Omana and Others v. Shihabudhin and Thabeel and The Oriental Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944 ``` ## **`MACA NO. 426 OF 2011`** ``` AGAINST THE AWARD IN OPMV 2404/2004 OF SPECIAL COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR ``` ## **`APPELLANTS/PETITIONERS:`** |**`1`**|**`OMANA`**| |---|---| ||**`W/O.LATE VARGHESE,`**| ||**`MAROKKI HOUSE,MAMMIYOOR PO,`**| ||**`GURUVAYOOR,, THRISSUR DISTRICT.`**| |**`2`**|**`THOMAS S/O.KOCHAPPU`**| ||**`RESIDING AT MAROKKI HOUSE,MAMMIYOOR PO,`**| ||**`GURUVAYOOR,THRISSUR DISTRICT.`**| |**`3`**|**`ROSA, W/O.THOMAS`**| ||**`RESIDING AT MAROKKI HOUSE,MAMMIYOOR PO,`**| ||**`GURUVAYOOR,, THRISSUR DISTRICT.`**| ||**`BY ADV SRI.T.C.SURESH MENON`**| ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`SHIHABUDHIN`**| |---|---| ||**`S/O.A AHAMMED`**| ||**`5/1264,MATTANCHERRY P.O., COCHIN -682 002`**| |**`2`**|**`THABEEL, S/O.BHAVAUNNY`**| ||**`KALATHINGAL HOUSE, ANDATHODE,`**| ||**`THANGALPARY, THRISSUR DISTRICT – 680 012`**| |**`3`**|**`THE ORIENTAL INSURANCE CO.LTD`**| ||**`CHALAKUDY BRANCH, CHALAKKUDY P.O. 680 307`**| ||**`BY ADVS.`**| ||**`SRI.P.JACOB MATHEW`**| ||**`SRI.MATHEWS JACOB SR.`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 426 OF 2011 ``` ``` 2 ``` ## **JUDGMENT** The award in O.P.(MV).No.2404/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur dated 07.10.2010 is put under challenge in this appeal by the petitioners before the Tribunal, arraying respondents before the Tribunal as respondents herein. 2. Heard the learned counsel for the appellants as well as the learned counsel for the Insurance Company. 3. The brief facts of the case are as follows: The case put up by the appellants before the Tribunal is that, on 31.07.2004 at about 2 pm, while one ‘Varghese’ was riding on his motorcycle bearing registration No.KL-8/S 1641 through Ponnanni – Chavakkad road, a Toyotta Qualis car bearing registration No.KL-7/AB-2704 came from the opposite ``` MACA NO. 426 OF 2011 ``` ``` 3 ``` direction, driven by the second respondent, in a rash and negligent manner dashed against the motorcycle and in consequence thereof, ‘Varghese’ sustained serious injuries and he breathed his last. Thus, the appellants pressed for granting compensation to the tune of Rs.7,50,000/- from respondents 1 to 3. 4. Respondents 1 and 2 were declared ex parte by the Tribunal. 5. The third respondent Insurance Company filed written statement, admitting policy to the Toyotta Qualis car, while disputing negligence. The specific contention raised by the third respondent before the Tribunal is that the accident is the outcome of negligence on the part of the deceased. Apart from that, quantum of compensation under various heads also was disputed. ``` MACA NO. 426 OF 2011 ``` ``` 4 ``` 6. The Tribunal ventured the matter, relying on the evidence of PW1 and Exts.A1 to A11 marked on the side of the appellants, where no evidence let in by the respondents. 7. The Tribunal adjudicated the matter and found that the accident is the outcome of negligence on the part of the deceased as well as the second respondent in the proportion 50 : 50. Accordingly, after assessing Rs.3,61,000/- as total compensation, 50% of the same alone was granted as compensation along with 8% interest. 8. The learned counsel for the appellants raised two contentions in this case. The first contention raised is that the finding of the Tribunal in the matter of negligence, attributing 50% contribution on the part of the deceased ‘Varghese’ is erroneous and the same is without support of any cogent evidence. According to ``` MACA NO. 426 OF 2011 ``` ``` 5 ``` him, as per Ext.A2 final report, on investigation, the Police laid charge against the second respondent, alleging commission of offence under Sections 279 and 304A of IPC. But the Tribunal given much emphasis to the scene mahazar forming part of Ext.A2 and found that the motorcycle rider was on the wrong side and thus, he also contributed the accident. According to the learned counsel, in order to find contributory negligence, convincing evidence to that effect is necessary in a case where Police laid charge against one among the drivers, attributing negligence on his part. 9. Opposing his contention, the learned counsel for the Insurance Company would submit that as per the scene mahazar, the deceased was on the wrong side and therefore, the Tribunal is justified in finding contributory negligence. ``` MACA NO. 426 OF 2011 ``` ``` 6 ``` 10. I have addressed the issue of contributory negligence in the decision reported in **Velayudhan E.P. v. P.P.Poulose and Others** (2022 (5) KHC 193) and it has been held that mere recitals in the scene mahazar forming part of Police charge by itself is not sufficient to find contributory negligence without support of any convincing and cogent evidence to hold so. It was held further that in order to prove contributory negligence, independent witness has to be examined or else the police charge itself is one suggestive of contributory negligence. In view of the same, in this matter, as against the Police charge, finding negligence on the part of the deceased, relying on scene mahazar cannot be justified and therefore, the said finding stands set aside. 11. The second challenge is regarding the quantum of compensation. It is pointed out by the ``` MACA NO. 426 OF 2011 ``` ``` 7 ``` learned counsel for the appellants that the appellants claimed income of the deceased 'Varghese', who was aged 39 at the time of accident, at Rs.4,650/-, being a beedi worker, and to prove the same, Ext.A8 salary certificate issued by PW1 had been let in. 12. In this matter, the accident is of the year 2004. Therefore, following the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], Rs.4,500/- is fixed as monthly income for calculating 'loss of dependency income'. The age of the deceased is established by Ext.A9, extract of admission register issued by the Headmistress, Government High School, Chavakkad. As per which, the date of birth of 'Varghese' was on 01.05.1965 and the accident was on 31.07.2004. Therefore, the deceased was aged 39 years (below 40 years) on the date of ``` MACA NO. 426 OF 2011 ``` ``` 8 ``` accident. As such, 40% addition towards future prospects (4,500+1,800=6,300) also is liable to be given, following the ratio in **National Insurance Company Limited v. Pranay Sethi and Ors** (2017 (4) KLT 662) **.** No doubt, the multiplier is ‘15’, following the ratio in **Sarla Verma (Smt) & Ors v. Delhi Transport Corporation & Anr.** [2010 (2) KLT 802 (SC)]. 1/3[rd] is the deduction since the number of dependents are only 3. Accordingly, the ‘loss of dependency income’ is recalculated as under: 6,300 x 12 x 15 x 2/3 = **Rs.7,56,000/-** 13. Apart from that, the appellants together entitled to get Rs.40,000/- each, towards 'loss of consortium'. Thus, **Rs.1,20,000/-** is granted under the said head. Apart from that, **Rs.15,000/-** each is granted under the head 'loss of estate’ and funeral expenses'. ``` MACA NO. 426 OF 2011 ``` ``` 9 ``` 14. It is noticed that the Tribunal granted Rs.6,000/- under the head ‘pain and sufferings’ and Rs.10,000/- under the head ‘love and affection’. The same are impermissible as per the ratio in **United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others [2020(3) KHC 760].** Thus, the total compensation comes to **Rs.9,22,000/-** (7,56,000 + 1,20,000 + 15,000 + 15,000) 16. The appellants valued the claim only at Rs.7,50,000/- and therefore, they are bound to pay additional court fee for the enhanced compensation to the tune of Rs.1,72,000/-. In the result, this appeal stands allowed. It is ordered that the appellants are entitled to get total compensation of **Rs.9,22,000/** - (Rupees nine lakh and twenty two thousand only) at the rate of 8% interest granted by the Tribunal from the date of petition till the ``` MACA NO. 426 OF 2011 ``` ``` 10 ``` date of deposit or realisation. The Insurance Company is directed to deposit court fee for a sum of Rs.1,720/- in the name of the Motor Accidents Claims Tribunal being the additional court fee. The insurer is directed to deposit the remaining amount in the name of appellants in the proportion 40:25:35, within two months from today. On deposit, the appellants can withdraw the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr