N.M. Mathukutty & Leelamma Mathukutty v. Suresh K.K., Umeshkumar P.M., United India Insurance Co. Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 3[RD]DAY OF MARCH 2023 / 12TH PHALGUNA,1944 ``` ``` MACA NO. 759 OF 2012 ``` ``` OPMV 2200/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** - **`1 N.M. MATHUKUTTY, AGED 62 YEARS, S/O.N.V. MATHAI, NJALIPLAKKAL HOUSE, KUREEKKADU VILLAGE, CHOTTANIKKARA.`** - **`2 LEELAMMA MATHUKUTTY, AGED 57 YEARS, W/O.N.M. MATHUKUTTY, NJALIPLAKKAL HOUSE, KUREEKKADU VILLAGE, CHOTTANiKKARA.`** ``` BY ADVS. SRI.T.ABY JACOB SMT.K.G.SAROJINI ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SURESH K.K., S/O. KUNJUKUNJU, KANICHIRA HOUSE (THALATHIL), CHOTTANIKKARA-682 312.`** - **`2 UMESHKUMAR P.M., S/O. MANI, MALIYEKKAL HOUSE, KUREEKADU, CHOTTANIKKARA-682 305.`** - **`3 THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, ERNAKULAM, COCHIN-16.`** ``` BY SR.ADV SRI.GEORGE CHERIAN THIRUVALLA ADV.SRI.JOHN JOSEPH VETTIKAD ADV.SMT.K.S.SANTHI ``` ``` THISMOTORACCIDENTSCLAIMSAPPEALHAVINGBEENFINALLY HEARDON28.02.2023,THECOURTON03.03.2023DELIVEREDTHE FOLLOWING: ``` MACA 759 of 2012 2 ## **J U D G M E N T** The claimants in OP(MV) No.2200 of 2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam, is the appellants herein, assailing the award of the Tribunal on the ground of inadequacy of compensation, as well as challenging contributory negligence of 25% fixed on the deceased. 2. The appellants are the parents of Mr.Shaiby Mathew, who died in a road traffic accident on 12.08.2007 near Puthenpalam. While the deceased was riding a motorcycle, KL-39-2158 motorcycle dashed against his motorcycle, and he was thrown down and sustained fatal injuries. Though he was rushed to Lissie hospital, Ernakulam, he succumbed to the injuries. He was a 32 year old Electronic Mechanic, earning monthly income of Rs.8,000/-. Though the appellants approached the Tribunal claiming compensation of Rs.10,00,000/-, the Tribunal awarded only Rs.3,08,250/-, finding that the deceased also contributed towards the accident and fixed his contribution @ 25%. 3. The 1[st] respondent was the owner, 2[nd] respondent was the rider and the 3[rd] respondent was the Insurer of the offending vehicle. Respondents 1 and 2 remained _ex parte_ and the 3[rd] MACA 759 of 2012 3 respondent-Insurer, though admitted the Policy, denied negligence from the part of the 2[nd] respondent. According to them, the accident occurred due to the negligence from the part of the deceased. 4. No oral evidence was adduced from either side before the Tribunal. Exts A1 to A14 were marked. 5. Now let us see whether any interference is warranted in the impugned award as claimed by the appellants. 6. Heard learned counsel Smt.K.G.Sarojini appearing for the appellants and learned Senior Counsel Sri.George Cherian appearing for the 3[rd] respondent. 7. According to the appellants, though the deceased was a 32 year old Electronic Mechanic, earning monthly income of Rs.8,000/-, the Tribunal took his monthly income as Rs.4,000/- only. It is true that no documentary evidence was there to prove his employment or income. Even going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , since the accident was in the year 2007, he was eligible to get his notional income fixed @ Rs.6,000/-. Moreover, going by the decision **National Insurance Company** MACA 759 of 2012 4 ## **Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680]** **`,`** he was eligible to get addition of 40% towards future prospects, as he was aged below 40, and self-employed. So his monthly income could have been taken as Rs.8,400/- (6000 + 40%). Since he was a bachelor, 50% has to be deducted towards his personal expenses. So, his monthly income would be taken as Rs.4,200/-. Since he was 32 years old at the time of accident, the multiplier applicable is 16. So the compensation for loss of dependency could be assessed as Rs.8,06,400/- (4,200x12x16). Since the appellants were already given Rs.3,84,000/-, they are eligible to get the balance Rs.4,22,400/- as enhanced compensation under the head ‘loss of dependency’. 8. Towards funeral expenses and loss of estate, the Tribunal awarded Rs.5,000/- each only. As per the decision **Pranay Sethi’s case** cited _(Supra)_ , they are eligible to get Rs.15,000/- each. So, they are entitled to receive the balance Rs.10,000/- each under the heads ‘funeral expenses’ and ‘loss of estate’. 9. Towards loss of love and affection, the Tribunal awarded Rs.10,000/-. Going by **Pranay Sethi’s case** cited _(Supra)_ , the appellants are entitled to receive Rs.40,000/- each under the head MACA 759 of 2012 5 ‘loss of consortium’, which will come to Rs.80,000/- in total. But Rs.10,000/- awarded towards loss of love and affection is liable to be deducted. So, they will get Rs.70,000/towards loss of consortium. 10. The deceased died immediately after the accident. So, the amount awarded towards pain and suffering is liable to be deducted. So Rs.5,000/- awarded by the Tribunal under the head ‘pain and suffering’ is deducted. 11. The learned Tribunal found that the offending vehicle was going towards east from west through Chottanikkara- Kottayathpara road and the motorcycle ridden by the deceased came from opposite direction. Ext.A11-scene mahazar shows the place of occurrence as 1.53 meter towards south from the northern tar end. The total width of the road was 6.50 meters. So the Tribunal came to the conclusion that the offending vehicle was moving through its proper side and the deceased came through the wrong side and the accident occurred. The point of accident was 1.72 meters towards north from the middle portion of the road. But at the same time, Ext.A2 charge-sheet was laid against the 2[nd] respondent under Sections 279 and 304A of the IPC. MACA 759 of 2012 6 12. In **New India Assurance Co.Ltd. v. Pazhaniammal** [2011 (3) KLT 648], this Court held that _‘as a general rule it can be accepted that production of charge sheet is prima facie sufficient evidence of negligence for purpose of a claim under S.166. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence. If Court feels that charge sheet is collusive, Tribunal can record that charge sheet cannot be accepted and call upon the parties, at any state, to adduce oral evidence of accident and alleged negligence. In such case, issue of negligence must be decided on other evidence, ignoring charge sheet.’_ 13. The Tribunal if entertained any doubt regarding the charge sheet laid by the investigating officer, evidence could have been let in to prove that the investigation was not proper and the charge was false. In the case on hand, the Insurer also did not adduce any evidence to show that the accident occurred due to the rash and negligent riding of the motorcycle by the deceased. No witnesses were examined to prove the exact place of incident. The mere statement in the scene mahazar that the accident occurred 1.72 meter towards north from the middle portion of the road could not have been relied on by the Tribunal to reject the charge sheet MACA 759 of 2012 7 prepared after a full fledged investigation, and to find that the accident occurred due to the contributory negligence from the part of the deceased. If the rider of the offending motorcycle was keeping his proper side, and the deceased went off to the wrong side, and dashed against his motorcycle, then there is no question of any contributory negligence, and the entire negligence will of the deceased himself. So there is no logic in the finding of the Tribunal that the deceased contributed 25% of negligence, to cause the accident, as it would have been either none or full. Since Ext.A2 charge sheet is there, fixing the negligence on the rider of the offending motorcycle, without letting in, any reliable evidence to prove the contra, the Tribunal ought not have fixed contributory negligence of 25% on the deceased, to reduce the compensation amount by 25%. So, the appellants were eligible to get Rs.4,11,000/- i.e. the full amount awarded by the Tribunal, without any reduction. So they will get the balance Rs.1,02,750/-, i.e., the compensation amount reduced by the Tribunal towards contributory negligence of 25%. Moreover, they are eligible to get enhanced compensation of Rs.5,12,400/ under various heads, as ordered above. So, they will get a total amount of Rs.6,14,650/as MACA 759 of 2012 8 ## enhanced compensation. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|Rs.3,84,000/-|Rs.8,06,400/-||Rs.4,22,400/-| |Funeral<br>expenses|Rs.5,000/-|Rs.15,000/-||Rs.10,000/-| |Loss of estate|Rs.5,000/-|Rs.15,000/-||Rs.10,000/-| |Loss of love<br>and affection /<br>Loss of<br>consortium|Rs.10,000/-|Rs.80,000/-|Rs.10,000/-|Rs.70,000/-| |Pain and<br>suffering|Rs.5,000/-||Rs.5,000/-|| |Total||||Rs.**5,12,400**/-| |||||| |The amount to be added by setting aside the finding of contributory<br>negligence @ 25% is Rs.**1,02,750/-**<br>Total enhanced compensation amount is Rs.**6,15,150/-** (5,12,400 +<br>1,02,750)||||| The amount to be added by setting aside the finding of contributory negligence @ 25% is Rs. **1,02,750/-** Total enhanced compensation amount is Rs. **6,15,150/-** (5,12,400 + 1,02,750) 14. In the result, the appellants are entitled to get enhanced compensation of Rs.6,15,150/- (4,22,400 + 10,000 + 10,000 + 70,000 + 1,02,750). - 15. The 3[rd] respondent Insurer is directed to deposit the MACA 759 of 2012 9 enhanced compensation of Rs.6,15,150/- (Rupees Six Lakh Fifteen Thousand One Hundred and Fifty only) in the bank account of the appellants in the ratio of 50:50 with interest @ 8% per annum from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/01.03.2023.