National Insurance Company Limited v. Thankappan K.T., Valsala Thankappan, Roy Thomas, Sabu Kurian

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939 MACA.No. 591 of 2013 () -----------------------OPMV.78/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,PALA** **APPELLANT/3RD RESPONDENT IN MV (OP).78/2010: --------------------------------------------** **THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, KOTTAYAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** **RESPONDENTS/CLAIMANTS 1 & 2 AND RESPONDENTS 1 AND 2: ----------------------------------------------------** **1. THANKAPPAN K.T., S/O.PARAMESWARAN, KUNNEPPARAMBIL HOUSE, THAMBALAKKADU KARA, KANJIRAPPALLY VILLAGE 686 506.** **2. VALSALA THANKAPPAN, W/O.THANKAPPAN, KUNNEPPARAMBIL HOUSE, THAMBALAKKADU KARA, KANJIRAPPALLY VILLAGE 686 506.** **3. ROY THOMAS, THENETHU NIRAPPEL HOUSE, MULAKKULAM P.O., PIRAVOM, ERNAKULAM DISTRICT 686 664.** **MACA.No. 591 of 2013 ()** **------------------------** **4. SABU KURIAN,** **S/O.KURIAN, CHUMAPPUNKAL HOUSE, ELIKULAM, POOVARANY 686 577.** **R1 & R2 BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) R4 BY ADV. SRI.PEEYUS A.KOTTAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-05-2017, ALONG WITH MACA. 1591/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **EL** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.Nos.591 and 1591 of 2013 **-----------------------------------------------** Dated this the 24[th] day of May, 2017 ## **J U D G M E N T** ## Ravikumar, J. The captioned appeals arise from the judgment and award dated 31.1.2013 in O.P.(MV)No.78/10 passed by the Motor Accidents Claims Tribunal, Pala. The former appeal was filed by the 3[rd] respondent in the claim petition, who is the insurer of the vehicle involved in the accident and the latter appeal has been preferred by the claimants. M.A.C.A.No.591 of 2013 was filed by the insurer challenging the quantum of compensation granted by the Tribunal on the ground of its exorbitancy and also contending that the Tribunal went wrong in not finding contributory negligence against the driver of the Maruti van in which the deceased was travelling at the time of the accident and also in adopting the multiplier as '18' for the purpose of computing compensation for loss of dependency. The latter appeal has been preferred by the claimants seeking enhancement of quantum of M.A.C.A.Nos.591 and 1591 of 2013 :-2-: compensation on the ground that they were denied 'just compensation'. In such circumstances, the appeals are jointly heard and they are being disposed of by this common judgment. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance with their status in the claim petition. 2. The motor vehicle accident that led to the filing of the claim petition occurred on 25.10.2009. On that fateful day, the son of the claimants, aged 27 years, was travelling in a Maruti van. When the van reached Udayamperoor, the offending vehicle which is a private bus bearing registration No.KL-34/9018 came from the southern side and dashed against it. Suresh, the son of the claimants, sustained serious injuries and succumbed to them instantaneously. It is in the said circumstances, that the claim petition was filed contending that deceased Suresh was working as a Mechanic and was earning a monthly income of 10,000/-.₹ The claim petition was filed seeking a compensation of 8 lakhs.₹ On the side of the claimants, one Thankappan was examined as PW1 and on the side of respondents, one Prakash K P, the Village officer who prepared Ext.B1 site plan was examined as RW1. The M.A.C.A.Nos.591 and 1591 of 2013 :-3-: claimants got marked Exts.A1 to A8. On evaluation of evidence on record and appreciating the rival contentions, the impugned award was passed for an amount of 4,68,500/- with interest @₹ 7.5% per annum from the date of petition till realisation. Based on its findings that the accident in question occurred due to the negligence of the 1[st] respondent, the 2[nd] respondent was held vicariously liable and since the offending vehicle was then having valid insurance coverage, the 3[rd] respondent is liable to indemnify the 2[nd] respondent. Consequently, the 3[rd] respondent was directed to deposit the amount to satisfy the award. 3. As noticed hereinbefore, the 3[rd] respondent, the appellant in the former appeal, contended that the accident occurred due to composite negligence of the drivers of both the vehicles involved in the accident and that the Tribunal went wrong in not finding contributory negligence on the part of the driver of the Omni van, in which, the deceased was travelling at the time of the accident. The further contention is that the Tribunal went wrong in adopting the multiplier as '18' for the purpose of calculating compensation for 'loss of dependency'. According to the learned counsel for the appellant, the Tribunal M.A.C.A.Nos.591 and 1591 of 2013 :-4-: ought to have adopted the multiplier with reference to the age of the claimants who are the parents of the deceased. The claimants, who preferred the latter appeal, contended that they were deprived of 'just compensation' and the Tribunal had fixed the notional income only at 4,000/- disregarding the fact that the₹ accident occurred in the year 2009 and the deceased, who was then aged 27 years, was working as a Mechanic. The learned counsel for the claimants/appellants in the latter appeal further contended that the Tribunal granted only a meagre amount under the heads 'funeral expenses', 'pain and suffering', 'loss of love and affection' and 'loss of estate'. 4. We will firstly consider the question whether the contention raised on behalf of the 3[rd] respondent-the insurer, that the Tribunal went wrong in adopting the multiplier with reference to the age of the deceased, could be sustained. The question whether in an application for compensation for death filed under Section 166 of the Motor Vehicles Act, the multiplier for the purpose of computing compensation for 'loss of dependency', has to be adopted with reference to the age of the claimants or that of the deceased, is no more res integra in the M.A.C.A.Nos.591 and 1591 of 2013 :-5-: light of the decision of the Honourable Apex Court reported in **Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802]** and the decision in **Munna Lal Jain v. Vipin Kumar Sharma [(2015)6 SCC 347]** . After referring to the decisions of the Honourable Apex Court in Sarla Verma's case and in Munna Lal's case (supra), in **National Insurance Company Limited v. Fathimath Zuhara (2016 (3) KLT 459)** , a Division Bench of this Court, in which, one among us [C.T.Ravikumar (J)] is a Party, held that in a claim for compensation arising out of death filed under Section 166 of the Motor Vehicles Act, the multiplier has to be fixed with reference to the age of the deceased. In the light of the decisions referred supra, the said contention against the adoption of multiplier cannot be sustained. 5. The further contention raised on behalf of the 3[rd] respondent-insurer is that the Tribunal went wrong in not holding that the driver of the Omni van, in which the deceased was travelling, had contributed to the accident and in not apportioning the composite negligence among the drivers of both the vehicles. The said contention is raised on the basis of Ext.B1 site plan and Ext.A2 scene mahazar. We have gone through M.A.C.A.Nos.591 and 1591 of 2013 :-6-: Exts.B1 and A2. Ext.B1 was prepared by RW1 who was the then Village Officer of Manakunnam Village. A scanning of his oral testimony would reveal that he had prepared the site plan based on the instructions given by the police. He had deposed that he had not witnessed the accident. During the cross examination, he would depose as follows: “മഹസറ�ല പറയ�ന ട��ക� സലത� കണ�ല �. പപ�ല�സ എന�ണ ട��ക� എന� പ ഖപ#��ത�യ� �ക�നത എന� മനസ�ല�ക�ന�ല�.” The afore-extracted version of RW1, who prepared Ext.B1 site plan, would reveal that he had not witnessed the accident and he had prepared the same solely based on the instructions furnished by the police and it would also reveal that he could not understand the real meaning of the expression 'tract' used by the police in their report. It itself would reveal the manner in which the said plan was prepared. When that being the nature of evidence tendered by RW1, merely because he has prepared the site plan showing the place of occurrence, we are of the considered view that it is unsafe to place reliance on his oral testimony and Ext.B1 site plan to arrive at a conclusion as to M.A.C.A.Nos.591 and 1591 of 2013 :-7-: whether the driver of the Omni van, in which the deceased Suresh was travelling, had also contributed to the accident. In this context, a Division Bench decision of this Court in **New India** **Assurance Company Limited v. Pazhaniammal and others** **(2011(3) KHC 595)** also assumes relevance. In the said decision, it was held that production of a charge sheet in a claim petition filed under Section 166 of the MV Act is a sufficient prima facie evidence in the matter of negligence. True that when it can be taken as a prima facie evidence, it could be rebutted; but the question is what is the evidence let in by the 3[rd] respondent to rebut the said prima facie evidence. We have already taken note of the fact that the 3[rd] respondent relied only on Exts.A2, A5 and B1 to contend that the Tribunal went wrong in not finding negligence on the part of the driver of the Omni van and in not making him, its owner and insurer as parties to the claim petition. We have also gone through Ext.A2 scene mahazar. There is nothing on record which would reveal that the said mahazar was prepared based on the instructions furnished by an occurrence witness. In such circumstances, we are of the view that no credence could be given to the oral testimony of M.A.C.A.Nos.591 and 1591 of 2013 :-8-: RW1 with Ext.B1 as also to Ext.A2 scene mahazar for the purpose of arriving at a conclusion that the accident in question had occurred due to the composite negligence on the part of the drivers of both the vehicles. Ext.A5 would reveal that in respect of the said motor vehicle accident, a crime was registered and the 1[st] respondent alone was arraigned as the accused. Ext.A6 would reveal that after the trial, the 1[st] respondent was convicted in S.C.No.373 of 2010. In the light of the aforesaid discussion and on perusing the materials on record, we do not find any reason to hold that the Tribunal went wrong in holding that the accident in question had occurred due to the negligence of the 1[st] respondent as well; in other words, we cannot find fault with the Tribunal in not holding that the composite negligence on the part of the drivers of both the vehicles as the cause of accident. In the light of the aforesaid findings, the twin contentions raised by the 3[rd] respondent-insurer, the appellant in the former appeal, have to fail. The contention that the compensation granted is exorbitant is essentially an offshoot of the aforesaid contentions. Therefore, it must also fail. M.A.C.A.Nos.591 and 1591 of 2013 :-9-: 6. Now, what survives for consideration is whether the claimants, who preferred the latter appeal, are entitled to get enhanced compensation. True that in the claim petition, a specific averment was made that the deceased was a Mechanic. To sustain the said contention, Ext.A8 employment certificate was produced. But at the same time, it is the admitted position that it was not legally brought on record, by examining the person who issued the same. In short, it is obvious that the claimants had failed to establish the occupation and income of the deceased. When that be the case, the Tribunal could not be found fault with in fixing the monthly income of the deceased notionally for calculation purpose. But then the question is whether the fixation of the monthly income as 4,000/- for calculation purpose₹ invites any interference. Repelling the claim of 10,000/- as₹ monthly income, the Tribunal fixed the monthly income of the deceased notionally as 4,000/-. While considering the question₹ whether it should be interfered with, we are of the view that a decision of the Honourable Apex Court in **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236]** can guide us on that issue. In M.A.C.A.Nos.591 and 1591 of 2013 :-10-: that case, in respect of a coolie who met with an accident in the year 2004, the Honourable Apex Court fixed the monthly income notionally as 4,500/-. The accident involved in these cases₹ occurred on 25.10.2009. The deceased was then aged 27 years. In such circumstances, we are inclined to fix the monthly income notionally at 5,000/-. We have already found that the Tribunal₹ had correctly adopted the multiplier with reference to the age of the deceased. But at the same time, the Tribunal went wrong in adopting the multiplier. It was adopted against the dictum of the decisions in Sarla Verma's case (supra), in Munna Lal's case (supra) and in **Sayyid Muhammad Haneef Thangal v. State of Kerala (2010(4) KLT 89)** . Going by the schedule given in Sarla Verma's case (supra), for the age group to which the deceased belonged, the multiplier applicable is '17'. The learned counsel appearing for the claimants contended that the Tribunal ought to have given an addition to the income reckoning the future prospects. This was strongly resisted by the learned counsel appearing for the 3[rd] respondent. The learned counsel appearing for the 3[rd] respondent contended that since the claimants had failed to establish that the deceased was a permanent employee, M.A.C.A.Nos.591 and 1591 of 2013 :-11-: the decision of the Honourable Apex Court in Rajesh's case is inapplicable and no addition could be made reckoning future prospects. True that the claimants failed to adduce any evidence to establish the income as also the nature of the occupation of the deceased. He was aged 27 years at the time of the accident. However, it is to be noted that there is nothing on record which would indicate that he was not an able bodied person. In the case of such a person, who lost his life at the age of 27, we are of the view that it can only be believed that he would have had bright prospects in life but for the untimely death. The question is whether in such circumstances an addition should be made to the income fixed. It is also true that the claimants had failed to prove the nature of occupation of the deceased. Evidently, the deceased was maintaining himself and his parents. Hence, even in the absence of cogent evidence in that regard, it can be taken that he was earning to maintain himself and his family by engaging himself in some kind of manual works. We are of the view that the factors, that persuaded the Honourable Apex Court in making an addition to the income of salaried persons and self employed persons while fixing compensation for 'loss of M.A.C.A.Nos.591 and 1591 of 2013 :-12-: dependency' caused to claimant/claimants concerned due to the death of such a salaried person or self employed person, reckoning the future prospects, i.e., price index, cost of living etc., must have reflection in the case of persons eking livelihood by doing manual works as well. It is also to be noted that in the case of such employees, there will not be any age of retirement on superannuation and they can continue to work till they are hale and hearty. Hike in the aforesaid factors would definitely constrain such persons to seek for enhanced wages for their service. In such circumstances, we are of the view that it is only proper to make an addition of 30% of the income fixed, reckoning the future prospects. In the light of the aforesaid discussions, the compensation under the head 'loss of dependency' has to be reassessed. Admittedly, the deceased was a bachelor. In such circumstances, in the light of the decision of the Honourable Apex Court in Sarla Verma's case (supra), 50% has to be deducted towards his personal and living expenses. On such reassessment, an amount of 6,63,000/- (6,500x12x17/2) would₹ become payable. After deducting a sum of 4,32,000/-, which was₹ granted by the Tribunal under that head, the claimants are M.A.C.A.Nos.591 and 1591 of 2013 :-13-: entitled to get an amount of ₹ **2,31,000** /- additionally. The Tribunal granted an amount of ₹5,000/towards 'funeral expenses'. In the light of the decision of the Apex Court in Rajesh's case (supra), in the absence of any evidence of higher expenses, a minimum of 25,000/- has to be granted under that₹ head. After deducting the amount granted by the Tribunal, the claimants are therefore, entitled to get an additional compensation of ₹ **20,000** /- under that head. Towards 'loss of love and affection' as against the claim of 50,000/-, only an amount of₹ ₹10,000/- was granted. The claimants are the parents of the deceased and they are aged 58 years and 49 years respectively. They lost their son at the age of 27 years. In such circumstances, we are of the view that an amount of ₹ **20,000** /- can be granted as additional compensation under that head. Though the learned counsel for the claimants argued that the compensation granted under other heads also require upward modification, we do not find any reason to interfere with the assessment of compensation under any other head. In the light of the discussion as above, the claimants/appellants in the latter appeal are entitled to get an additional compensation of 2,71,000/-. ₹ M.A.C.A.Nos.591 and 1591 of 2013 :-14-: In the result, M.A.C.A.No.591/13 is dismissed and M.A.C.A.No.1591/13 is allowed. The appellants/claimants are granted an additional compensation of ₹ **2,71,000** /-. The said additional compensation will carry interest @ 8% per annum from the date of petition till realisation. The 3[rd] respondent shall deposit the additional compensation along with interest within a period of 2 months from the date of receipt of a copy of this judgment. There will be no order as to costs in both the appeals. All pending interlocutory applications are closed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/25.5.17 //True copy// P.A.to Judge