P. Soumini & Others v. Nirmala K. & Others (MACA No. 604 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **FRIDAY, THE 26TH DAY OF JULY 2013/4TH SRAVANA, 1935** ## **MACA.No. 604 of 2010** **------------------------AGAINST THE AWARD IN OP(MV)NO. 664/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY DATED 26-09-2009** **....** ## **APPELLANT(S)/PETITIONERS::** **--------------------------------------------------** **1. P.SOUMINI, 68 YEARS, W/O.LATE GOVINDAN, MAYIMANKANDY HOUSE, KANHIRA, P.O.THOTTADA, KANNUR DISTRICT.** **2. P.SHOBHANA, 51 YEARS, D/O.LATE GOVINDAN, MAYIMANKANDY HOUSE, KANHIRA, P.O.THOTTADA, KANNUR DISTRICT.** **3. P.SREEJA, 47 YEARS, D/O.LATE GOVINDAN, MAYIMANKANDY HOUSE, KANHIRA, P.O.THOTTADA, KANNUR DISTRICT.** **4. P.RANJITH, 42 YEARS, S/O.LATE GOVINDAN, MAYIMANKANDY HOUSE, KANHIRA, P.O.THOTTADA KANNUR DISTRICT.** **5. SUJITH KUMAR, 39 YEARS, S/O.LATE GOVINDAN, MAYIMANKANDY HOUSE, KANHIRA, P.O.THOTTADA, KANNUR DISTRICT.** **BY ADVS.SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU** ## **RESPONDENT(S):RESPONDENTS:** **---------------------------------------------------** ## **1. NIRMALA.K., W/O.DAMODARAN,** **SANNIDHAN, PEEKODE, P.O.PATHAYAKUNNU, THALASSERY.** ## **2. C.UDAYA KUMAR, S/O.BALAKRISHNAN, CHANDROTH HOUSE, P.O.PATHAYAKUNNU, THALASSERY.** ## **3. M/S.UNITED INDIA INSURANCE CO.LTD., KANNUR.** ## **R1 & R2 BY ADV. SRI.STALIN PETER DAVIS R3 BY ADV. SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **MACA.NO.604/2010** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.A: COPY OF TH FINAL REPORT IN CRIME NO.238/2003 ALONG WITH THE CHARGE SHEET DTD. 03/12/2003.** **ANNEX.B: COPY OF THE JUDGMENT DTD. 27/07/2007 IN CC.173/2004. ANNEX.C: COPY OF THE POSTMORTEM CERTIFICATE DTD. 19/04/2003. ANNEX.D: COPY OF THE ADDITIONAL REPORT DTD. 23/04/03.** **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------M.A.C.A. No.604 of 2010-E --------------------------------------------------------------Dated this, the 26[th] day of July 2013 ## Judgment ## Ramakrishnan, J. The appellants are the mother and siblings of the deceased Ajith Kumar, who died in a motor vehicle accident caused on account of the rash and negligent driving of the vehicle by the second respondent, owned by the first respondent and insured with the third respondent. They filed the claim petition, seeking compensation for the death of their only breadwinner. The original application was filed under Section 163A of the Motor Vehicles Act and thereafter, it was amended to one under Section 166 of the Act. The Tribunal, analysing the evidence of PW1, who is not an eye-witness to this incident, came to the conclusion that since negligence has not been proved by the appellants, they are not entitled to maintain an action for compensation and dismissed the application. Dissatisfied with the dismissal of the application, MACA No.604/2010 2 the present appeal has been preferred by the appellants. 2. We have heard the learned counsel for the appellants and the learned standing counsel for the Insurance Company. 3. The counsel for the appellants submitted that the accident has not been disputed. Further, they have produced Ext.A1 to show that the case was registered for rash and negligent driving against the driver of the vehicle and the postmortem certificate also shows that he died on account of the injuries, sustained in the accident. Further, along with the appeal, they have filed IA No.1380/2010 for reception of additional documents Annexures A to D, namely, the certified copy of the final report, the judgment in the criminal case, the post-mortem certificate and an additional report, which will go to show that the driver of the vehicle was chargesheeted for the offences punishable under Section 279 and 304A of the Indian Penal Code. But, he was acquitted for want of evidence. That shows that prima facie, there is evidence to MACA No.604/2010 3 prove that the accident occurred due to the negligent driving by the driver of the vehicle. So, he prayed for allowing the appeal. 4. On the other hand, the learned standing counsel for the Insurance Company submitted that in the absence of evidence adduced on the side of the appellants to prove negligence, the Tribunal was perfectly justified in dismissing the claim petition. 5. We have considered the rival contentions of both parties in detail. 6. It is true that in a case for compensation for death or injury in tort, there is a primary duty cast on the claimants to prove negligence on the part of the wrong doer. In this case, it is true that no eye-witness was examined. But, at the same time, they have produced Ext.A1 certified copy of the First Information Report to show that the case was registered against the second respondent for rash and negligent driving. The post-mortem certificate shows that he died on account of MACA No.604/2010 4 the fracture sustained in the accident. In the appeal, the appellants have produced the certified copy of the final report, which will go to show that after the investigation, the investigating officer has filed final report against the driver of the vehicle involved in the accident for rash and negligent driving, alleging offences punishable under Sections 279 and 304A of the Indian Penal Code, which we have received and marked as Exts.A6 to A9 respectively. Though the criminal court has acquitted the accused in that case, in the judgment in CC No.173/2004 produced by the appellants along with the application to receive documents, it is mentioned that since there was no strong and cogent evidence to show that the accident was caused due to the rash and negligent driving of the vehicle, that benefit was given to the accused and he was acquitted. In a criminal case, the offence has to be proved beyond reasonable doubt. But, in a civil action for compensation, they need only prove the case on the basis of preponderance of probability alone. Further, there was no MACA No.604/2010 5 evidence adduced on the side of the respondents also to prove that the accident occurred due to any negligence on the part of the deceased. There was not even a contention raised in the written statement that the deceased was responsible for the accident, except stating that there was no negligence on the part of the second respondent. Under such circumstances, once a pedestrian is hit by a bus, the accident will speak for itself and the principle of res ipsa loquitor will be applicable in this case and negligence can be presumed against the driver of the vehicle. So, the finding of the Tribunal that the appellants have failed to prove that the accident occurred due to the negligent driving of the bus by the second respondent, is unsustainable in law and the same is liable to set aside. We do so and hold that the accident occurred due to the rash and negligent driving of the bus by the second respondent. 7. Though no compensation was assessed by the Tribunal, considering the fact that the mother of the deceased, who was the only dependant, was aged 62 years at the time MACA No.604/2010 6 of filing the application, we feel that with the available materials, we can assess the compensation in the appeal itself without remanding the case for that purpose. Though the appellants claimed that the deceased was a sales representative and getting Rs.4,500/- per month plus other incentives and relied on Ext.A5 certificate given by one vegetable merchant, it is not properly proved and so, it cannot be relied on for the purpose of fixing the monthly income of the deceased. Considering the fact that he was aged 28 years at the time of death and was an energetic youngster, we can assume that he will be doing some work and getting some income. Since the accident occurred in the year 2003 and considering the cost of living and status of parties, we feel that the monthly income of the deceased can be fixed @ Rs.2,500/- per month. Since appellants 2 to 5 are major siblings of the deceased, they cannot be treated as dependants of the deceased and the only dependant is the first claimant, who is the mother of the deceased. The MACA No.604/2010 7 deceased was a bachelor. Applying the principle laid down in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), deducting 50% for the personal expenses of the deceased and taking 17 as the multiplier, considering the age of the deceased, the appellants would be entitled to get a compensation of Rs.2,55,000/- (2500 x 12 x 17) under the head loss of dependency and we award the said amount under that head. We also award Rs.10,000/- under the head pain and suffering, Rs.10,000/- under the head loss of love and affection for the mother, Rs.3,000/- for funeral expenses, Rs.1,000/- for transport expenses and Rs.5,000/- under the head loss of estate. So, the first appellant will be entitled to get a total compensation of Rs.2,84,000/-, which the third respondent Insurance Company is liable to pay with 9% interest from the date of claim petition till the date of payment. The amount will be paid to the first appellant, as others were found to be not the dependants of the deceased. Two months' time is granted to the Insurance Company to deposit this MACA No.604/2010 8 amount. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA No.604/2010 9 MACA No.604/2010 10