RUKIYA & OTHERS v. SADEESH, MOIDEENKUTTY & NATIONAL INSURANCE COMPANY LTD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 MACA NO.1207 OF 2013** **AGAINST THE AWARD DATED 13.6.2011 IN O.P.(MV) No.7/2007** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANTS/PETITIONERS:** - 1 RUKIYA, W/O.HASSAN (LATE), KANDALAKKADAN HOUSE, (S/O.ALIKUTTY HAJI), P.O.THURAKKAL, KONDOTTY, MALAPPURAM DISTRICT. - 2 K.YASIR, AGED 16 YEARS, MINOR, S/O.RUKIYA, KANDALAKKADAN HOUSE, P.O.THURAKKAL, KONDOTTY, MALAPPURAM DISTRICT. - 3 K.FARHAN, AGED 14 YEARS, MINOR, S/O.RUKIYA, KANDALAKKADAN HOUSE, P.O.THURAKKAL, KONDOTTY, MALAPPURAM DISTRICT. - 4 K.SHAHANA SERIN, AGED 9 YEARS, MINOR, D/O.RUKIYA, KANDALAKKADAN HOUSE, P.O.THURAKKAL, KONDOTTY, MALAPPURAM DISTRICT. - 5 K.RASMINA SERIN, AGED 7 YEARS, MINOR, D/O.RUKIYA, KANDALAKKADAN HOUSE, P.O.THURAKKAL, KONDOTTY, MALAPPURAM DISTRICT. (MINORS REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER IST RESPONDENT) BY ADV. SRI.K.M.MOHAMED ABDURAHIMAN ## **RESPONDENTS/RESPONDENTS:** - 1 SADEESH, S/O.UNNI, KARA HOUSE, CHERUR ADIVARAM, P.O.KUNNAMANGALAM, KOZHIKODE DISTRICT.(DRIVER) - 2 MOIDEENKUTTY, PALERI HOUSE, KEEZHUMURI, P.O.URAKAM, MALAPPURAM DISTRICT.(RC OWNER) - 3 NATIONAL INSURANCE COMPANY LIMITED, CALICUT. ## **M.A.C.A No.1207 of 2013** **==> picture [7 x 9] intentionally omitted <==** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 11.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.1207 of 2013** 3 ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging award dated 13.06.2011 in O.P.(M.V) No.7/2007 on the file of the Motor Accidents Claims Tribunal, Manjeri, at the instance of the petitioners. 2. Respondents herein are the respondents before the Tribunal. 3. Heard the learned counsel for the appellants as well as the learned Standing Counsel for the 3[rd] respondent, Insurance Company. 4. Brief facts of the case: The appellants, who are the wife and children of deceased 'Hassan', raised contention before the Tribunal that while Hassan was driving a school bus belonging to Al-Hidaya School, Kondotty at about 5:50 p.m. on 31.07.2006, another bus driven by the 1[st] **M.A.C.A No.1207 of 2013** 4 respondent bearing registration No.KL-10P-3546 came from the opposite direction, in a rash and negligent manner, dashed against the school bus and, consequently, Hassan sustained fatal injuries and succumbed to the injuries. According to the appellants, the accident occurred due to the rash and negligent driving of the 1[st] respondent. In this matter, the claimants, who are the wife and children of the deceased, approached the Tribunal and claimed the compensation to the tune of Rs.6 lakh from respondents 1 to 3. 5. The 1[st] and 2[nd] respondents were set ex- parte by the Tribunal. 6. The 3[rd] respondent, Insurance Company filed written statement and admitted policy to the bus bearing registration No.KL-10P-3546 driven by the 1[st] respondent and disputed negligence as well as quantum of compensation. 7. The Tribunal acting on documentary evidence marked as Exts.A1 and A4, after ## **M.A.C.A No.1207 of 2013** 5 finding 50% negligence on the part of the 1[st] respondent and 50% negligence on the part of Hassan (the deceased), assessed Rs.5,32,000/as compensation and granted Rs.2,66,000/- (50%) with 9% interest, in a case where no evidence let in on the side of the respondents. 8. In this matter, the Tribunal after discussing Ext.A1 FIR, disbelieved the evidence of PW1, being hearsay, found that the inexperience of 'Hassan' (the deceased) also contributed the accident and, accordingly, the Tribunal found 50% contributory negligence on the part of the 1[st] respondent and 50% on the part of 'Hassan' (deceased). 9. Although, initially, the learned counsel for the appellants submitted that police charge was not produced before the court, on perusal of the appeal memorandum, it is noticed that though the appellants failed to produce copy of charge pertaining to Crime No.182/2006, the appellants produced copy of ## **M.A.C.A No.1207 of 2013** ## 6 charge before this Court attributing negligence against the 1[st] respondent alone. If reliance is given to the copy of charge, following the ratio in _**New India Assurance Co. Ltd v.**_ _**Pazhaniammal**_ **: 2011 (3) KLT 648,** the negligence has to be found against the 1[st] respondent alone and 50% contributory negligence found by the Tribunal is liable to be set aside. 10. The learned counsel for the insurer submitted that non-production of police charge before the Tribunal was the reason for finding 50% negligence on the part of 'Hassan' and he opposed acceptance of the police charge produced before this Court to have a contrafinding. 11. To be on the facts of this case, a driver, aged 36 years, at the time of accident had left to eternity pursuant to a motor accident. Consequently, the wife and children ## **M.A.C.A No.1207 of 2013** ## 7 lodged claim petition under Section 166 of Motor Vehicles Act. They had produced copy of FIR marked as Ext.A1 as well as copy of driving license of the deceased along with Ext.A2 postmortem certificate. But no police charge produced before the Tribunal. Though PW1 was examined to prove the negligence, the evidence of PW1 is nothing but hearsay and, therefore, the Tribunal rightly ignored the same. Having considered the factual matrix of this case, I am inclined to accept copy of charge produced before this Court in evidence and the same is marked as Ext.A5. 12. Following the ratio in _**Pazhaniammal's**_ case (supra) followed by subsequent decisions of this Court including one reported in _**Balan**_ ## _**R. v. Abhiraj R. and others**_ **: 2021 (4) KHC 380,** unless the contrary is proved, police charge can be given emphasis to find negligence. In this matter, Ext.A5 would go to ## **M.A.C.A No.1207 of 2013** ## 8 show that the accident is the contribution on the part of the 1[st] respondent, the driver of the bus bearing registration No.KL-10P-3546. Therefore, I am inclined to set aside contributory negligence found by the Tribunal in the proportion 50:50 and it is held that the accident is the contribution of negligence on the part of the 1[st] respondent alone. 13. Coming to the quantum of compensation, the Tribunal accepted Rs.3,500/- as the monthly income of the deceased though the appellants claimed the same at Rs.9,000/- per month being a lorry driver under different persons. 14. The driving license is produced to prove that the job of the deceased as driver. Following the ratio in _**National Insurance Company Ltd. v. Pranay Sethi**_ **: (2017) 16 SCC** **680,** involving accident of the year 2006, Rs.5,500/- is liable to be fixed as the monthly income and I fix so. The age of the deceased is ## **M.A.C.A No.1207 of 2013** **==> picture [7 x 9] intentionally omitted <==** in between 36 to 40 years and the multiplier is '15' following the ratio in _**Sarla Verma v. Delhi Transport Corporation**_ **: (2009) 6 SCC 121** . Therefore, 25% addition also must be given. Accordingly, the monthly income for calculating 'loss of disability income' is Rs.6,875/- and the same is calculated as under: 5,500 + 25% = 6,875x12x14x¾ = **8,66,250/-** 15. In this matter, following the ratio in _**Pranay Sethi's case (supra),**_ the appellants 1 to 5 are entitled to get loss of consortium @ Rs.40,000/- each, and, therefore, **Rs.2,00,000/-** is granted under the head 'loss of consortium'. 16. Apart from that, under the heads 'loss of estate' and 'funeral expense' **Rs.15,000/-** each is granted following the ratio in _**Pranay Sethi's case (supra)**_ and **Rs.3,000/-** can be granted under the head 'transportation' also. 17. It is noticed further that the Tribunal granted Rs.10,000/- under the head 'loss of ## **M.A.C.A No.1207 of 2013** ## 10 love and affection'. Following the ratio in _**United India Insurance Co. Ltd v. Satinder Kaur**_ **@ Satwinder Kaur and others : 2020 (3) KHC 760,** Rs.10,000/- granted under the head 'love and affection' is not liable to be granted. 18. In the result, this appeal is allowed. It is ordered that the appellants are entitled to get **Rs.10,99,250/-** (Rupees Ten Lakh Ninety Nine Thousand Two Hundred and Fifty Only) as total compensation along with interest 9% per annum, to be realised from the 3[rd] respondent, Insurance Company from the date of petition till the date of deposit or realisation, excluding interest for the period of 570 days in filing this appeal as ordered in the order dated 21.12.2021 in C.M.Application No.1/2013 (C.M.Application No.1475/2013). 19. The appellants valued the claim at Rs.6,00,000/-. In view of grant of Rs.4,99,250/- in excess of the claim, the ## **M.A.C.A No.1207 of 2013** ## 11 appellants are bound to deposit Rs.4,993/- as additional court fee. The 3[rd] respondent, Insurance Company is directed to deposit Rs.4,993/- as additional court fee by a separate cheque in favour of M.A.C.T., Manjeri. The 3[rd] respondent, Insurance Company is further directed to deposit the balance amount in the name of the appellants, in the proportion 30% in the name of the 1[st] appellant, and the remaining 70% equally in between appellants 2 to 5, within two months from today. On deposit, the appellants are entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww ## **M.A.C.A No.1207 of 2013** **==> picture [13 x 9] intentionally omitted <==** ## **APPENDIX** APPELLANTS' ANNEXURES: EXHIBIT A5 COPY OF FIR NO.182/2006.