Mohammed Iqbal and Muneera Mohammed Iqbal v. G. Murukeshan, S. Dhananjeiyan and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** **MACA NO. 871 OF 2011** **AGAINST THE AWARD IN OPMV 128/2006 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, TIRUR** ## **APPELLANTS/PETITIONERS:** MOHAMMED IQBAL, S/O.ABDULLA, MUNEERA MOHAMMED IQBAL W/O.MOHAMMED IQBAL BOTH ARE PERMANENTLY RESIDING AT: PAMBANTAKATH HOUSE, VENNIYOOR.P.O TIRURANGADI TALUK, MALAPPURAM DISTRICT BOTH ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER P.ABDULLA AGED 64 YEARS S/O HASSAN, PAMBANTAKATH HOUSE, VENNIYUR PO, TIRURANGADI TALUK, MALAPPURAM DISTRICT BY ADV SRI.P.VENUGOPAL (1086/92) ## **RESPONDENTS/RESPONDENTS:** 1 G.MURUKESHAN S/O.GURUSWAMI 48/A, SRIRAMAPURAM, PO-DINDIGUL TAMILNADU -600021 2 S.T.DHANANJEYAN S/O.S.THANGAVEL 106A.ODAI PATTI, AMBILIKAI-VIA ODDANCHATRAN (TK), TAMILNADU – 626128 3 UNITED INDIA INSURANCE CO.LTD. M.R.S.COMPLEX, 2ND FLOOR, R.E.ROAD, PALANI 624 601 ## **BY ADV SMT.P.K.SANTHAMMA FOR R3** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022 , THE COURT ON 08.03.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.871/2011 2 ## **JUDGMENT** Dated : 8[th] day of March, 2022 This appeal has been filed against the award passed in OP(MV).128/2006 on the file of Motor Accidents Claims Tribunal, Tirur. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 out of the death of the son of the appellants in a motor accident occurred on 16.5.2005 near Sarada Mandiram in Trissur - Calicut public road. It is alleged that when the jeep, in which the deceased along with the appellants and others were travelling, reached at the place of occurrence a lorry bearing registration No.TN 575-7097 came from the opposite direction and dashed against the jeep bearing registration No.KLT 10 N-8898 resulting in fatal injuries to the deceased, the son of the appellants as well as injuries to the appellants/claimants. It is alleged that the accident happened solely due to the rash and negligent driving of the 1[st] respondent, driver of the offending lorry. Hence appellants claimed a total compensation of Rs.2,00,000/-. 2. Before the Tribunal all the respondents remained ex M.A.C.A.No.871/2011 3 parte. Exts.A1 to A12 were marked from the side of the appellants/claimants. Tribunal, on evaluating the pleadings as well as the documents, found contributory negligence on the part of the driver of the jeep at 50% and arrived at a total compensation of Rs.88,630/-. After deducting 50% towards contributory negligence on the part of the driver of the jeep who has not been made a party to the proceedings, balance amount of Rs.44,315/- was awarded which was allowed to realize with interest at the rate of 7.5% from the date of petition along with the cost of Rs.5000/-. 3. Dissatisfied with the award passed by the Tribunal, the appellants came up in appeal for various grounds stated in the memorandum of appeal with C.M.A.1/2011 to condone the delay of 340 days in filing the appeal. This court as per the order dated 22.10.2021, allowed the petition to condone the delay with a condition that if ultimately the appeal is allowed and compensation is enhanced, the appellants will not be entitled for interest for the said period of 340 days. Since liability has been fixed on the 3[rd] respondent, as per order dated 12.07.2011, it is ordered that notice need not be issued to respondents 1 and 2. 4. Standing Counsel Smt.Santhamma appeared on M.A.C.A.No.871/2011 4 behalf of the 3[rd] respondent. Lower court records were called for and perused and both sides were heard. 5. The learned counsel for the appellants challenges the award on the finding of contributory negligence as well as the quantum of compensation awarded. I will deal with the aspect of contributory negligence first. 6. According to the learned counsel for the appellants, finding of contributory negligence on the part of the driver of the jeep by the Tribunal is without any basis and simply following Ext.A12 the award in OP(MV).421/2006 dated 8.9.2008 and would contend that none of the respondents appeared before the Tribunal and contested the matter. In spite of that the Tribunal found contributory negligence on the part of the driver of jeep which is illegal and irrational. 7. In **New India Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648]** , it has been held by this court that as a general rule, production of charge sheet is prima facie sufficient evidence to prove negligence in a claim under Section 166 of the MV Act and it can be accepted as evidence of proof of negligence and if at all any of the parties wanted to dispute the same, the burden is upon such party to adduce oral evidence and discredit M.A.C.A.No.871/2011 5 the charge sheet. In this case, admittedly the respondents remained ex parte and did not contest the case. The claimants produced Ext.A6 charge sheet laid by the sub inspector of police, City Traffic station, Calicut against the 1[st] respondent, driver of the lorry. It appears that the Tribunal was taken away by Ext.A12 which is the award in OP(MV).421/2006 which was a claim petition filed by the first appellant, father of the deceased for the injuries sustained by him in the same incident. On going through Ext.A12 award and the finding with respect to the contributory negligence on the part of the driver, it could be seen that the findings so entered into are also perverse and illegal. In that case also, charge sheet was produced from the side of the claimants and the 3[rd] respondent/insurer alone contested the matter. Nobody was examined from the side of the respondent to discredit the charge sheet. But taking into account the fact that scene mahazar has not been produced and the person who lodged the FIS has not been examined, it was found that the FIR cannot be looked into and except the FIR, only charge sheet has been produced which was registered on the basis of Ext.A1 and further that the claimant could not prove that accused in that case was found guilty and convicted. It is further found that M.A.C.A.No.871/2011 6 scene mahazar has not been produced and ultimately Tribunal came to a conclusion that the claimants in that case could not adduce any convincing evidence to prove that the accident occurred solely due to the negligence of the driver of the lorry. It was further found that there was collision between the lorry and jeep and hence the driver of the jeep is also responsible and contributed to the accident and accordingly contributory negligence was found against the driver of the jeep. 8. In this context, the learned counsel drew my attention to **Mohammed Noufal T. vs.. Saheed and Others (2018 (1) KHC 507 = 2018 (1) KLT 499)** wherein a Division Bench of this Court dealt with the consequences of non production of scene mahazar in a claim petition before the tribunal and it has been held therein that in M.A.C.A.No.1018/2012 dated 27.11.2017 a decision of Apex court in **Jiju Kuruvila and Others v. Kunjujamma Mohan and Others (2013 (9) SCC** **166 = 2013 KHC 4486 = AIR 2013 SC 2293)** was quoted and held that in the absence of any direct corroborative evidence, the tribunal would not be justified in arriving any conclusion about the negligence on the part of any person on the basis of scene mahazar. It was held that non production of scene M.A.C.A.No.871/2011 7 mahazar is of no consequence at all and accordingly it was found that there is no basis for the finding of the Tribunal that the appellant in that case contributed to the accident and further material on record which is the charge sheet would clearly shows that the police officer, after completing the investigation, came to the conclusion that the accident occurred due to the rash and negligent driving of the 2[nd] respondent, the driver of the autorikshaw in that case. Accordingly the finding with respect to the contributory negligence at 50% was set aside. 9. The respondents in this case did not contest the case. So charge sheet produced in this case remains unchallenged. Based on **Pazhaniyammal** , the Tribunal ought to have fixed the responsibility on the Truck driver for the accident since police charge is laid against him. So, at any rate, finding of contributory negligence on the part of the jeep driver at 50% is illegal and unsustainable and is hereby set aside. 10. Next aspect is with regard to the quantum of compensation. The deceased was a minor boy aged one and a half year at the time of incident. The tribunal awarded Rs.50,000/- towards dependency for the reason that the claimants have not produced any document to prove their M.A.C.A.No.871/2011 8 standard of life. Learned counsel has no further dispute with regard to the treatment expenses awarded to the tune of Rs.28,631/-. 11. In **Sarla Verma v. Delhi Transport Corporation (2009 (2) SCC 121 = 2010 (2) KLT 802** ) the Apex Court has given guidelines with regard to the fixation of compensation claimed under Section 166 of the Act in fatal accident cases ranging from the age group of 15 onwards. 12. There is also a specific finding with respect to the selection of multiplier with respect to the different age groups in view of the discrepancies/errors in the multiplier scales given in the second schedule table attached to the Act. 13. In **Reshma Kumari v. Madan Mohan : 2013 KHC 4253,** a three Judge Bench of the Apex Court had occasion to consider cases where the deceased is less than 15 years and it has been held that irrespective of the aspect as to whether the claim is under Section 166 or 163-A, multiplier of 15 and assessment as indicated in schedule 2 subject to correction as pointed out in column 6 of table in **Sarala Verma'** s case, is directed to be followed. It is also held that in all other cases pertaining to claim under Section 166, whether the age of the M.A.C.A.No.871/2011 9 deceased is 15 years or above, multiplier as indicated in column No.4 of table in **Sarala Verma** 's case read with paragraph 42 of the judgment is directed to be followed. Hence it was emphasized that in respect of a claim under Section 166 in fatal accident case where age of the deceased is above 15 years, there is no necessity to seek guidelines or placing reliance on schedule 2 of the Act. So the law has been laid down in **Reshma Kumari** that in cases of fatal accident cases, the deceased belonging to less than 15 years of age group irrespective of the fact whether the claim is under Section 166 or 163-A the multiplier of 15 and assessment as indicated in schedule 2 subject to the correction pointed out in **Sarala Verma's** case in column 6 of table. 14. The learned counsel for the appellants in this context brought to my attention the **National Insurance Co.Ltd and others v. K.K. Assainar and others (2019 (4) KLT 39 : 2020 ACJ 1654 : 2019 KHC 685)** wherein a learned single Judge of this Court dealt with the claims involving death of children in motor accident. The learned Judge classified the cases to two groups with respect to the children below the age group of six as well as school going children of age group 6 to M.A.C.A.No.871/2011 10 15. It was ultimately held that the cases involving death of children below the age of six cannot be equated with the school going children upto the age of 15 because the parents of children below the age of 6 cannot expect services and pecuniary benefits from the children in the near future as in the case of parents of children in the age group of 6 to 15. So also it was taken into account that unlike the parents of school going children, the parents of the children below the age of 6 may not have spent amounts for the education and related matters so as to maintain a legitimate and reasonable expectation of services and pecuniary benefits in future from their children. Accordingly, a different yardstick is adopted for computing compensation for loss of dependency in the case of death of children below the age of 6. It was also found that multiplier method cannot be applied in such cases and only a consolidated amount can be granted by way of compensation. The deceased in this case is a child of 1½ years. 16. In **Kumari Sree Devi and Others v. Managing Director, KSRTC, Tvm and Others : 2011(3) KLT 716 : ILR 2011(3) Ker. 671 : 2012 ACJ 1901 : 2011(3) KHC 484** , a Division Bench of this Court considered the question with respect M.A.C.A.No.871/2011 11 to the award of compensation payable for loss suffered by the parents in the case of death of a non-earning minor child. It has been discussed in paragraph 6 of the said judgment that computation of compensation payable in respect of minor children who have not started earning has been one of the vexing problems in the law relating to computation of compensation. There are several imponderables and to arrive at a figure by deploying the multiplier and multiplicand method is always problematic. The Court has to provide for several imponderables and provision has to be made for the accelerated lump sum payment of compensation. It is also held that position in life of the parents may not be crucially relevant or vital in such situation and ultimately it was considered that in a claim for compensation with respect to the death of minor child under Section 166 of the Act, the claimant should be entitled at least to the amount which would have been payable if the claims were staked under Section 163A of the Act. **National Insurance Co.Ltd. v. Muneer : 2003(1) KLT 137 : 2003(1) KLJ 13** as well as the observations of the Supreme Court in paragraph 14 of **Malik v. Kiran Pal : 2009 KHC 4985 : AIR 2009 SC 2506** were placed reliance on. The law laid down in **Depal Girishbhai** M.A.C.A.No.871/2011 12 ## **Soni v. United India Insurance Co.Ltd. : 2004 (5) SCC 385 : AIR 2004 SC 2107 : 2004(2) KLT 395 SC : 2004 KHC** **595** quoted to emphasise the law with the nature and the sweep of claim under Section 163A and Section 166 of the Act has not held that the award under Section 166 can in no case be below than that would be awardable under Section 163A of the Act. But the Division Bench was not prepared to reckon it as an authority on that aspect since that question was not specifically and precisely raised or considered in that decision. Ultimately, the Division Bench held that the claimants are entitled to get Rs.2,40,000/- deducting 1/3[rd] out of 3,60,000/- as the amount payable to the claimant. 17. In **K.K.Assainar's** case, that dictum was followed by the learned Single Judge and found that as the parents of the children in the age group below six cannot expect services and pecuniary benefits from the children in the near future, compensation provided in terms of 163A for the claimants involving death of children subject to a progressive addition from year to year would satisfy the requirements of just compensation. For that the learned Judge, taking into account the fact that the second schedule was introduced on 14/11/1994 M.A.C.A.No.871/2011 13 and with effect from 22/05/2018, the compensation prescribed in terms of the amended provision is Rs.5,00,000/-, it was calculated that if a sum of Rs.12,000/- is added, progressively every year after 1995 to the compensation prescribed initially, that is Rs.2,40,000/-, the sum would suit the compensation prescribed under the provisions after the amendment. 18. In **K.K.Assainar's** case, the learned Single Judge, after prescribing the mode of assessment of compensation with respect to minor children aged below 6 years, in paragraph 21 while disposing the appeal with respect to minor girl aged 3 years, found that the compensation awardable in her case would be Rs.4,30,000/- (Rs.2,40,000 + Rs.1,90,000) towards loss of dependency. It was found that the Tribunal has not granted any compensation to the claimants towards pain and suffering and loss of estate and the Tribunal should have granted Rs.15,000/each under those heads. It is further found that Tribunal has awarded Rs.10,000/- in excess towards funeral expenses, and Rs.50,000/- in excess towards compensation for love and affection and Rs.75,000/- without any basis towards mental shock. It is further found that compensation granted by the Tribunal for loss of dependency, pain and suffering and loss of M.A.C.A.No.871/2011 14 estate is short by a total sum of Rs.2,60,000/- and hence no interference was made with the decision of the Tribunal. 19. In **Kurvan Ansari v. Shyam Kishore Murmu : 2021 (6) KLT Online 1005 (SC)** , a two Judge Bench of the Apex Court dealt with the award of compensation in a petition under Section 163A with respect to death of a non-earning member (child). In paragraph No.12 of that decision, the Apex Court discussed that in **Puttamma and Others v. K.L.Narayana Reddy & Another : 2014(1) KLT 738(SC) : (2013) 15 SCC 45** the observation therein that the Central Government was bestowed with the duties to amend Schedule-II in view of Section 163-A(3) of the Motor Vehicles Act, 1988, but it failed to do so. So specific directions were issued to the Central Government to make appropriate amendment to Schedule-II keeping in mind the present cost of living. 20. The observations in **R.K.Malik & Another v. Kiran Pai & Others : 2009(3) KLT SN 39 (C.No.41) SC : (2009) 14 SCC 1** as well as in **Kishan Gopal and Another v. Lala & Others (2013 (4) KLT Suppl.43 (SC) : (2014) 1 SCC 244)** were quoted. The observation in **R.K.Malik** is that Rs.15,000/per annum fixed under Section 163A should be enhanced and M.A.C.A.No.871/2011 15 increased as the same continue to exist without amendment since 14.11.1994. In **Kishan Gopal,** in case of death of a child aged 10 years, notional income of Rs.30,000/- per annum taken was also discussed. So, taking into account all these factors, the Apex Court in **Kurvan Ansari** , in view of the fact that the accident in that case was on 06.09.2004 found that the fixation of notional income at Rs.15,000/- per annum for non-earning member is found to be not just and reasonable. Accordingly, the notional income of the deceased in that case was fixed at 25,000/- per annum and it was multiplied with 15 as prescribed in Schedule-II and the amount of Rs.3,75,000/- was arrived at towards loss of dependency. 21. In the present case, taking into account the fact that the accident occurred in the year 2005 and there was amendment of second Schedule in fixing consolidated amount of Rs.5,00,000/- as compensation payable in case of death under Section 163A, the principles laid down in **K.K.Assainar's** case can very well be followed and loss of dependency can be arrived at as per the principles laid down therein. 22. In the present case, the accident was in the year 2005. So Rs.12,000/- for ten years from 1995 has to be M.A.C.A.No.871/2011 16 calculated. So, it will come to Rs.1,20,000/-. So the compensation towards loss of dependency would be Rs.2,40,000 + Rs.1,20,000 = Rs.3,60,000/-. From that, the amount already awarded by the Tribunal i.e. Rs.44,315/- (50% of 88,630/-) is to be deducted. i.e. Rs.3,60,000 – Rs.44,315 = Rs.3,15,685/-. Then, 50% deducted towards contributory negligence of the driver of the jeep has to be added. So, the amount would come to Rs.3,15,685 + Rs.44,315 = Rs.3,60,000. 23. Learned counsel would further contend that since the claim has been made under Section 166 of the Act, the claimants are further entitled to corresponding enhancement of the conventional heads as in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662) and Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130)** , i.e claimants are entitled to get Rs.15,000/- each towards loss of estate and funeral expenses and Rs.40,000/- each towards loss of filial consortium. 24. In **Kurvan Ansari** 's case, though the application was under Section 163A(3), the Apex Court after awarding compensation of Rs.3,75,000/- towards loss of dependency by M.A.C.A.No.871/2011 17 taking notional income of the deceased minor child as Rs.25,000/- per annum, it was further found that the appellants are also entitled to a sum of Rs.40,000/- each towards filial consortium and Rs.15,000/- towards funeral expenses. Accordingly, appellants in that case are allowed a total compensation of Rs.4,70,000/-. 25. Hence, appellants in this case is entitled for an amount of Rs.15,000/- towards loss of estate and Rs.15,000/towards funeral expenses and Rs.40,000/- each towards filial consortium. So, the total enhanced compensation would be Rs.3,60,000 + Rs.80,000 (Rs.40,000 x 2) + Rs.15,000 + Rs.15,000 = Rs.4,70,000/-. 26. In the result, appeal is allowed. Appellants are allowed to realise enhanced compensation of Rs.4,70,000/- with interest at 7.5% from the date of petition i.e. 15.12.2005 till realisation excluding 340 days, the delay caused in filing the appeal. Third respondent/insurer shall satisfy the compensation awarded together with interest deducting the amount already paid, if any, within a period of two months from the date of receipt of certified copy of this judgment. M.A.C.A.No.871/2011 18 27. The disbursement of compensation to claimants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. (Sd/-) **M.R.ANITHA, JUDGE** mrcs/jsr True Copy PS to Judge