Nasiya C & others vs V.K. Muraleedharan & others (MACA No. 1105 of 2012)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943 MACA NO. 1105 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 867/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/S:** 1 NASIYA.C AGED 29 YEARS W/O.MOHAMMED SIRAJUDEEN N.K KOLANGARAPPATT HOUSE P.O OZHUR TANALUR MALAPPURAM DISTRICT 2 HANI SIRAJ (MINOR) AGED 5 YEARS S/O.MOHAMMED SIRAJUDEEN N.K KOLANGARAPPATT HOUSE P.O OZHUR TANALUR MALAPPURAM DISTRICT REPRESENTED BY HER MOTHER AND GUARDIAN NASIYA C 3 KANCHANAMTHODUVIL PATHUMMA AGED 62 YEARS W/O. SAIDALAVI N.K KOLANGARAPPATT HOUSE P.O OZHUR TANALUR MALAPPURAM BY ADVS. SRI.ARUN CHANDY SRI.BINU PAUL SRI.SHAJI THOMAS SRI.T.V.VINU ## **RESPONDENT/S:** 1 V.K.MURALEEDHARAN S/O.KARUNAKARAN NAIR VADAKKUMMURI VEETTIL HOUSE KARUNA MOOKAMBI TEMPLE WEST P.O MACA NO. 1105 OF 2012 2 NORTH PARAVOOR ERNAKULAM DISTRICT 683513 2 ABDUL NAZAR S/O.MOIDU EROTH HOUSE P.O OZHUR TIRUR TALUK MALAPPURAM DISTRICT 676313. 3 P.K.MOHAMMED S/O.P.K.HAMEED PUTHUKUDI HOUSE THURKEY BAZAR P.O KALPETTA WAYANAD DISTRICT 673121 4 T.SAIDALAVI S/O.T.ABDULLAH THAYYIL HOUSE P.O KALPETTA WAYANAD DISTRICT 673121. 5 UNITED INDIA INSURANCE CO. LTD BRANCH OFFICE MUNICIPAL BUILDING MAIN ROAD P.O NORTH PARAVOOR ERNAKULAM DISTRICT 683513 6 UNITED INDIA INSURANCE CO.LTD BRANCH OFFICE KALPETTA P.O WAYANAD DISTRICT 673121 BY ADVS. SRI.ALUNKAL GEORGE SRI.E.C.BINEESH SRI.K.NARAYANAN PARUR SRI.RAJAN P.KALIYATH SMT.M.B.SHYNI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1105 OF 2012 3 ## **JUDGMENT** The appellants were the petitioners in O.P.(M.V.) No.867/2008 on the file of the Motor Accidents Claims Tribunal, Tirur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Mohammed Sirajudheen (deceased), the husband of the 1[st] appellant, the father of the 2[nd] appellant and the son of the 3[rd] appellant. It was their case that, on 18.06.2006, while the deceased was travelling in a car bearing registration No. KL-07-AM-2790 from Kalpetta to Tirur, through Kalpetta – Kozhikode National Highway, the 2[nd] respondent – the driver of the car drove the car in a rash and negligent manner and when the car reached a place named Kunnathidavaka, the car hit against a lorry bearing registration No. KL-12A-7659, driven by the 4[th] respondent. As a result of the accident, the deceased MACA NO. 1105 OF 2012 4 sustained serious injuries. He was taken to the Baby Memorial Hospital, Kozhikode, where he was treated as an inpatient, but, he succumbed to the injuries on 23.06.2006. The car was owned by the 1[st] respondent and insured with the 5[th] respondent. The lorry was owned by the 3[rd] respondent and insured with the 6[th] respondent. The deceased was an Accountant in a petrol pump named M/s Mummy Haji and sons, Tirur and was drawing a monthly salary of Rs.6,150/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.13,50,000/- from the respondents. 3. The respondent Nos. 1 and 2 did not contest the proceedings and were set ex-parte. 4. The respondents 3 and 4 had filed a joint written statement contending that the accident occurred due to the negligence of the 2[nd] respondent – the driver of the car. It is further stated that, if at all respondents 3 and 4 were found liable to pay the compensation amount, as the lorry was MACA NO. 1105 OF 2012 5 insured with the 6[th] respondent, the insurer was liable to indemnify the liability of the 3[rd] respondent. 5. The respondents 5 and 6 had filed a joint written statement contending that the accident occurred due to the negligence of the 2[nd] respondent – the driver of the car. The car was not covered by a valid insurance policy. The 2[nd] and 4[th] respondents are not duly licensed drivers. Since the car does not have a valid insurance policy, the respondent Nos. 5 and 6 may be exonerated. 6. The appellants produced and marked Exts. A1 to A4 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the respondent Nos. 1 and 2, an amount of Rs.4,48,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.6,000/-. MACA NO. 1105 OF 2012 6 8. Aggrieved by the exoneration of respondent Nos. 5 and 6, and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri. Shaji Thomas, the learned counsel appearing for the appellants/petitioners, Sri. K. Narayanan, the learned counsel appearing for the 1[st] respondent, Sri. E.C. Bineesh, the learned counsel appearing for the 3[rd] respondent and Sri. Rajan P. Kalliyath, the learned counsel appearing for respondent Nos. 5 and 6. 10. The questions that arise for consideration in this appeal are:- (i) Whether the exoneration of the respondent Nos. 5 and 6 and the direction to the respondent Nos. 1 and 2 to pay the compensation is correct or not? (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.1** 11. The definite case of the appellants in the claim petition was that on 18.06.2006, due to the rash and negligent MACA NO. 1105 OF 2012 7 driving of the car by the 2[nd] respondent, it hit the lorry driven by the 4[th] respondent. Inorder to substantiate the assertions in the claim petitions, the appellants produced Ext.A2 final report filed by the Vythiri Police in Crime No. 104/2006, which establishes that the accident happened due to the negligence of the 2[nd] respondent. 12. In **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648], a Division Bench of this Court has succinctly held that, production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act, 1988. The charge sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet; only then charge sheet would fall into a pale of insignificance. 13. Again this Court in **Kolavan v. Salim** : [2018(1) KLT 489], has held that once charge sheet is filed, Tribunal will not be justified in finding negligence contrary to the finding in the MACA NO. 1105 OF 2012 8 charge sheet, without there being any direct or corroborate evidence. 14. In the instant case, the specific case of the appellants was that the accident occurred solely due to the negligence of the 2[nd] respondent, which stands corroborated by Ext. A2 charge sheet. The respondents have not let in any evidence to discredit Ext.A2 charge sheet. Therefore, I have no hesitation in my mind, following the ratio in Pazhaniammal and Kolavan (supra), to hold that the accident occurred solely due to the negligence of the 2[nd] respondent. 15. The learned counsel for the 1[st] respondent vehemently argued that, the 1[st] respondent had sold the car well prior to the accident. Therefore, the 1[st] respondent may be exonerated of any liability. 16. It is to be recollected that, the 1[st] respondent has not contested the claim before the Tribunal and he was set exparte. Even though the 1[st] respondent entered appearance in the appeal as early as in the year 2014, no appeal or cross objection has been filed till date challenging the award. Thus, MACA NO. 1105 OF 2012 9 there is no pleading or material on record to prove that the 1[st] respondent had sold the vehicle prior to the accident. On the other hand, going by the materials on record, namely Ext. A1 FIR and A2 final report, it is established and proved that the 1[st] respondent was the owner and the 2[nd] respondent was the driver of the car. The Respondent Nos.1 and 2 have also not proved that the car had a valid insurance policy with the 5[th] respondent. Hence I do not find any error or irregularity in the conclusion arrived by the Tribunal that, it is the respondent Nos. 1 and 2, who are jointly and severally liable to pay the compensation amount to the appellants. 17. Even more curious is the stand of the appellants in the memorandum of appeal, that the 4[th] respondent, the driver of the lorry, was negligent in causing the accident. Therefore, the 6[th] respondent, the insurer of the lorry, is to indemnify the 3[rd] respondent – owner of the lorry, and to pay the compensation amount. 18. The appellants are estopped from now taking a volteface from the pleading in the claim petition. It was their MACA NO. 1105 OF 2012 10 specific case in the claim petition that the accident happened due to the negligence of the 2[nd] respondent. The appellants themselves produced Ext. A2 final report to corroborate the pleading in the claim petition. Hence, the present stand in the appeal, that it was due to the negligence of the 4[th] respondent that the accident occurred, cannot be accepted for a moment. Therefore, I reject the said contention and confirm the finding of the Tribunal that it was the 2[nd] respondent who was negligent in causing the accident. ## **Question No.2** 19. The deceased was aged 27 years at the time of the accident. The appellants had claimed that the deceased was working as an Accountant in a petrol pump and earning a monthly income of Rs. 6,150/-. For the want of material, the Tribunal fixed the notional monthly income of the deceased at Rs. 3,000/-. 20. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 MACA NO. 1105 OF 2012 11 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 21. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I refix the notional monthly income of the appellant at Rs.5,500/-. ## **Multiplier** 22. As the deceased was aged 27 years at the date of accident, following the principles laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '17'. ## **Future Prospects** 23. Going by the law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] and considering the fact that the deceased was aged 27 years at the time of the accident, I hold that the appellants are entitled to future prospects at 40%. MACA NO. 1105 OF 2012 12 ## **Personal living expenses of the deceased** 24. Following the ratio decidendi in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the appellants are three in number, one third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Loss due to Dependency** 25. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.5,500/-, the multiplier at 17, future prospects at 40% and after deducting one third of the compensation towards the personal living expenses of the deceased, I refix the compensation for 'loss due to dependency' at Rs.10,47,200/-, instead of Rs.4,08,000/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 26. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation under the conventional heads namely, funeral expenses, loss of MACA NO. 1105 OF 2012 13 estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 27. In the instant case, the Tribunal has awarded only an amount of Rs.5,000/- each under the heads 'funeral expenses' and 'loss of estate'. Therefore, I enhance the compensation under the above heads by a further amount of Rs.10,000/each. 28. Likewise, the Tribunal has awarded only an amount of Rs.30,000/- towards 'loss of consortium'. Following the principles in **Pranay Sethi** (supra), I enhance the compensation by an amount of Rs.90,000/- i.e., Rs.40,000/each to the appellants towards loss of consortium, totaling to an amount of Rs.1,20,000/-. 29. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants/ petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: MACA NO. 1105 OF 2012 14 **==> picture [450 x 292] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>awarded by the modified<br>No Tribunal(in and<br>rupees) recalculated<br>by this<br>Court (in<br>rupees)<br>1. Funeral expenses 5,000 15,000<br>2. Loss of estate 5,000 15,000<br>3. Loss of consortium 30,000 1,20,000<br>4. Loss of dependency 4,08,000 10,47,200<br>Total 4,48,000 11,97,200<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.7,49,200/- with interest at the rate of 7.5% per annum, from the date of petition, till the date of deposit, after deducting interest for a period of 555 days, i.e., period of delay in filing the appeal and as ordered by this Court on 30.06.2014 in C.M.Appln. No. 1349 of 2012, and proportionate costs. The respondent Nos. 1 and 2 are directed to deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and MACA NO. 1105 OF 2012 15 cost within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately, on the compensation amount being deposited, the same shall be disbursed to the appellants in the ratio of 50:40:10 and in accordance with law. Needless to mention that, if the respondent Nos. 1 and 2 fail to deposit the compensation amount as ordered, the appellants would be at liberty to execute the judgment as against the respondents 1 and 2 personally and their assets. Sd/- **C.S.DIAS, JUDGE** avs