Reeja Ignesious and others v. Mohammadali and Showkathali and Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939 MACA.No. 2359 of 2012 () ------------------------AGAINST THE AWARD IN O.P(M.V)1189/2006 of M.A.C.T., MANJERI DATED 25.6.2011 ## APPELLANTS/PETITIONERS: ------------------------------ 1. REEJA IGNESIOUS, AGED 42 YEARS, W/O.LATE IGNESIOUS, VELLARINGADU HOUSE, MAMPATTA, POOKKOTTUMPADAM POST. 2. ALLEN IGNESIOUS, AGED 12 YEARS (MINOR) - S/O.LATE IGNESIOUS, VELLARINGADU HOUSE, MAMPATTA, POOKKOTTUMPADAM POST, REPRESENTED BY HIS MOTHER IST APPELLANT, REEJA IGNESIOUS V.C, AGED 42 YEARS, W/O.LATE IGNESIOUS, VELLARINGADU HOUSE, MAMPATTA, POOKKOTTUMPADAM POST. 3. JOEL IGNESIOUS, AGED 6 YEARS (MINOR) S/O.LATE IGNESIOUS, VELLARINGADU HOUSE, MAMPATTA, POOKKOTTUMPADAM POST, REPRESENTED BY HIS MOTHER IST APPELLANT, REEJA IGNESIOUS V.C, AGED 42 YEARS, W/O.LATE IGNESIOUS, VELLARINGADU HOUSE, MAMPATTA, POOKKOTTUMPADAM POST. ## BY ADV. SRI.GEORGE SEBASTIAN ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. MOHAMMADALI, S/O.KADEESA, MOYIKKAL HOUSE, POOKKOTTUMPADAM POST - 679 332. (DELETED) 2. M.SHOWKATHALI, S/O.UMMER, MARUMMAN HOUSE, CHANDAKUNNU POST, NILAMBUR - 679 342. 3. ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE IIND, PARAMOUND BUILDING, CHEROOTTY ROAD, KOZHIKODE - 673 001. MACA.No. 2359 of 2012 2 (RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS/APPELLANTS AS PER ORDER DATED 02/09/2016 IN I.A.NO.2984/2016 IN M.A.C.A.NO.2359/2012) R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R3 BY ADV. SMT.PREETHY R. NAIR R2 BY ADV. SRI.P.SAMSUDIN R BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.T. RAVIKUMAR & ANIL K.NARENDRAN, JJ. ----------------------------------------------M.A.C.A.No.2359 of 2012 ----------------------------------------------Dated this the 9[th] day of August, 2017** ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** ## . This appeal arises out of the award passed by the Motor Accidents Claims Tribunal-Manjeri, dated 25.6.2011 in O.P.(MV) No.1189/2006, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, by the appellants/claimants, who are the widow and minor children of one Ignacious, who died in a motor accident that occurred on 23.6.2006 while he was riding a motor cycle. At the place of accident, the motor cycle hit on the back of a stage carriage bearing registration No.KL-10/Q-7132 driven and owned by respondents 1 and 2 respectively and insured with the 3[rd] respondent. In the accident, the deceased sustained fatal injuries, who succumbed to the injuries after undergoing inpatient treatment for a period of 6 days. Alleging that the accident occurred when the 1[st] respondent driver of the stage carriage abruptly applied brake, in a rash and negligent manner, claim petition was filed before the Tribunal claiming a total compensation of ₹8,55,000/- under different heads. 2. Before the Tribunal, Exts.A1 to A11(a) were marked on the side of the appellants/claimants and the 1[st] appellant/1[st] claimant was M.A.C.A.No.2359 OF 2012 2 examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record the Tribunal arrived at a conclusion that the deceased contributed 25% to the cause of the accident and the remaining 75% is the contribution of the first respondent driver of the offending bus. Under different heads, the Tribunal awarded a total compensation of 6,03,889/- and held₹ that, the appellants/claimants are entitled for 75% of the said amount i.e., ₹4,52,917/- with 9% interest from the date of petition till realisation with a cost of 500/-. The Tribunal has also apportioned the₹ compensation among the appellants/claimants, as per which, the first appellant widow is granted 1,57,639/- and the 2₹ nd and 3rd appellants children 1,47,639/- each.₹ 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads and also challenging the finding regarding 25% contributory negligence on the part of the deceased, the appellants/claimants are before this Court in this appeal. 5. We heard the learned counsel for the appellants/claimants and also the learned counsel for the third respondent insurer. 6. The first issue that has to be dealt with in this appeal is as M.A.C.A.No.2359 OF 2012 3 to whether the finding of the Tribunal attributing 25% contributory negligence on the side of the deceased can be sustained. 7. The learned counsel for the appellants/claimants would contend that even in the absence of any reliable materials, the Tribunal attributed 25% contributory negligence on the deceased, which is legally impermissible. Per contra, the learned Senior Counsel for the 3[rd] respondent insurer would contend that the fact that the deceased sustained fatal injuries in the accident by itself would prove the rash and negligent manner in which he was riding the motor cycle at the time of the accident. 8. In **Meera Devi and another v. Himachal Pradesh Road Transport Corporation and others [(2014) 4 SCC 511]** the Apex Court held that there is a need for cogent evidence to establish contributory negligence and in the absence of any such materials, the Tribunal is not justified in deducting the compensation payable to a victim. ## 9. In **Sunil v. Munavarudheen and another (2016 (2)** **KHC 859)** a Division Bench of this Court in which one among us (Anil K. Narendran, J) was a member, held that there was a duty cast upon the rider of the vehicle, which was proceeding behind, to keep safe M.A.C.A.No.2359 OF 2012 4 distance in the manner as provided under Regulation 23 of the Rules of the Road Regulations, 1989, which have been formulated by the State in exercise of the power and jurisdiction conferred under Section 118 of the Motor Vehicles Act, 1988. 10. In **Mirshad C.K. v. Babu Mathew and others (2017 (1) KHC 887)** a Division Bench of this Court in which one among us (C.T.Ravikumar, J.) was a member held that Regulation 23 of the Rules of the Road Regulations, 1989 makes specific provision for a driver proceeding behind a vehicle to maintain a reasonable distance in between, so as to avoid any collision with the vehicle proceeding in front, if suddenly slowed down or stopped. Similarly, Regulation 24 provides that a driver of the vehicle shall not apply brake abruptly unless it is necessary to do so for safety reasons. 11. In the instant case, the materials on record would show that at the place of accident, the motor cycle ridden by the deceased dashed against the rear side of the stage carriage driven by the first respondent driver. The appellants/claimants alleged that the accident occurred when the first respondent driver abruptly applied brake, in a rash and negligent manner. Though the contingency in which the first respondent driver applied emergency brake is not discernible, the M.A.C.A.No.2359 OF 2012 5 Tribunal found that, that by itself may not amount to rashness and negligence on the part of the said respondent, as the deceased rider should have kept a safe distance from the stage carriage going ahead of the motor cycle. We have also perused Ext.A1 FIR and also Ext.A8 charge sheet. The said documents would show that, as a result of the impact, the deceased was thrown away from the motor cycle and he sustained fatal injuries. The said fact would certainly indicate the nature of impact, and also the fact that at the time of accident, the deceased was riding the motor cycle at an exorbitant speed. After considering the materials on record, the Tribunal arrived at a conclusion that the deceased has also contributed to the cause of the accident and apportioned negligence between the deceased and the first respondent driver of the stage carriage in the ratio 25:75. The said finding of the Tribunal is perfectly legal and proper, which warrants no interference in this appeal. 12. Now, we shall deal with the quantum of compensation awarded by the Tribunal under different heads. 13. The accident is of the year 2006 and at the time of accident the deceased was aged 40 years. The appellants/claimants contended that at the time of accident the deceased was working as an Air- M.A.C.A.No.2359 OF 2012 6 conditioning Mechanic abroad and earning a monthly income of 3,000 Saudi Riyals. In order to substantiate the said contentions, Ext.A11 certificate (in Arabic) and Ext.A11(a) translation thereof were placed on record, which were marked through PW1, who is the widow of the deceased. 14. In **Abraham Jacob v. Mubarak (2014 (3) KLT 883)** , after referring to the provisions under the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, a Division Bench of this Court in which one among us (Anil K. Narendran, J.) was a member held that, Section 3 of the said Act does not dispense with the proof of a document according to law, if it is to be used as evidence in a court of law. All that Section 3 does is to enable a court to dispense with the proof of the genuineness of the seal and signatures of a diplomatic or consular officer on a particular document. If the document is otherwise relevant and proved in accordance with law, a copy of the said document duly authenticated in the manner prescribed by the said Act can be admitted in evidence. In the said judgment this Court has also referred to the judgment of another Division Bench in **Valsamma v. Binu Jose (2014 (1) KLT 10)** wherein it was held that, in the case of a non-permanent employment in Gulf countries with uncertainty M.A.C.A.No.2359 OF 2012 7 regarding continuance, it was not safe to rely on that income as the basis for calculating the compensation payable under different heads. 15. In the instant case, other than the oral testimony of the 1[st] appellant as PW1, no reliable materials are there to prove that at the time of accident the deceased was employed abroad as an Airconditioning Mechanic, earning 3,000 Saudi Riyals as monthly income. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court re-fixed the monthly income of a coolie, who met with a motor accident in the year 2004, at 4,500/-. In the instant case, the accident₹ occurred in the year 2006 and at the time of accident, the deceased was an able bodied person aged 40 years. Considering the economic conditions prevailing as on the date of accident, we deem it appropriate to re-fix his monthly income notionally at 6,000/-, for the purpose of₹ assessing compensation under different heads. 16. In **Rajesh v. Rajbir Singh (2013 (3) KLT 89)** the Apex Court held that, in the case of self-employed or persons with fixed wages, within the age group of 40-50 years, 30% of their probable monthly income can be added towards future prospects. Following the law laid down by the Apex Court in the decision referred to supra, 30% 8 M.A.C.A.No.2359 OF 2012 of the notional monthly income can be added towards future prospects of the deceased and therefore, for the purpose of assessing compensation under the head loss of dependency, `7,800 (6,000 + 1,800) can be taken as the multiplicand. 17. The compensation awarded by the Tribunal under different heads reads thus:- |ds reads thus:-||| |---|---|---| |Head|Amount<br>claimed|Amount<br>awarded.| |Medical expenses|₹75,000/-<br>₹25,000/-|₹35,074/-| |Transportation|₹5,000/-|₹815/-| |Loss of love and affection|----|₹10,000/-| |Loss of consortium|-----|₹10,000/-| |Loss of estate|-----|₹5,000/-| |Loss of dependency/economic benefits|-----|₹5,40,000/-| |Any other head|₹25,000/-|₹3,000/-| |Total|₹8,55,000/-<br>limited to<br>8,00,000/-<br>₹|₹6,03,889/-<br>Reduced by<br>25%| 18. Towards medical expenses, the Tribunal awarded a sum of ₹35,074/-, covered by Ext.A6 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under the said head warrants no enhancement in this appeal. M.A.C.A.No.2359 OF 2012 9 19. Towards bystander's expenses and extra nourishment, no amount has been awarded by the Tribunal. Admittedly, the deceased had undergone inpatient treatment for a period of 6 days before he succumbed to the injuries. Since the accident is of the year 2006, the compensation under the head bystander's expenses has to be assessed at the rate of ₹200/- per day and that under the head extra nourishment at the rate of ₹100/- per day. In the result, the compensation under the head bystander's expenses is assessed at **₹ 1,200/-** (200x6) and that under the head extra nourishment assessed at **600/- ₹** (100x6). 20. Towards pain and suffering, no amount has been awarded by the Tribunal. Taking note of the law laid down by a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a member, in **Jyni and others v. Raphel.P.T. and others (ILR 2016 (2) Kerala 54)** we deem it appropriate to grant a sum of **₹ 20,000/-** as compensation under the head pain and suffering, since the deceased succumbed to the injuries after undergoing inpatient treatment for a period of 6 days. 21. Towards loss of love and affection, the Tribunal awarded a sum of 10,000/-. In ₹ **Rajesh's case (supra)** the Apex Court awarded M.A.C.A.No.2359 OF 2012 10 a sum of 1,00,000/- under this head, to three minor children of the₹ deceased, who met with a motor accident in the year 2007. In the instant case, the accident is of the year 2006. Even then, considering the fact that the deceased was aged only 40 years and his children were minors, who were aged 6 years and 8 years respectively, we deem it appropriate to re-fix the compensation under this head as ₹1,00,000/-, resulting an additional compensation of **₹ 90,000/** -, payable to the 2[nd] and 3[rd] appellants. 22. Towards loss of consortium, the Tribunal awarded a sum of ₹10,000/-. In **Rajesh's case (supra)** the Apex Court re-fixed the compensation payable under this head as 1,00,000/-. In the said case,₹ the accident is of the year 2007 and the deceased was aged 33 years and his wife was still younger. In the instant case, the accident is of the year 2006. At the time of accident, the deceased was aged 40 years and his wife, the 1[st] appellant was aged 34 years. Therefore, we deem it appropriate to re-fix the compensation under this head as ₹1,00,000/-, resulting an additional compensation of **₹ 90,000/-** , payable to the 1[st] appellant. 23. Towards loss of estate a sum of 5,000/- was awarded by₹ the Tribunal. Considering the facts and circumstances of the case, we M.A.C.A.No.2359 OF 2012 11 deem it appropriate to re-fix the compensation under this head as ₹10,000/-, resulting an additional compensation of **5,000/-₹** . 24. Towards funeral expenses, the Tribunal awarded a sum of ₹3,000/-. In **Rajesh's case (supra)** the Apex Court awarded a sum of ₹25,000/- as compensation under this head. In the said case, the accident was of the year 2007. In the instant case, the accident is of the year 2006. In such circumstances, we deem it appropriate to re-fix the compensation under this head as 20,000/-, resulting an additional₹ compensation of **₹ 17,000/-** . 25. Under the head loss of dependency, the Tribunal awarded a sum of 5,40,000/- (4,500 x 12 x 15 x 2/3). On reworking the₹ compensation payable under this head taking `7,800 (6,000 + 1,800) as the multiplicand, '15' as the multiplier and deducting 1/3[rd] towards the personal and living expenses of the deceased, the compensation payable under this head is re-worked as 9,36,000/- (7,800 x 12 x 15₹ x 2/3), resulting an additional compensation of **₹ 3,96,000/-** . 26. In the result, the appellants/claimants will be entitled for an additional compensation of **₹ 6,19,800/-** (1,200 + 600 + 20,000 + 90,000 + 90,000 + 5,000 + 17,000 + 3,96,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition M.A.C.A.No.2359 OF 2012 12 till realisation, excluding the period of delay of 399 days in filing this appeal, which was condoned by order dated 8.4.2015 in C.M.Appl. No.2798/2012, subject to the condition that, if ultimately this appeal is allowed, the 3[rd] respondent insurer shall not be liable to pay interest for the said period of delay. 27. Since the insurance coverage of the offending vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The additional court fee payable shall be deducted from the additional compensation awarded in this appeal. The appeal is disposed of as above. No order as to costs. **Sd/C.T.RAVIKUMAR JUDGE Sd/ANIL K.NARENDRAN JUDGE** TKS/ami