P.P. Janu and Ors v. T.V. Abdul Salam and The Branch Manager, New India Assurance Co. Ltd.

1 MACA.No.2443 OF 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.2443 OF 2012** **AGAINST THE AWARD IN OPMV 1630/2005 DATED 10-11-2008 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** - **1 P.P.JANU WIFE OF LATE VELAYUDHAN, POOLAPARAMBIL HOUSE, P.O CHOOLOOR, KOZHIKODE.** **2 P.P.RAJANI DAUGHTER OF LATE VELAYUDHAN, POOLAPARAMBIL HOUSE, P.O CHOOLOOR, KOZHIKODE** **3 P.P.BIJIANA DAUGHTER OF LATE VELAYUDHAN, POOLAPARAMBIL HOUSE, P.O CHOOLOOR, KOZHIKODE.** **BY ADV. SHRI.JACOB ABRAHAM** ## **RESPONDENT/S:** - **1 T.V.ABDUL SALAM THAZHATHUVEETTIL HOUSE, KARUVAMPOYIL KODUVALLY P.O, KOZHIKODE 673 001.** **2 THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO.LTD, SHAFEER COMPLEX, KOZHIKODE. 673 001. R2 BY ADV. SMT.A.SREEKALA** **THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 7.4.2021, THE COURT ON 07-04-2021 DELIVERED THE FOLLOWING:** 2 MACA.No.2443 OF 2012 ## **C.S.DIAS, J. ====================== MACA No.2443 of 2012** ## **====================== Dated this the 7[th] day of April, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.1630/2005 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents in the claim petition. 2. The appellants had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one P.P.Biju (deceased), who is the son of the first appellant and brother of the appellants 2 and 3. 3. The facts in brief, for the determination of the appeal, are: On 14.4.2005 while the deceased was riding a motor cycle bearing registration No.KL-11/U 5772, when he reached Kolaikavu in Kozhikode District, a bus bearing registration No.KL-11/U 2349 3 MACA.No.2443 OF 2012 (offending vehicle) owned by the first respondent and insured with the second respondent hit the motor cycle causing serious injuries to the deceased. The deceased succumbed to the injuries on 17.4.2005 while he was undergoing treatment. The deceased was a Barber by profession and earning a monthly income of Rs.5,200/-. The respondents 1 and 2 were jointly and severally liable to pay the compensation amount, which the appellants quantified at Rs.6,00,000/-. 4. The first respondent did not contest the proceedings and was set ex parte. 5. The second respondent filed a written statement admitting the insurance coverage of the offending vehicle. However, it was contended that the accident occurred due to the negligence of the deceased. 6. The appellants marked Exts A1 to A3 in evidence. The respondents did not let in any contra evidence. 7. The Tribunal, after analysing the pleadings 4 MACA.No.2443 OF 2012 and materials on record, by the impugned award allowed the claim petition, in part, by directing the second respondent to pay an amount of Rs.1,55,008/with interest @ 7% per annum from 6.6.2005 till the date of payment. The Tribunal found that the deceased was responsible for contributory negligence to the extent of 5%. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants preferred this appeal. 9. This Court by judgment dated 31.1.2018 allowed the appeal, in part, by enhancing the compensation from Rs.1,55,008/- to Rs.8,60,550/-. However, this Court found that the Tribunal had gone wrong in fixing the contributory negligence on the deceased at 5% instead of 50%. Consequently, this Court by the impugned judgment fixed the contributory negligence at 50% and reduced the compensation by half. 10. Aggrieved by the above judgment, the 5 MACA.No.2443 OF 2012 appellants preferred RP 746/2018. This Court by order dated 19.3.2021, on finding that as per Annexure A2 final report filed by the Sub-Inspector of Police, City Traffic, Kozhikode in crime No.597/2005 that the driver of the offending vehicle was negligent in causing the accident, allowed the review petition as there was an error apparent on the face of record. Accordingly, the judgment was recalled and the appeal was re-heard. 11. The appellants have produced the driving licence of the deceased along with final report filed by the Police with an application to accept the same. The application was allowed and the above documents have been accepted and marked in evidence as Exts A4 and A5, respectively. 12. Heard Sri.Jacob Abraham, the learned counsel appearing for the appellants and Smt.A.Sreekala, the learned counsel appearing for the second respondent. 13. The first question that emanates for 6 MACA.No.2443 OF 2012 consideration in the appeal is whether the deceased can be held guilty for contributory negligence. 14. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 15. It is an undisputed fact that the deceased succumbed to the injuries on 17.4.2005, on account of the accident, as discernible from Annexure A2 postmortem report. The Police after investigation have filed Ext A5, wherein they have concluded that the accident occurred due to the rash and negligent driving of the offending vehicle by the first respondent. 7 MACA.No.2443 OF 2012 16. In view of the law laid down by the Division Benches of this Court in **New India Assurance Co.Ltd v. Pazhaniammal – [(2011) (3) KLT** **648]** and **Kolavan v. Salim [2018 (1) KLT 489],** the production of Ext A5 final report concludes the fact of negligence on the part of the driver of the offending vehicle, especially since no contra evidence has been let in by the respondents. Therefore, I hold that it was only the first respondent – the driver of the offending vehicle - who was negligent in causing the accident. 17. The Tribunal had found that as the appellants did not produce the driving licence of the deceased to prove that he was authorised to drive the motor cycle on a public road. The Tribunal accordingly held that the respondents are only liable to pay 50% of the compensation amount. However, in the concluding paragraph, the Tribunal fixed the contributory negligence at 5%. 18. The appellants have produced Ext A4 extract 8 MACA.No.2443 OF 2012 of driving licence of the deceased, which proves that the deceased had a valid driving licence as on the date of accident. Therefore, the said finding of the Tribunal is wrong and only to be set aside. In the said circumstances, I am of the opinion that only the driver of the offending vehicle can be held negligent for having caused the accident. As the first respondent is the owner of the vehicle and the second respondent is the insurer of the offending vehicle, the second respondent is liable to indemnify the first respondent for compensation that he is liable to pay as per this judgment. Therefore, the above question is answered in favour of the appellants. 19. Now coming to the next question , i.e., what is the just and reasonable compensation payable by the respondents to pay to the appellants. ## **Notional Income** 20. The appellants had claimed that the deceased was a Barber by profession and having an income of Rs.5,200/- per month. He was aged 30 years at the 9 MACA.No.2443 OF 2012 time of his death. The Tribunal fixed the notional income of the deceased at Rs.4,000/- per month. 21. In **Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236],** the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 @ Rs.4,500/- per month. 22. Following the parameters in the aforecited decision, I am of the considered opinion that the deceased's notional income can safely be fixed at Rs.5,200/- as claimed in the petition. ## **Multiplier** 23. In view of the re-fixation of the notional income of the deceased, the consequential compensation has to be necessarily enhanced. As the deceased was aged 30 years at the time of his death, the relevant multiplier as per the law laid down in **Sarla Verma v. Delhi Transport Corporation** **[(2009) 6 SCC 121]** is 17. In view of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), the 10 MACA.No.2443 OF 2012 appellants – the dependents of the deceased – are also entitled for future prospects @ 40% on the compensation for loss of dependency. As the deceased was a bachelor, one-half of the compensation has to be deducted towards his personal living expenses. In the said circumstances, taking the above parameters into account, I refix the compensation for loss of dependency with future prospects at Rs.7,42,560/instead of Rs.1,38,666/- awarded by the Tribunal. ## **Conventional heads of claim** 24. In light of the law laid down in **Pranay Sethi** (supra), the appellants are entitled for compensation under the conventional heads, namely, funeral expenses, pain and sufferings and loss of consortium at Rs.15,000/-. Rs.15,000/- and Rs.40,000/- respectively. 25. In the above circumstances, I fix the compensation under the head 'funeral expenses' at Rs.15,000/- instead of Rs.2,500/- fixed by the Tribunal, compensation under head 'loss of estate' at Rs.15,000/-, where nothing was awarded by the 11 MACA.No.2443 OF 2012 Tribunal and compensation under the head 'loss of consortium' at Rs.40,000/- towards filial consortium to the first appellant, where no amount was awarded by the Tribunal. ## **Love and affection** 26. This Court in **Kunjandy. L & Ors v. Rajendran & Ors [2020 (2) KLT 315]** has laid down the law that once the compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head 'loss of love and affection'. Therefore, I set aside the compensation awarded by the Tribunal under the head 'loss of love and affection'. ## **Pain and sufferings** 27. The Tribunal awarded an amount of Rs.7,500/- as compensation under this head. Undisputedly, the accident occurred on 14.4.2005 and the deceased expired on 17.4.2005. Thus, the deceased was treated as an inpatient for three days. Therefore, I fix Rs.5000/- per day as reasonable 12 MACA.No.2443 OF 2012 compensation under the head pain and sufferings. Accordingly, I refix the compensation under the head 'pain and sufferings' at Rs.15,000/- instead of Rs.7,500/- fixed by the Tribunal. ## **Other heads of claim** 28. With respect to other heads of claim, namely, transportation expenses and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 29. On an overall reappreciation of the pleadings and materials on record, and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the definite opinion that the appellants are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of dependency|1,38,666/-|7,42,560/| |2|Medical treatment (no bills)|3,000/-|3,000/-| 13 MACA.No.2443 OF 2012 |3|Transportation expenses|1,500/-|1,500/-| |---|---|---|---| |4|Pain and suffering|7,500/-|15,000/-| |5|Love and affection|10,000/-|nil| |6|Funeral expenses|2,500/-|15,000/-| |7|Loss of estate|nil|15,000/-| |8|Loss of consortium|nil|40,000/-| ||Total|1,63,166/-|8,32,060/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.6,68,894/- (Rupees Six Lakh Sixty Eight Thousand Eight Hundred and Ninety Four only) with interest at the rate of 7% per annum from the date of petition till the date of deposit on the enhanced compensation, after deducting the period of 1393 days, i.e., the period of delay in filing the appeal and as ordered by this Court in CM Appln No.2889/2012, and proportionate costs. The second respondent/Insurance Company shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment after deducting the liability of the 14 MACA.No.2443 OF 2012 appellants if any, towards balance court-fee. The appellants/petitioners would be at liberty to move the Tribunal for withdrawal of the enhanced compensation, in accordance with law. Needless to mention that if the second respondent has deposited any amount pursuant to the judgment dated 31.1.2018 of this Court, the second respondent need only deposit the balance compensation payable as per this judgment. sd/- **C.S.DIAS** sks/7.4.2021 **JUDGE**