Narayanan and Thanka v. The Superintending Engineer, Trivandrum Central Circle, CPWD; Vinayakumar K.J.; Government of India represented by the Executive Engineer, Trichur Central Division, CPWD; Vijitha W/o Late Sabu

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022/19TH SRAVANA, 1944 ``` ## **`MACA NO. 1914 OF 2011`** ## **`AGAINST THE AWARD IN OPMV 533/2002 OF THE MOTOR ACCIDENT CLAIMS`** ## **`TRIBUNAL,THRISSUR`** ## **`APPELLANTS/PETITIONERS 1 AND 2:`** - **`1 NARAYANAN FATHER OF LATE SABU, PUNCHADATH HOUSE, MULAYAM, THRISSUR.`** - **`2 THANKA MOTHER OF LATE SABU, PUNCHADATH HOUSE, MULAYAM, THRISSUR. BY ADV SRI.P.V.CHANDRA MOHAN`** ## **`RESPONDENTS/RESPONDENTS AND 3RD PETITIONER:`** - **`1 THE SUPERINTENDING ENGINEER TRIVANDRUM CENTRAL CIRCLE, CPWD CGO COMPLEX, POONKULAM VELLAYINI P.O., TRIVANDRUM-695 001.`** - **`2 VINAYAKUMAR K.J. S/O.JAYARAJAN, KOMATHUKKATTIL HOUSE, NANDIKKARA JUNCTION, PARAPPUKARA, PIN-680001.`** - **`3 GOVT. OF INDIA REPRESENTED BY THE EXECUTIVE ENGINEER, TRICHUR CENTRAL DIVISION, CPWD, THRISSUR.`** - **`4 VIJITHA WIFE OF LATE SABU, PUNCHADATH HOUSE, P.O.MULAYAM, THRISSUR-680001. BY ADV SRI. JESWIN P.VARGHESE R1-SR.GP-SRI.DENNY DEVASSY, R3-ASG-SRI.S.MANU`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1914 OF 2011 ``` ``` 2 ``` ## **JUDGMENT** Petitioners 1 and 2 in O.P.(MV).No.533/2002 on the files of Motor Accidents Claims Tribunal, Thrissur, who are the parents of deceased Sabu, have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’), challenging award dated 25.11.2008 in the above case, arraying respondent Nos.1 to 3 as well as the third petitioner before the Tribunal as respondents herein. 2. Service complete. 3. The learned Government Pleader appears for the first respondent. No other respondents appeared or argued the matter. 4. Heard the learned counsel for the appellants as well as the learned Government Pleader appearing for ``` MACA NO. 1914 OF 2011 ``` ``` 3 ``` the first respondent. 5. The short facts of the case are as follows: The appellants approached the Tribunal and lodged claim petition under Section 166 of the MV Act on the allegation that one ‘Sabu’, who is the son of the appellants, died in consequence of a motor accident occurred on 01.02.2002 at about 7.30 p.m., while the above said ‘Sabu’ was travelling on a motor cycle through the public road at Nellikunnu. According to the appellants, the said motor cycle was hit down by a car bearing registration No.KL 01/L 2957, driven by the second respondent in a rash and negligent manner. Compensation to the tune of Rs.4,00,000/- was claimed from respondents 1 to 3. 6. Respondents 1 and 3 filed written statement disputing negligence attributed against the second respondent and it was contended that the accident was ``` MACA NO. 1914 OF 2011 ``` ``` 4 ``` the outcome of contribution of negligence on the part of Sabu, who died in this accident. Apart from that, age, occupation, income as well as compensation claimed under various heads were opposed, being excessive. The Tribunal tried three cases together, viz., O.P. (MV).Nos. 533/2002, 541/2002 and 1486/2002. 7. Exts.A1 to A13 marked on the side of the appellants and no evidence adduced on the side of the respondents. 8. The Tribunal, after finding contributory negligence on the part of the deceased also, granted Rs.1,61,750/- after assessing the total compensation entitled as Rs.3,23,500/-. 9. The learned counsel for the appellants would urge that the Tribunal went wrong in fastening 50% negligence on the part of the deceased without support of any evidence. According to him, on investigation, the ``` MACA NO. 1914 OF 2011 ``` ``` 5 ``` Police laid charge against the second respondent, the driver of the car bearing registration No. KL-1/L2957. Ext.A4 is the copy of charge in this matter and whereby the Police attributed negligence against second respondent. 10. In paragraph No.8 of the award, the Tribunal discussed question of negligence and it was observed that as per Ext.A1, copy of FIR in crime No.49/2002 of Ollur Police Station, it was stated that the driver of KL 8 L 1037 car drove the same through public road rashly and negligently and when the same reached near Nellikunnu, the same hit against the motorcycle ridden by one Sabu. According to the Tribunal, on reading of Exts.A1 and A4 together, the accident was due to rash and negligent driving of the car by the second respondent. But the Tribunal given attention to the contention raised by the respondent, giving emphasis to ``` MACA NO. 1914 OF 2011 ``` ``` 6 ``` the scene mahazar to find 50% contributory negligence. The Tribunal found that the motorcycle was on the wrong side as narrated in the scene mahazar while finding contributory negligence. I do not think that the recitals in the scene mahazar forming part of the police charge alone can be relied on to find contributory negligence. In fact, nothing in this case to see that Sabu also contributed the accident and therefore, disbelieving the police charge, the finding of the Tribunal fastening negligence on the part of Sabu merely by giving emphasis to the scene mahazar cannot be appreciated. Therefore, the said finding is set aside. Ultimately, it is held that the accident is the contribution of negligence on the part of the second respondent. 11. Coming to the quantum, it is argued by the learned counsel for the appellants that the Tribunal fixed Rs.2,000/- as monthly income of the deceased, where ``` MACA NO. 1914 OF 2011 ``` ``` 7 ``` the appellants claimed Rs.4,000/- per month on the assertion that the deceased was a gold smith earning the said income. 12. He also submitted that the income may be fixed based on the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236].** This submission appears to be convincing. Therefore, Rs.3,500/- is fixed as monthly income for calculating compensation entitled by the appellants as well as the fourth respondent. In this case, the deceased was aged 32 years as per Ext.A13 postmortem certificate and therefore, he is entitled to get 40% additional following the ratio in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662).** The multiplier is ‘16’ though the Tribunal applied ‘17’, a wrong multiplier. . Since the family members are 2 to 3, deduction is 1/3[rd] ``` MACA NO. 1914 OF 2011 ``` ``` 8 ``` Therefore, ‘the loss of dependency income’ is as follows: 4,900 x 12 x 16 x 2/3 = **6,27,200/-.** 13. That apart, the appellants and the fourth respondent herein are entitled to get Rs.40,000/- each, towards ‘loss of consortium’, following the ratio in **Pranay Sethi’s** case (Supra). Therefore, the ‘loss of consortium’ would come to **Rs.1,20,000/-** . Apart from that, **Rs.15,000/-** towards ‘loss of estate’ and **Rs.15,000/-** towards ‘funeral expenses’ also is liable to be granted. 14. Thus, the total compensation entitled by the appellants and the fourth respondent herein in this case comes to **Rs.7,77,200/-** . (6,27,200 + 1,20,000 + 15,000 + 15,000). In the result, this appeal stands allowed and it is ordered that the the appellants and the fourth respondent herein are entitled to get total compensation ``` MACA NO. 1914 OF 2011 ``` ``` 9 ``` to the tune of **Rs.7,77,200/-** (Rupees seven lakh seventy seven thousand and two hundred only) with interest at the rate of Rs.7% per annum granted by the Tribunal from the date of petition till the date of deposit or realisation, excluding the period of 963 days wherein, grant of interest was specifically excluded as per order in C.M. Application No.2864/2011 dated 16.08.2019. Since the contributory negligence found by the Tribunal stands set aside, respondents 1 to 3 are jointly and severally liable to pay the amount and and the third respondent is directed to deposit the amount in the name of the Motor Accidents Claims Tribunal, Thrissur. In this matter, the appellants valued claim at Rs.4,00,000/-. Therefore, the appellants and the fourth respondents herein are bound to pay court fee to the enhanced sum to the tune of Rs.3,77,000/-, which comes to Rs.3770/-. Therefore, the insurer is directed to deposit ``` MACA NO. 1914 OF 2011 ``` ``` 10 ``` Rs.3,770/- in the name of the Motor Accidents Claims Tribunal, Thrissur by a separate cheque being additional court fee. The third respondent Insurance Company shall deposit the remaining amount in the names of the appellants and the fourth respondent herein, after adjusting amount, if any, deposited, in equal proportion, and on deposit, the appellants and the fourth respondent herein are at liberty to withdraw the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr