Pushpanjali v. Gulam Gose and Others (MACA No. 740 of 2006)

MACA NO. 740 OF 2006 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **MACA NO. 740 OF 2006** **AGAINST THE ORDER/JUDGMENT IN OPMV 1264/1998 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL , PALAKKAD, PALAKKAD** **APPELLANT/S:** |1|PUSHPANJALI, W/O LATE VIJAYAKUMAR,| |---|---| ||AGED 35 YEARS| ||SANKARAN KANDTH VEEDU, KONAN PUTHUR,, KANJIKODE| ||P.O. PALAKKAD.| |2|ATHMAJA AGED 12 YEARS (MINOR)| ||S/O.LATE VIJAYAKUMAR.| |3|AKSHAYAKUMAR AGED 9 YEARS (MINOR)| ||D/O.LATE VIJAYAKUMAR.(MINOR APPELLANTS 2ND AND,| ||3RD REPRESENTED BY MOTHER IST APPELLANT).| |4|KUPPAYE (DIED).| |5|PUSHPAM W/O.KUPPAYE.| |6|PACHU W/O.DECEASED KANDANKUTTY (DIED).| |7|SHARMILA WO.SIVADAS KAKKATH VEEDU| ||VELLA ROAD, MANKARA,, PALAKKAD.| |8|SUDHEESH KUMAR S/O.KUPPAYE| ||SANKARAN KANDATH VEEDU, KANNAN PUDUR,, KANJIKODE,| ||PALAKKAD.| |9|SATHEESH KUMAR SO.KUPPAYE DO. DO.| |10|MANOJ KUMAR SO.KUPPAYE DO DO.| |11|PRMEELA WO.SREEDHARAN| MACA NO. 740 OF 2006 2 PANDARAKALATHIL VEEDU, KUTHANUR, ALATHUR TALUK. BY ADV SRI.T.K.SANDEEP ## **RESPONDENT/S:** 1 GULAM GOSE, S/OSULTHAN AHAMMED, CAMPAL ROAD, RAM NAGAR, TAGORE GUNCH, LUCKNOW,, UTTARPRADESH. 2 MUKESH KUMAR SINGH SO.HARIHARAN SINGH KANCHANA, HARDOI, UTTARPRADESH. 3 NATIONAL INSURANCE CO.LTD. HALVALRIA COURT, HAZHRATHUGUNCH, LUCKNOW 226 011. 4 SULTHAN AHAMMED SO.SULAIMAN GANAPATH ROAD, RAM NAGAR, LUCKNOW. BY ADV SRI.LAL GEORGE, SC, NATIONAL INSURANCE COMPANY LIMITED THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 740 OF 2006 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1264/1998 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Vijayakumar (deceased), husband of the 1[st] appellant, father of the appellants 2 and 3 and son of the appellants 4 and 5. The appellants 6 to 11 are the legal representatives of the deceased 4[th] appellant. It was the case of the appellants 1 to 5 in the claim petition that, on 02.09.1998, while the deceased was driving his motor cycle bearing registration No.TAR-7435, along the National Highway at Kanjikode, he hit the rear portion of a parked lorry bearing registration No.UP 30A 2382 (offending lorry), which was negligently parked on the National Highway without any parking light or signal. The 1[st] respondent was the driver, the 2[nd] respondent MACA NO. 740 OF 2006 4 was the registered owner, the 3[rd] respondent was the insurer and the 4[th] respondent was the defacto owner of the lorry. The deceased was a quarry worker and earning a monthly income of Rs.4,000/-. The appellants 1 to 5 were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.5,00,000/- from the respondents. 3. The respondents 1, 2 and 4 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the lorry had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the deceased, who hit on the rear portion of the lorry. The 3[rd] respondent also denied the age, income and occupation of the deceased. The 3[rd] respondent prayed that the claim petition be dismissed. 5. During the pendency of the claim petition the 4[th] appellant died and his legal representatives were impleaded as the supplemental petitioners 6 to 11, who are the appellants 6 to 11 in the appeal. MACA NO. 740 OF 2006 5 6. The 1[st] appellant and witnesses were examined as PWs 1 and 2 and Exts.A1 to A7 were marked in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants 1 to 3 and 5 to realise from the 3[rd] respondent an amount of Rs.2,44,900/-. Nevertheless, the Tribunal held that as the deceased had hit on the rear portion of the parked lorry, the deceased was guilty for contributory negligence to the extent of 50%. Accordingly, the compensation was deducted 50% of the compensation amount and awarded only an amount of Rs.1,22,450/-. The 3[rd] respondent was directed to pay the aforesaid amount with interest and cost to the appellants 1 to 3 and 5. 8. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri. T.K. Sandeep, the learned counsel appearing for the appellants/petitioners and Sri.Lal George, MACA NO. 740 OF 2006 6 the learned counsel appearing for the 3[rd] respondent/insurer. 10. The questions that emerge for consideration in this appeal are: 1. Whether the finding of fixing the contributory negligence on the deceased is sustainable in law? 2. Whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Question No.I** 11. The definite case of the appellants in the claim petition was that, the accident occurred due to the negligent parking of the lorry on the National Highway by the 1[st] respondent, without any signal or parking light. The Tribunal for the reason that the deceased had hit on the rear portion of the lorry found that the deceased was guilty for the contributory negligence to the extent of 50%. 12. In Ext.A3 charge sheet filed by the Valayar Police in Crime No.98/98, it is found that the accident occurred due to the negligence of the 1[st] respondent. MACA NO. 740 OF 2006 7 13. In **New India Assurance Company Ltd. vs. Pazhaniammal** [2011 (3) KLT 648] a Division Bench of this this Court has categorically held that, as a general rule, 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, the burden is on such party to adduce oral evidence and discredit the charge sheet; only then the charge sheet will fall into a pale of insignificance. 14. In the instant case, the respondents have not let in any evidence to discredit Ext.A3 charge sheet filed by the Police. Therefore following the ratio in **Pazhaniammal** (supra) and considering the fact that the lorry was parked on the National Highway without any signal or parking light, I hold that the accident happened solely due to the negligence of the 1[st] respondent. Hence, I set aside the finding of contributory negligence in the impugned award. Accordingly I answer Question No.1 in favour of the appellants and hold 8 MACA NO. 740 OF 2006 that the appellants 1 to 3 and 5 are entitled for the entire amount of compensation to be realised from the 3[rd] respondent, who admittedly is the insurer of the lorry and has not proved that the 2[nd] respondent has violated any of the insurance policy conditions. ## **Income of the deceased** 15. The appellants had claimed that the deceased was a quarry worker by profession and earning a monthly income of Rs.4,000/-. The appellants had not produced cogent evidence to substantiate the income of the deceased. 16. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 SCC 236] the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/ per month. 17. Following the yardstick in the afore-cited decision and considering the fact that the deceased was a quarry worker and the accident happened in the year 1998, I hold that an amount of Rs.2,000/- can safely be fixed as the MACA NO. 740 OF 2006 9 notional monthly income of the deceased. ## **Multiplier** 18. The deceased was aged 35 years on the date of the accident/death. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '16'. ## **Dependents of the deceased** 19. It is proved by Ext.A7 legal heir-ship certificate that the appellants 1 to 3 and 5 are the wife, children and mother of the deceased. They are four in number. Therefore, going by the law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 20. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 35 years at the time of accident, I hold that the MACA NO. 740 OF 2006 10 appellants 1 to 3 and 5 are entitled for future prospects at 40% on the compensation for loss due to dependency. ## **Loss due to Dependency** 21. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.2,000/-, multiplier at 16, future prospects at 40% and after deducting one fourth of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.4,03,200/-, instead of Rs.2,30,400/- fixed by the Tribunal. ## **Conventional Heads of Compensation** 22. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads i.e., funeral expenses, loss of estate and loss of consortium at Rs.15,000, Rs.15,000 and Rs.40,000 respectively. 23. In the instant case, the Tribunal has awarded only an amount of Rs.2,000/- under the head funeral expenses, MACA NO. 740 OF 2006 11 Rs.2,500/- towards loss of estate and Rs.5,000/- towards loss of consortium. 24. In the light of the law laid down in **Pranay Sethi** (supra), I enhance the compensation under the aforesaid respective heads by a further amount of Rs.13,000/-, Rs.12,500/- and Rs.1,55,000/-. 25. I award Rs.1,60,000/- towards loss of consortium in view of the fact that the appellants 1 to 3 and 5 are the wife, children and mother of the deceased, who are entitled for loss of consortium. ## **Compensation for pain and sufferings** 26. It is seen that the Tribunal has awarded an amount of Rs.5,000/- under the head 'pain and sufferings'. 27. In paragraph 19 of **Sarla Verma** (supra), the Honourable Supreme Court has held that in the case of instantaneous death, no amount of compensation shall be awarded under the head 'pain and sufferings'. Therefore, I set aside the amount of Rs.5,000/- awarded under the aforesaid head. MACA NO. 740 OF 2006 12 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above referred decisions, I hold that the appellants 1 to 3 and 5/petitioners 1 to 3 and 5 are entitled for enhancement of compensation as recalculated above and given in the table below for easy reference: **==> picture [418 x 370] intentionally omitted <==** **----- Start of picture text -----**<br> Amounts<br>modified<br>Amount<br>SI. and<br>awarded by<br>Head of claim recalculat<br>the Tribunal<br>No ed by this<br>(in Rs.)<br>Court (in<br>Rs.)<br>1. Funeral expenses 2,000 15,000<br>2. Loss of estate 2,500 15,000<br>3. Pain and sufferings 5000 0<br>4. Loss of consortium 5,000 1,60,000<br>5. Loss due to dependency 2,30,000 4,03,200<br>2,44,900-50%<br>contributory<br>Total 5,93,200<br>negligence<br>=1,22,450<br>**----- End of picture text -----**<br> ## 29. Even though the appellants had claimed only an MACA NO. 740 OF 2006 13 amount of Rs.5,00,000/-, in the claim petition, following the ratio in **Sarla Verma** and **Pranay Sethi** (supra), that the dependents of the deceased are entitled for future prospects and compensation under the conventional heads, I award more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)], wherein the Honourable Supreme Court has held that there is no restriction in awarding more compensation than what is claimed in the claim petition. In the result, the appeal is allowed in part by enhancing the compensation by an amount of Rs.4,70,750/- (that is Rs.3,48,300/towards enhanced compensation + Rs.1,22,450/- deducted by the Tribunal towards contributory negligence) with interest at the rate of 7% per annum on the above said amount from the date of petition till the date of deposit and a consolidated cost of Rs.31,000/-. The 3[rd] respondent is ordered to deposit the compensation amount of 14 MACA NO. 740 OF 2006 Rs.4,70,750/- with interest and cost within a period of 60 days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation with interest and cost to the appellants in the ratio of 30:30:30:10 and in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc