New India Assurance Co. Ltd. v. Joy Rajan M. S/o Marydasan and The Managing Director, KSRTC, and others

**MACA.No.1022 OF 2014 & CO 49/2015** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **MACA.No.1022 OF 2014(C)** **AGAINST THE AWARD IN OP(MV)NO. 14/2012 DATED 27-11-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD. REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER** **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENTS/RESPONDENTS 1 AND 2 & PETITIONERS:** - **1 JOY RAJAN M. S/O MARYDASAN, PATTIYAKKAA NADUTHATTU PUTHEN VEEDU, VANPAKAL, NEYYATTINKARA, THIRUVANANTHAPURAM DISTIRCT 695121** - **2 THE MANAGING DIRECTOR K.S.R.T.C, FORT, THIRUVANANTHAPURAM, KERALA 695023** - **3 JEMSHEENA W/O ASRAF, RESIDING AT CHOYICHANANKAM, PARAMB, KONNAD BEACH, POST, WEST HILL, KIZHIKODE 673005** - **4 FATHIMA FIDHA MINOR AGED 7 YEARS D/O ASHARAF, RESIDING AT CHOYICHANANKAM, PARAMB, KONNAD BEACH, POST, WEST HILL, KIZHIKODE 673005** - **5 AYISHA MINHA, MINOR AGED 2 YEARS RESIDING AT CHOYICHANANKAM, PARAMB, KONNAD BEACH, POST, WEST HILL, KIZHIKODE 673005** ## **6 ABOOBACKER** **MACA.No.1022 OF 2014 & CO 49/2015** 2 **S/O ALI (F/O ASHRAF), RESIDING AT CHOYICHANANKAM, PARAMB, KONNAD BEACH, POST, WEST HILL, KIZHIKODE 673005** **7 AYISHUMMA W/O ABOOBACKER (M/O ASHRAF), (MIOR REPRESENTED BY NEXT MOTHER RESIDING AT CHOYICHANANKAM, PARAMB, KONNAD BEACH, POST, WEST HILL, KIZHIKODE 673005** **BY ADVS. SRI.P.CHANDRASEKHAR SMT.P.M.MAZNA MANSOOR R2 BY ADV. SRI.P.C.CHACKO(PARATHANAM)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2021, ALONG WITH CO.49/2015, THE COURT ON 23-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.1022 OF 2014 & CO 49/2015** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** **CO.No.49 OF 2015 IN MACA. 1022/2014** **IN MACA 1022/2014(C) OF HIGH COURT OF KERALA** ## **CROSS OBJECTORS/RESPONDENTS 3 TO 7 /CLAIMANTS IN THE OP(MV):** - **1 JEMSHEENA W/O.ASRAF,CHOYICHANANAKAM PARAMB, KONNAD BEACH,POST WEST HILL,KOZHIKODE** - **2 FATHIMA FIAHA(MINOR)AGED 7 YEARS, D/O. ASRAF, CHOYICHANANAM ,PARAMB, KONNAD BEACH POST WEST HILL, KOZHIKODE** - **3 AYISHA MANAF (MINOR) AGED 2 YEARS D/O.ASHRAF CHOYICHANANKAM PARAMB, KONNAD BEACH, POST WEST WILL,KOZHIKODE** - **4 ABOOBACKER S/O.ALI,FATHER OF ASHRAF, CHOYICHANANKAM PARAMB,,KONNAD BEACH, POST WEST HILL,KOZHIKODE** **5 AYISUMMA W/O.ABOOBACKER,CHOYICHANANKAM PARAMB,,KONNAD BEACH,POST WEST HILL,KOZHIKODE** **(MINORS REPRESENTED BY NEXT FRIEND AND MOTHER JAMSHEENA)** **BY ADVS. SRI.P.CHANDRASEKHAR SMT.P.M.MAZNA MANSOOR** ## **RESPONDENTS/APPELLANT/RESPONDENTS 1 & 2/RESPONDENTS IN OP(MV):** - **1 THE NEW INDIA ASSURANCE CO.LTD.** **MACA.No.1022 OF 2014 & CO 49/2015** 4 **REGIONAL OFFICE,KANDAMKULATHY TOWERS, M G ROAD,ERNAKULAM, REPRESENTED BY ITS AUTHORISED OFFICER PIN 682016** **2 JOY RAJAN M S/O.MARYDASAN, PATTIYAKKALA NADUTHATTU PUTHENVEEDU, VANPAKAL,NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT PIN 696 121** **3 THE MANAGING DIRECTORK.S.R.T.C FORTTHIRUVANANTHAPURAMKERALA PIN 679 023** **R1 BY ADV. SRI.VPK.PANICKER R3 BY ADV. SRI.P.C.CHACKO(PARATHANAM)** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2021, ALONG WITH MACA.1022/2014(C), THE COURT ON 23-032021 DELIVERED THE FOLLOWING:** 5 ## **MACA.No.1022 OF 2014 & CO 49/2015** ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1022 of 2014 and CO No.49 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd ] day of March, 2021 ## **JUDGMENT** The appellant - insurance company – was the 3[rd] respondent in OP(MV)No. 14/2012 on the file of the Motor Accidents Claims Tribunal, Tirur. The respondents 1 and 2 in the appeal were the respondents and the respondents 3 to 7 in the appeal were the petitioners in the claim petition. The petitioners in the claim petition have filed CO No.49/2015 against the respondents. The appeal and cross objection were being jointly heard and are being disposed of by this common judgment. The parties, for the sake of convenience wherever the context requires, are referred to as per their status in the claim petition. ## **MACA.No.1022 OF 2014 & CO 49/2015** 6 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, inter alia, stating that : on 10.10.2011 while Sri.Ashraf (deceased) the husband of the 1[st] petitioner, father of the petitioners 2 and 3 and the son of the petitioners 4 and 5 was driving a tanker Lorry bearing registration No.KL 55 E 5719, when it reached at EdappalKuttipuram road in Malappuram District , a KSRTC Bus bearing registration No. KL 15/7152 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner and at high speed hit the tanker lorry. The deceased succumbed to the injuries on the spot. The accident occurred only due to the negligence on the part of the 1[st] respondent. The offending vehicle was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. The deceased was drawing a salary of Rs.25,000/- per month. The petitioners were dependants on the deceased. Accordingly, the ## **MACA.No.1022 OF 2014 & CO 49/2015** 7 respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioners, which they quantified at Rs.35,00,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set ex party. 4. The 3[rd] respondent filed a written statement admitting the insurance policy of the offending vehicle. The 3[rd] respondent, however, contended that the accident occurred due to the negligence on the part of the deceased. The amount of compensation claimed under the different heads was excessive and exorbitant. 5. The petitioners examined the cleaner in the Lorry and employer of the deceased as PWs 1 and 2 and marked Exts.A1 to A12 in evidence. 6. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleading and materials on record, by the impugned award allowed ## **MACA.No.1022 OF 2014 & CO 49/2015** 8 the claim petition in part, by permitting the petitioners to realise an amount of Rs.16,66,000/- with interest at the rate 9% per annum from the date of petition till the date of realisation along with a cost of Rs.2,000/- The 3[rd] respondent was directed to pay the compensation amount. 8. Aggrieved by the impugned award, the 3[rd] respondent - insurance company has filed MACA No. 1022 of 2014 and dissatisfied with the quantum of compensation the petitioners have filed CO No.49/2015. 9. Heard Sri.VPK Panicker, the learned counsel appearing for the appellants/insurance company - 3[rd] respondent and Sri. Mohamed Ravuf, the learned counsel appearing for the respondents 3 to 7/ petitioners 1 to 4. 10. The learned counsel appearing for the appellant argued that going by Ext.A4 scene mahazar, ## **MACA.No.1022 OF 2014 & CO 49/2015** 9 it is seen that the tanker lorry was on the wrong side of the road. There was a head on collusion between the two vehicles. The Hon'ble Supreme Court in **Bijoy Kumar Dugar v. Bidyadhar Dutta and Others** [AIR 2006 SC 1255, has held that when there is a head on collusion between two vehicles, the contributory negligence has to be fixed at 50% on both the vehicles. He also contended that PW1 in his oral testimony vouched his statement in Ext.A4 scene mahazar, that the lorry was seen at the spot of occurrence, which was on the wrong side of the road. In such circumstances, the fixing of the entire liability on the offending vehicle is erroneous and liable to be set aside. He also argued that the Tribunal has erroneously fixed the notional income of the deceased, who was only a driver by profession. There was no substantial proof regarding his income. Therefore, the amount of Rs.10,000/- fixed by the Tribunal is on the higher side. Hence, the appeal ## **MACA.No.1022 OF 2014 & CO 49/2015** 10 be allowed as prayed for. 11. Sri.Mohamed Ravuf, the learned counsel appearing for the respondents 3 to 7, on the contrary, argued that the police after investigation have filed Ext.P2 final report which clearly establishes that the accident occurred due to the negligence on the part of the 1[st] respondent, who stood charged for the offences under Sections 279, 337, 338 and 304A of the Indian Penal Code. The learned counsel relied on the decision of the Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011(3) KLT 648], to fortify his contention that the charge sheet _prima facie_ proves the negligence on the part of the indictee. Therefore, the appellant who has not let in any evidence to rebut the findings of the investigating officer, cannot be permitted to take up such a contention. Similarly, he contended that the notional income fixed by the Tribunal is considerably ## **MACA.No.1022 OF 2014 & CO 49/2015** 11 low, especially in view of the fact that the petitioners had produced Ext.A1 salary certificate and also examined PW2 - employer of the deceased, who has corroborated Ext.A1. It is in unequivocal terms mentioned in Ext.A1 that the deceased was drawing a monthly salary of Rs.25,000/-. Hence, the fixation of the notional income of the deceased was wrong and the Tribunal ought to have fixed the income of the deceased at Rs.25,000/- as reflected in Ext.A1. He also argued that the Tribunal has not awarded compensation under the conventional heads as laid down in the decision in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. Hence, he prayed that the appeal be dismissed and cross objection be allowed. 12. The questions that emanates in the appeal are (1) whether the deceased can be held to be guilty for the contributory negligence? (2) Whether the ## **MACA.No.1022 OF 2014 & CO 49/2015** 12 notional income fixed by the Tribunal is justifiable or not? 13. The Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011(3) KLT 648] and **Kolavan v. Salim** [2018(1) KLT 489], have succinctly laid down the law that _prima facie_ , a charge sheet filed by the police after investigation _,_ can be accepted as evidence of negligence against the indictee. If any party do not accept the charge sheet, the onus of proof is on such party to adduce oral evidence. If the oral evidence is adduced by any party in a case where the charge sheet is filed, the Tribunal should give further opportunity to others also to adduce oral evidence and in such case, the charge sheet will fall into a pale of insignificance and the dispute will have to be decided on its merit. In all other cases, such charge-sheet can be reckoned as sufficient evidence of negligence in a claim under ## **MACA.No.1022 OF 2014 & CO 49/2015** 13 Section 166 of the M V Act. 14. In the case on hand, the petitioners produced Ext.A12 final report filed by the police after investigation. It has been found by the police in Ext.A12 that it was the 1[st] respondent who was negligent and caused the accident. The 1[st] respondent was charged for the offences under Sections 273, 337, 338 and 304A of the IPC. 15. The learned counsel for the respondents 3 to 7 contended that PW1 – cleaner of the tanker lorry had corroborated Ext.A4 by showing the spot of accident, i.e., the tanker lorry was on the wrong side of the road. However, PW1 has also in Ext.A4 stated that the offending vehicle came from the wrong side and hit the lorry, which is the cause for the accident. 16. Undisputedly, the respondents have not let in any contra evidence to disprove or discredit Ext.A12 charge-sheet as laid down in **Pazhaniammal** (supra) ## **MACA.No.1022 OF 2014 & CO 49/2015** 14 and **Kolavan** (supra). On the other hand, the petitioners examined PW1, who has categorically deposed that it was the offending vehicle which came from the wrong side and hit the lorry which was the root cause for the accident. In **Kolavan** (supra) it is held that the charge-sheet cannot be read in isolation so as to disprove the findings of the police in the final report. On a re-appreciation of the facts and the law, I answer question No.1 against the 3[rd] respondent and hold that it was due to the negligence of the 1[st] respondent that the accident occurred. 17. Now coming to the next question, regarding the quantum of compensation payable to the petitioners. 18. The petitioners had produced Ext.A1 salary certificate issued by PW2 in order to substantiate their claim that the deceased was drawing a monthly salary of Rs.25,000/-. ## **MACA.No.1022 OF 2014 & CO 49/2015** 15 19. On a scrutiny of Ext.A1, it is seen that the deceased's last drawn monthly salary/wages and batta was Rs.25,000/-. The certificate was issued on 16.12.2011. The deceased was said to be employed with PW2 for the period from 01.12.2009 to 10.10.2011. 20. In the cross examination of PW2, he had specifically deposed that the deceased was drawing a monthly salary of Rs.9,000/- and Rs.16,000/as daily wages. The Tribunal, after appreciating the oral testimony of PW2 and Ext.A1, fixed the notional income of the deceased at Rs.10,000/- per month. 21. The learned counsel appearing for the respondents 3 to 7 placed reliance on the paragraph 46 of **Pranay Sethi** (supra) and contended that income means actual income less than tax paid. He also relied on paragraph 19 of the decision in **National Insurance Company v. Birendarkumar and Others** [2020 KHC 6026) and contended that the salary that ## **MACA.No.1022 OF 2014 & CO 49/2015** 16 has to be taken note is the gross salary of the deceased less the income tax i.e., to be paid as laid down in paragraph 59(3) of **Pranay Sethi** (supra). ## **Notional income** 22. On a careful reading of Ext.A1 salary certificate and the oral testimony of PW2, it can be gathered that the deceased was having a salary/wage and batta of Rs.25,000/- per month. So the fact remains that the deceased's monthly salary was Rs.9,000/- and Rs.16,000/- was paid as batta. The deceased was a tanker lorry driver. It is not possible for a tanker lorry driver to have trips all throughout the year, as they drive long distances. Such drivers, normally, have work only for 15 to 20 days in a month. It is only on those days the drivers work, they are paid batta. In the said factual scenario, I hold that the deceased was having work only for the period of 15 to 20 days in a month and only for those days he earned batta. Hence, I fix ## **MACA.No.1022 OF 2014 & CO 49/2015** 17 the batta of the deceased at Rs.8,000/- per month. In the light of the above assessment, I fix the notional income of the deceased at Rs.17,000/- per month. Going by the law laid down in **Pranay Sethi** (supra) 10% of the amount has to be deducted towards statutory tax. After deducting an amount Rs.1,700/towards statutory tax, I fix the notional monthly income of the deceased at Rs.15,300/- especially considering the fact that the accident had occurred on 10.10.2011. ## **Conventional heads** 23. With respect to conventional heads of claim, the learned counsel appearing for the respondents 3 to 7 /petitioners argued that going by the law laid down in **Pranay Sethi** (supra) in clause 8 of paragraph 61, the Hon'ble Supreme Court has held that the compensation payable under the conventional heads namely, 'loss of estate', 'loss of consortium' and 'funeral expenses' is Rs.15,000/-, Rs.40,000/ and Rs.15,000/-, respectively. ## **MACA.No.1022 OF 2014 & CO 49/2015** 18 However, the said amounts have to be enhanced by 10% every three years. He contended that as the appeal is the continuation of the suit and as **Pranay Sethi** (supra) was rendered on 31.10.2017 and that three years have elapsed, the petitioners are entitled for enhancement at the rate of 10% on the abovesaid conventional heads. 24. Per contra, the learned counsel appearing for the appellant/ 3[rd] respondent argued that the relevant date is the date of accident. The enhancement granted in **Pranay Sethi** (supra) under the conventional heads at 10% would be applicable only to those accidents that occurred after the three years period from 30.10.2017 that is from 30.10.2020, otherwise, there will be an anomaly because the benefit will not be granted to those persons who do not come in appeal or those cases which are decided prior to the above date. I find sufficient force in the argument of the learned counsel **MACA.No.1022 OF 2014 & CO 49/2015** 19 for the appellant/ 3[rd] respondent that the relevant date for enhancement of compensation by 10% as laid down in clause 8 of paragraph 61 of **Pranay Sethi** (supra) is the date of accident. It is only those victims who meet with accidents after 31.10.2020 would be entitled to the benefit of the enhancement clause. Therefore, I hold that the respondents 3 to 7/ petitioners are only entitled for compensation under the conventional heads at Rs.15,000/-, 40,000/- and 15,000/respectively. 25. In the light of the aforesaid findings, I hold that the respondents 3 to 7/ petitioners are entitled for compensation under the head 'loss of estate' at Rs.15,000/-, for which no amount was awarded by the Tribunal and Rs.15,000/- under the head 'funeral expenses' instead of Rs.25,000/-. Therefore, I scale down the compensation under the said head by an amount of Rs.10,000/-. Similarly, the Tribunal had ## **MACA.No.1022 OF 2014 & CO 49/2015** 20 awarded an amount of Rs.1,00,000/- for loss 'loss of consortium'. In the light of the above discussion, I hold that the 1[st] petitioner is entitled to Rs.40,000/- as spousal consortium and the petitioners 2 and 3 are entitled to Rs.80,000/- as parental consortium and the petitioners 4 and 5 are entitled to Rs.80,000/- as filial consortium, that is a total amount of Rs.2,00,000/under the head 'loss of consortium'. ## **Other heads of claim** 26. With respect to the other heads of claim namely transport, clothing and pain and sufferings, I find that the tribunal has awarded just and reasonable compensation. 27. In view of the re-fixation of the notional income of the petitioner and taking note of the fact that the deceased was aged 34 years, the relevant multiplier being '16' in view of the law laid down in **Sarala Varma and others v. Delhi Transport** ## **MACA.No.1022 OF 2014 & CO 49/2015** 21 **Corporation and others [(2010) 2 KLT 802]** and a line of subsequent decisions, I hold that the petitioners are also entitled for future prospects at the rate of 40%. Therefore, following the above parameters, I refix the compensation for 'loss of dependency with future prospects' at Rs.30,84,480/-. 28. It is brought to my notice by the learned counsel for the appellant/ 3[rd] respondent that the Tribunal after allowing the claim petition and awarding compensation to the petitioners, in paragraph 12 of the impugned award, has directed the appellant to pay Rs.34,375/- towards court fee. I find that the said direction is erroneous because it is the statutory duty of the petitioners to pay the said amount. Therefore, I set aside the said direction directing the appellant/3[rd] respondent to pay the said amount as court fee. 29. On an overall re-appreciation of the pleadings and materials on record and the law laid down by the ## **MACA.No.1022 OF 2014 & CO 49/2015** 22 Hon'ble Supreme Court in the afore-cited decisions, I am of the firm opinion that the respondents 3 to 7/ petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport|5,000,/-|5,000/-| |2|Clothing|1,000/-|1,000/-| |3|Funeral expenses|25,000/-|15,000/-| |4|Pain and sufferings|5,000/-|5,000/-| |5|Loss of estate|nil|15,000/-| |6|Loss of consortium|1,00,000/-|2,00,000/-| |7|Loss of dependency|15,13,000/-|30,84,480/-| |||16,49,000/-|33,15,480/-| In the result, the appeals and the cross objection are disposed of enhancing the compensation by a further amount of Rs.16,66,480/- (Sixteen lakh sixty six thousand four hundred and eighty) i.e, with interest at the rate of 9% per annum on the enhanced compensation from the date of petition till the date of ## **MACA.No.1022 OF 2014 & CO 49/2015** 23 realisation with proportionate costs. The appellant/ 3[rd] respondent shall deposit the enhanced compensation within a period of two months from the date of receipt of a certified copy of this judgment after deducting the liability of the petitioners towards balance court fee and legal benefit fund if any. The disbursement of compensation to the respondents 3 to 7 / petitioners shall be done by the Tribunal in proportion and as per the conditions in the impugned award and in accordance with law. **Sd/- C.S.DIAS,JUDGE** dlK 24.03.2021