Najna M.K. and others v. Varghese s/o Ouseph and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM TUESDAY, THE 10TH DAY OF JANUARY 2012/20TH POUSHA 1933 MACA.No. 2624 of 2010 (D) ================= OPMV.1499/2005 of M.A.C.T., MANJERI ================ APPELLANT(S)/PETITIONERS - ================== - 1 NAJNA.M.K,W/O.LATE N.P.SUNIL @ SUDHEER - 2 NIHAL(MINOR)S/O.LATE N.P.SUNIL @ SUDHEER ## 3 MOIDEEN,S/O.ABOOBACKER 4 ASYA,W/O.MOIDEEN, 2ND APPELLANT BEING A MINOR IS REP.BY THE MOTHER/ GUARDIAN THE IST APPELLANT.IST & 2ND APPELLANTS ARE R/AT CHAKKITTAKANDI HOUSE CHANDAMANGALLOOR MUKKOM KOZHIKODE DIST.3RD & 4TH APPELLANTS ARE R/AT ULLATTIL HOUSE, NELLIKKAPARAMBIL P.O., MUKKOM KOZHIKODE DIST. BY ADV.SRI.P.VENUGOPAL RESPONDENT(S)/RESPONDENTS ===================== 1 VARGHESE,S/O.OUSEPH,VELLANI HOUSE, ERAVATHOOR KOKKOLISSERI MUKUNTHAPURAM 680 012. MACA.No. 2624 of 2010 (D) -2- 2 THE MANAGING DIRECTOR, MALABAR AGREGATES(P) LTD. OZHUKOOR 676 121. 3 THE NATIONAL INSURANCE COMPANY LTD., PARCO TOWER 4TH FLOOR P.M.TAJ ROAD KOZHIKODE REP.BY ITS MANAGER 673 001. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------M. A. C. A No.2624 of 2010 -----------------------------------------------Dated this the 10[th] day of January, 2012 ## **JUDGMENT** _Pius C. Kuriakose, J_ The legal heirs of a Sales Executive in a Private Company who was also contributing articles and cartoons in periodicals are the appellants. They are aggrieved by the finding of the Tribunal that the Driver of the Tipper lorry which was one of the two vehicles which were involved in the accident which resulted in the death of their predecessor was negligent only to the extent of 50%. They are aggrieved also by the quantum of compensation awarded by the Tribunal on various heads, particularly the head of loss of dependency, loss of consortium, loss of love and affection and pain and sufferings. 2. We have heard submissions of Sri.P.Venugopal, the learned counsel for the appellants and Sri.Lal George, the M. A. C. A No.2624 of 2010 -2- learned Standing Counsel for the 3[rd] respondent who had issued a valid and subsisting insurance policy in respect of the Tipper Lorry. It was submitted by Sri.P.Venugopal that the finding of the learned Tribunal that the Driver of the Tipper Lorry was negligent to the extent of 50% only and that the Driver of the Jeep which was also involved in the accident is responsible for the remaining 50% of the liability is absolutely incorrect. Our attention was drawn by Sri.Venugopal to Ext.A4 First Information Statement on the basis of which crime was registered by the police. He submitted that Ext.A4 was given by an independent ocular witness who very clearly stated that the driver of the Tipper Lorry in respect of which the 3[rd] respondent had issued Insurance Policy alone was responsible for the accident. Sri.Venugopal highlighted before us that in all other M.V. (O.P)s filed in respect of the very same accident the Tribunal found that the Tipper Lorry driver alone was responsible for the accident. Many of the awards were settled by the M. A. C. A No.2624 of 2010 -3- Insurance Company by paying the full amount awarded to the awardees. The present finding is clearly erroneous. Sri.Venugopal submitted that as documents Ext.A6 series will clearly show that the deceased was contributing articles and cartoons to many a periodicals, the claim of ` 1,000/per mensem towards royalty received by the deceased was quite modest and it could have been accepted in the absence of any counter evidence. Sri.Venugopal submitted that compensation awarded on the other heads is also inadequate. 3. Sri.Lal George, Standing Counsel for the Insurance Company would place strong reliance on the judgment of the Supreme Court in Bijoy Kumar Dugar v. Bidyadhar Dutta (AIR 2006 SC 1255) and the judgment of this Court in National Insurance Company Ltd. v. Sivasankar Pillay (1995 (1) KLT 51) and submitted that in the present case which is one of head-on-collision between Tipper Lorry and a Jeep it was obligatory on the part of the appellants to have M. A. C. A No.2624 of 2010 -4- impleaded the Driver and owner of the Lorry so that it could be proved by the appellants that the driver of the Tipper Lorry alone was responsible for the accident as they claim. Sri.Lal George submitted that at best this Court may remit the MV(OP) to the Tribunal so as to enable the appellants to implead the Driver and Owner of the Jeep so that the case is decided with all necessary parties on the array. 4. We have given our anxious consideration to the rival submissions addressed at the Bar. We also keep in mind the ratio of the decision cited at the Bar. The first question which we are called upon to decide is whether the finding of the learned Tribunal that the negligence has to be apportioned between the Driver of the Tipper Lorry and the Driver of the Jeep in the ratio of 50:50 is correct. True, the appellants could have arrayed the Driver of the Jeep also as a party and the issue as to the extent of negligence on the part of the two drivers could have been decided in a more fair manner. But then, we notice that the FIS and all other documents M. A. C. A No.2624 of 2010 -5- pertaining to the Calendar Case charge sheeted by the police indicate that the Driver of the Tipper Lorry alone was responsible for the accident. We also take into account the fact that in many other cases where awards has been passed by another Presiding Officer, the finding was that the Driver of the Tipper Lorry alone was negligent and that the said finding has not been challenged by the 3[rd] respondent herein. Even apart from the question of junction of the necessary parties, we find that the finding that the Driver of the Tipper Lorry is negligent to the extent of 50% was arrived at by the Tribunal in the impugned award merely on guess work. According to us, the guess made by the learned Tribunal is not at all accurate or fair. 5. Having regard to the documentary evidence available in the case, on a better guess based on the documentary evidence available in the case it can be found that the negligence if at all on the side of the Jeep Driver can be only 20%. We, hence, modify the finding regarding M. A. C. A No.2624 of 2010 -6- negligence and find that the Driver of the Tipper Lorry was responsible to the extent of 80% in the matter of negligence leading to the accident in question. 6. We find some force in the submission of Sri.Venugopal that the compensation awarded by the Tribunal on various heads is not adequate. The appellants had a claim that the deceased was earning income by contributing cartoons and articles to many a periodicals. According to us, there is some un-controverted evidence to indicate that the deceased was actually making such contributions. We substitute the multiplicand for the purpose of computation of the dependency compensation by ` 72,000/- instead of ` 64,080/-. This means that under the head of dependency compensation (Serial No.10 in the summary incorporated in the impugned award), the appellants will be eligible for a total amount of ` 12,24,000/-. We also find that towards the head of loss of consortium,the appellants are eligible for award of ` 5,000/- more and we M. A. C. A No.2624 of 2010 -7- award to the appellants ` 5,000/- more. Same way we award to the appellants ` 5,000/- as compensation under the head of pain and sufferings. We award to the appellants under the head of loss of love and affection a further sum of ` 5,000/-. Thus, in total the compensation due to the estate of the deceased will be re-fixed at ` 12,39,000/-. The same is reduced by 20%. Thus, the appellants become eligible for a total compensation of ` 9,91,200/-. This means that over and above what is awarded to them under the impugned award, they will become eligible for ` 4,33,770/-. This amount will carry interest at the rates awarded by the Tribunal. Sd/PIUS C. KURIAKOSE JUDGE Sd/C. K. ABDUL REHIM JUDGE kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A No.2624 of 2010 -8-