Nisha and others v. Ratheesh, Saleem, The New India Assurance Company Limited, Abdul Rahiman, Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939 MACA.No. 2315 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 657/2008 of M.A.C.T OTTAPPALAM DATED 09-07-2012 ## APPELLANT(S)/PETITIONERS: ------------------------ 1. NISHA - AGED 29 YEARS, W/O. DECEASED BABURAJ. 2. SNEHA AGED 8 YEARS, D/O. DECEASED BABURAJ 3. MEGA, AGED 6 YEARS, D/O. DECEASED BABURAJ 2ND AND 3RD APPELLANTS ARE MINORS, REPRESENTED BY THEIR NEXT FRIEND AND GUARDIAN NISHA, IST APPELLANT AND ALL RESIDING AT KOOTTAPLAKKAL HOUSE, MUTHUTHALA POST, PATTAMBI. 4. KUNJU S/O. LATE VELAYUDHAN, KOOTTAPLAKKAL HOUSE, MUTHUTHALA POST, PATTAMBI (FATHER OF DECEASED BABURAJ) BY ADV. SRI.R.SREEHARI ## RESPONDENT(S)/RESPONDENTS: -------------------------- 1. RATHEESH AGED 30 YEARS, S/O. PARANGODAN, MELVEETTIL VEEDU, VELLILA POST, MANKADA (VIA), MALAPPURAM DISTRICT - 679 324. ## 2. SALEEM POOKKALA VALAPPIL HOUSE, ALANCODE, MALAPPURAM DISTRICT - 679 585. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED BRANCH OFFICE, J.R.J. COMPLEX, OTTAPALAM - 679 101. 4. ABDUL RAHIMAN S/O. ABDUL KHADER, VALLIKKATTUTHODI HOUSE, EDATHARA POST, THOOTHA, ANAMANGAD, MALAPPURAM - 679 357. 5. THE ORIENTAL INSURANCE COMPANY LIMITED JASEELA COMPLEX, NILAMBUR ROAD, MANJERI- 676 121. R5 BY ADV. SRI.VPK.PANICKER R3 BY ADV. SRI.RAJESH THOMAS R5 BY SRI.GEORGE CHERIAN (THIRUVALLA) R3 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.2315 OF 2012 ==========================** Dated this the 24[th] day of July, 2017 ## **JUDGMENT** _Ravikumar, J._ The legal heirs of the victim of a motor vehicle accident who were the claimants in O.P.(MV).No.657 of 2008 filed this appeal seeking enhancement of the quantum of compensation granted by the Motor Accidents Claims Tribunal, Ottapalam as per the award passed thereon. The said claim petition was filed under section 166 of the Motor Vehicles Act seeking a compensation of Rs.14,40,000/- for the death of one Baburaj, the husband of the first appellant, father of appellants 2 and 3 and the son of the fourth appellant. The Tribunal, as per the impugned award, assessed the total compensation payable as Rs.5,14,000/- and based on its finding that the deceased was guilty of contributory negligence and also the consequential apportionment **M.A.C.A.2315/2012** 2 of the liability between the deceased and the rider of the other vehicle as 40:60, only an amount of Rs.3,08,400/- was awarded. The said amount was ordered to carry interest at the rate of 7% per annum from the date of the petition till realisation. It is seeking enhancement of the said quantum of compensation that the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellants, the learned counsel for the third respondent and also the learned counsel for the fifth respondent. 3. The Accident in question had occurred due to the collision of the motor cycle ridden by the deceased and the bus bearing Reg.No.KL 53 7246, driven by the first respondent. The third respondent is the insurer of the motor cycle involved in the accident and the fifth respondent is the insurer of the bus. After considering the evidence on record, the Tribunal found that the composite negligence on the part of the deceased and the driver of the bus involved in the accident, is the cause of the accident. Since the **M.A.C.A.2315/2012** 3 compensation was claimed for the death of the rider of the motor cycle, the Tribunal had found him guilty of contributory negligence and it was apportioned as 40% and deducted 40% of the amount assessed as per the impugned award. 4. The question to be considered in this appeal is as to whether the Tribunal was right in finding contributory negligence on the part of the deceased and consequently in effecting deduction of 40% of the amount assessed as compensation. The learned counsel for the appellants further contended that the sums of compensation awarded by the Tribunal under different heads are on a lower side. Though the accident had occurred in the year 2008, the Tribunal disregarded the averments of the appellants regarding the occupation and income of the deceased and fixed the monthly income of the deceased only as Rs.3,500/-. The said erroneous estimation deprived them just compensation, it is further contended. That apart, it is contended that sums of compensation granted towards loss of consortium as also loss of love and affection are on the lower side. The Tribunal has granted **M.A.C.A.2315/2012** 4 only Rs.10,000/- each under those heads. Towards funeral expenses, only a sum of Rs.5,000/- was granted. Though the dresses worn by the appellant got damaged in the accident, no amount was granted towards damage to clothing, it is further contended. 5. The learned counsel for the fifth respondent submitted that the appellants had failed to adduce evidence to establish their averments regarding the occupation and income of the deceased. It cannot be said that the Tribunal had gone wrong in fixing the monthly income of the deceased for calculation purpose notionally in such circumstances and taking into account the year of the accident, the notional fixation of the monthly income as Rs.3,500/- also cannot be said to be on the lower side, it is further contended. The learned counsel has also contended that the Tribunal has rightly held the deceased guilty of contributory negligence and the apportionment of negligence between the deceased and the driver of the bus as 40:60, also cannot be said to be an error or mistake, warranting interference. In short, it is the contention that the impugned award passed by the **M.A.C.A.2315/2012** 5 Tribunal invites no interference. 6. We will firstly consider the correctness of the finding of the Tribunal that the cause of the accident is the combined negligence of the rider of the motor cycle and also the driver of the bus. The accident in question had occurred in Koppam-Pattambi public road. The bus involved in the accident was coming from north to south and therefore, its correct side was eastern side. The deceased was riding his motor cycle through a pocket road leading to the said public road. In other words, he was riding from east to west. In the case of a person riding or driving a vehicle through a pocket road leading to a main road, before entering into the main road, he has to ensure that no vehicles are plying through the main road. If any vehicle is seen there, he is supposed to wait till it passes. Going by the scene mahazar, at the spot of the accident, the total road width was 8 metres. In such circumstances, it can be safely said that the bus in question was proceeding through its correct side. The location of the place of incident would reveal that the deceased has taken his vehicle about **M.A.C.A.2315/2012** 6 one metre from the western tar end. In such circumstances, the driver of the bus ought to have shown the care and caution while driving the bus to avoid possible collisions with vehicles coming from pocket road. It is also to be noted that the specific case of the respondents is that the deceased was not possessing any driving licence to drive the class of vehicle which was being ridden by him. Though an application was filed by the respondents seeking a direction to the appellants to produce the driving licence of the deceased, the appellants had failed to produce the same before the Tribunal, as can be seen from the impugned judgment. It is also to be noted that in connection with the accident in question, the police have registered a crime against the owner of the motor cycle for having entrusted the vehicle for driving to a person lacking licence to drive that class of vehicle at that point of time. Taking into account all the aforesaid factors, we do not find any reason to hold that the Tribunal had committed an illegality in finding that the deceased was guilty of contributory negligence. Therefore, the Tribunal is justified in **M.A.C.A.2315/2012** 7 apportioning the degree of negligence among the deceased and the driver of the other offending vehicle. The Tribunal had apportioned the degree of negligence in between the deceased and the first respondent driver of the bus as 40:60. Taking into account the circumstances expatiated earlier, we do not find any reason to interfere with the said apportionment, as well. 7. Now, we will consider the question whether the appellants are entitled to get enhancement of compensation under any head. 8. The main grievance of the appellants is that the Tribunal had erroneously fixed the monthly income of the deceased for calculation purpose. Evidently, the appellants had failed to establish their averments regarding the occupation and income of the deceased. The Tribunal in such circumstances was right in fixing the monthly income of the deceased notionally for calculation purpose. But then, the question is whether fixation of monthly income notionally at Rs.3,500/- invites interference. The accident had occurred on 11.4.2008. In this context, it is to be noted that even in absence of **M.A.C.A.2315/2012** 8 cogent evidence regarding occupation and income, we are of the view that the fixation of the said amount by the Tribunal invites interference. It is to be noted that in respect of the accident which occurred in the year 2004, the Hon'ble Apex Court fixed the monthly income of a coolie as Rs.4,500/-. (See the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** . The accident in question occurred about four years since the accident involved therein. In such circumstances, we deem it just and reasonable to fix the monthly income of the deceased for calculation purpose as Rs.6,500/-. In the claim petition, it is stated that the deceased was aged 30 years. No evidence was adduced by the appellants to prove the exact date of birth of the deceased. In such circumstances, the multiplier has to be adopted treating that he must have crossed the age of 30 years. In such circumstances, '16' has to be taken as the multiplier with reference to the age of the deceased. The Tribunal held that 1/3[rd] of the income has to be deducted towards the personal **M.A.C.A.2315/2012** 9 and living expenses of the deceased. Evidently, such a deduction was effected taking the number of surviving dependent family members as '3'. At the same time, the impugned judgment itself would reveal that besides the widow and the minor children, the Tribunal has awarded compensation to the father of the deceased. There cannot be any dispute regarding the fact that he must have paid compensation under the head loss of dependency. In such circumstances, it is evident that the number of dependent family members is '4'. If that be so, only ¼ of the income ought to have been deducted towards personal and living expenses of the deceased. In such circumstances, a reassessment of compensation of loss of dependency is to be effected taking into account the aforesaid factors. On such re-assessment, the amount payable under the said head will come to Rs.9,36,000/(6500x12x16x3/4). The Tribunal has already granted Rs.4,76,000/under that head. Hence, the appellants are entitled to get Rs.4,60,000/- additionally under the said head. Towards loss of consortium, the Tribunal has granted only an amount of Rs.10,000/-. **M.A.C.A.2315/2012** 10 We are of the view that the decision of the Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** can be applied in this case for considering the compensation payable under the head loss of consortium and also for considering the amount payable towards funeral expenses. The accident involved in **Rajesh** 's case occurred in the year 2007. In this case, the accident occurred in the year 2008. At the time of the accidental death of her husband, the first appellant widow was aged only 25 years. Hence, we are inclined to grant Rs.90,000/- additionally under the head 'loss of consortium'. In the light of the said decision, the appellants are entitled to get Rs.20,000/- additionally towards medical expenses. Taking into account the fact that the appellants 2 and 3 were minors aged 3½ years and 2 years respectively at the time of the accident and that the fourth respondent is the aged father of the deceased, we are inclined to grant Rs.90,000/- additionally under the head loss of love and affection. The evidence on record would reveal that deceased Baburaj must have experienced excruciating pain before he succumbed to the injuries. **M.A.C.A.2315/2012** 11 Hence, we are inclined to grant Rs.5,000/- additionally under the head pain and suffering. The injuries sustained by him to which he ultimately succumbed, would undoubtedly reveal that the dresses worn by him must have been spoiled. Hence, we are inclined to grant Rs.500/- towards damage to clothing. In the light of the assessment and re-assessment made by us, the total compensation payable would become Rs.6,65,500/-. Out of the said amount, the first appellant alone will be entitled to get Rs.90,000/- granted as additional compensation under the head loss of consortium and appellants 2 to 4 alone will be entitled to get Rs.90,000/- granted additionally under the head loss of love and affection. Out of the said amount granted towards compensation for loss of love and affection, appellants 2 and 3 shall be entitled to get Rs.40,000/- each and the balance Rs.10,000/shall be given to the fourth appellant. The balance amount after such deductions shall be apportioned among the appellants in the ratio as fixed by the Tribunal. Since we have maintained the apportionment of the composite negligence of the deceased as 40%, the appellants are **M.A.C.A.2315/2012** 12 entitled to get 60% of the additional compensation. Hence, the appellants will be entitled to get a sum of Rs.3,99,300/- only. Since there is no dispute regarding the liability of the fifth respondent to indemnify respondents 1 and 4, the fifth respondent is directed to deposit the additional compensation along with interest at the rate of 8% within a period of two months from the date of receipt of a copy of this judgment. Appeal is disposed of. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.2315/2012** 13 **C.T. RAVIKUMAR, J.** **M.A.C.A.2315/2012** 14 **JUDGMENT September, 2010**