Raghavan and Sathi Ragavan v. Gouthaman and The Divisional Manager, National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938 MACA.No. 394 of 2013 () -----------------------AGAINST THE AWARD IN OPMV 2912/2005 OF MACT, THRISSUR DATED 05-11-2012 APPELLANT(S)/PETITIONERS:-: ------------------------------------ 1. RAGHAVAN S/O.NARAYANAN, F/O.SOORAJ, NEDIYEDATH HOUSE, RESIDING AT PUTHUR POST, KAIPARAMBA & VILLAGE, THRISSUR TALUK & DISTRICT - 680 546. ## 2. SATHI RAGHAVAN, W/O.P.I.RAGHAVAN, M/S.DECEASED SOORAJ, -DO- ## BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT(S)/RESPONDENTS:-: ---------------------------- 1. GOUTHAMAN S/O.KUTTAN, KARIMPADATH HOUSE, RESIDING AT CHELAKKARA & POST, THRISSUR - 680 586. ## 2. THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO.LTD., DIV. OFFICE, KOLLANNUR DEVASSY SMARAK BUILDINGS, ROUND EAST, THRISSUR. R1 BY ADV. SRI.P.VIJAYA BHANU (SR.) R1 BY ADV. SMT.M.M.DEEPA R1 BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) R2 BY ADV. SRI.S.K.AJAY KUMAR R2 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **&** ## **K. P. JYOTHINDRANATH, JJ. ========================== M.A.C.A. No.394 OF 2013 ==========================** Dated this the 13[th] day of June, 2016 ## **JUDGMENT** _**.** Jyothindranath, J_ This appeal is preferred by the claimants in O.P.(MV).No.2912 of 2005 on the files of the Motor Accidents Claims Tribunal, Thrissur. The challenge is against the finding of the Tribunal on the negligence aspect as well as against the quantum of compensation awarded. 2.A motor vehicle accident occurred on 10.09.2005 at about 1.30 p.m, on Thrissur-Wadakkanchery National Highway. The vehicles involved are, a Maruti Zen car and a motorcycle. The deceased, the son of the appellants herein, was riding a motorcycle bearing Reg.No.KL-08/U 9732. He sustained fatal injuries in the **M.A.C.A.394/2013** 2 accident and while undergoing treatment at Aswini Hospital, Thrissur, he succumbed to the injuries. It is the case of the appellants herein that the deceased was the only son as well as the accident occurred due to the negligence of the driver of the Maruti car involved in the accident. They filed the claim petition before the Tribunal claiming a total compensation of `10,00,000/-. 3.After considering the evidence, the Tribunal found that the accident occurred due to 60% negligence of the driver of the car as well as 40% negligence, that of the deceased. In other words, there was contributory negligence on the side of the deceased. A total compensation of `3,87,250/- was granted. Aggrieved by the said quantum of compensation as well as the finding regarding the negligence aspect, this appeal filed. 4.When the appeal came up for hearing, the learned counsel for the appellants submitted before us that here is a case where the **M.A.C.A.394/2013** 3 Tribunal erred in appreciating the evidence before it. It is the submission that, in this case, the appellants produced before the court the final report filed by the Police after a thorough investigation. The Police found that the negligence was on the side of the driver of the car and charge sheet filed against him. It is also the submission made before us that the scene mahazar also indicates that the negligence is on the side of the driver of the car. It is the submission that, at the place of incidence, the road is having a width of 8 m. Ext.A6 AMVI report will indicate that the damage is on the right side of the car. When it is a case of head on collision or the vehicles are coming from the opposite direction, a damage on the right side can be caused only if the said vehicle swerved to its proper side and the other vehicle came and hit upon it at the time of swerving. It is the submission that prima facie, the negligence is upon the side of the driver of the car as evident from the final report. If the other side got any case that negligence is on the side of the deceased, it is their burden and in this case, no evidence adduced by the respondents. Hence, the Tribunal **M.A.C.A.394/2013** 4 went wrong in its finding regarding negligence. It is also the submission that the Tribunal also erred in considering the income of the deceased as `5,000/- per month. It is the submission that Ext.A8 is the salary certificate issued by the employer of the deceased. It was proved by examining the said employer as PW2. Under such circumstances, the Tribunal should have considered at least `8,000/as his monthly income. Moreover, the future prospects was also not taken note of by the Tribunal while making assessment. It is the further submission that towards loss of love and affection, no amount awarded by the Tribunal. The deceased was the only son of the appellants/claimants. 5.The learned counsel for the insurance company submitted before us that the case of the appellants is that the deceased was also studying. No material produced. There is nothing to show that he was having any educational qualification. On the back ground of the same, even the evidence tendered by PW2 is not inspiring confidence. **M.A.C.A.394/2013** 5 It is also brought to our notice that the so called salary certificate is inclusive of allowances linked with expenses, especially, when the case of the appellants is that he is a “messenger” working in a courier company. Under such circumstances, just compensation is awarded by the Tribunal and an interference by this Court is not warranted. 6.The main challenge is regarding the negligence aspect. It can be seen that even though the scene mahazar is produced before the Tribunal, the person who had shown the place of incidence is not examined. The police officer who prepared the scene mahazar is also not examined. These aspects are relevant, especially when after a thorough investigation, the police officer found that the accident occurred due to the negligence of the driver of the car as evident from Ext.A2. When Ext.A2 final report is before the Tribunal, it can be seen that the burden shifts to the other side who disputes the same. In this regard, the decision in **Fazal Mahmood v. Rasheed [2015 (2) KLT 266]** brought to our notice by the appellants is also relevant. In **M.A.C.A.394/2013** 6 the said decision, it is held:- “When final report is available as the concluding material following the investigation by the police, the Tribunal without any further material, could not have relied on the contents of the scene mahazar to contradict that final report of the investigator to say that the accident occurred due to the negligence of the rider of the motorcycle on which the deceased was pillion riding.” 7.In this case also, the scene mahazar is not proved before the Tribunal. Under such circumstances and further appreciating all attending materials before the Tribunal, we feel that the Tribunal erred in coming to the conclusion that there is contributory negligence on the side of the deceased. The accident occurred due to the sole negligence of the driver of the car involved in the accident. 8.The next point highlighted before us is regarding the quantum of compensation. The Tribunal found that the deceased was having an income of `5,000/- per month. Surely, the appellants produced Ext.A9 document to show that the deceased was working as a **M.A.C.A.394/2013** 7 messenger in a courier company. As highlighted by the learned counsel for the insurance company, it can be seen that, as per Ext.A9, the amount includes all allowances. The details are not produced before the Tribunal. Under such circumstances, no illegality committed by the Tribunal in taking `5,000/- as the monthly income. But, surely, as held in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54],** the future prospects are not considered by the Tribunal. The deceased was at the age group of 20/25 years. Then, considering the age group of the deceased, 50% amount should have been added to this amount towards future prospects. Thus, the amount available towards monthly income will be `7,500/-. The deceased being a bachelor, 50% has to be deducted towards his personal expenses. Thus, the amount available towards monthly income will be `3,750/-, for calculation purpose. The amount available towards dependency will be `8,10,000/- (3750 x 12 x 18). Similarly, it can be seen that towards loss of love and affection, no amount is seen awarded by the Tribunal. The parents are the **M.A.C.A.394/2013** 8 appellants/claimants. It is the case of the appellants that their only child was lost in the accident. Thus, `30,000/- each is awarded towards loss of love and affection. Towards funeral expenses, only a sum of `5,000/- is seen awarded. As per the the dictum laid down by the Apex Court in **Rajesh** 's case (supra), the appellants are entitled at least for a sum of `25,000/-. Thus, an additional sum of `20,000/- is awarded on this head. After going through the schedule, we feel that no enhancement on other heads are necessary. Thus, a re-calculation is made as follows:- |**Heads of claims**|**Amount**<br>**claimed**<br>(in Rupees)|**Amount**<br>**allowed**<br>(in Rupees)|**Amount**<br>**enhanced**<br>(in Rupees)| |---|---|---|---| |Medical expenses|25000|50360|| |Funeral expenses|30000|5000|20000| |Bystander expenses|5000|2000|nil| |Transportation expenses|2500|3000|nil| |Extra nourishment|10000|nil|nil| |Damages to clothing|28500|nil|nil| |Pain and suffering|35000|15000|nil| |Loss of dependency|500000|540000|270000| |Loss of future earning|175000|5000|nil| **M.A.C.A.394/2013** 9 |**Heads of claims**|**Amount**<br>**claimed**<br>(in Rupees)|**Amount**<br>**allowed**<br>(in Rupees)|**Amount**<br>**enhanced**<br>(in Rupees)| |---|---|---|---| |Loss on estate||25000|nil| |Loss of love and affection|180000||60000| |Total<br>Limited to 60% rounded to|1000000|645360<br>387250|350000<br> **======**| The total additional compensation assessed will come to `3,50,000/-. Thus, the appellants will be entitled for an enhanced amount of `3,50,000/- over and above the compensation already awarded. The second respondent is directed to pay the amount within three months of the date of receipt of a copy of this judgment. Additional compensation will bear interest @ 8% from the date of the petition till realisation. There will be no order as to costs. ## **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** ## **Sd/-** **K. P. JYOTHINDRANATH (JUDGE)** ## **spc/** # **M.A.C.A.394/2013** 10 **M.A.C.A.394/2013** 11 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.394/2013** 12