Royal Sundaram Alliance Insurance Company Limited v. K.C.Ramlath and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 23RD DAY OF JUNE 2014/2ND ASHADHA, 1936 MACA.No. 1000 of 2014 () ------------------------- AGAINST THE AWARD IN OPMV 1261/2011 of PRL.M.A.C.T.,KOZHIKODE DATED 18.6.13 APPELLANT/3RD RESPONDENT: ---------------------------------------------- ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED KOLKOTTA, NOW REPRESENTED BY THEIR ZONAL HEAD SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI CHENNAI-600 002. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## RESPONDENTS/PETITIONERS: ---------------------------------------------- 1. K.C.RAMLATH W/O.LATE VAHID, KALLIYIL HOUSE, EDODIPARAMBA KOLATHARA.P.O., CHERUVANNUR, KOZHIKODE. PIN-673 320. 2. K.MUHAMMED SIYAN (MINOR) S/O.LATE VAHID, KALLIYIL HOUSE, EDODIPARAMBA KOLATHARA.P.O., CHERUVANNUR, KOZHIKODE. PIN-673 320. 3. INSHA FATHIMA (MINOR) D/O.LATE VAHID, KALLIYIL HOUSE, EDODIPARAMBA KOLATHARA.P.O., CHERUVANNUR, KOZHIKODE. PIN-673 320. 4. BEEVI K KALLIYIL HOUSE, EDODIPARAMBA, KOLATHARA.P.O. CHERUVANNUR KOZHIKODE. PIN-673 320. (MINOR RESPONDENTS 2 & 3 ARE REPRESENTED BY THEIR MOTHER 1ST RESPONDENT). R1-R4 BY ADV. SRI.T.G.RAJENDRAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **HARUN-UL-RASHID & ANIL K.NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.1000 of 2014 -------------------------------------------------DATED THIS THE 23[rd] DAY OF JUNE, 2014** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J.** The appellant is the 3[rd] respondent in O.P.(MV) No.1261/2011, on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was filed by respondents herein, under Sections 140 and 166 of the Motor Vehicles Act, 1988, as dependants of one Vahid, who met with a road accident on 6.6.2010 at about 8.30 p.m., while he was riding a motor cycle from Cheruvannur to Pallikkal. At the place of accident he was hit by a lorry bearing registration No.AP12/V-0464 owned by the 1[st] respondent in the claim petition and driven by the 2[nd] respondent therein, causing serious injuries. He was immediately taken to the Medical College Hospital, Kozhikode, and while undergoing treatment, he succumbed to injuries. 2. Respondents herein, the petitioners before the Tribunal are the wife, the minor children and the mother of the MACA.1000/14 -2- deceased. The deceased was aged 33 years and was working at Steel Complex Limited, Kozhikode, a Government of Kerala joint venture company, and was drawing a monthly salary of ₹10,659/-. According to the respondentspetitioners, the accident occurred due to the rash and negligent driving of the lorry by the second respondent in the claim petition. The appellant herein is the insurer of the said lorry. 3. The owner and driver of the lorry remained absent and they were set ex-parte. The appellant-insurer, who was arrayed as the 3[rd] respondent in the claim petition, filed written statement admitting the policy. They contended that there was no negligence on the side of the driver of the lorry and the accident had occurred due to the negligence on the side of the deceased himself. They further contended that, the amount of compensation claimed is exorbitant. 4. On the side of the respondents-petitioners, PW1 was examined and Exts.A1 to A7 were marked. No oral or MACA.1000/14 -3- documentary evidence was adduced on the side of the respondents. 5. The Tribunal by the impugned award allowed the claim petition in part, awarding a total compensation of ₹ 23,53,000/- with 8% interest from the date of petition till the date of deposit, with proportionate costs, and directed the appellant-insurer to deposit the amount within a period of 30 days from the date of the award. After deducting a sum of ₹ 22,903/- towards payment of balance court fee, the balance amount was ordered to be apportioned among the respondents-petitioners in the ratio 2:2:2:1. It is aggrieved by the said award of the Tribunal, the appellant-insurer is in appeal before us. 6. We heard arguments of the learned Senior Counsel for the appellant and the learned counsel for the respondents-petitioners. 7. The learned counsel for the appellant would contend that the amount of compensation awarded by the MACA.1000/14 -4- Tribunal under different heads is highly exorbitant. As the deceased was riding the motor cycle without wearing helmet, the Tribunal ought to have fixed contributory negligence on the part of the deceased in causing the accident. It was further contended that, the Tribunal ought to have deducted 1/3[rd] of the monthly income of the deceased towards his personal and living expenses as the mother of the deceased, the 4[th] respondent herein, was not a dependent of the deceased. Per contra, the learned counsel for the respondents-petitioners would support the findings in the impugned award, which according to him, call for no interference at all. 8. We have considered the rival submissions made at the Bar. 9. The accident occurred on 6.6.2010 while the deceased was riding a motor cycle from Cheruvannur to Pallikkal. At the place of accident, the deceased was hit by a lorry causing serious injuries. The appellant is the insurer of MACA.1000/14 -5- the said lorry and the 1[st] and 2[nd] respondents before the Tribunal were the owner and driver, respectively, of that lorry. The deceased was immediately taken to the Medical College Hospital, Kozhikode, and while undergoing treatment, he succumbed to the injuries. 10. According to the respondents-petitioners, the accident occurred due to the rash and negligent driving on the part of the driver of the lorry. Ext.A1 is the copy of FI statement and report and Ext.A5 is the charge sheet in the crime registered by the Police, against the driver of the lorry. Before the Tribunal, the owner and driver of the lorry remained absent and they were set ex-parte. The appellantinsurer, who alone contested the matter before the Tribunal, has not chosen to adduce any oral or documentary evidence to prove any contributory negligence on the part of the deceased in causing the accident. It was in such circumstances, the Tribunal, taking note of the fact that the Police have registered a crime against the driver of the lorry, MACA.1000/14 -6- came to the conclusion that the accident occurred due to the negligence on the part of the lorry driver. 11. The contention of the learned Senior Counsel for the appellant-insurer is that, the deceased sustained head injury as he was not wearing helmet and therefore, it has to be concluded that the accident occurred as a result of the contributory negligence on the part of the deceased in riding the motor cycle without wearing helmet. We are unable to accept the above contention of the learned Senior Counsel for the appellant-insurer for more than one reason. Firstly, there is nothing on record to indicate that, the deceased was not wearing helmet at the time of the accident and that the injuries sustained by him could have been avoided, if he was wearing helmet. Secondly, the appellant-insurer has no case that, the alleged non-wearing of helmet has in any manner contributed to the cause of the accident. In **Meera Devi and another v. H.R.T.C. and others (2014 (4) SCC 511)** , the Apex Court has categorically held that, in the MACA.1000/14 -7- absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied. 12. In the instant case, there is no cogent and convincing evidence to prove that the accident has taken place due to the rash and negligent riding of the motor cycle by the deceased. As noticed by the Tribunal in the impugned award, apart from the pleadings contained in the written statement, the appellant-insurer has not cared to adduce any evidence to prove contributory negligence on the part of the deceased in causing the accident. There is no cogent and convincing evidence to prove that the deceased was riding the motor cycle without wearing helmet and that he sustained head injury due to non-wearing of helmet. The appellant-insurer, who has not even cared to adduce any evidence before the Tribunal, cannot be permitted to raise the plea of contributory negligence against the deceased, as the common law doctrine of contributory negligence can be applied only when there is cogent evidence to prove the MACA.1000/14 -8- same. Therefore, we find no reasons to interfere with the said finding of the Tribunal. In such circumstances, the contention raised by the appellant-insurer that the accident occurred as a result of the contributory negligence on the part of the deceased is only to be rejected and we do so. 13. The further contention raised in the appeal is that, the compensation awarded under different heads is highly exorbitant. As borne out from records, the deceased was aged 33 years at the time of accident and he was working as a driver at Steel Complex Ltd., Kozhikode, earning 10,659/-₹ per month. Ext.A6 is the certificate issued by the employer showing the monthly salary drawn by the deceased, which was marked through PW1, an Officer of the said Government undertaking. As the deceased was aged 33 years, following the settled principles of the Apex Court in **Sarala Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , the Tribunal added 50% of the income for future prospects and fixed monthly income as 15,989/-. Since there are four₹ dependants, 1/4[th] of the income was deducted towards MACA.1000/14 -9- personal and living expenses of the deceased and 3/4[th] was taken to be the contribution to the family. So the compensation for loss of dependency was calculated as ₹23,02,416/- (15,989X12X16X3/4). 14. According to the learned Senior Counsel appearing for the appellant-insurer, the mother of the deceased was not a dependant and therefore, the Tribunal ought to have deducted 1/3[rd] as the personal and living expenses of the deceased, instead of deducting 1/4[th] . We are unable to accept the above contention of the learned Senior Counsel for the appellant-insurer for more than one reason. Firstly, there is nothing on record to indicate that, the mother of the deceased was not a dependant of the deceased. Secondly, there is nothing in the impugned award to indicate that the appellant-insurer had raised such a contention before the Tribunal. As seen from the impugned award, the Tribunal has granted only just and reasonable compensation to the respondents-petitioners under different heads like, funeral expenses, pain and suffering, loss of consortium, loss of love MACA.1000/14 -10- and affection, etc. and we find no reason to interfere with the compensation already awarded by the Tribunal. In the result, we find absolutely no merit in any of the contentions raised by the appellant-insurer and the appeal is dismissed. No order as to costs. Sd/- **HARUN-UL-RASHID** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn