Noorjahan and others v. Shijimon P.V and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938 MACA.No. 1690 of 2012 () ------------------------AGAINST THE AWARD IN O.P(M.V)No.1182/2007 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 28-04-2012 ## APPELLANTS/PETITIONERS: ------------------------------ 1. NOORJAHAN, AGED 39 YEARS, W/O.LATE MOHAMMEDALI A.A., AZHIVELIKALATHUVEEDU, EDAVANAKKAD P.O., ERNAKULAM DISTRICT, PIN-682502. 2. MUHSIN, AGED 20 YEARS, S/O.LATE MOHAMMEDALI A.A., AZHIVELIKALATHUVEEDU, EDAVANAKKAD P.O., ERNAKULAM DISTRICT, PIN-682502. (EARLIER HE WAS REPRESENTED BY HIS MOTHER SINCE HE WAS A MINOR AT THE TIME OF FILING OF THE CLAIM PETITION) 3. MUBEENA, AGED 17 YEARS, (MINOR REP. BY HER MOTHER SMT.NOORJAHAN) D/O.LATE MOHAMMEDALI A.A., AZHIVELIKALATHUVEEDU, EDAVANAKKAD P.O., ERNAKULAM DISTRICT, PIN-682502. 4. ZAKKIYA, AGED 9 YEARS (MINOR REP. BY HER MOTHER SMT.NOORJAHAN) D/O..LATE MOHAMMEDALI A.A., AZHIVELIKALATHUVEEDU, EDAVANAKKAD P.O., ERNAKULAM DISTRICT, PIN-682502. 5. NAFEESA (MOTHER), AGED 75, W/O.ABOOBACKER, AZHIVELIKALATHUVEEDU, EDAVANAKKAD P.O., ERNAKULAM DISTRICT, PIN-682502. BY ADVS.SRI.JOJO GEORGE SMT.T.A.LUXY SRI.P.MURALEEDHARAN (THURAVOOR) ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. SHIJIMON P.V, PALLISSERY HOUSE, KANDASANKADAVU P.O., PIN-680613, KARAMUKKU, THRISSUR (REGISTERED OWNER) 2. RADHAKRISHNAN.C.R., S/O.RAJAN MENON, CHUNGATH HOUSE, AYINISSERY, OLLUR (DRIVER) MACA.No. 1690 of 2012 2 3. M/S.ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., "SUNDARAM TOWERS", 45&46, WHITES ROAD, CHENNAI-600014. 4. ABDUL JABBAR.A.A., S/O.ABOOBECKER, AZHIVELICKAKATHU HOUSE, 5/111, EDAVANAKKADU P.O., PARAVUR, PIN-682 502 (OWNER OF VEHICLE NO.KL-42-2597) (DIED) 5. THE ORIENTAL INSURANCE COMPANY LTD., IST FLOOR, K.V.VARKEY MEMORIAL COMPLEX, NEAR KSRTC BUS STATION, ANGAMALY, ERNAKULAM, PIN-680572. 6. RAMLA JABBAR, W/O.LATE ABDUL JABBAR, AZHIVELICKAKATHU HOUSE, 5/111, EDAVANAKKADU P.O., PARAVUR, PIN-682 502. 7. NABEESA ABOOBACKER AZHIVELICKAKATHU HOUSE, 5/111, EDAVANAKKADU P.O., PARAVUR, PIN-682 502. 8. JASLA SAMEER W/O.SAMEER, CHETTIKKULATH HOUSE, EDAVANAKKAD P.O., NORTH PARAVUR, PIN-682 502. 9. MOHAMED ASLAM, S/O.LATE ABDUL JABBAR, AZHIVELICKAKATHU HOUSE, 5/111, EDAVANAKKADU P.O., PARAVUR, PIN-682 502 10. ANSILA JABBAR, D/O.LATE ABDUL JABBAR, AZHIVELICKAKATHU HOUSE, 5/111, EDAVANAKKADU P.O., PARAVUR, PIN-682 502 11. AMALUDHEEN JABBAR, S/O.LATE ABDUL JABBAR, AZHIVELICKAKATHU HOUSE, 5/111, EDAVANAKKADU P.O., PARAVUR, PIN-682 502 R1 BY ADV. SRI.BINOY VASUDEVAN BY ADV. SMT.P.G.BABITHA R3 BY ADV. SRI.MATHEWS JACOB (SR.) BY ADV. SRI.P.JACOB MATHEW R5 BY SRI.M.A GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-09-2016, ALONG WITH M.A.C.A.NOS.2494/2012 & 168/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------------- M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 -----------------------------------Dated 1[st] September, 2016 ## **JUDGMENT** ## **Ravikumar, J.** These appeals arise from a common judgment and award passed by the Motor Accidents Claims Tribunal, Ernakulam dated 28.04.2012 in O.P.(MV)Nos.1181/2007 and 1182/2007. A collision of a goods autorickshaw and a Scorpio van resulting in the death of the driver and the passenger in the autorickshaw led to the filing of the aforesaid claim petitions. O.P.(MV)No.1181/2007 has been filed by the legal heirs of the passenger in the autorickshaw and O.P.(MV) No.1182/2007 was filed by the legal heirs of the driver of the said autorickshaw. Both the claim petitions were filed under Section 166 of the Motor Vehicles Act. M.A.C.A.Nos.2494/2012 and 168/2013 are filed against the judgment and award in O.P.(MV)No.1182/2007. O.P.(MV) No.1182/2007 filed by the wife and children and mother of Muhammedali, the driver of the autorickshaw was dismissed. It is against the dismissal of the said claim petition that M.A.C.A.No.1690/2012 has been filed. In O.P.(MV)No.1181/2007, the Tribunal granted compensation of 5,56,585/- with interest and cost₹ M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 2 and it is seeking enhancement of the compensation that the claimants filed M.A.C.A.No.2494/2012. The fifth respondent in O.P.(MV) No. 1181/2007 who is the insurer of the autorickshaw involved in the accident filed M.A.C.A.No.168/2013 challenging the judgment and award therein on the ground that the Tribunal ought to have exonerated the appellant from indemnifying the owner of the said vehicle as Sri.N.M.Koya, the person who was inside the autorickshaw and who succumbed to the injuries sustained in the accident was only a gratuitous passenger in the said autorickshaw, which is a goods vehicle. Since the aforesaid claim petitions were heard and jointly disposed of by a common award under the aforesaid circumstances, we have heard the captioned appeals jointly and they are being disposed of by this common judgment. 2. On one hand M.A.C.A.Nos.2494/2012 and 168/2013 raised certain questions of law and yet another question of law crops up for consideration in M.A.C.A.No.1690/2012. We will firstly consider M.A.C.A.No.1690/2012 filed by the insurance company. M.A.C.A.No.1690/2012 3. This appeal is directed against the judgment in O.P. (MV)No.1182/2007 passed by the Motor Accidents Claims Tribunal, M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 3 Ernakulam. The claim petition was filed by the wife, children and mother of one Muhammedali who died in a motor vehicle accident that occurred on 4.3.2007. On that day, he was driving the autorickshaw bearing Reg.No.KL 42/2597 and one N.M.Koya, for whose death O.P. (MV)No.1181/2007 has been filed, was sitting beside him. At about 10 p.m., when they reached Edavanakkad, the said vehicle collided with the scorpio van bearing Reg.No.KL 08 AK/ 8069. Both the driver and the passenger in the autorickshaw sustained injuries and they succumbed to the injuries sustained in the accident. To substantiate the claim for compensation for the death of the driver of the autorickshaw viz, the claimants therein viz, the appellants in the captioned appeal got marked Exts.A16 to A25 besides getting examined PWs 1 to 3. On the side of the respondents before the Tribunal, no oral evidence was adduced and Exts.B1 to B4 were got marked. The Tribunal after considering the evidence on record and the rival contentions held that the evidence on record would reveal that the deceased Muhammedali himself was the tort feasor and therefore, the petitioners who are his legal heirs are not entitled to get compensation. Consequently, the claim petition was dismissed. 4. We have heard the learned counsel for the appellants, M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 4 the learned counsel appearing for the third respondent as also the learned counsel appearing for the fifth respondent. The question is whether the evidence on record is conclusive enough to hold that the accident occurred due to the collision of the aforesaid vehicles, had happened exclusively due to the rashness or negligence from the part of the deceased Muhammedali who was driving the autorickshaw ? Evidently, the Tribunal found that he was the tort feasor and therefore, the petitioners who are his legal heirs are not entitled to get compensation. Therefore, the question is what are the materials available before the Tribunal to arrive at such a finding. 5. Ext.A1 which is the copy of the FIR in Crime No.154/2007 of Irinjalakkuda Police Station registered in connection with the accident in question, Ext.A12 which is the copy of the charge sheet in the said crime, Ext.A15 scene mahazar prepared in the said crime and Ext.A13 and Ext.A14 which are respectively the reports pertaining to the Scorpio bearing Reg.No. KL 08 AK/8069 and autorickshaw bearing Reg.No.KL 42/2597, both dated 7.3.2007, were relied on by the Tribunal to arrive at the aforesaid conclusion that constrained the Tribunal to dismiss the claim petition. A scanning of the impugned judgment would reveal that the Tribunal heavily relied on Ext.A15 scene mahazar. It was found M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 5 that the total width of the tarred portion of the road where the accident occurred, going by the same, was 5.75 metres and also that the road was straight at that area. The middle point from either side of the road is 2.87 metres. Indisputably, the Scorpio van was proceeding from south to north and the autorickshaw was proceeding from north to south. It was further found that the autorickshaw which is a goods vehicle had moved 1.55 metres westwards and collided with this Scorpio van. The tyre mark which is seen at a length of 2.75 metres towards the southern side of the spot of the accident was held to be that of the Scorpio van. The Tribunal found that it would indicate the fact that the driver of the scorpio van had attempted to avoid the accident and for that he applied sudden brake. Indisputably, after the accident, both the vehicles were seen on the western side of the road. Exts.A13 and A14 inspection reports reveal the damage to the vehicles involved in the accident. The Tribunal further took note of the oral testimony of PW2, who initially deposed that the tyre mark was that of the goods autorickshaw and then prevaricated during his cross examination and deposed that it was that of the Scorpio van. Taking into account all such aspects, the Tribunal arrived at the aforesaid conclusion that the accident occurred solely due to the negligence on the part of deceased Muhammedali, the driver of the autorickshaw. Consequently, the M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 6 petitioners who are the legal heirs of the said Mohammedali were held disentitled to get compensation and dismissed the claim petition. 6. The learned counsel for the appellant contended that those materials which were considered by the Tribunal were not conclusive enough to hold that the accident in question occurred solely due to the negligence from the part of the deceased Muhammedali. It is submitted that merely because after the accident, both the vehicles were found lying on the western side, the Tribunal ought not to have taken it as a conclusive proof to hold that the spot of accident was also on the western side. The learned counsel contended that PW3, the first informant, virtually deposed to the effect that he had not actually seen the occurrence. It is submitted that his oral testimony would reveal that he rushed to the spot on hearing a loud noise of collision between the vehicles. He would depose that to rescue the persons inside the autorickshaw he had to use a crowbar. It is to be noted that there is no eye witness to the incident which occurred at about 10 p.m. The learned counsel further contended that the finding of the Tribunal cannot be sustained in the light of Ext.A12, which is the true copy of the charge sheet consisting of A charge and B charge which itself would reveal that in the crime registered in connection with the accident, the M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 7 drivers of both the vehicles were arraigned as accused. Since the driver of the autorickshaw viz, Muhammedali succumbed to the injuries, the charge against him was abated. It is submitted that this crucial aspect obtained from Ext.A12 charge sheet was not at all taken into consideration by the Tribunal while holding, after referring to Ext.A1, Exts.A13 to A15, that the accident occurred solely due to the negligence from the part of the Muhammedali, the driver of the autorickshaw. In such circumstances, the learned counsel contended that the Tribunal palpably went wrong in holding that the accident occurred exclusively due to the negligence from the part of deceased Muhammedali, the driver of the autorickshaw and that the impugned judgment and award invite appellate interference. 7. Per contra, the learned counsel appearing for the third respondent contended that the finding of the Tribunal that the accident occurred solely due to the negligence of the driver of the autorickshaw cannot be said to be made without any basis and as such, erroneous. It is submitted that Exts.A1, A13 to A15 and the evidences of PW2 as also PW3 would support the finding of the Tribunal that the accident occurred due to the negligence of the driver of the autorickshaw. It is further submitted by the learned counsel that since the claimants filed M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 8 the application for compensation under Section 166 of the Motor Vehicles Act, the burden to establish that the accident occurred solely due to the negligence on the part of the driver of the Scorpio van was on the appellants. It is submitted that the aforesaid documents produced by the appellants viz, Exts.A1 and A13 to A15 as also the evidene of PW12 would reveal that the Tribunal has properly appreciated the evidence and arrived at the right conclusion that the accident occurred solely due to the negligence of the driver of the autorickshaw. The learned counsel submitted that the appellants have failed to bring out a case warranting an appellate interference. 8. In the light of the evidence on record and taking into account the rival contentions, as noticed hereinbefore, we will have to consider the question whether the Tribunal has properly appreciated the evidence on record to arrive at the conclusion that the accident occurred exclusively due to the negligence from the part of the driver of the autorickshaw. As noticed hereinbefore, the Tribunal took note of Ext.A1 which is the copy of the FIR in Crime No.154/2007 registered at Irinjalakkuda Police Station in connection with the accident in question. But a perusal of the impugned judgment would reveal that the Tribunal had failed to take into consideration the final report laid in the said M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 9 crime viz., Ext.A12 while arriving at the aforesaid conclusion. We are also of the view that the learned counsel for the appellant is, therefore, justified in raising the contention that the Tribunal had erred in not taking into account Ext.A12 while considering the aforesaid question. It is to be noted that Ext.A12 charge sheet was laid after conducting an investigation based on Ext.A1 FIR. In such circumstances and also taking note of the decision of a Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal ( 2011 (3) KLT 648)** , the failure on the part of the Tribunal to consider Ext.A12 cannot be discarded as a mere omission which is not material. We are of the considered view that for considering the question of negligence that was a crucial document available before the Tribunal and at any rate, ignoring the same Ext.A1 FIR should not have been given more credence. In **Pazhaniammal's** case (supra), it was held by the Division Bench that production of a police charge is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A perusal of Ext.A12 would lend support to the contention taken up by the learned counsel for the appellant as Ext.A12 would reveal that after conducting an investigation in Crime No.154/2007 of Irinjalakkuda Police Station, charge was laid against the drivers of both the vehicles involved in the accident as A M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 10 charge and B charge. It would reveal that going by the police records, they were not in a position to say that the accident occurred solely due to the negligence of the driver of the autorickshaw or that of the driver of the scorpio van lest the police would not have filed A charge and B charge in Crime No.154/2007. Going by the provisions of Section 173 (2) a final report thereunder should contain a statement regarding 'whether any offence appears to have been committed and, if so, by whom'. In such circumstances, laying of 'A charge' and 'B charge' against two persons would reveal that the persons named thereunder as accused have played roles in the commission of the offence appear to have been committed, according to the investigating officer. In such circumstances, the fact that FIR was registered only against one among them would lose its relevance and any any rate, in such circumstances, Ext.A1 FIR could not supercede Ext.A12 final report and the position is vice-versa. In such circumstances, in the light of Ext.A12 and the decision in **Pazhaniammal's** case (supra), we are of the view that the Tribunal went wrong in holding that the accident occurred solely due to the negligence from the part of deceased Muhammedali, that too, without considering Ext.A12. Non-consideration of a crucial material available on record especially when it is one carrying evidence contrary to the evidence revealed from material relied on, tantamounts to M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 11 perverse appreciation of evidence. 9. Exts.A12 final report and A15 scene mahazar together with the oral testimonies of PWs 1 and 2 viz, the oral testimonies of P.T.Jose and C.J.Domanic would suggest that the accident occurred due to the collision of two vehicles viz, the goods autorickshaw and the Scorpio van. It is to be noted that in the appendix Sri.P.T.Jose who was actually examined as PW1 was wrongly shown as PW3 instead of PW1 and Sri.N.A.Jaleel, who was examined as PW3 was wrongly shown as PW1. The documentary evidence would undoubtedly go to show that the accident in which Muhammedali and N.M.Koya lost their lives occurred due to the collision of the aforesaid vehicles. True that going by the evidence on record as also the evidence of PW1 P.T.Jose, it is evident that after the accident, both the vehicles were seen on the western side of the road. But, as already stated, the question is merely because after the accident those vehicles were seen on the western side, can it be said with definiteness that the accident occurred entirely and exactly on the western side of the road. There is room for raising such a doubt as the vehicle involved in this accident is an autorickshaw and the other vehicle is a Scorpio van. On comparison, the autorickshaw is much lighter in weight. The possibility of the M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 12 heavier vehicle after the collision dragging the light vehicle to one side also cannot be ruled out. The evidence of P.T.Jose (PW1) would reveal that he had to use a crawbar to rescue the persons inside the autorickshaw would reveal the impact of the collision. There is nothing on record which would reveal that the cause of the accident is a head on collision so as to apportion the negligence of the drivers at 50:50. But at the same time, the evidence on record and all the circumstances emerging from them would only suggest that the accident occurred due to a composite negligence of drivers of both the vehicles involved in the accident. Even an application of the doctrine ' _res ipsa loquitur_ ' in the circumstances obtained in this case, would support and sustain only such a conclusion. Since O.P.(MV)No.1182/2007 was filed by the legal heirs of the drivers of the autorickshaw, what exactly is the contribution of the deceased to the accident has to be looked into. Once it is found that it is a case of composite negligence, the evidence of PW1 P.T.Jose and Ext.A15 scene mahazar would indicate that both the vehicles were found immediately after the accident on the western side would not have much relevance. According to PW1 P.T.Jose, he was the convenor of the construction committee of St.Mary's Church, Karuvannoor and at the time of the accident, he was available in the construction site. He deposed that he rushed to the site immediately on M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 13 hearing a sound of collision of vehicles and then he had seen the vehicles on the western side. According to him he rushed to the spot and when he reached some others were also seen there. It is not anybody's case that there was witness to the accident and at any rate, no one who had seen the accident was examined before the Tribunal. But his evidence would reveal that when he went there and saw the vehicles lying on the western side. In such circumstances, in the absence of any evidence from the side of the appellants, which would establish that the accident had actually occurred on the eastern side of the road and it was the Scorpio which went thitherwards and hit against the autorickshaw, it can only be taken, from the evidence on record, that the accident had occurred entirely and exactly on the eastern side. As noticed hereinbefore, in an application under Section 166 of the Motor Vehicles Act the burden to establish negligence on the part of the driver of the alleged offending vehicle is exclusively on the claimants. But at the same time, the aforesaid documentary evidence as also the evidence of PW1 and PW2 would only indicate that after the accident the vehicles were seen on the western side. Since the autorickshaw was coming from south to north, it ought to have been travelling or supposed to have been travelling, through the eastern side of the road. The evidence on record would reveal that M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 14 the Scorpio was proceeding from south to north and therefore the correct side of the said vehicle was the western side. True that, going by Ext.A15 scene mahazar the place of occurrence is 1.55 metres towards west from the centre point which is 2.87 metres from either side. But at the same time, it is to be noted that there is nothing on record which would reveal that the scene mahazar was prepared based on the information given by an eye witness. 10. For all the foregoing reasons and circumstances, we are of the view that it cannot be said with precision that the accident occurred solely due to the negligence of the deceased Mohammedali, the driver of the autorickshaw and we have already found that the evidence would only reveal that the accident occurred due to composite negligence of both the drivers of the vehicles involved in the accident. The tyre marks and the damage to the vehicles as also the other evidence including Ext.A12 charge would undoubtedly reveal that the drivers of both the vehicles contributed to the accident. Since there is nothing on record to show that the accident occurred on the eastern side whereas the evidence would suggest and probabalise that it had occurred more on the western side, we are of the view that the degree of negligence was more on the driver of the autorickshaw viz, deceased M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 15 Muhammedali. For calculation purpose, we ween it only appropriate to apportion the contributory negligence among the drivers of the autorickshaw and the Scorpio van in the ratio of 70:30. In other words, we are inclined to hold that the deceased Muhammedali had contributed 70% to the accident. Contributory negligence is no bar to claim compensation either by the injured or by the legal heirs of the victim who contributed to the accident. It will only reduce the damages to which the party is entitled to the extent the court/Tribunal thinks just and equitable having regard to the responsibility of the claimant/the victim for whose death claim was made. In other words, contributory negligence would not defeat the claim in its entirety. Once it is so found the inevitable conclusion has to be that the Tribunal went wrong in dismissing the application and the dismissal of the claim petition invites interference. In view of apportionment of the contributory negligence, as aforesaid, the legal heirs of deceased Muhammedali are entitled to get compensation to the extent of 30%. Hence, we vacate the finding of the Tribunal that the accident occurred solely due to the negligence from the part of the deceased Muhammedali and it is substituted with the finding that the cause of the accident is composite negligence and his contribution to the accident is 70%. But in this case, since the Tribunal dismissed the claim petition, the Tribunal had not M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 16 assessed the compensation payable in O.P.(MV)No.1182/2007. We are of the view that at this distance of time i.e after about more than nine years since the accident, it would not be proper for us and in fact, would against the interest of justice, to remand the matter for assessing the compensation especially when the materials for assessment of compensation are available. Hence, we are of the view that it will be only proper for us to assess the compensation. 11. Ext.A8 is the driving licence of deceased Muhammedali. The evidence is to the effect that he met with the accident while driving the autorickshaw. In the said circumstances, it can certainly be concluded that the deceased Muhammedali was a driver of an autorickshaw and on the date of the accident, he was aged 43 years. The accident occurred on 4.3.2007. In such circumstances, we are inclined to fix the monthly income of the deceased Muhammedali as Rs.6,000/-. Taking note of the fact that he was aged only 43 years on the date of the accident, we are of the considered view that it is only proper to make addition to the said income reckoning the future prospects, but for his untimely death and we fix the same as 30%. When 30% is added to the income so fixed, the monthly income to be taken for the purpose of assessing compensation under the head of loss M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 17 of dependency would be Rs.7,800/-. The multiplier to be applied with reference to the age of the deceased Muhammedali and in the light of the schedule given in the decision of the Honourable Apex Court in **Sarla Varma v. Delhi Transport Corporation [ 2010 (2 ) KLT 802 (SC)]** is 14. The deceased is survived by five dependents. In the light of the decision in Sarla Varma's case, ¼ of the income has to be deducted towards personal expenses of the deceased. Based on such addition and deduction to the monthly income so fixed and taking into account the other relevant factors, the compensation payable under the head loss of dependency would be Rs.9,82,800/- ( 7800 x 12 x 14 x ¾). 12. While considering the question of reimbursement of the expenses incurred for transportation, the facts that immediately after the accident, deceased Muhammedali was taken to Elite Mission Hospital, Thrissur and he breathed his last enroute to Specialists Hospital, Aluva on being referred from there, have to be taken into account. Ext.A16 would reveal that thereafter postmortem was conducted on his body and his corpse was taken home only thereafter. Taking into account all such aspects, it is only proper to grant an amount of Rs.2,000/- towards transportation expenses. It is granted. In the light of the M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 18 decision of the Honourable Apex Court in **Rajesh v.Rajbir Singh ( 2013 (3) KLT 89 (SC)** in the absence of any evidence of higher expenses, we are of the view that it is only proper and just to grant an amount of Rs.25,000/- towards funeral expenses and an amount of Rs.1,00,000/- towards consortium to the first appellant. The said amounts are accordingly awarded under the said respective heads. 13. Towards loss of love and affection, taking into account the fact that appellants 2 to 4 are the three minor children and aged mother of the deceased, we are inclined to grant an amount of Rs.1,50,000/-. Hence an amount of Rs.1,50,000/- is granted towards loss of love and affection. Towards pain and suffering, taking into account the fact that deceased Muhammedali had to endure excruciating pain atleast for a couple of hours since the accident, we are of the view that an amount of Rs.10,000/- can be granted towards pain and suffering. It is awarded. Though there is no evidence to establish the actual expenditure incurred towards medical expenses, it is a fact that he was initially taken to Elite Mission Hospital, Thrissur. We are of the view that a fair estimate can legitimately be made and on that basis a reasonable amount can be awarded even in the absence of bills and vouchers, in the aforesaid circumstances. In that view of the M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 19 matter, we are inclined to grant an amount of Rs.5,000/- towards medical expenses. Towards loss of estate, we are inclined to grant a conventional amount of Rs.10,000/-. It is granted. 14. In the light of the aforesaid assessment, the total compensation payable is assessed as Rs.12,84,800/- . Since we have apportioned contributory negligence from the part of deceased Mohammedali as 70%, the appellants are entitled only to 30% of the aforesaid assessed compensation. Accordingly, an amount of Rs.3,85,440/- is awarded as compensation to the appellants. The said compensation will carry interest @ 8 % per annum from the date of petition till realization. By reason of our finding that the accident in question occurred due to the negligence from the part of the second respondent as well, the second respondent, who was the driver of the Scorpio would be primarily liable to pay the said amount. Since the first respondent is the owner of the said vehicle, he is vicariously liable and as the said vehicle was validly insured with the third respondent, the third respondent is directed to indemnify the first respondent. MACA No.2494/2012 & 168/2013 15. These appeals are directed against the judgment and award in O.P.(MV)No.1181/2007 passed by the Motor Accidents Claims M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 20 Tribunal, Ernakulam. The claim petition was filed by the legal heirs of one N.M.Koya who was travelling in the autorickshaw involved in the aforementioned accident. They are respectively the wife and minor daughters of deceased Koya. The Tribunal as per the impugned award after considering the oral testimonies of PWs 1 to 3 and the evidence consisting of Exts.A1 to A15 and Exts.B1 to B4 found that the claimants are entitled to get compensation and granted a compensation of Rs.5,56,585/- with interest @ 8% per annum from the date of petition till realization. The former appeal has been preferred seeking enhancement of the said compensation whereas the latter appeal has been preferred by the fifth respondent in the said claim petition i.e. the insurer of the autorickshaw contending that since the deceased N.M.Koya was a gratuitous passenger in the autorickshaw, which is a goods vehicle, the insurer ought to have been exonerated from the statutory liability. In view of the fact that the appellants in the former appeal are seeking for enhancement and that the appellant in the latter appeal is seeking exoneration from the statutory liability, we are of the view that firstly the question whether the Tribunal is right in fastening liability on the appellant in the latter appeal, to indemnify the owner of the autorickshaw, which is a goods vehicle, has to be considered. For the purpose of considering the said question, the crucial question to be M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 21 decided is what exactly was the status of the deceased N.M.Koya qua the vehicle in question i.e. whether he was a gratuitous passenger at the time of the accident. The contention of the appellants in the former appeal is that the deceased had actually accompanied the goods (fish) carried in the autorickshaw to Thrissur Fish Market and he was returning in the same autorickshaw when it involved in the accident. In short, their contention is that in such situations the appellant in the latter appeal is not justified in contending that deceased N.M.Koya was a gratuitous passenger and according to the appellants in the former appeal who are the respondents 1 to 4 in the latter appeal, deceased has to be treated only as a person who was accompanying the goods . But it is pertinent to note that there is absolute absence of an averment either to the effect that he was the owner of the said goods transported to fish market at Thrissur or that he was the authorised agent of the owner of the said goods in the claim petition. That apart, it is to be noted that at the time of the accident, admittedly there was absolutely no goods in the said vehicle. Though the pleadings of the appellants in the claim petition is to the effect that deceased N.M.Koya was returning in the goods vehicle after effecting sale of the fish transported in the goods vehicle, he had not adduced any evidence to establish the same. It is to be noted in this context that PW3 deposed to the effect that M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 22 deceased Koya was an employee in his company namely, 'Jaleel Company' and he was engaged in sale of fish. He would further depose “ ÎøÃæMGÕV ÉÜ ÍÞ·JáÈßKᢠÎrc¢ ®¿áJá ÕÞÙÈJßW æµÞIáÕøá¢. ¾ÞX ¥Äí ÕÞBß ÕßWAá¢.” 16. If deceased Koya was his employee, there was absolutely no necessity for PW3 Jaleel to purchase fish from him for the purpose of effecting sale. If he was actually purchasing fish from the deceased for the purpose of effecting sale, it is sufficient to belie his earlier statement that deceased Koya was his employee. The nature of the transaction, as deposed by PW3 as extracted above, would reveal absolute absence of employee-employer relationship between deceased Koya and PW3. That apart, a scanning of his oral evidence would reveal that he had not stated anywhere to the effect that on 4.3.2007 deceased Koya brought fish to his company and he purchased fish from the deceased. At any rate, on a scanning of the evidence of PW3, we are of the view that his evidence cannot be given credence for the purpose of deciding the question whether deceased Koya was returning in the aforesaid autorickshaw after effecting sale of fish. As stated earlier, PW3 did not depose that on that day he purchased fish brought by deceased Koya and deceased Muhammedali in the aforementioned M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 23 autorickshaw. In the contextual situation, it is also relevant to refer to the evidence of PW2 Dominic. According to him, he was then the Secretary of Private Bus Workers' Union (CITU), Cochin Region. According to him deceased Koya was a bus conductor. At the same time, he had not specifically deposed as to who was his employer and which was the bus in which Koya was working as an employee. The incongruity in the evidence of PWs 2 and 3 as also the nature of the pleadings constrain us to hold that the appellants in the former appeal/the petitioners in the claim petition had failed to establish that on that day, the deceased Koya had actually taken fish in the goods vehicle driven by Muhammedali to PW3 and PW3 purchased the said goods and further that the accident occurred while he was returning in the said autorickshaw after effecting such a sale. 17. In view of the factual position obtained from the evidence on record, it cannot be held that the deceased Koya was returning in the autorickshaw after offloading the goods carried in the autorickshaw. In such circumstances, since there is no conclusive evidence to hold that he had actually accompanied the goods in the autorickshaw bearing Reg.No.KL 42/2597 we are of the view that there is absolutely no reason or necessity to consider the question whether he M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 24 was returning in the same autorickshaw after unloading the goods. The burden to establish the aforesaid aspect that he had actually transported fish and was returning after effecting sale of fish, was that of the appellants in the former appeal viz., the claimants. However, they have failed to establish such aspects. In such circumstances, it can only be said that the deceased Koya was only a gratuitous passenger in the goods vehicle. It be so, it can only be taken that the claimants had failed to establish the required ingredients to saddle liability on the appellant insurance company by establishing the ingredients under Section 147(1)(b)(1) of the Motor Vehicles Act. In short, in the facts and circumstances revealed from the evidence on record, the appellant insurance company cannot be fastened with the liability to indemnify the owner. In such circumstances, the finding of the Tribunal that the appellant is liable to indemnify the owner of the autorickshaw is vacated. 18. Exoneration of the insurance company from the liability to indemnify the insured cannot be a reason to hold that the legal heirs of the deceased are disentitled to compensation for the death of Koya. In other words, the question now, to be decided is who are liable to pay the compensation for the death of deceased Koya ? In that context, it M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 25 is also to be noted that we have already found that deceased Muhammedali had contributed to the accident and we have apportioned his contribution as 70%. In other words, it is evident that the insurer of the Scorpio is liable only to pay 30% of the amount of compensation payable to the claimants in O.P.(M.V)No.1181 of 2007. Merely because the insurer of the goods vehicle was exonerated the question is whether the owner and the driver of the autorickshaw can take up the contention that they are not liable to pay the compensation. It is a fact that at the time of the accident deceased Koya was very much in the goods vehicle sitting besides the driver of the said vehicle viz., Muhammedali. Thus, it is evident that the driver of the autorickshaw that is, Muhammedali permitted him to travel in the goods autorickshaw. There is nothing on record to enable us to come to a conclusion that the driver permitted deceased Koya to travel in the autorickshaw which is a goods vehicle violating the specific instructions from its owner not to permit anybody to travel in the goods vehicle. In the absence of any such evidence from the part of the owner of the autorickshaw that the driver had permitted a passenger to travel in the goods vehicle violating the specific direction in that regard we are of the considered view that the owner of the vehicle also cannot wriggle out of the liability to pay compensation. In other words, we are of the view M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 26 that the owner and driver of the autorickshaw are to be jointly made liable to pay compensation that is, 70% of the compensation payable. As noticed hereinbefore, in the accident, the driver of the autorickshaw had also sustained injuries and he too succumbed to the injuries. But, it is also to be noted that we heard these appeals along with M.A.C.A.No.1690 of 2012 arising from O.P.(M.V)No.1182 of 2007 filed by the legal heirs of the deceased driver and they were also heard on all points. Since all these appeals were jointly heard and since the question of negligence on the part of the driver of the autorickshaw was a question involved in both the appeals, we heard the appellants in M.A.C.A.No.1690 of 2012 on that aspect, as well. In fact, it was after hearing all the parties that we have held the cause of the accident as composite negligence and apportioned the degree of contributory negligence from the part of the deceased driver of the autorickshaw as 70%. In view of our finding to the effect that the owner of the autorickshaw is vicariously liable his legal heirs who are already brought on record have to pay the compensation based on the principle of vicarious liability. But, it is a fact that the legal heirs of deceased Muhammed are not parties to O.P.(M.V.)No.1181 of 2007 as also in the appeal arising thereof and hence, we do not think it proper to apportion the liability in between the owner and driver of the autorickshaw. M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 27 Therefore, in case legal heirs of the owner of the autorickshaw want to recover any amount from the legal heirs of the deceased driver in the light of the fact that the accident in question in which Koya lost his life had occurred due to the contributory negligence of 70% from the part of the deceased driver and in that regard to get the liability among them apportioned, it will be open to the legal heirs of the deceased owner of the autorickshaw to resort to appropriate proceedings in accordance with law. The long and short of the discussion is that the compensation payable to the claimants in O.P.(M.V)No.1181 of 2007 from which M.A.C.A.No.168 of 2012 arose has to be paid by the insurer of the Scorpio Van and the owner and driver of the autorickshaw. We have already found that the liability of the insurer of the Scorpio is only 30%. In the light of the said discussion, the appellant in M.A.C.A.No.168 of 2013 is liable to succeed. 19. We will now consider the prayer of the appellants in M.A.C.A.No.2494 of 2012 for enhancement of the compensation. The learned counsel for the appellants contended that the Tribunal went wrong in fixing the monthly income of deceased Koya for the purpose of computing compensation for loss of dependency. It is contended that in the claim petition it was specifically stated that he was a bus conductor M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 28 and also fish vendor, by profession and was earning an amount of ₹ 6,000/- from the said professions. PW1 is a trade union leader. He issued Ext.A7 salary certificate. The Tribunal declined to act upon the salary certificate issued by him holding that he is not the competent person to issue any such salary certificate. The certificate is to the effect that he was a door checker and was earning 200/- daily. The₹ owner of the bus in which deceased Koya was allegedly working as a door checker was not examined as a witness and it is to be noted that in fact, there is conspicuous absence of any such details regarding the owner and number of the bus in the claim petition. Add to it, it is to be noted that in the claim petition it was further stated that deceased Koya was also a fish vendor. It is also to be noted that the contention in the claim petition is to the effect that deceased Koya was a conductor and going by the evidence of PW1 he was only a door checker. But, the evidence of PW2 is to the effect that he was an employee of Jaleel and Company. But, as noticed by him, at the same breath PW1 (sic. PW3) deposed to the effect that he used to purchase fish brought by deceased Koya and deceased Muhammedali. Taking into account the nature of the evidence as also the incongruity in the contention regarding the profession it can only be said that the appellants have failed to establish the actual occupation of deceased Koya. At the same M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 29 time, there is no dispute with respect to his age. He was aged only 47 years. The said fact is revealed from Ext.A19 which is a copy of the SSLC Book. The accident occurred on 4.3.2007. The fact is that the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ wherein the Hon'ble Apex Court fixed the monthly income of a coolie who met with an accident in the year 2004 as 4,500/- can be taken₹ as a guidance for fixing the monthly income of Koya. Taking note of the age of the deceased as also the year of the accident we are inclined to fix 6,000/- as the monthly income. ₹ The claimants in the appeal are the widow and minor children of deceased Koya. It is thus evident that he was actually earning for the family and maintaining a family consisting of four members. In such circumstances, whatever be the avocation we are of the view that the cost of living, price index etc. would have its own impact and reflection in the wages of such a person engaged in such activities had he been alive. By lapse of time even in the case of such persons they could claim increased wages. In such circumstances, we are inclined to grant 30% addition to the income already fixed. In that view of the matter the monthly income for calculation purpose has to be taken as 7,800/-. There is no dispute₹ regarding the multiplier adopted by the Tribunal. The multiplier was M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 30 adopted with reference to the age of the deceased. It was correctly taken as 13. Taking into account the number of dependents ¼ of the income has to be deducted towards personal expenses of the deceased. In such circumstances, the amount payable under the head loss of dependency has to be re-assessed. On such re-assessment the appellants would be entitled to get an amount of 9,12,600/-. But, the₹ Tribunal has already granted an amount of 4,68,000/- under that₹ head. In such circumstances, 4,44,600/- is granted additionally,₹ under the head `loss of dependency'. Towards funeral expenses ₹ 7,500/- was granted. In the light of the decision in **Rajesh v. Rajbir** **Singh (2013(3) KLT 89(SC))** and in the absence of any evidence of higher expenses we are inclined to grant 25,000/- under that head.₹ Therefore, additionally the amount payable under the said head is ₹ 17,500/-. Towards loss of love and affection the Tribunal granted only an amount of 40,000/-. Towards loss consortium the Tribunal₹ granted only 20,000/-. In the light of the decision of the Hon'ble₹ Apex Court in **Rajesh's** case (supra), 1,00,000/- is the minimum₹ amount which is to be paid to the surviving spouse towards loss of consortium. In such circumstances, the first appellant is entitled to get an additional amount of 80,000/- under that head. It is granted.₹ Towards loss of love and affection the Tribunal granted only an amount M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 31 of 40,000/-. Taking note of the fact that appellants 2 to 4 were₹ minors on the date of death of Koya, pursuant to the accident as a result of the injuries sustained in the accident, we are inclined to grant an additional amount of 60,000/- under that head. The said amount₹ is awarded. In such circumstances, the appellants in M.A.C.A.No.2494 of 2012 are entitled to enhanced compensation of 6,02,100/-. We₹ have already exonerated the 5[th] respondent viz., the Oriental Insurance Company Ltd. from the liability to pay the compensation. We have already found that 30% of the amount payable as compensation in O.P. (M.V)No.1181 of 2007 is to be paid by the 3[rd] respondent insurance company that is, M/s.Royal Sundaram Alliance Insurance Co. Ltd. and the balance 70% is to be paid jointly by the owner and driver of the goods autorickshaw. In such circumstances, in view of the fact that we have set aside the fastening of liability on the 5[th] respondent insurance company, 30% of the total amount, including the amount awarded by the Tribunal and the amount enhanced by us viz., 11,58,685/-₹ (556585 + 602100) has to be paid by the 3[rd] respondent. The appellants in M.A.C.A.No.2494 of 2012 would also be entitled to recover the balance from the owner of the autorickshaw. We make it clear that the legal contentions available to the legal heirs of the driver and owner of autorickshaw are left open and we have decided the liability solely for M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 32 the purpose of considering the entitlement to compensation and additional compensation, of the claimants in O.P.(M.V)No.1181 of 2007. In the result, ## M.A.C.ANo.1690 of 2012 This appeal is allowed in part. An amount of 3,85,440/- is₹ awarded as additional compensation to the appellants. The said amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent insurance company is directed to deposit the said amount with interest within a period of three months from the date of receipt of copy of this judgment, failing which the amount remaining to be paid will carry interest at the rate of 9% per annum. There will be no order as to costs. ## M.A.C.A.No.2494 of 2012 This appeal is allowed. The finding of the Tribunal that the appellant insurance company is liable to indemnify the owner of the autorickshaw is vacated. There will be no order as to costs. ## M.A.C.A.No.168 of 2013 This appeal is allowed in part as follows:- M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 33 An amount of 6,02,100/- is awarded as additional compensation₹ to the appellants. We have already exonerated the 5[th] respondent viz., the Oriental Insurance Company Ltd. from the liability to pay the compensation and found that 30% of the amount payable as compensation in O.P.(M.V)No.1181 of 2007 is to be paid by the 3[rd] respondent insurance company that is, M/s.Royal Sundaram Alliance Insurance Co. Ltd. and the balance 70% is to be paid jointly by the owner and driver of the goods autorickshaw. In such circumstances, the 3[rd] respondent is directed to deposit 30% of the total amount, including the amount awarded by the Tribunal and the amount enhanced by us viz., 11,58,685/- (556585 + 602100) with interest at₹ the rate of 8% per annum from the date of petition till realisation within a period of two months from the date of receipt of copy of this judgment. For the balance amount the owner and driver of the autorickshaw are jointly and severally liable. As noticed hereinbefore, the owner of the said vehicle is no more and its driver is also no more. We make it clear that, the legal contentions available to the legal heirs of the driver and owner of the autorickshaw are left open. In the event of execution of the award, for recovery of the balance 70%, it will be open to the legal heirs of both the owner and the driver to take legally M.A.C.A.Nos.1690, 2494 of 2012 & 168 of 2013 34 permissible contention as regards the extent of liability. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** sv/TKS