027 2BEENA, W/O.SOMAN, AGED 60 YEARS, MATTUMMAL VEEDU, VALAM KARA, CHERANALLUR VILLAGE, P.O. SOUTH CITTOOR, ERNAKULAM, PIN - 682027 BY ADVS.SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.R. ABDUL MANAF, PUNNAKKULANGARA HOUSE, THRIKKAKKARA, KOCHI, ERNAKULAM DISTRICT, KERALA STATE,, PIN - 682020 2UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, 2 ND FLOOR, VADAKKANETHIL TOWERS, PRIVATE BUS STAND ROAD, PERUMBAVOOR, REPRESENTED BY ITS MANAGER., PIN - 683542 3RAKESH.K.R., S/O.RAVI.K.J., KIZHAKKINIPURAYIL HOUSE, PUTHENVELIKKARA. P.O., NORTH PARAVOOR, ERNAKULAM DISTRICT., PIN - 683594 ``` ``` MACA NO. 3442 OF 2022 ``` 2 ``` 4RELIANCE GENERAL INSURANCE COMPANY LIMITED, XL/3599, 4 TH FLOOR, ELIZABATH ALEXANDER MEMORIAL, SHANMUGHAM ROAD, MARINE DRIVE, COCHIN- 682031. REPRESENTED BY ITS MANAGER. BY ADVS. R2 BY SRI.M.HARISHARMA R3 BY SRI.A.T.ANILKUMAR R4 BY SMT.K.S.SANTHI SMT.V.SHYLAJA(K/1281/1995) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3442 OF 2022 ``` 3 ## **J U D G M E N T** **Dated this the 11[th] day of December, 2023** This appeal is originated from an award passed by Motor Accident Claims Tribunal, Ernakulam, on 19.09.2022 in O.P.(M.V.) No.1486 of 2015, whereby the Tribunal has dismissed the Original Petition for the reason that the motor accident in question was occurred solely due to the rash and negligent riding of the motorcycle by the victim of the motor accident, who died following the injuries sustained by him. The appellants before the Tribunal are none other than the parents of the deceased. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 4 in accordance with their status in the Original Petition. ``` MACA NO. 3442 OF 2022 ``` 4 3. As per the averments in the Original Petition, one Mr.Viswanath M.S. met with a motor accident at about 10.00 p.m. on 02.06.2010. He was riding a motorcycle bearing Registration No.KL 42 A 2116, belonging to another person, along Aluva-Edayar road in North-South direction. It was averred in the Original Petition that due to the presence of rain water and sand, the road was slippery in nature and when he reached 100 meters from Muppathadam-Manakkapady bus stop, he lost control of the vehicle slightly and at that point of time, another motorcycle bearing Registration No.KCF 9705 ridden by its rider entered the road from West, turned towards North and proceeded in South-North direction without blinking the head light and with high speed in a rash and negligent manner. Thus the motorcycles collided, riders fell down and sustained serious injuries. The injured were rushed to Jawaharlal Nehru Memorial Hospital, Eroor and therefrom to Co-operative Medical College Hospital, Ernakulam. ``` MACA NO. 3442 OF 2022 ``` 5 Unfortunately Mr.Viswananth died on the way to hospital. Alleging that the motor accident was occurred due to the rash and negligent riding of the motorcycle bearing Registration No.KCF 9705 by its rider and claiming a total sum of `56,30,000/-, the above Original Petition was filed before the Tribunal. The rider of the motorcycle bearing Registration No.KCF 9705 and its insurer, the owner of the motorcycle bearing Registration No.KL 42 A 2116 and its insurer were arrayed as respondents 1 to 4 in the Original Petition. All respondents were served with notice from the Tribunal. In spite of receipt of notice, 1[st] respondent did not turn up to contest the Original Petition and therefore was declared ex parte by the Tribunal. 4. 2[nd] respondent filed written statement raising contentions as follows:- The claim petition is not maintainable either in law or on facts, that the insured neither reported the motor accident nor produced vehicular documents for verification, ``` MACA NO. 3442 OF 2022 ``` 6 that the claim petition was filed after a delay of 5 years from the date of the motor accident, that the 1[st] respondent was not rash and negligent in riding motorcycle bearing Registration No.KCF 9705, that the motor accident was occurred due to negligence on the part of the rider of the motorcycle bearing Registration No.KL 42 A 2116, who is none other than the victim who died in the motor accident and that admittedly the motorcycle bearing Registration No.KCF 9705 was insured with the 2[nd] respondent. The age, occupation and monthly income as per the claims raised by the petitioners in the Original Petition were denied. Compensation claimed is also denied for the reason that it is exorbitant in nature and devoid of any basis. 5. 3[rd] respondent had also filed written statement contending that the motorcycle bearing Registration No.KL 42 A 2116 belongs to him, that on the date of the motor accident, Mr.Viswanath was riding the motorcycle and it collided with the motorcycle ridden by the 1[st] respondent, ``` MACA NO. 3442 OF 2022 ``` 7 that the Police laid a false chargesheet against deceased Viswanath without conducting proper investigation and that the motor accident was occurred solely due to rash and negligent riding of the motorcycle by the 1[st] respondent. Accordingly, it was contended that the petitioners are not entitled to get any compensation from respondents 1 and 2. 6. 4[th] respondent filed written statement denying it’s liability to indemnify the insured, since the rider of the motorcycle was not covered under the policy issued, that the deceased was not having a valid driving licence at the relevant time of the motor accident and was made an accused in the police case registered, that the claimant should prove negligence on the part of the 1[st] respondent and that the compensation claimed is excessive and without any basis. Claims regarding the age, occupation and the monthly income of the deceased were also denied for being incorrect. The claim petition was sought to be dismissed. ``` MACA NO. 3442 OF 2022 ``` 8 ## 7. The Tribunal has raised the following points for ## consideration:- “1. Whether Sri.Viswananth M.S died due to the injuries sustained in a road traffic accident as alleged? 2. Whether the petitioners are the legal representatives and dependents of the deceased Viswanath? 3. Whether the rash and negligent riding of 1[st] respondent resulted in causing the death of said Viswanath? 4. Whether the petitioners are entitled to get compensation on account of the death of the said Viswanath? If so, the quantum of compensation to which the petitioners are entitled? 5. Who is liable to pay compensation to the petitioners? 6. Reliefs and costs?” 8. On the side of the petitioners, PWs 1 to 4 were examined and Exts.A1 to A8 were marked. On the side of the 2[nd] respondent, Exts.B1 and B2 were marked. On appreciation of the entire evidence, the Tribunal found that the motor accident in question was occurred due to the rash ``` MACA NO. 3442 OF 2022 ``` 9 and negligent riding of the motorcycle by Viswanath, the deceased himself. The Tribunal found that the claim petition being one filed under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the M.V.Act'), negligence of the driver of the offending vehicle needs to be proved and since that was not established, the Original Petition was dismissed as not maintainable. 9. Petitioners approached this Court against the finding of the Tribunal by filing M.A.C.A. No.4038 of 2019. This Court allowed the appeal by judgment dated 06.06.2022. The finding of the Tribunal was set aside and the matter was remitted to the Tribunal for consideration afresh in accordance with law. The Appellate Court has observed in paragraph 2 of the judgment as follows: “2. It is a case of collision between two vehicles viz., two two-wheelers in which the deceased was the rider of one of the two-wheelers. Apart from the oral evidence of PW1, the petitioners took pain to examine three witnesses, PW2, PW3 and PW4. PW1 is the father of the deceased. He is not a witness to the alleged accident. The occurrence witnesses, PW2 and PW3 found a place in the final report submitted after investigation. But in the court, they turned hostile to the case of the petitioners stating that they did not witness ``` MACA NO. 3442 OF 2022 ``` 10 the alleged incident. It goes against the final report submitted and the reliance placed on the statement under Section 161 Cr.P.C., by the investigating agency. But, they admitted that they had seen the vehicles stationed at the western portion of the road. The person who had investigated the crime was not examined as a witness. It is also not clear on what basis the accident spot was located. PW4 is the officer who laid the final report after verification. In fact, he did not conduct any investigation pertaining to the alleged accident. The final report submitted prima facie appears to be misconceived on the reason that the accident occurred by the hit of two vehicles of the same nature i.e. two-wheelers, which were proceeding from opposite directions. Even if it is found that one of the vehicles was on the wrong side, it is too adventurous to find sole negligence on that simple ground on the rider of the vehicle which was on the wrong side. It may be a case of contributory negligence at the most and contribution by the respective persons has to be ascertained. When both the parties opted to adduce evidence by examining witnesses and by producing documents, then it is a matter of appreciation of evidence based on the documentary and oral evidence. The Tribunal failed to apply the said principle and did not understand the legal position settled by the Division Bench of this Court in New India Assurance Co's case (supra). In such situation, the final report would stand insignificant to a large extent. That material aspect has been overlooked by the Tribunal. The person who had prepared the scene mahazar was also not examined. It is not clear from where he had received knowledge regarding the accident spot and on what basis, it was located. Hence, the order of dismissal is hereby set aside. The parties shall appear before the Tribunal on 20/06/2022 for fresh disposal in accordance with the law in force. The Tribunal shall dispose of the matter within a time schedule of three months from the date of appearance of parties.” Therefore the remand was for fresh disposal of the Original Petition in accordance with the law in force. The Appellate ``` MACA NO. 3442 OF 2022 ``` 11 Court has further observed that the final report submitted by the Police after investigation and that forming part of the evidence, _prima facie_ appears to be misconceived for the reason that the motor accident was occurred due to the hit of two vehicles of the same nature i.e., two-wheelers, which were proceeding from opposite directions. The Tribunal has also observed that it may be a case of contributory negligence at the most and contribution by the respective persons has to be ascertained. In the view of the Appellate Court when both parties opted to adduce evidence by examining witnesses and by producing documents, then it is a matter of appreciation of evidence based on the documentary as well as oral evidence. Therefore, it is revealed from the judgment that the Appellate Court did not mean it compulsory for the parties to adduce evidence before the Tribunal. When both parties opted to adduce evidence by examining witnesses and producing documents, then it is a matter for the Tribunal to appreciate the evidence ``` MACA NO. 3442 OF 2022 ``` 12 based on the documentary as well as oral evidence. Therefore it was not compulsory and mandatory for the parties to adduce evidence but if they opt to adduce evidence, the Tribunal has to reckon that and to appreciate the same prior to disposal of the Original Petition. After the remand, both sides did not adduce any evidence. There was a direction in the judgment of the Appellate Court, for the parties to appear before the Tribunal on 20.06.2022. Accordingly, both parties appeared before the Tribunal but they did not adduce any evidence and that can be ascertained from the fresh award passed by the Tribunal which is under challenge in the appeal on hand. 10. The fresh award was passed by the Tribunal on 19.09.2022. Therefore, it took three months for the Tribunal to dispose of the Original Petition for the second time, and the parties cannot allege that they were not granted with opportunity to adduce evidence. The impugned award was passed based on the evidence already ``` MACA NO. 3442 OF 2022 ``` 13 on record and nothing was led by the parties afresh. The Tribunal has again dismissed the Original Petition, on finding that there is absolutely nothing to establish negligence on the part of the 1[st] respondent even after the remand of the case for fresh consideration. 11. Against the fresh award passed by the Tribunal, the petitioners have again approached this Court. It is noticed from the impugned award that both sides have not adduced any evidence. It is also noted that the Tribunal has reiterated the same observations as was done, while passing the original award. The evidence on record is found not appreciated by the Tribunal in the proper perspective. Without any application of mind, the impugned award was found passed. 12. The learned counsel for the appellants has invited the attention of this Court to the findings of the Appellate Court. According to him, the Appellate Court has observed that the final report is not something to be relied upon based ``` MACA NO. 3442 OF 2022 ``` 14 on the evidence of PW2, PW3, and PW4. PW2 and PW3 are none other than the ocular witnesses cited in the final report. PW4 is none other than the person who verified the final report and laid it before the Magistrate Court. PW2 and PW3 deposed before the Tribunal as if they had not seen the occurrence. Admittedly both of them came to the spot after the occurrence. As per the scene mahazar prepared in the case, PW2 and PW3 were the attesting witnesses. PW4 has deposed to the effect that he has not verified the records but only signed it and presented before the Magistrate Court. PW4 deposes as if he had no idea about the fixation of liability on the deceased. 13. It is pertinent to note that in the final report, the deceased was charged for offences under Sections 279, 338 and 304A of the Indian Penal Code, 1860 (for short, 'the IPC'). An offence under Section 304A IPC cannot be charged against a person who is no more. Two motorcycles were allegedly involved in the motor accident and the person ``` MACA NO. 3442 OF 2022 ``` 15 riding the motorcycle bearing Registration No.KL 42 A 2116 died following the injuries sustained in the motor accident and the rider of the other motorcycle though sustained injuries, survived. Therefore, an offence under Section 304A IPC cannot be attributed against the person riding the motorcycle bearing Registration No.KL 42 A 2116, who is the deceased in the case on hand. 14. PW4 who laid the final report has deposed to the effect that he had no idea about the matters stated in the final report. PW2 and PW3, who are attesters of the scene mahazar have also deposed that they did not witness the motor accident. Therefore in the view of the Appellate Court which passed judgment dated 06.06.2022, the final report itself lost its relevance. 15. When the final report lost its relevance, it is for the respondents who rely on the final report to adduce evidence to establish that it is a true and genuine document. Nothing of that sort has been done by the respondents. ``` MACA NO. 3442 OF 2022 ``` 16 16. Moreover, PW2 and PW3 have deposed strictly contrary to the final report. Then what is available for consideration is the evidence of PW1, who is none other than the father of the victim. True that he has not seen the motor accident. But the Original Petition was filed by him and in the Original Petition, he had taken a stand that the motor accident in question was occurred solely due to the rash and negligent riding of the motorcycle bearing Registration No.KCF 9705 by the 1[st] respondent. In chief examination he has stated so, but in cross examination when a specific question was put to him regarding the negligence on the part of his son as the cause of the motor accident, he has stated that there was heavy rain on that day and because of the wet and slippery nature of the road, the motorcycle skidded. The evidence rendered by him in chief examination that the head light was not dimmed by the 1[st] respondent and due to that the vehicle ridden by him was slipped down and collided with that motorcycle was not found contradicted even by the ``` MACA NO. 3442 OF 2022 ``` 17 ## 2[nd] respondent. 17. It is found that the 1[st] respondent though served with notice, has not turned up. He has not filed any written statement denying the pleadings raised by the 1[st] petitioner in the Original Petition. He has not even contradicted the evidence adduced by the 1[st] petitioner as PW1. Therefore the evidence let in by PW1 regarding negligence on the side of the 1[st] respondent remained uncontroverted. True that the 2[nd ] respondent has controverted the evidence of PW1 to a certain extent and it has come out that the motor accident was occurred in a collision of the two motorcycles. 18. When the only evidence that can be relied on by this Court in the matter is the evidence which remained uncontroverted by the 1[st] respondent, this Court finds every justification in taking a view on the basis of that evidence that the motor accident was occurred due to collision of the two motorcycles involved in the motor accident and both the riders are responsible for it. Since it was established as a ``` MACA NO. 3442 OF 2022 ``` 18 head-on collision, this Court is inclined to fix contributory negligence on both riders in the ratio 50:50. It is thus held that the motor accident in question was occurred due to negligence on the part of the deceased as well as the rider of the motorcycle bearing Registration No.KCF 9705, who was arrayed as the 1[st] respondent in the Original Petition and the ratio is fixed as 50:50. 19. When the 1[st] respondent has also contributed to the motor accident, the petitioners are entitled to get compensation from respondents 1 and 2, who are none other than the owner cum rider as well as the insurer of motorcycle bearing Registration No.KCF 9705. It is incumbent upon this Court in the above context to calculate the compensation payable to the petitioners. It has come out in evidence that the deceased was the only son of petitioners 1 and 2 who have filed the Original Petition on hand. According to them, the deceased was aged 21 years at the relevant time of the motor accident. PW1 has deposed about ``` MACA NO. 3442 OF 2022 ``` 19 the age of his son before the Tribunal while adducing oral evidence and that was not controverted. 20. The age of the deceased stands established from Ext.A2, which is nothing but a copy of the Secondary School Leaving Certificate of the deceased. Therefore, the age of the victim is taken as 21 years and multiplier is adopted as 18. Ext.A3 is a copy of the provisional certificate issued by the State Board of Technical Education and Training and Ext.A4 is the copy of the PAN Card. PW1 claimed his son to be a self employed man. PW1 also deposed that the deceased was an earning member of his family. But there is nothing on record to establish the monthly income earned by him at the relevant time of the motor accident. From Ext.A3, the educational qualification of the deceased is established. The monthly income claimed for the deceased was `30,000/-. In the absence of any evidence adduced in that respect, this Court is declined to take `30,000/- as the monthly income of the deceased for the of calculation of purpose ``` MACA NO. 3442 OF 2022 ``` 20 compensation. 21. In view of the educational qualification stood established from Ext.A3, this Court is inclined to fix his monthly income as `12,000/-. The deceased due to his death at the age of 21 years has lost all future prospects. Since PW1 claimed the deceased as a self employed man and aged 21 years, in view of **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC** **680],** 40% is liable to be added to the monthly income in consideration of loss of future prospects. Thus, `16,800/(`12,000/- + 40% of `12,000/-) is taken as the modified monthly income for the purpose of calculation of compensation. Mr.Viswanath was a bachelor at the relevant time of his death in the motor accident. He was survived by his parents. Therefore, half is liable to be deducted from the above fixed monthly income in consideration of the personal expenditure liable to be met with by him had he survived the motor accident. Thus in the calculation of compensation for ``` MACA NO. 3442 OF 2022 ``` 21 loss of dependency, `18,14,400/- (`16,800 x 12 x 18 x 1/2) is arrived at. 22. Petitioners being parents of the deceased are also entitled to get compensation under the conventional heads as per the guidelines issued by the Apex Court in **Pranay Sethi** 's case (supra). Petitioners are entitled to get `16,500/- each as compensation towards loss of estate and funeral expenses and `44,000/- per head as compensation towards loss of consortium. Thus, `88,000/- (`44,000/- x 2) is arrived at as the compensation payable towards loss of consortium in favour of petitioners. `16,500/- each is also payable as compensation towards loss of estate and funeral expenses. Thus a total sum of `19,35,400/- (`18,14,400/- + `88,000/- + `16,500/- + `16,500/-) (Rupees nineteen lakhs thirty five thousand and four hundred only) is arrived at as the total compensation payable to the petitioners. 23. This Court has already fixed the liability for the deceased as well as the 1[st] respondent as 50:50. In the above ``` MACA NO. 3442 OF 2022 ``` 22 circumstances, the petitioners will get only `9,67,700/(Rupees nine lakhs sixty seven thousand and seven hundred only) as compensation from respondents 1 and 2 jointly and severally. Second respondent shall pay the above sum in favour of the petitioners with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization and also proportionate costs, within a period of two months from the date of receipt of a certified copy of this judgment in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH, JUDGE** AS