Rosamma @ Daisy and others v. C.R.Chandrasekhar and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 13TH DAY OF JULY 2016/22ND ASHADHA, 1938** ## **MACA.No. 389 of 2007 ( )** **------------------------AGAINST THE AWARD IN OPMV 96/2000 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 30-08-2006** ## **APPELLANTS/ADDL.PETITIONERS 2,3,4 & 6:** **-------------------------------------------------** ## **1. ROSAMMA @ DAISY** **W/O.LATE ALEXANDER, MARANGOLIL HOUSE, TRIPUNITHURA P.O., ERNAKULAM.** **2. NIDHIN ALEX, S/O.LATE ALEXANDER,** **AGED 20 YEARS, MARANGOLIL HOUSE,, TRIPUNITHURA P.O., ERNAKULAM.** **3. NEETHU ALEX, D/O.LATE ALEXANDER, AGED 16 YEARS, MARANGOLIL HOUSE,, TRIPUNITHURA P.O., ERNAKULAM, MINOR REPRESENTED BY MOTHER IST APPELLANT.** **4. THRESSIAMMA THOMAS, W/O.M.V.THOMAS, MARANGOLIL HOUSE, TRIPUNITHURA P.O.,, ERNAKULAM.** ## **BY ADV. SRI.MANUEL THOMAS** ## **RESPONDENTS/RESPONDENTS 1 TO 4:** **---------------------------------** **1. C.R.CHANDRASEKHAR, CHIKKAKADUGODI, TAVAREKERE, BANGALORE-81.** **2. LAKSHMANA CHAR, S/O.SUBBACHAR, RESIDING AT BALEKKALU BANNARGHATTA ROAD,, BEGUR POST, BANGALORE.** **3. M/S.ORIENTAL INSURANCE COMPANY LTD., LAKSHMI TOWERS, DOOR NO.200/3,, (ADJACENT BANGALORE HOSPITAL), R.V.ROAD,, BASAVANGUDI, BANGALORE-4.** **4. NEW INDIA ASSURANCE COMPANY LTD., VANI VILAS ROAD, BASAVANGUDI,, BANGALORE-4.** **R3 BY ADV. SMT.K.S.SANTHI R4 BY ADV. SRI.P.A.MOHAMMED ASHROF R4 BY ADV. SRI.KKM.SHERIF R4 BY ADV. SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vpv** ## **P.N.RAVINDRAN & P.V.ASHA, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **M.A.C.A.No.389 of 2007** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 13[th] day of July, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ The appellants are claimants 2, 3, 4 and 6 in O.P.(M.V.)No.96 of 2000 on the file of the Motor Accidents Claims Tribunal, Ernakulam. They are the wife, children and mother respectively of late M.T. Alexander, the victim of a motor accident which took place on 1.5.1999. The claim petition was originally instituted by one M.T.Alexander, claiming the sum of Rs.3,50,000/- as compensation for the injuries sustained by him in the said motor accident. He had in the claim petition averred that while he was travelling as a pillion rider on a motor cycle, from Bangalore to Mysore, a goods vehicle driven by the second respondent, owned by the first respondent and insured with the third respondent collided with the said motor cycle and in that accident, he sustained grievous injuries. He contended that the accident took place solely on account of the negligence of the second respondent. 2. Though notice was served, the owner and driver of the goods vehicle did not appear and file a written statement, with the result, they were set exparte. The third respondent, the insurer of the goods vehicle **M.A.C.A.No.389 of 2007** **2** entered appearance and filed a written statement admitting insurance coverage. It however contended that the accident occurred due to the negligence of the rider of the motor cycle. The insurer contended that the motor cycle on which the claimant was riding was driven by one Mr.Ajay, that besides the claimant there was another pillion rider, that it entered the main road and collided with the lorry which was plying along the main road. In short, the insurer contended that the accident took place on account of the rash and negligent driving of the two wheeler on which the claimant was one among the two pillion riders. It further contended that the second respondent was not responsible for the accident. The fourth respondent before the tribunal, who is the fourth respondent in the instant appeal as well (the insurer of the two wheeler on which the claimant was travelling), entered appearance and filed a written statement contending that as the motor vehicle insured by the third respondent was responsible for the accident, it is not liable to pay compensation. 3. While the claim petition was pending, the claimant (the victim of the accident) passed away on 12.8.2000. Thereupon, on application filed by his wife, children and parents as I.A.No.11986 of 2000, they were impleaded as additional claimants 2 to 6. The additional fifth claimant, father of the victim of the accident, passed **M.A.C.A.No.389 of 2007** **3** away thereafter and thereupon his other children were impleaded as additional claimants 7 to 10 as per order passed on 1.12.2005 on I.A.No.5606 of 2005. The additional claimants also filed an application to amend the claim petition wherein they contended that the death of the claimant on 12.8.2000 was due to the injuries sustained by him in the accident which took place on 1.5.1999. They had even earlier filed another application for amending the claim petition by claiming the sum of Rs. 10,00,000/- as compensation. Upon the claim petition being amended, the insurer did not file an additional written statement denying and disputing the averment in the amended claim petition that the death of the claimant (the victim of the accident) was on account of the injuries sustained by him in the motor accident which took place on 1.5.1999. 4. Before the Motor Accidents Claims Tribunal, on the side of the claimants, the second claimant (the wife of the victim) was examined as PW1, the doctor who had attended to the victim while he was undergoing treatment at Medical Trust Hospital, Ernakulam was examined as PW2 and the employer of the victim was examined as PW3. The claimants also produced and marked Exts.A1 to A31. On the side of the insurer, a copy of the policy of insurance issued by it was produced and marked as Ext.B1. No oral evidence was **M.A.C.A.No.389 of 2007** **4** adduced on the side of the insurer. 5. After considering the rival contentions, the tribunal held relying on Ext.A2 that the accident took place on account of the contributory negligence of the rider of the two wheeler on which the claimant was travelling as pillion rider and the second respondent, the driver of the goods vehicle. The tribunal also apportioned the negligence in the ratio of 25:75 between the rider of the motor cycle and the second respondent. The tribunal thereafter considered the question whether the death of the victim of the accident on 12.8.2000 was as a result of the injuries which he had suffered on 1.5.1999 and held, accepting the contention of the claimants that the death of the victim was on account of the injuries sustained by him in the accident. In coming to the said conclusion, the tribunal placed reliance on the testimony tendered by PW2, the doctor who had treated the victim of the accident at Medical Trust Hospital, Ernakulam. The tribunal thereafter proceeded to award the sum of Rs.5,73,174/- as compensation as detailed below: Transport to hospital and medical expenses : Rs. 42,674/Funeral expenses : Rs. 3,000/Loss of estate : Rs. 2,500/Pain and suffering : Rs. 20,000/- **5** ## **M.A.C.A.No.389 of 2007** Loss of consortium : Rs. 25,000/Loss of dependency 4000 x 12 x 15 x 2 : Rs.4,80,000/3 --------------Total Rs.5,73,174/========= 6. In the light of the finding entered by it that there was 25% contributory negligence on the part of the claimant, the tribunal directed the third respondent insurer to deposit the sum of Rs.4,29,880/-, being 75% of the sum of Rs.5,73,174/- together with interest at 7% per annum from the date of the claim petition till the date of deposit, along with costs quantified at Rs.750/-. The tribunal also held that claimants 2, 3, 4 and 6 alone will be entitled to the compensation. Claimants 2, 3, 4 and 6 have, aggrieved by the award passed by the tribunal, filed this appeal. 7. We heard Sri.Manual Thomas, learned learned counsel appearing for the appellants and Smt.K.S.Santhi, learned counsel appearing for the third respondent. Though respondents 1 and 2 have been served, they have not entered appearance. Learned counsel appearing for the appellants contended that the finding entered by the tribunal that there was contributory negligence on the part of the rider of the motor cycle cannot be sustained in the light of the fact that the police had charge sheeted only the second respondent driver **M.A.C.A.No.389 of 2007** **6** and that the rider of the motor cycle was not charge sheeted. Learned counsel also submitted that the tribunal erred in placing reliance on Ext.A12 which is not one drawn to scale and that no cogent or convincing reasons have been given by the tribunal in support of its finding that there was contributory negligence on the part of the rider of the motor cycle. Learned counsel contended that the finding that there was contributory negligence on the part of the rider of the two wheeler was arrived at without notice to him or his legal representatives and therefore, for that reason also, the said finding is liable to be interfered. He also contended that the amount awarded as compensation under the head loss of consortium is meager and inadequate and that the tribunal has not taken into account future prospects while computing the compensation payable under the head loss of dependency. Learned counsel invited our attention to the fact that no compensation whatsoever was awarded to the claimants under the head loss of love and affection, though two among the claimants, viz. claimants 3 and 4 were minor children aged 13 and 9 years respectively when the original claimant passed away on 12.8.2000 following the injuries which he had sustained in the accident which occurred on 1.5.1999 and that the compensation awarded by the tribunal is therefore liable to be suitably enhanced. 8. Per contra, learned counsel appearing for the third **M.A.C.A.No.389 of 2007** **7** respondent insurer contended that the finding entered by the tribunal that there was contributory negligence on the part of the rider of the motor cycle does not merit interference. Referring to the written statement filed by the third respondent, learned counsel contended that in addition to the claimant, another pillion rider was also travelling on the two wheeler, that it had entered the main road from a side road without observing the rules and regulations of the road and that the medical evidence discloses that when the accident took place, the victim was in a drunken condition. It is further contended that in any view of the matter, the finding entered by the tribunal that there was contributory negligence on the part of the rider of the motor cycle on which the victim was a pillion rider, does not merit interference. Regarding the quantum of compensation awarded by the tribunal, learned counsel contended that by no stretch of imagination, can it be said that the compensation awarded is grossly inadequate or that it is not just and proper. 9. We have considered the submissions made at the Bar by learned counsel on either side. We have also gone through the pleadings and the materials on record. The insurer has not challenged the finding entered by the tribunal that the victim of the accident died as a result of the injuries sustained by him in the motor accident which took place on 1.5.1999, by filing a separate appeal or **M.A.C.A.No.389 of 2007** **8** a cross objection. The victim of the accident was gainfully employed as a store supervisor in a private establishment. His monthly income and avocation were proved by producing Ext.A27 salary certificate and by examining PW3. Ext.A27 salary certificate discloses that the monthly income of the victim was Rs.4,000/-. The tribunal has accepted Ext.A27 and awarded compensation for loss of dependency on that basis. It has however not taken into account future prospects for the purpose of computing the compensation payable under the head loss of dependency. The victim was admittedly aged 44 years on the date of accident. It is now well settled by a series of decisions of the Apex Court that future prospects has to be taken into account for the purpose of computing the compensation payable under the head loss of dependency and that in the case of victims in the age group of 40 - 50, 30% of the monthly income can justifiably be taken into account for the said purpose. The victim was maintaining a family consisting of his wife, two minor children and his parents who were depending on him. Though later his father passed away, his mother is even now alive. Such being the situation, we are of the opinion that only one fourth of the amount awarded under the head loss of dependency is liable to be deducted and not one third as held by the tribunal. The multiplier to be adopted in the case of victims in the age group of 41-45 years, is 14. Computed applying the aforesaid **M.A.C.A.No.389 of 2007** **9** principles, the compensation payable to the appellants/claimants under the head loss of dependency would be Rs.6,55,200/- (Rs.4,000 x 130/100 = Rs.5,200 x 12 x 14 x ¾). The tribunal has awarded only Rs.4,80,000/- as compensation under the head loss of dependency. We accordingly award to the appellants/claimants an additional sum of Rs.1,75,200/- as compensation for loss of dependency. 10. The impugned award discloses that the tribunal has awarded only Rs.25,000/- under the head loss of consortium. The victim of the accident was aged 44 years at the time of his death. His wife was at that point of time aged 41 years. She has not remarried. In such circumstances, we are of the opinion that applying the law laid down by the Apex Court in **Rajesh v. Rajbir Singh** (2013 (3) KLT 89), the second claimant is entitled to the sum of Rs.1,00,000/under the head loss of consortium. We accordingly, award an additional sum of Rs.75,000/- as compensation under the head compensation for loss of consortium. The tribunal has awarded to the claimants only Rs.20,000/- as compensation under the head pain and suffering. The victim had suffered serious injuries in the accident. He was initially treated at Victoria Hospital, Bangalore. After first aid was given, he was referred to Nimhans Hospital and Sekhar Hospital. Later, he was brought for treatment to Indo American Hospital, **M.A.C.A.No.389 of 2007** **10** Vaikom. He had undergone treatment at Caritas Hospital, Kottayam and at Medical Trust Hospital, Ernakulam. It was thereafter that he passed away on 12.8.2000. Having regard to the long period of treatment and the injuries sustained by him, we are of the opinion that on a modest estimate a further sum of Rs.30,000/- has to be awarded under the head compensation for pain and suffering. We accordingly, award an additional sum of Rs.30,000/- as compensation for pain and suffering. 11. The tribunal has not awarded any amount towards compensation for loss of love and affection and parental care and guidance to the minor children of the victim or under the head loss of love and affection to his mother. Having regard to the facts and circumstances stated above including the fact that the children of the victim were minors aged 12 and 8 years respectively on the date of accident, we award a consolidated sum of Rs.1,00,000/- under the head compensation for loss of love and affection. The tribunal has awarded only the sum of Rs.3,000/- under the head funeral expenses. Taking cue from the decision of the Apex Court in **Amrit** ## **Bhanu Shali and others v. National Insurance Company Ltd.** **and others** {(2012) 11 SCC 738}, we award a further sum of Rs.7,000/- under that head. 12. The tribunal has, as stated earlier, deducted 25% of the **M.A.C.A.No.389 of 2007** **11** compensation awarded by it on the ground that the rider of the motor cycle had contributed to the accident. The rider of the motor cycle was not on the party array. He was also not examined as a witness. The insurer of the motor cycle had denied liability only on the ground that the driver of the goods vehicle was negligent and therefore it cannot be held liable. It is also relevant in this context to note that the police had charge sheeted only the driver of the goods vehicle. The tribunal has entered a finding against the rider of the motor cycle without he being on the party array by drawing a presumption that from the scene of the accident and the attendant circumstances it can be presumed that he was also negligent. In our considered opinion, in the absence of any cogent evidence to show that the rider of the motor cycle had contributed to the accident, the tribunal erred in holding that he is also liable. We accordingly vacate the said finding. We accordingly allow the appeal and award to the appellants/ claimants an additional compensation of Rs.3,87,200/- (Rs.1,75,200 + Rs.75,000 + Rs.30,000 + Rs.1,00,000 + Rs.7,000). The third respondent insurer shall deposit the said amount together with interest at 9% per annum from the date of petition till the date of payment, within three months from the date of receipt of a copy of this judgment. The appellants will also be entitled to 25% of the sum of Rs.5,73,174/- which was withheld in view of the finding entered by **M.A.C.A.No.389 of 2007** **12** the tribunal that there was contributory negligence on the part of the rider of the two wheeler on which the claimant was travelling as a pillion rider. The third respondent shall deposit the said sum as well along with interest at 7% per annum from the date of petition till the date of deposit. Upon such deposits being made, the amounts deposited shall be disbursed in equal shares to claimants 2, 3, 4 and 6. Sd/- **P.N.RAVINDRAN JUDGE** Sd/- **P.V.ASHA JUDGE** /true copy/ P.A. To Judge **vpv**