Rudran Pillai and others v. Kerala State Road Transport Corporation and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 /13TH KARTHIKA, 1944`** ## **`MACA NO. 1815 OF 2013`** ``` OP(MV)1778/2007OFTHEMOTORACCIDENTSCLAIMSTRIBUNAL, KOLLAM ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 RUDRAN PILLAI, AGED 64 YEARS, (expired) S/O.DAMODARAN PILLAI, PADINJAREMADATHIL, SAKTHIKULANGARA, KOLLAM, PIN 691581.`** - **`2 JALAJA KUMARI, AGED 50 YEARS, W/O.RUDHARAN, PADINJAREMADATHIL, SAKTHIKULANGARA, KOLLAM, PIN 691581.`** - **`3 RENJITHKUMAR, AGED 29 YEARS S/O.RUDRANPILLAI, PADINJAREMADATHIL, SAKTHIKULANGARA, KOLLAM, PIN 691581.`** - **`(Death of the 1[st] appellant is recorded as`** - **`per order dtd.5.7.2023 in IA 1/23 in MACA 1815/2013)`** ## **`BY ADV SRI.R.ANILKUMAR`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 KERALA STATE ROAD TRANSPORT CORPORATION, REP.BY MANAGING DIRECTOR, THIRUVANANTHAPURAM, PIN 695004.`** - **`2 VIJAYAN PILLAI, KANIMANGALATH VEETTIL, MYNAGAPPALLY, PIN 690519.`** - **`3 BABU, KAILASOM, T.C.2/1958, PATTOM, TRIVANDRUM, PIN 695004.`** - **`4 SUNNY THOMAS, 180 NEDUMCHIRAYIL HOUSE, SH MOUNT (PO), KOTTAYAM, PIN 686001.`** - **`5 JOY MATHEW, THAZHATHIL HOUSE, ETTUMANOOR, PIN 686631.`** **MACA No.1815 of 2013** **2** ``` 6MANAGINGDIRECTOR,NEWINDIAASSURANCECO., KOTTAYAM,PIN686001. ``` ``` SRI.P.C.CHACKO,SC,KERALASTATEROADTRANSPORT CORPORATION. SRI.S.MOHAMMEDALRAFI ALEXANTONYSEBASTIANP.A. ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGCOMEUPFOR ADMISSIONON28.10.2022,THECOURTON04.11.2022 DELIVEREDTHEFOLLOWING: ``` **MACA No.1815 of 2013** **3** ## **SOPHY THOMAS, J.** ------------------------------------ ## MACA No.1815 of 2013 ## ------------------------------------ ## Dated this the 4[th] day of November, 2022 ## **J U D G M E N T** The claimants in O.P (MV) No.1778 of 2007 on the file of Motor Accidents Claims Tribunal, Kollam are the appellants herein. They are the parents and brother of deceased Rajesh, and they are assailing the impugned award dated 25.03.2013, for dismissing their claim for compensation. 2. On 12.03.2007, at 12.30 p.m, while Sri.Rajesh, 21 years, was riding his motorcycle through Kollam-Sakthikulangara road, in front of St.Joseph’s High School, Kollam, KL-01/U 1401 mini lorry driven by the 5th respondent which was proceeding in front of the motorcycle, applied sudden brake in a rash and negligent manner, and thereby motorcycle collided with the lorry, and Sri.Rajesh fell down on the road. At that time, KL-15/3842 KSRTC bus driven by the 2[nd] respondent in a rash and negligent manner came from behind and hit on the backside of the motorcycle, and Sri.Rajesh sustained serious head injuries, **MACA No.1815 of 2013** **4** and on the way to hospital, he breathed his last. 3. The appellants are the parents and brother of deceased Rajesh. 1[st] respondent is the owner of the KSRTC bus involved in the accident and the 2[nd] respondent is its driver. The 3[rd] respondent is the registered owner of the mini lorry involved in the accident, 4[th] respondent is the insured, 5[th] respondent is the driver of the mini lorry, and the 6[th] respondent is the insurer of that lorry. The insurance policy of the mini lorry is not in dispute. The fact that Sri.Rajesh died in the road traffic accident occurred on 12.03.2007 also is not in dispute. 4. The appellants approached the Tribunal claiming compensation of Rs.5 lakh. PWs 1 and 2 were examined and Exts.A1 to A6 were marked from the side of the claimants in support of their case. RW1 was examined from the side of respondents 1 and 2. 5. On analysing the facts and evidence, the Tribunal entered into a finding that, there was no negligence from the part of R2 or R5 and the death of Sri.Rajesh occurred due to his own negligence. According to the Tribunal, if he was vigilant enough to keep safe distance from the mini lorry, which was proceeding in front, the accident could have been **MACA No.1815 of 2013** **5** averted. At the same time, the Tribunal assessed the compensation that would have been awarded in favour of the appellants as Rs.3,60,000/-. But, it was not awarded as the accident occurred due to the negligence of the deceased himself. Even though the Tribunal found that there was no negligence from the part of R2 and R5, issue No.3 was answered saying that, if at all the compensation assessed by the Tribunal @ Rs.3,60,000/- was awarded, the liability would have been that of R2 alone, and R1, the owner of the KSRTC bus, would have been liable to pay that amount. 6. The appellants are challenging the impugned award contending that, the learned Tribunal failed to appreciate the facts and evidence in its correct perspective, and the charge sheet prepared by the Police was just ignored by the Tribunal. The evidence adduced by PW2 was not appreciated correctly with regard to the factual aspects. The learned Tribunal grossly erred in not awarding any amount as compensation, when a 21 year old Thavil artist died of a road traffic accident involving two vehicles, which was found to be true during Police investigation also. 7. Now let us have a reappraisal of the facts and evidence to find out whether any interference is warranted in **MACA No.1815 of 2013** **6** the impugned award. 8. Admittedly, Sri.Rajesh, 21 years, a Thavil artist, died in a road traffic accident that occurred at 12.30 p.m on 12.03.2007. PW1, the 2[nd] appellant/mother deposed before the Tribunal that, her son, who was a known Thavil artist earning monthly income of Rs.10,000/-, met with a road traffic accident on 12.03.2007 and he succumbed to the injuries on the same day. But, she has got only hearsay information about the accident. PW2, who is an eye witness to the accident, deposed that while Sri.Rajesh was riding his motorcycle through the backside of a mini lorry, the lorry driver negligently applied sudden brake, and then the motorcycle hit on the backside of that lorry, and he fell down. Then the KSRTC bus, which was going behind, hit Sri.Rajesh. During cross examination, PW2 admitted that, there were no other vehicles other than the motorcycle ridden by the deceased, in between the KSRTC bus and the mini lorry, at the time of accident. That fact is corroborated by RW1, the KSRTC driver also. 9. Admittedly, the road where the accident occurred, was having only one way traffic, and the vehicles were proceeding from west towards east. According to PW2, since **MACA No.1815 of 2013** **7** the mini lorry, which was proceeding in the front side, suddenly applied brake without any signal, the motorcycle ridden by Sri.Rajesh happened to hit on its backside, and he fell down. According to him, the KSRTC bus, which was coming behind, hit Sri.Rajesh when he fell down from the motorcycle, and there was composite negligence from the part of the driver of the mini lorry as well as the driver of the KSRTC bus. 10. Ext.A1 FIR was registered against R2, the driver of the KSRTC bus, and R5, the driver of the mini lorry. After investigation, Police laid Ext.A5 charge sheet against the drivers of both the vehicles charging them under Sections 279, 337 and 304A of IPC. 11. Learned counsel for the appellants submitted that, production of Police charge sheet is prima facie sufficient to prove the factum of negligence, so as to answer a claim under Section 166 of the Motor Vehicles Act. Ext.A5 charge sheet will prima facie show the negligence of the drivers of both the vehicles and that is corroborated by the testimony of PW2 also. A Division Bench of this Court, in **New India Assurance Co. Ltd** _vs._ **Pazhaniammal** (2011 (3) KHC 595) held that, as a general rule, production of the Police charge **MACA No.1815 of 2013** **8** sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If the Police charge sheet does not satisfy their judicial conscience, the Tribunal can reject it and can call upon the parties to adduce oral evidence to establish the alleged negligence. 12. R5, the driver of KL-01/U 1401 mini lorry and its registered owner R3, remained ex parte and they did not challenge the case of the appellants/claimants that, since R5 suddenly applied brake without giving any signal, the motorcycle ridden by deceased Rajesh, just behind that lorry, happened to hit on the backside of the lorry and he fell down along with the motorcycle. They have not challenged Ext.A1 FIR or Ext.A5 charge sheet laid against the 5[th] respondent. When there was no challenge against the FIR or final report laid against the driver of the mini lorry, learned Tribunal could not be justified in finding that there was no negligence from the part of R5, and he was not expected to show any signal before applying the brake. Learned Tribunal came to a conclusion that R5 had no control over that incident as the motorcycle came from backside and hit the lorry from behind. 13. As we have seen, the road at the place of incident **MACA No.1815 of 2013** **9** was having only one way traffic towards east. So, the vehicles might have been proceeding towards one side only. If the vehicle going in front at a considerable speed applies sudden brake without any signal, there is every possibility for the vehicle proceeding behind, hitting on its back, if that vehicle also was proceeding at a similar speed. During investigation, the Police never found that, there was any circumstance which necessitated the 5[th] respondent to apply sudden brake without giving any signal. So, the finding of the Tribunal, that there was no negligence from the part of R5 is not the correct view, when we look into the factual scenario. It is all the more true, when there is no challenge against the police charge from the part of R3 and R5, the owner and driver of the mini lorry involved in the accident. So, the finding of the learned Tribunal that, there was no negligence from the part of R5 is liable to be set aside. 14. Now coming to the negligence of the driver of the KSRTC bus, it is true that Ext.A5 final report is prima facie sufficient to prove his negligence. But, there was challenge against the negligence of R2 right from the written statement of R1 and R2. According to them, the KSRTC bus never hit the motorcyclist. The motorcycle hit the back side of the mini **MACA No.1815 of 2013** **10** lorry and the motorcyclist fell down on the road and the motorcycle slided towards back and it slightly hit on the KSRTC bus, which was proceeding from behind. Ext.A5 charge sheet is to the effect that, the front left wheel of the KSRTC bus ran over the head of Sri.Rajesh when he fell down from the motorcycle. That is why the driver of the KSRTC bus also was implicated in the charge sheet. But, RW1/R2 -the driver of the KSRTC bus at the relevant time deposed before court that on seeing the accident, he suddenly applied brake of the KSRTC bus, and the motorcycle slided towards back and hit on the bus, and the bus never ran over the head of Sri.Rajesh. Ext.A2 is the postmortem certificate of deceased Rajesh. It shows lacerated wound behind right ear, fracture fragmentation of scull bones with diffuse SAH and SDH and fracture maxilla etc. etc. If the wheel of the KSRTC bus ran over the head of Sri.Rajesh, definitely, the skull would have been crushed. Since the skull was not crushed, the available inference is that Sri.Rajesh sustained head injury by falling on the road from a moving motorcycle, after hitting the mini lorry. So, though there is Ext.A5 final report against R2, since there is oral evidence from RW1/R2 to show that, the KSRTC bus never hit the deceased, as far as the 2[nd] respondent is **MACA No.1815 of 2013** **11** concerned, Ext.A5 final report is liable to be rejected. So, the findings of the Tribunal that, if at all compensation was awarded, the liability would have been that of R2, and R1, the owner of the KSRTC bus, was liable to pay the award amount etc. are liable to be set aside. 15. Now coming to the compensation aspect, the appellants, who are the parents and elder brother of the deceased, would contend that, the deceased Rajesh, 21 years, was a known Thavil artist earning monthly income of Rs.10,000/- and his untimely death shattered their dreams and aspirations and any amount of compensation may not be sufficient to fill the vacuum. Ext.A6 certificate issued from Kshetra Kalapeetom of Travancore Devaswom Board, Thiruvananthapuram shows that, Sri.Rajeshkumar passed the certificate examination of the Kshetra Kalapeetom held in 2005 with optional subject Thavil, and he was placed in first class. Though there was no document to prove his monthly income, going by the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), his notional income could have been fixed @ Rs.6,000/- as the accident was in the year 2007. As he was self employed and aged below 40, 40% enhancement would **MACA No.1815 of 2013** **12** have been allowed towards future prospects. In that case, his monthly income would have been notionally fixed @ Rs.8,400/-. Since he was a bachelor, 50% deduction should have been made towards his personal expenses, as per the decision **Sarla Verma** _vs._ **Delhi Transport Corporation** [2010 (2) KLT 802 (SC)]. So, his monthly income is to be assessed @ Rs.4,200/- for the purpose of calculating loss of dependency. The multiplier applicable is 18 as he was aged only 21. So, the compensation for loss of dependency could be assessed as Rs.9,07,200/- (4200x12x18). 16. Towards loss of estate and funeral expenses, the claimants are entitled to get Rs.15,000/each totalling Rs.30,000/-. 17. Towards loss of consortium, appellants 1 and 2, the parents, are entitled to get Rs.44,000/each totalling Rs.88,000/going by the decision **National Insurance Company Ltd.** _vs._ **Pranay Sethi and Others** (AIR 2017 SC 5157). The 3[rd] appellant is the elder brother of the deceased and going by the decision **Kunjandy** _vs._ **Rajendran** (2020 (2) KLT 315), siblings are not entitled to get compensation for loss of consortium. So, the 3[rd] appellant is not entitled to get any amount under the head ‘loss of consortium’. **MACA No.1815 of 2013** **13** 18. Towards transportation expenses, Rs.1,000/- seems to be reasonable and so, that amount is awarded. |**Head of claim**|**Amount awarded in**<br>**appeal**| |---|---| |Loss of dependency|Rs.9,07,200/-| |Loss of estate and funeral<br>expenses (15000+15000)|Rs.30,000/-| |Loss of consortium (44000x2)|Rs.88,000/-| |Transportation expenses|Rs.1,000/-| |**Total**|**Rs.10,26,200/-**| 19. In the result, the appellants are entitled to get Rs.10,26,200/- as compensation on the death of Sri.Rajesh. 20. It is true that the total compensation claimed by the claimants before the Tribunal was only Rs.5 lakh. But, going by the decision **Nagappa** _vs._ **Gurudayal Singh** [2003 (1) KLT 115 (SC)], the Apex Court held that, the function of the tribunal/court is to award ‘just’ compensation which is reasonable on the basis of evidence produced on record. Further, in such cases, there is no question of the claim becoming time barred, or it cannot be contended that by enhancing the claim there would be change of cause of action. 21. In the case on hand, a 21 year old Thavil artist died out of the road traffic accident occurred on 12.03.2007. He **MACA No.1815 of 2013** **14** had a long way to go as a Thavil artist which would have brought fame and laurel to himself and his family. His parents lost their son at his tender-age, before fulfilling their dreams. Considering those aspects, the amount awarded is just and reasonable, though it exceeds the amount claimed. 22. We have found that, the accident occurred due to the rash and negligent driving of KL-01/U 1401 mini lorry by the 5[th] respondent. The 4[th] respondent was the insured and the 6[th] respondent was the insurer of that vehicle. The RC owner of that lorry, the 3[rd] respondent, and the driver, the 5[th] respondent, didn’t contest the case. The policy of the mini lorry is admitted by the 6[th] respondent as on the date of accident. So, the 6[th] respondent/insurer is liable to indemnify the insured. In the result, the 6[th] respondent/insurer is directed to deposit the award amount in the Bank Account of the appellants in the ratio 45:45:10 with 7% interest per annum from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 **MACA No.1815 of 2013** **15** after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. This appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp