S. Jayachithra and others v. Bajaj Allianz General Insurance Pvt. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` FRIDAY, THE 28TH DAY OF JANUARY 2022 / 8TH MAGHA, 1943 ``` ## **`MACA NO. 536 OF 2014`** ``` AGAINST THE COMMON AWARD DATED 25.06.2013 IN OPMV 203/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 S.JAYACHITHRA, AGED 31 YEARS`** ``` W/O. SARAVANAN.K. ``` - **`2 REVATHY, AGED 15 YEARS`** ``` D/O. SARAVANAN, ``` - **`3 PAVITHRA DHERSINI, AGED 6 YEARS`** ``` D/O. SARAVANAN. ``` ``` ALL ARE RESIDING AT H. NO. 275, THIRUVALLAVUR NAGAR, NEAR HOUSING BOARD COLONY, SIVAGIRIPETTI,VILLAGE PAZHANI, DHINDIGAL, TAMILNADU. ``` ``` BY ADV SRI.JACOB SEBASTIAN ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` BAJAJ ALLIANCE GENERAL INSURANCE PVT. LTD. NEAR INDIAN EXPRESS, KALOOR, COCHIN-682017. ``` ``` BY ADV SRI.AKHIL K.MADHAV ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA 536/2014 ``` ``` 2 ``` ## **JUDGMENT** The petitioners in O.P.(MV) No.203/2009 on the files of the Motor Accidents Claims Tribunal, Palakkad, who are the legal heirs of deceased Saravanan, have preferred this appeal on being aggrieved by the quantum of compensation awarded by the Tribunal. The parties in this appeal are referred to as per the status in the claim petition. 2. While the deceased was travelling as a pillion rider on a motorcycle on 30.3.2008, a jeep bearing Reg.No.KL-9/V-5802 driven by the second respondent, in a rash and negligent manner, hit the motorcycle and the deceased succumbed to the injuries sustained in the accident. The first respondent is the owner of the jeep and the third respondent is its insurer. The deceased was aged 34 years at the time of the accident. He was working as a driving instructor in a driving school and was drawing a salary of Rs.8,000/- per month. 3. Respondents 1 and 2 entered appearance before the Tribunal and contended that the accident happened due to the negligence of the rider of the motorcycle. The third respondent insurance company filed ``` MACA 536/2014 ``` ``` 3 ``` written statement admitting that the offending vehicle was covered by a valid policy of insurance at the time of the accident; however, contended that the accident happened due to the negligence of the rider of the motorcycle and that the compensation claimed is excessive. The Tribunal awarded an amount of Rs.4,81,000/- as total compensation with 9% interest and proportionate costs. However, the Tribunal ordered a deduction of 25% of the compensation on account of the contributory negligence of the rider of the motorcycle. The 3[rd] respondent insurance company was directed to satisfy the award. 4. There were two pillion riders on the motorcycle at the time of accident. The Tribunal found that the deceased rider of the motorcycle made 25% contribution to the accident and deducted 25% of the compensation awarded to both the rider and the pillion rider. To arrive at the finding that the rider of the motor cycle also contributed to the accident, the Tribunal held as follows: “The police version of the accident finds its culmination in Ext. A5 charge against the second respondent. Nevertheless, this Tribunal empowered to take an independent view of the matter, is reasoned to take note of the fact that the motorcycle had three persons (all adults) on it in the space meant for two persons, Surely, the rider (son of the ``` MACA 536/2014 ``` ``` 4 ``` petitioner in OP 204/2009) had taken a risk by taking on two pillionriders and thereby discomfiting himself. That discomfort would surely have to be taken into reckoning while adjudging the question of negligence. The deceased rider of the motorcycle in the circumstances, can be safely held to have made 25% contribution to the accident. Ext. A5 charge is accordingly read down in favour of the second respondent, who it must be presumed, had made the remaining contribution.” 5. In **Mohammed Siddique and another** _**v**_ **. National Insurance Co. Ltd. [2020 KHC 6043:(2020) 3 SCC 57],** the Hon'ble Supreme Court held that, the fact that a person was a pillion rider on a motorcycle along with the driver and one more person on the pillion, may be a violation of the law, but such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. The finding of the Tribunal that, the rider of the motorcycle had taken a risk by taking on two pillion-riders and thereby discomfiting himself and that discomfort would surely have to be taken into reckoning while adjudging the question of negligence, is nothing but presumptuous and is not based on any evidence. Therefore, the finding of the Tribunal that ``` MACA 536/2014 ``` ``` 5 ``` the deceased rider has also contributed to the accident cannot be sustained. Consequently, the apportionment of 25% contributory negligence on the deceased also cannot be sustained. Therefore, deduction of 25% from the total compensation on account of contributory negligence is set aside. 6. The contention of the petitioners is that the compensation awarded by the Tribunal under various heads is inadequate. Towards damage to clothing, no amount is awarded by the Tribunal. An amount of **Rs.500/-** will be a just and reasonable compensation under this head. The same is awarded. For transportation, though an amount of Rs.5,000/- was claimed, no amount is seen awarded. An amount of **Rs.2,500/-** is granted on this count. The petitioners are the wife and two children of the deceased. The monthly income of the deceased was taken by the Tribunal as Rs.3,500/-. Going by the decision of the Apex Court in _**v**_ **Ramachandrappa . Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236: AIR 2011 SC 2951]** , the monthly income of the deceased has to be taken as Rs.6,500/-. 40% of the same has to be added towards future prospects. The deceased was aged 34 years at the time of the accident. In terms of ``` MACA 536/2014 ``` ``` 6 ``` the decision in **Sarla Verma** _**v**_ **. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , since there are 3 dependents, a deduction of 1/3rd of the income has to be made. Accordingly, the monthly income of the deceased is re-fixed as Rs.6,066/-. In terms of the decision in **Sarla Verma** (supra), the multiplier applicable in this case is '16'. Taking the monthly income as Rs.,/- and applying '16' as multiplier, the compensation for loss of dependency is re-calculated as Rs.11,64,672/(6066×12×16). After deducting the amount already awarded by the Tribunal, the petitioners are entitled for an enhanced amount of **Rs.7,16,672/-** under the said head. Towards spousal consortium, the first respondent is entitled to get an amount of Rs.40,000/- with 10% increase for every three years as per the decision in **National Insurance Company Ltd.** _**v**_ **. Pranay Sethi [2017 (16) SCC 680]** followed in **N. Jayasree and others** _**v**_ **. Cholamandalam Ms General Insurance Co. Ltd (2021 (6) KHC 163 SC)** . Accordingly, the spousal consortium is re-fixed as Rs.44,000/-. On deducting Rs.10,000/- already awarded by the Tribunal, the first respondent will be entitled for an additional amount of **Rs.34,000/-** under the said head. Petitioners 2 and 3 are the minor children of the deceased and for loss of parental consortium, they ``` MACA 536/2014 ``` ``` 7 ``` are entitled for Rs.88,000/- (44,000×2). Since the Tribunal has awarded a sum of Rs.15,000/-, petitioners 2 and 3 are entitled for an additional sum of **Rs.73,000/-** under the said head. Towards loss of estate, the petitioners are entitled for an amount of Rs.15,000/-. By adding 10% enhancement, they are entitled for an amount of Rs.16,500/-. On deducting Rs.5,000/- already awarded by the Tribunal, they are entitled for an additional amount of **Rs.11,500/-** . Towards funeral expenses also, the petitioners are entitled for an amount of Rs.15,000/- plus 10% enhancement. Therefore, the petitioners are entitled for an additional amount of **Rs.13,500/- (Rs.16,500-3,000)** on this count. The petitioners are granted an enhanced compensation of **- Rs.8,51,672** / (Rs.500+2500+716,672+34000+73000+11500+13500). The Tribunal has awarded an amount of Rs.3,60,750/- as compensation after deducting 25%, ie., Rs.1,20,250/-, towards contributory negligence. Since the finding regarding contributory negligence is set aside, the petitioners will be entitled for an additional amount of Rs. **9,71,922/-** (Rs.8,51,672+1,20,250) as compensation with 9% interest from the date of filing of the claim petition till realisation and ``` MACA 536/2014 ``` ``` 8 ``` proportionate costs. The third respondent insurance company is directed to deposit the amount with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. **MURALI PURUSHOTHAMAN JUDGE** ## **spc/**