M/S United India Insurance Co. Ltd. v. Ramachandran Nair P.K. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY, THE 18TH DAY OF JUNE 2013/28TH JYAISHTA 1935 MACA.No. 1430 of 2006 ( ) -------------------------- OPMV 1619/2001 of M.A.C.T., MANJERI APPELLANT(S)/3RD RESPONDENT: ------------------------------- M/S. UNITED INDIA INSURANCE CO.LTD., COIMBATORE NOW REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE, `SHARANYA', HOSPITAL ROAD KOCHI-11. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S)/PETITIONER: ---------------------------- * RAMACHANRAN NAIR P.K., S/O. P.N. MADHAVA PANICKER REPRESENTED BY HIS SON M. RAJESH, `HILL VIEW' THACHINGANADAM P.O., VIA PANDIKKAD. (DIED). RESPONDENT NO.2 RAJESH.M, S/O.LATE RAMACHANRAN NAIR, HILL VIEW, THACHINGANADAM P.O., MALAPPURAM DISTRICT RESPONDENT NO.3 RAKESH.M, S/O.LATE RAMACHANRAN NAIR, HILL VIEW, THACHINGANADAM P.O., MALAPPURAM DISTRICT - Additional respondents 2 and 3 impleaded. Legal heirs of deceased Respondent No.1 are impleaded as additional respondents 2 and 3 as per order dt.9/4/13 in IS 885/13 in MACA 1430/06 BY ADV. SRI.P.K.VIJAYAMOHANAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2013, ALONG WITH MACA Nos.1431/06, 1407/06 & 1408/06 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: uj. S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A.No.1430 of 2006 with M.A.C.A Nos.1431, 1407 & 1408 / 2006 -----------------------------------------------------------------Dated this the 18[th] day of June, 2013 ## J U D G M E N T ## Siri Jagan, J. Both the insurance company and the claimants have come up in appeal, against the common award of the Motor Accidents Claims Tribunal, Manjeri in O.P (M.V).Nos.1619 and 1620/2001. The petitioner in O.P. (M.V).No.1619/2001 is the husband, whose wife was a pillion rider in a motor cycle driven by the husband. The lorry insured with the insurance company who is the appellant in two of the appeals, dashed against the motor cycle, in which the husband and wife were travelling, resulting in the death of the wife and very serious injuries to the husband. The husband filed O.P.(M.V). No.1619/2001, and the husband and their children and mother of the deceased wife filed O.P.(M.V). No.1620/2001, seeking compensation for the injuries suffered by the husband and the death of the wife. M.A.C.A.No.1430 of 2006 with M.A.C.A Nos.1431, 1407 & 1408 / 2006 2 2. The tribunal found that the accident occurred on account of the negligence of both the driver of the lorry, as well as the husband who was driving the motor cycle. Thereafter, the tribunal apportioned the percentage of negligence as 75:25, as between the driver of the lorry and the husband. Thereafter, in O.P.(M.V) No.1619/2001, for the injuries and consequential disabilities suffered by the husband, the tribunal awarded the following compensation: |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded**<br>`| |---|---|---| |1|Transport to hospital (150x400)|60000| |2|Extra nourishment|15600| |3|Bystanders expenses (one year)|36500| |4|Medical expenses|381183| |5|Pain and suffering|25000| |6|Loss of income for one year|45000| |7|Future medical expenses|15000| |8|For disability (45000x70x5/100)|157500| ||Total|735783| ||Less 25% (Contributory negligence)|183946| ||Total|551837| For the death of the wife, the tribunal awarded the following compensation: M.A.C.A.No.1430 of 2006 with M.A.C.A Nos.1431, 1407 & 1408 / 2006 3 |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded**<br>`| |---|---|---| |1|Transport to hospital|1000| |2|Funeral expenses|2000| |3|Loss to estate|10000| |4|Loss of consortium|15000| |5|Pain and suffering|10000| |6|Loss of dependency(12451x12x2x11/3)|1095688| ||Total|1133688| ||Less 25% (Contributory negligence)|283422| ||Total|850266| 3. M.A.C.A Nos.1430 and 1431/2006 are filed by the insurance company, challenging the finding regarding the negligence as well as the quantum of compensation assessed. The contention of the insurance company is that, the proportion of negligence of the husband should have been more than 25% if not 100%. The insurance company also challenges the quantum of compensation. M.A.C.A Nos.1407 and 1408/2006 are filed by the claimants in the two O.P(M.V)'s, contending that the accident occurred solely because of the negligence of the driver of the lorry and therefore, the tribunal went wrong in apportioning 25% of negligence to the husband. They also seek enhancement of compensation under various heads in both the O.P's. The husband died during the pendency of the appeals and the legal heirs are on M.A.C.A.No.1430 of 2006 with M.A.C.A Nos.1431, 1407 & 1408 / 2006 4 ## record to prosecute the appeals. 4. We have considered the rival contentions in detail. We are of opinion that, regarding the negligence, the tribunal misread the scene mahasar. In this case, the road is lying east-west, and the husband was coming into the main road from a side road from the north. The accident occurred 5 meters away from an unnumbered electric post standing on the southern road margin. The distance to the southern road margin to the southern tar end is 1.5 meters. That means, the accident occurred on the wrong side of the lorry. The tribunal misread the distance of 5 meters as from the southern tar end, instead of the electric post standing on the road margin. Neither the driver nor the insurance company adduced any evidence to prove negligence on the part of the driver of the motor cycle, namely, the husband. On the other hand, the police charge sheeted the driver of the lorry for negligence. The tribunal has also without any evidence entered a finding that the lorry bears dent marks on its left bumper. Considering all these facts, we are of opinion that, the finding of the learned tribunal, M.A.C.A.No.1430 of 2006 with M.A.C.A Nos.1431, 1407 & 1408 / 2006 5 that the driver of the motor cycle contributed by his negligence to the accident, is clearly against the evidence in this case. Therefore, we hold that the accident occurred solely because of the negligence of the driver of the lorry and vacate the finding that 25% of the compensation has to be deducted for the contributory negligence on the part of the driver of the motor cycle, viz., husband. 5. The contention of the insurance company regarding the compensation awarded for injuries and consequential disabilities sustained by the husband is that, the annual income of ` 45,000/- is on the higher side. Further it is contended that, for transport to hospital, without any evidence, the tribunal granted ` 60,000/-, as against a claim of only ` 16,000/-. It is also submitted that the last contention regarding the compensation awarded to the husband is that, after calculating loss of earning capacity from the date of the accident, the tribunal ought not to have awarded any compensation for loss of income for one year. 6. On the other hand, the counsel for the M.A.C.A.No.1430 of 2006 with M.A.C.A Nos.1431, 1407 & 1408 / 2006 6 claimants would contend that, the tribunal has correctly fixed the annual income, but adopted a wrong multiplier of 5. According to them, the husband was 61 years old at the time of accident, and was a retired school teacher. As per the decision of the Supreme Court, in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the multiplier applicable to a person aged 61 years is 7. Therefore, the tribunal went wrong in calculating the compensation for loss of earning power. It is also submitted that, despite finding 70% disability, the tribunal did not award any amount for loss of amenities in life, and also for continued treatment, insofar as, the doctor gave evidence to the effect that, practically the husband is bed ridden and he would require treatment for the rest of his life. The claimants contend that the amount awarded for future medical expenses should have been much more than ` 15,000/-. 7. We do not find anything wrong with the tribunal, fixing the annual income of the husband as ` 45,000/- because he was a school teacher and he would naturally get some work/ tuition or even in some self M.A.C.A.No.1430 of 2006 with M.A.C.A Nos.1431, 1407 & 1408 / 2006 7 financing private schools. Therefore, he can be expected to earn at least ` 45,000/- per year. Although, the tribunal has wrongly taken the multiplier as 5 instead of 7, fixed in Sarla Vermas case(supra), we find that, the tribunal has without any reason, awarded ` 60,000/- for transport to hospital, although, their claim was only for ` 16,000/-. We also find merit in the contention of the insurance company that after awarding compensation for loss of earning capacity based on the age at the time of accident, the tribunal could not have awarded loss of income for one year amounting to ` 45,000/-. Taking into account all these aspects, we are not inclined to interfere with the total compensation assessed by the tribunal. But of course, we delete the deduction of 25%, on account of contributory negligence, since we have already held that the accident occurred solely because of the negligence of the driver of the vehicle insured with the insurance company/the appellant. 8. As regards the compensation for the death of the wife, the contention of the insurance company is that, the deceased was aged 53 years and was employed M.A.C.A.No.1430 of 2006 with M.A.C.A Nos.1431, 1407 & 1408 / 2006 8 as a school teacher. She had of course proved her monthly income as ` 12,451/- but that is applicable only till her retirement at the age of 55. After the age of 55, she cannot be expected to earn the same income and therefore, the tribunal went wrong in assessing the loss of dependency taking the monthly income as ` 12,451/for the entire period of, multiplier namely 11 is the contention of the insurance company. The learned counsel for the claimants would contend that the income to be adopted is the income as on the date of death, and no deduction can be made on account of the fact that after two or three years, the deceased was to retire from service. 9. We have considered the rival contentions in respect of the claim for the death of the wife also. We are of opinion that the insurance company is right in contending that, the loss of dependency could not have been assessed for the entire ` 12,451/- as monthly income. That can be adopted only for 3 years. Therefore, taking the monthly income of ` 12,451/- for the multiplier of 3, loss of dependency would be ` 2,98,824/- M.A.C.A.No.1430 of 2006 with M.A.C.A Nos.1431, 1407 & 1408 / 2006 9 (12,451x12x3x2/3). For the balance 8, we fix the monthly income as ` 6,000/-, and loss of dependency for the same would be ` 3,84,000/- (6,000x12x8x2/3). The total would be ` 6,82,824/-. But we increase the compensation for loss of consortium to ` 25,000/-. No amount has been awarded for loss of love and affection for the children. We fix it as ` 20,000/-. In respect of other amounts, we are not inclined to interfere. Total compensation would therefore be ` 7,50,824/-. In O.P.(M.V).No.1620/2001, the claimants would be entitled to only that amount, without any deduction on account of contributory negligence, since we have already vacated the finding on contributory negligence. With the above modification of the award in O.P. (M.V).No.1620/2001, the appeals are disposed of. Sd/S.SIRI JAGAN, JUDGE Sd/- K.RAMAKRISHNAN, JUDGE // True Copy // P.A. To Judge ss