Retna Shaju @ K.K. Retna @ Rethnam v. Medona, John Aloysius and The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 5TH DAY OF JANUARY 2016 / 15TH POUSHA, 1937 MACA.No. 2118 of 2011 -------------------------AGAINST THE AWARD IN OPMV 1841/2006 of M.A.C.T.,ERNAKULAM DATED 26-02-2011 APPELLANT(S)/PETITIONERS -------------------------------- 1 RETNA SHAJU @ K.K.RETNA @ RETHNAM AGED 47, W/O. LATE SRI.SHAJU 2 K.S.SHAIMON, AGED 27 S/O. LATE SRI.SHAJU 3 K.S.SHALYMOL, AGED 26 D/O. LATE SRI.SHAJU ALL THE APPELLANTS ARE RESIDING AT KARATHARA HOUSE, C.K.BHARGAVAN ROAD, KUMBALANGI SOUTH P.O., KUMBALANGI VILLAGE, KOCHI TALUK, ERNAKULM DISTRICT. BY ADVS.SRI.ANIL S.RAJ SRI.G.ARUN GOPAN SMT.K.N.RAJANI SRI.J.VIVEK GEORGE RESPONDENT(S)/RESPONDENTS: 1. MEDONA D/O. ANTONY, MOONJARA, EZHUPUNNA P.O., CHERTHALA TALUK, PIN-688 548. 2. JOHN ALOYSIUS S/O. LATE A.K.DAVID, A1, DUGGAL HOUSING COMPLEX, SRD KHANPUR, NEW DELHI-110 062. 3. THE ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE, ERNAKULAM, COCHIN-682 018. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** ## **--------------------------------------------M.A.C.A.No.2118 OF 2011** **---------------------------------------------** Dated this the 5[th ] day of January, 2016 ## **JUDGMENT** ## Ravikumar, J. This appeal is filed by the legal heirs of one K.I.Shaju who succumbed to the injury sustained in a road accident on 24.6.2006. The appellants are respectively the widow and two children of the deceased. The victim was working as a Head Constable in the Kerala Police. He was riding his two wheeler vehicle bearing KL-7/AV-7317. On the fateful day, he was travelling on the said vehicle from north to south through NH-47. The offending vehicle, which is a TVS scooty, ridden by the second respondent, was also proceeding in the same direction. The allegation is that at Eramalloor Junction, the second respondent swerved the scooty towards left by applying brake without any signal and consequently, it hit against the Hero **M.A.C.A.2118/2011** 2 Honda motorcycle of the deceased. On getting injured, Shaju was taken to the Lakeshore Hospital. However, enroute to the hospital, he succumbed to the injuries. The victim was aged 48 years, at the time of incident and the appellants herein were then aged 42 years, 22 years and 21 years respectively. The victim was drawing an amount of `10,085/- as salary. It is in the said circumstances that the appellants filed a claim petition claiming a compensation of `12 lakhs. Respondents 1 and 2 filed a joint written statement admitting the accident. On the side of the appellant, one Surendran was examined as PW1 and Exts.A1 to A10 were got marked. However, they contended that the deceased was driving the two wheeler in a rash and negligent manner and therefore, the second respondent was not at all responsible for the accident. The alleged offending vehicle was insured with the third respondent and the second respondent was then holding a valid licence. The third respondent, the insurer filed a written statement admitting the policy of the offending **M.A.C.A.2118/2011** 3 vehicle besides taking up the contention that the second respondent, the driver was not at all responsible for the accident and further that the accident occurred solely due to the rash and negligent riding on the part of the deceased. It is also contended that the amount claimed is exorbitant. On the side of the respondents, no evidence, either oral or documentary was adduced. After appreciating the evidence on record and also the rival contentions, the Tribunal held that both the second respondent and the deceased were negligent and fixed the liability for the accident between them at 75:25. It was found that since the offending vehicle was covered by valid policy, the insurer is statutory liable to pay the compensation. Taking into account the age of the deceased, the age of the appellants, the multiplier was taken as 11 and in the light of Ext.A8 Service Certificate and the salary slip (Ext.A9), by applying the multiplicand-multiplier method, the loss of dependency was arrived at `8,80,000/- by the Tribunal. After awarding different amounts under various heads, **M.A.C.A.2118/2011** 4 the total amount was fixed by the Tribunal as `9,09,500/- and an amount of `2,27,375/- was deducted from it towards 25% contributory negligence from the part of the deceased and ultimately, an amount of `6,82,125/- was granted as compensation. The said amount was directed to be paid by the third respondent, the insurer with interest @ 8% per annum from the date of petition (27.7.2006) till realisation with proportionate costs from respondents 1 to 3. The appellants are aggrieved by the award and seek for enhancement of compensation under different heads. 2. We have heard the learned counsel appearing for the petitioner and also Smt.K.S.Santhi, learned counsel appearing for the third respondent-insurer. 3. Learned counsel appearing for the appellants contended, relying on a decision of the Hon'ble Apex Court reported in **Sarla Verma** v. **Delhi Transport Corporation [2010(2) KLT 802 (SC)],** that the Tribunal erred in fixing the compensation for loss **M.A.C.A.2118/2011** 5 of dependency. It is contended that both the multiplicand and multiplier were wrongly fixed by the Tribunal. It is further contended that one-third of the amount of the salary ought not to have been deducted towards the personal expenses of the deceased. It is the further contention that the multiplicand ought to have been more than `10,000/- and the multiplier ought to have been '13' instead of '11'. It is the further contention that though an amount of `20,000/- was claimed towards compensation for pain and sufferings, the Tribunal granted only an amount of `5,000/-. It is also contended that as against the claim of `50,000/- towards the loss of love and affection, only an amount of `10,000/- was granted. In the case of compensation for loss of consortium, an amount of `20,000/- was claimed. However, the Tribunal granted only `5000/-. The learned counsel contended that substantial enhancement is required under the aforesaid heads. 4. Per contra, the learned counsel appearing for the third respondent contended that the Tribunal has correctly applied the **M.A.C.A.2118/2011** 6 dictum in **Sarla Verma** 's case (supra) and the loss of dependency was correctly arrived at following the multiplicand and multiplier method. So also, it is contended that the appellants were granted just compensation as per the impugned award and therefore, the award passed by the Tribunal calls for no interference. 5. As noticed hereinbefore, while the appellants contended that the multiplicand and the multiplier were wrongly identified by the Tribunal, the third respondent contended that they were correctly fixed and applied by the Tribunal. Ext.A9 is the pay slip of the deceased. It would show that he was drawing a salary of `10,085/per month. Obviously, taking into account the same as also Ext.A8 service certificate, the Tribunal fixed the multiplicand as Rs.10,000/-. In paragraph 24 of the **Sarla Verma** 's case (supra), it was held that in view of the imponderables and uncertainties, certain additions have to be made to the actual income of the deceased towards the future prospects. In a case where the deceased had a permanent job and was aged below 40 years, such addition shall be 50% of the actual income. At the same time, such addition can only be 30% if the age of the **M.A.C.A.2118/2011** 7 deceased was between 40 to 50 years. Ext.A9 would undoubtedly reveal that the deceased was a salaried man and his age was between 40 and 50 at the time of death. By applying the dictum in **Sarla Verma** 's case (supra), an addition of 30% of the income of the deceased ought to have been made reckoning the future prospects by the Tribunal. We have already taken note of the actual salary of the deceased. If 30% of the actual salary is added to the actual income reckoning future prospects, the amount would come to `13,110/-. Then, going by the decision in **Sarla Verma** 's case, deduction towards personal and living expenses which the deceased could have incurred had he been alive has to be made taking note of the number of dependents. The Tribunal has correctly deducted 1/3[rd] of the income reckoning the said factors. Considering the fact that the victim was aged 48 years, in the light of the said decision, the multiplier ought to have been taken as '13' instead of '11'. Applying the formula followed by the Tribunal with substitution of multiplicand as also the multiplier, the amount payable under the head loss of dependency would come to `13,63,440/- instead of `8,80,000/-. But at the same **M.A.C.A.2118/2011** 8 time, a perusal of the impugned award would reveal that the Tribunal had applied the doctrine of contributory negligence. When contributory negligence is set up as a ground for obviating the otherwise bounden obligation to satisfy the whole claim upon its acceptance, man who is partly the author of the injury cannot call upon the other party to compensate him in full. In such circumstances, the court has to apportion the liability based on the contributory negligence. 6. In this case, appreciating the evidence on record, the Tribunal fixed the contributory negligence at 25% on the part of the deceased. Certain aspects have to be considered while looking into its sustainability. Indisputably, the other vehicle involved in the accident viz., TVS Scooty and the motorcycle driven by the deceased bearing No.KL7 AV 7317 were proceeding towards the same direction. The Tribunal found that the place of occurrence was 3 metres towards east from the western end of the tarred portion of the road. Though the case of the claimants was that the Scooty turned towards the west and hit on the motorcycle ridden by the deceased, a close scrutiny of the **M.A.C.A.2118/2011** 9 evidence on record would reveal that it cannot be said to be the true state of affairs. Firstly, it is to be noted that no corresponding damage was seen noted on the vehicles as per Ext.A3 inspection report in respect of the scooty, to give credence to such a version. Evidently, Ext.A4 inspection report in respect of the motorcycle ridden by the deceased would indicate that some scratch was seen on the wrapper of the head light of the vehicle driven by the deceased at the relevant point of time. It is also to be noted that admittedly the scooty was on the right side of the motorcycle ridden by the deceased. In such circumstances, if such a scratch had to occur, necessarily, the deceased ought to have swerved the vehicle to the right side. To substantiate the allegation regarding the accident, the claimants got examined PW1. He was a construction worker. It is to be noted that he is not an occurrence witness and was also not a charge witness. A scanning of the evidence of PW1 would tend us to concur with the findings of the Tribunal. Going by the version of PW1, the offending vehicle attempted to take U-turn. But Ext.A2 scene mahazar would reveal absence of U-turn point near the place of accident. Admittedly, **M.A.C.A.2118/2011** 10 there was median on the road in question. Taking into account the aforesaid aspects including Exts.A3 and A4 and also the damaged portion of the vehicles involved in the accident, we are of the view that Tribunal was perfectly justified in finding and fixing 25% contributory negligence on the deceased. 7. Though an amount of `50,000/- was claimed as compensation towards love and affection, the Tribunal granted only `10,000/-. The claimants are none other than the widow and children of the deceased. We have taken note of the age of the widow of the deceased, the children of the deceased as also the age of the deceased. They are aged 42 years, 22 years and 21 years respectively at the time of accidental death of Sri.Shaju. We are of the view that under the head loss of love and affection, the claimants 2 and 3/appellants 2 and 3 were not adequately compensated. We are inclined to grant an amount of Rs.20,000/- more in addition to the compensation of Rs.10,000/- granted by the Tribunal. As compensation for loss of consortium, an amount of `20,000/- was claimed. However, the Tribunal granted only `5,000/-. The accident had occurred on **M.A.C.A.2118/2011** 11 24.6.2006. As the accident occurred prior to the accident in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** , we are not inclined to fix the amount of compensation at the same rate fixed by the Hon'ble Apex Court in that case. Taking into account the aforesaid aspects, we are of the view that there was absolutely no reason for denying the amount claimed by way of loss of consortium. Considering the age of the first appellant, we have no hesitation to hold that the first appellant is entitled to get the entire amount claimed as compensation for loss of consortium. In such circumstances, in addition to `5,000/- already granted, the first appellant is entitled to get `15,000/- more. We have already found that deceased had contributed to bring about the accident and the extent of such contribution is 25%. In such circumstances, while computing the amount to be granted to the claimants, 25% of the amount has to be deducted. 25% of `13,63,440/- would come to `3,40,860/- and when this amount is deducted, the amount payable under that head would become `10,22,580/-. The Tribunal has already granted an amount of Rs.8,80,000/- under that head. Hence, the appellants are entitled to get **M.A.C.A.2118/2011** 12 Rs.1,42,580/- additionally under that head. We have already found that the appellants 2 and 3 are entitled to get an additional amount of `20,000/- under the head love and affection and the first appellant is entitled to get an amount of `15,000/- under the head loss of consortium. If the said amounts are added, the amount payable to the appellants would be `10,57,580/-. In the result, this appeal is allowed. It is found that the appellants are entitled to get an amount of `10,57,580/-. The said amount would carry interest at the rate fixed by the Tribunal from the date of the petition till realisation. If additional court fee is liable to be paid, it shall be realised, in accordance with law, before releasing the additional compensation. There will be no order as to costs. **Sd/(C.T. RAVIKUMAR) JUDGE** **Sd/-** **(MARY JOSEPH) JUDGE** **spc/** **M.A.C.A.2118/2011** 13