National Insurance Company Limited v. Hameedkutty and Umaira (minor) and Raheesa (minor) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943** ## **MACA NO. 2531 OF 2008** **AGAINST THE ORDER/JUDGMENT IN OPMV 436/2004 OF I ADDITIONAL DISTRICT** ## **COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM.** ## **APPELLANT/3rd RESPONDENT :** **NATIONAL INSURANCE COMPANY LIMITED, KOLLAM NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING,, M.G.ROAD, KOCHI-35. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/RESPONDENTS :** - **1 HAMEEDKUTTY, S/O.MOHAMMED KUNJU, MEENATHERIL HOUSE, KAMPALADI MURI, PORUVAZHI VILLAGE, KUNNATHOOR TALUK, KOLLAM.** - **2 UMAIRA, W/O.HAMEEDKUTTY, DO. DO. 3 RAHEESA (MINOR) D/O.HAMEEDKUTTY DO. DO., (MINOR 3RD RESPONDENT IS REPRESENTED BY THE, 2ND RESPONDENT). BY ADV SRI.B.RENJITHKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2021, ALONG WITH MACA.665/2009, THE COURT ON THE SAME DAY** **DELIVERED THE FOLLOWING:** MACA NO. 2531 OF 2008 & 665 OF 2009 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943** ## **MACA NO. 665 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 436/2004 OF I ADDITIONAL DISTRICT** **COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM, KOLLAM** ## **APPELLANTS/PETITIONERS:** **1 HAMEEDKUTTY, MEENATHERIL HOUSE, KAMPALADI MURI, PORUVAZHI VILLAGE, KUNNATHOOR TALUK, KOLLAM. 2 UMAIRA W/O.HAMEEDKUTTY MEENATHERIL HOUSE,KAMPALADI MURI, PORUVAZHI VILLAGE, KUNNATHOOR TALUK, KOLLAM. 3 RAHEESA (MINOR) D/O.HAMEEDKUTTY MEENATHERIL HOUSE,KAMPALADI MURI, PORUVAZHI VILLAGE, KUNNATHOOR TALUK, KOLLAM., (MINOR REPRESENTED BY 2ND APPELLANT MOTHER, NEXT FRIEND). BY ADVS. SRI.B.RENJITHKUMAR SRI.PADMALAYAN.P.P.** ## **RESPONDENTS/RESPONDENTS:** - **1 ASHARAF, S/O.YOONUSKUTTY, SAFA HOUSE, ERAVICHIRA, EAST SOORANADU P.O.,, KARUNAGAPPALLY.** - **2 SALIM K.S., S/O.SULAIMAN KUNJU KOTTAKKATTU, THEKKETHIL, PADINJARE PURAYIL, PANAPATTY, PORUVAZHY, KUNNATHOOR TALUK, KOLLAM.** - **3 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD, HOSPITAL ROAD, KOLLAM. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **05.08.2021, ALONG WITH MACA.2531/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 2531 OF 2008 & 665 OF 2009 3 ## **COMMON JUDGMENT** As these appeals arise out of the same award in O.P.(MV) No.436 of 2004 on the file of the Additional Motor Accidents Claims Tribunal, Kollam, and between the same parties, the appeals are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, inter alia, claiming compensation on account of the death of Sri.Rajees (deceased)-son of petitioners 1 and 2 and the brother of the 3[rd] petitioner. It was their case that, on 31.01.2004, while the deceased was riding a motorcycle bearing registration No.KL-16/6887 through Chakkuvalli -Puthiyakavu road, when he reached Thodiyoor Mukku, a bus MACA NO. 2531 OF 2008 & 665 OF 2009 4 bearing registration No. KL-2/K-1494 (bus) driven by the 2[nd] respondent in a rash and negligent manner and while attempting to overtake a mini lorry hit the motorcycle of the deceased. The deceased was thrown on the road and suffered fatal injuries. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The deceased was pursuing his graduation in Arts. The petitioners were the dependents of the deceased and, hence, claimed a total amount of Rs.10,00,000/- as compensation from the respondents. 3. Respondents 1 and 2 did not contest the proceedings and were set ex parte. The 3[rd] respondent filed a written statement stating that the accident occurred on account of the negligence on the part of the deceased. It was contended that the deceased was riding the motorcycle with two pillion riders and at high MACA NO. 2531 OF 2008 & 665 OF 2009 5 speed. The 2[nd] respondent had driven the bus with due care and caution. The 2[nd] respondent tried his level best to avert the accident, but the deceased who was unable to control the motorcycle hit against the bus. The 3[rd] respondent was not liable to pay any amount as compensation. Hence, the claim petition be dismissed. 4. The pillion riders on the motorcycle also filed O.P. (MV) Nos.437/2004 and No.431/2004 before the same Tribunal. The Tribunal consolidated and jointly tried the captioned case along with O.P. (MV) No.437/2004. The petitioners in the two original petitions produced and marked Exts.A1 to A15 in evidence. 5. The Tribunal after analysing the pleadings and materials on record, allowed the captioned claim petition in part, by directing the 3[rd] respondent to pay the petitioners an amount of Rs.3,31,560/- MACA NO. 2531 OF 2008 & 665 OF 2009 6 with interest at the rate of 7.5% per annum from the date of petition till the date of realization. 6. Aggrieved by the impugned award passed by the Tribunal, the insurer has filed M.A.C.A No.2531/2008 and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners have filed M.A.C.A.No.665/2009. 7. Heard Sri.Mathews Jacob, the learned senior counsel appearing for the appellants/insurer in M.A.C.A.No.2531/2008 and Sri.B.Renjith Kumar, the learned counsel appearing for respondents /claimants in M.A.C.A.No.2531/2008, who are the appellants in M.A.C.A.No.665/2009. 8. The questions that arise for consideration in the appeals are : - (i) Whether the Tribunal has erred in not fixing the contributory negligence on the part of the deceased ? - (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and MACA NO. 2531 OF 2008 & 665 OF 2009 7 ## just? ## **Question No.(i)** 9. The 3[rd] respondent-insurer had contended in the written statement that the accident had occurred on account of the fact that the deceased had ridden the bike with two pillion riders because the deceased could not control the motorcycle. Although the said assertion was made, no evidence was let in by the 3[rd] respondent to substantiate the said contention. 10. The Police, after investigation, filed Ext.A5 charge sheet finding that it was the 2[nd] respondent-the driver of the bus, who was negligent in causing the accident. 11. A Division Bench of this Court in **New India** **Assurance Co. Ltd. v. Pazhaniammal and** **Others** [2011 (3) KLT 648], has held that the production of a charge sheet is prima facie sufficient evidence of negligence for the purpose MACA NO. 2531 OF 2008 & 665 OF 2009 8 of a claim under Section 166 of the Motor Vehicles Act. The charge sheet can be accepted as evidence of negligence against the accused driver. If any of the parties do not accept charge sheet, then the burden is on such party to adduce oral evidence and discredit the charge sheet; only then will the charge sheet fall into a pale of insignificance. 12. Admittedly, in the instant case, the 3[rd] respondent has not let in any contra evidence to discredit Ext.A5 charge sheet. Therefore, the contention that it was the deceased who was negligent in causing the accident is unsustainable in law. 13. Further more, in a recent decision in **Mohammed Siddique & another v. National Insurance Co.Ltd. and Others** AIR 2020 SC 520, the Honourable Supreme Court has held that it is inconsequential and irrelevant even if the MACA NO. 2531 OF 2008 & 665 OF 2009 9 rider of the motorcycle had two pillion riders on the motorcycle. The burden is on the respondents to prove that the accident was caused as a result of the rider riding the motorcycle with two pillion riders. 14. In the case on hand, other than for the mere assertion in the written statement, the 3[rd] respondent has not let in any evidence to prove that the accident was caused as the deceased rode the motorcycle with two pillion riders. Hence, I answer question No.(i) against the 3[rd] respondent and hold that it was the 2[nd] respondent, the driver of the bus, who was negligent and causing the accident. ## **Question No.(ii)** 15. The petitioners had claimed that the deceased was aged 23 years on the date of accident/date of his death. He was a final year B.A English Literature student in the M.S.M MACA NO. 2531 OF 2008 & 665 OF 2009 10 College, Kayamkulam. The petitioners had fixed his notional income at Rs.3,000/-. 16. The Tribunal, after taking into account the various factors, fixed the notional income of the deceased at Rs.2,500/-. 17. In **Ramachandrappa vs. Manager, Royal** **Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the 'notional income of a coolie worker' in the year 2004 at 'Rs.4,500/-' per month. ## **Notional income** 18. Following the ratio in the afore-cited decision and taking note of the fact that the accident occurred in the year 2004, I re-fix the notional monthly income of the deceased at 'Rs.3,000/-' per month, as claimed in the claim petition. ## **Multiplier** 19. Admittedly the deceased was aged 23 years on the date of his death. The Tribunal has fixed MACA NO. 2531 OF 2008 & 665 OF 2009 11 the multiplier at '15'. 20. In light of the law laid down by the Honourable Supreme Court in **Sarla Varma and** **others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 SC], the relevant multiplier is '18'. ## **Personal living expenses of the deceased** 21. Undisputedly the deceased was a bachelor. The Tribunal has deducted only 1/3[rd] of the compensation for loss of dependency towards the personal living expenses of the deceased. 22. In **Sarla Varma (supra)** and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], the Honourable Supreme Court has held that, if the deceased is a bachelor 'one half' of the compensation under the head 'loss of dependency' has to be deducted. Therefore, I deduct one half of the compensation under the said head towards the personal living MACA NO. 2531 OF 2008 & 665 OF 2009 12 ## expenses of the deceased. ## **Future Prospects** 23. In **Sarala Varma and Pranay Sethi** (supra) the Honourable Supreme Court has held that the dependents of the deceased are also entitled for future prospects. As the deceased was aged 23 years, and the multiplier is '18', the petitioners are entitled for an addition of '40%' of the compensation under the head of 'loss of dependency' towards 'future prospects'. ## **Loss due to dependency** 24. Taking into account the above factors, namely, the income of the deceased at 'Rs.3,000/-' per month, the multiplier at '18', future prospects at 40%, and deducting 'one half' of the total compensation towards the personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' at 'Rs.4,53,600/-' instead of Rs.3,00,060/- fixed by MACA NO. 2531 OF 2008 & 665 OF 2009 13 the Tribunal. ## **Conventional Heads of Compensation** 25. In clause (viii) of paragraph 61 of **Pranay Sethi** (Supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely 'funeral expenses', 'loss of estate' and 'loss of consortium' @ 'Rs.15,000/-', 'Rs.15,000/-' and 'Rs.40,000/-', respectively. 26. In the said circumstances, I enhance the compensation under the head 'funeral expenses' by a further amount of 'Rs.10,000/-' and award an amount of 'Rs.15,000/-'under the head 'loss of estate'. 27. The Tribunal has not awarded any amount under the head 'loss of consortium'. Taking into account that the petitioners 1 and 2 were the parents of the deceased, I hold that they are entitled to 'Rs.80,000/-' as 'filial consortium'. MACA NO. 2531 OF 2008 & 665 OF 2009 14 ## **Compensation for loss of love and affection** 28. The Honourable Supreme Court in **New** ## **India Assurance Co.Ltd. v. Somwati & Others** (2020) 9 SCC 644 has held that once compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. In the said circumstances, I set aside an amount of Rs.25,000/- awarded by the Tribunal under the head 'loss of love and affection', 29. With respect to the other heads of compensation namely, 'transportation expenses' and 'damage to clothing', I find that the Tribunal has awarded reasonable and just compensation. 30. On a comprehensive re-appreciation of the pleadings and materials on record, and the law laid down in the above referred decisions, I am of the definite opinion that the petitioners are MACA NO. 2531 OF 2008 & 665 OF 2009 15 entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [372 x 329] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount Amounts<br>No awarded modified<br>by the and<br>Tribunal recalcula<br>(in ted by<br>rupees) this<br>Court<br>1 Transportation 1,000 1,000<br>expenses<br>2 Damage to clothing 500 500<br>3 Funeral expenses 5,000 15,000<br>–<br>5 Love and affection 25,000<br>6 Loss of estate - 15,000<br>-<br>7 Loss of consortium 80,000<br>8 Compensation for loss 3,00,060 4,53,600<br>of dependency<br>Total 3,31,560 5,65,100<br>**----- End of picture text -----**<br> In the result, M.A.C.A.No.2531/2008 is dismissed and M.A.C.A.No.665/2009 is allowed by enhancing the compensation by a further amount of Rs.2,33,540/- with interest @ 7.5% per annum from the date of petition till the date of deposit and proportionate costs. The 3[rd] respondent in MACA NO. 2531 OF 2008 & 665 OF 2009 16 MACA No.665/2009/the 3[rd] respondent before the Tribunal/Insurer is ordered to deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of 60 days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the petitioners in the proportion of 40:40:20 percent, respectively and in accordance with law. Sd/- **C.S.DIAS, JUDGE** AMV/09/08//2021