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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943** **MACA NO. 1489 OF 2008** **AGAINST THE AWARD DATED 24.03.2008 IN OP(MV)NO.432/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM.** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, KOLLAM, REP. BY THE MANAGER, KRO, M.G.ROAD, COCHIN-35.** **BY ADV SRI.E.M.JOSEPH** ## **RESPONDENTS/CLAIMANTS AND RESPONDENTS 1&2:** **1 JANARDHANAN PILLAI, F/O.SAJAN, ERATHUPADI VEEDU, PERUMPUZHA P.O., KOLLAM.** **2 PONNAMMA, M/O.SAJAN, ERATHUPADI VEEDU, PERUMPUZHA P.O., KOLLAM.** **3 JAYAN, B/O.SAJAN, ERATHUPADI VEEDU PERUMPUZHA P.O., KOLLAM.** **4 RAJESH, B/O.SAJAN, ERATHUPADI VEEDU, PERUMPUZHA P.O., KOLLAM.** **5 KABEERKUTTY, NIYAZ MANZIL, THAZHUTHAL, KOTTIYAM.** M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:2:- **6 RAHIMKUTTY, KILITHATTIL VEEDU, VADAKKUMKARA KIZHAKKU, THAZHUTHAL, KOTTIYAM.** ## **BY ADV SRI.PRATHEESH.P** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2021, ALONG WITH CO.222/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943** **CO NO. 222 OF 2019** **AGAINST THE AWARD DATED 24.03.2008 IN OP(MV)NO.432/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM.** **CROSS OBJECTORS/RESPONDENTS 1 TO 4/ CLAIMANT:** **1 JANARDHANAN PILLAI, AGED 70 YEARS, S/O. MADHAVAN PILLAI, ERATHUPADI VEEDU, PERUMPUZHA P.O. KUNDARA, KOLLAM 691 504. 2 PONNAMMA, AGED 66 YEARS, W/O. JANARDHANAN PILLAI, ERATHUPADI VEEDU, PERUMPUZHA P.O. KUNDARA, KOLLAM 691 504.** **3 JAYAN, AGED 39 YEARS, S/O. JANARDHANAN PILLAI, ERATHUPADI VEEDU, PERUMPUZHA P.O. KUNDARA, KOLLAM 691 504.** **4 RAJESH, AGED 37 YEARS, S/O. JANARDHANAN PILLAI, ERATHUPADI VEEDU, PERUMPUZHA P.O., KUNDARA, KOLLAM 691 504.** **BY ADVS.SRI.PRATHEESH.P** M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:4:- ## **RESPONDENTS/APPELLANT & RESPONDENTS 5 & 6/ RESPONDENTS:** - **1 NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, KOLLAM REPRESENTED BY THE MANAGER, KRO, MG. ROAD, COCHIN 35.** - ***2 KABEERKUTTY, (DELETED), NIJAZ MANZIL, THZHUTHAL, KOTTIYAM, KOLLAM 691 571.** - ***3 RAHIMKUTTY, (DELETED) KILITHATTIL VEEDU, VADAKKUMKARA KIZHAKKU, THAZHUTHAL, KOTTIYAM, KOLLAM 691 571.** - **(RESPONDENT NO 2 AND 3 ARE DELETED FROM PARTY ARRAY AT THE RISK OF THE CROSS OBJECTORS VIDE ORDER DATED 31/03/2021 IN IA 1/2021 IN CO 222/2019)** ## **BY ADV E.M.JOSEPH** **THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 13.09.2021, ALONG WITH MACA.NO.1489/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:5:- _Dated this the 13[th] day of September,2021_ ## **C O M M O N J U D G M E N T** As the appeal and cross-objection arise out of the same award, they are disposed of by this common judgment 2. The appellant – insurer was the third respondent in O.P.(MV)No.432/2003 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents 1 to 4 in the appeal were the claimants and respondents 5 and 6 were the respondents 1 and 2 before the Tribunal. The parties are, for the sake of convenience and wherever the context so requires, referred to as per their status before the Tribunal. 3. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of 'Sajan' (deceased), the son of the petitioners 1 and 2 M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:6:- and the brother of the petitioners 3 and 4. It was their case that, on 01.07.2002, while the deceased was riding a motorcycle through the Kottiyam-Kannanalloor road, when he reached in front of the Kannanalloor Mosque, a maruthi car bearing registration No. KL-2/F 5992(car) driven by the second respondent in a rash and negligent manner, hit against the motorcycle of the deceased. The deceased was thrown to the road and sustained serious injuries. He lost his life on 06.07.2002. The first respondent was the owner and the third respondent was the insurer of the car. The car was owned by the second respondent. The deceased was employed as a Sepoy in the Indian Army and drawing a monthly salary of Rs.7,302/-. The petitioners were dependent on the deceased. Hence, they claimed a compensation of Rs.5,00,000/- from the respondents. 4. The respondent Nos.1 and 2 did not contest M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:7:- the proceedings and were set _ex parte_ . 5. The third respondent filed a written statement contending that the accident occurred on account of the negligence of the deceased. Nevertheless, the third respondent admitted that the car had a valid insurance The third coverage. respondent also disputed the age, income and occupation of the deceased. It is also contended that as per Ext.A1 First Information Report (FIR) and Ext.A2 Scene Mahazar, the motorcycle had hit on the car which was stationary. Therefore, negligence was on the deceased and hence, the third respondent is not liable to pay the compensation amount and prayed that the claim petition be dismissed. 6. The third petitioner and a witness were examined as PWs1 and 2 and Exts.A1 to A12 were marked through them in evidence. The respondents did not let it any evidence. M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:8:- 7. The Tribunal, after appreciating the pleadings and materials on record, allowed the claim petition in part, by permitting petitioners to recover an amount of Rs.5,24,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. 8. Aggrieved by the impugned award, the third respondent/insurer has filed the appeal and dissatisfied with the quantum of compensation, the petitioners have filed the cross-objection. 9. Heard; Sri. E.M. Joseph, the learned counsel appearing for the appellant/third respondent-insurer and Sri. P. Pratheesh, the learned counsel appearing for the respondents 1 to 4/cross-objectors/ petitioners. 10. The questions that emerge for consideration in the appeal are: _(i) whether there was any negligence on the part of the deceased in causing the accident;_ M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:9:- _(ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just?_ ## **Question No:I Negligence and liability:** 11. As per Ext.A5 Final Report filed by the Kottiyam Police in Crime No.396/2002, it is proved that the accident occurred solely due to the negligence of the second respondent, the driver of the car. 12. The Division Bench of this Court in _**New India Assurance Co. Ltd. v. Pazhaniammal and Others**_ [2011 (3) KLT 648], has held that the production of the charge-sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act,1988. Charge-sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept such charge sheet, then the burden is on such party to adduce oral evidence and discredit M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:10:- the charge sheet; only then the charge sheet will fall into a pale of insignificance. 13. In the instant case, the respondents have not let in oral evidence to discredit the charge-sheet. But, on the other hand, the petitioners have examined PWs1 and 2, and marked Exts.A1 to A5 to prove that the accident happened due to the negligence of the second respondent. In the above background, following the ratio in the afore-cited decision, I am of the definite opinion that the accident was caused due to the negligence of the second respondent. Hence, the finding of the Tribunal, in this regard, is perfectly justifiable and sustainable in law. Accordingly, I answer Question No.I against the appellant. ## **Question No:II** ## **Notional income:** 14. The petitioners had claimed that the deceased was a Sepoy in the Indian Army. They had M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:11:- produced Ext.A10 salary certificate to prove his income. The Tribunal, after appreciating the oral testimonies of PWs 1 and 2 and accepting Ext.A10 in evidence, fixed the income of the deceased at Rs.7,000/-. I confirm the finding of the Tribunal in the fixation of the salary of the deceased. ## **Multiplier** 15. The deceased was aged 25 years at the time of the accident and at the time of his death. In the light of the law laid down in _**Sarla Verma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)],the multiplier is '18'. ## **Personal living expenses of the deceased:** 16. Undisputedly, the deceased was a bachelor. Therefore, in view of the law in _**Sarla Verma**_ (supra) and _**National Insurance Company Ltd. v. Pranay Sethi**_ [(2017) 16 SCC 680], one-half of the compensation for 'loss of dependency' has to be M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:12:- deducted towards the personal living expenses of the deceased. ## **Future prospects:** 17. Following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra) and considering that the deceased was aged 25 years on the date of his death, and that he was permanently employed in the Indian Army, 50% of the compensation for 'loss of dependency' has to be awarded towards 'future prospects'. ## **Loss due to dependency:** 18. Taking into account the above-mentioned factors, that is the monthly income of the deceased at Rs.7,000/-, the 'multiplier' at '18', 'future prospects' at Rs.50% and deducting one-half of the compensation for 'loss of dependency' towards the personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.11,34,000/- instead of M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:13:- Rs.5,03,928/- awarded by the Tribunal. ## **Conventional heads of compensation:** 19. In clause (viii) of paragraph 61 of _**Pranay Sethi**_ (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, 'funeral expenses', 'loss of estate' and 'loss of consortium' at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 20. In the instant case, the Tribunal has only awarded an amount of Rs.5,000/- towards 'funeral expenses'. Following the ratio in _**Pranay Sethi**_ (supra), I enhance the compensation under the heads 'funeral expenses' by a further amount of Rs.10,000/-. Similarly, I award an amount of Rs.15,000/- towards 'loss of estate'. Likewise, the petitioners who were the parents and brothers of the deceased are entitled for M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:14:- compensation for 'loss of consortium' at the rate of Rs.40,000/- each, totalling to an amount of Rs.1,60,000/-. ## **Compensation for pain and sufferings and loss of love and affection:** 21. It is seen that the Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection' and Rs.5,000/- under the head 'pain and sufferings'. 22. In _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others**_ [2020(3)KHC 760], the Hon'ble Supreme Court has held that in the case of death, no amount shall be awarded under the head 'pain and sufferings' for the dependants of the deceased. 23. Similarly, in _**New India Assurance Company Ltd. v. Somwati & Ors.**_ [2020(9)SCC 644], the Hon'ble Supreme Court has held that once M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:15:- compensation under the head 'loss of consortium' is awarded, no amount can be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. In the said circumstances, I set aside the amounts of Rs.5,000/and Rs.10,000/- awarded under the above-said heads. 24. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the respondents 1 to 4/petitioners/cross-objectors are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Funeral expenses|5,000|15,000| |2|Pain and sufferings|5,000|Nil| M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:16:- |3|Love and affection|10,000|Nil| |---|---|---|---| |4|Loss of estate|Nil|15,000| |5|Loss of consortium|Nil|1,60,000| |6|Loss<br>of<br>dependancy|5,03,928|11,34,000| ||**Total**|**5,23,928**|**13,24,000**| 25. Even though the respondents 1 to 4/ petitioners had claimed only an amount of Rs.5,00,000/- as compensation, in the light of the principles in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra), that the dependants of the deceased are entitled to 50% of the compensation towards 'future prospects' and also the various other parameters laid down, the petitioners are now entitled for compensation which is more than the amount claimed in the claim petition. The above course is permissible in view of the law laid down in _**Nagappa v. Gurudayal Singh**_ [2003(1) KLT 115 (SC)] and _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)] and also due to the fact that they have filed the M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:17:- cross-objection challenging the inadequacy of compensation. In the result, the appeal is dismissed; and the cross-objection is allowed by enhancing the compensation by a further amount of **Rs.8,00,072/-** with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit, after deducting interest for a period of 4124 days, i.e, the period of delay in preferring this cross-objection and as ordered by this Court on 02.02.2021 in C.M.Appln.No.1/2019, and a cost of Rs.4,000/-. The appellant/third respondent/ insurer is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the respondents 1 to 4/petitioners/cross-objectors in M.A.C.A.No.1489/2008 & C.O.No.222/2019 -:18:- the ratio of 35:35:15:15, after deducting the liability of the petitioners, if any, towards payment of court fee. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge