Sangeetha P.G. Narikuzhiyil (H) v. Ashraf M.M. and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941 MACA.No.901 of 2014** **AGAINST THE AWARD IN OP(MV)No.1566/2011 of the MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 22-01-2014** ## **APPELLANTS/PETITIONERS:** - **1 SANGEETHA P.G. NARIKUZHIYIL (H), PEROOR KARA, PEROOR VILLAGE** - **2 SANJEEV SURESH (MINOR), REP BY HIS NEXT FRIEND SANGEETHA P.G, NARIKUZHIYIL (H), PEROOR KARA, PEROOR VILLAGE.** - **3 SWANTHANA SURESH (MINOR), REP BY HIS NEXT FRIEND SANGEETHA P.G., NARIKUZHIYIL (H), PEROOR KARA, PEROOR VILLAGE.** - **4 SARASWATHY AMMA NARIKUZHIYIL (H), PEROOR KARA, PEROOR VILLAGE.** **BY ADVS.** **SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP** ## **RESPONDENTS/RESPONDENTS/ADDL.PETITIONERS 6 TO 8:** - **1 ASHRAF M.M.** - **MANTHRA (H), KAITHARAM P.O., KODUVALLY P.O., NEAR MES BLOCK, N. PARAVOOR – 683 513.** - **2 THE ORIENTAL INSURANCE CO. LTD KOTTAYAM - 686 001.** **BY ADVS. SRI.A.R.GEORGE SRI.GEORGE CHERIAN (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 901 of 2014 2 ## **J U D G M E N T** The claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal have come up in this appeal challenging the decision of the Tribunal in the proceedings. 2. One Suresh Kumar died in a motor accident took place on 27.09.2011. He was aged 44 years. It is stated in the claim petition that he was working as a Clerk in a private firm earning a monthly income of Rs.9,000/-. The wife, two children and the mother of the deceased were the claimants in the proceedings. A sum of Rs.17,00,000/- was the claim made in the proceedings. The deceased was riding a motor cycle and the case set out in the claim petition is that the offending vehicle namely a lorry hit on the motor cycle ridden by the deceased on account of the negligence of its driver. The insurer of the lorry contested the proceedings contending that the accident occurred on account of the negligence of the deceased himself and that therefore, they are not liable to MACA 901 of 2014 3 compensate the claimants. The Tribunal found contributory negligence to the tune of 25% on the part of the deceased. As regards the quantum of compensation, the Tribunal found that the claimants are entitled to a sum of Rs.10,07,000/-. However, in the light of the finding as to the contributory negligence on the part of the deceased, the Tribunal passed the award directing that the insurer of the lorry need satisfy only 75% of the award. It is aggrieved by the said decision of the Tribunal that the claimants have come up in this appeal. 3. The learned counsel for the appellants contended that the finding rendered by the Tribunal regarding the contributory negligence on the part of the deceased is unsustainable in law. It was pointed out by the learned counsel that there was a case registered by the police in connection with the accident and in that case, after due investigation, the police came to the conclusion that the accident occurred on account of the rash and negligent driving of the lorry and a charge sheet was laid on that basis against the driver of the lorry. It was also pointed out that the charge sheet laid by the MACA 901 of 2014 4 police in the case is part of the records. According to the learned counsel, in the circumstances, in the absence of any independent evidence to discredit the police charge sheet, the Tribunal ought not have rendered a finding to the contrary in the proceedings. It was pointed out by the learned counsel that the finding regarding the contributory negligence has been rendered by the Tribunal solely based on the scene mahazar prepared by the police in connection with the accident which is part of police records. According to the learned counsel, insofar as the police laid the charge sheet in the matter after considering the scene mahasar, the Tribunal is precluded from rendering a finding as to the negligence based on the scene mahazar. The counsel has placed reliance on the decision of this court in **Fazal Mahmood M.T. and Others v. Rasheed C.P. and Others** [2015(4)KHC 440], in support of that proposition. As regards the quantum of compensation, the learned counsel submitted that a certificate issued by the employer of the deceased was produced as Ext.A9 to prove the income of the deceased and the same was proved by examining the Manager MACA 901 of 2014 5 of the establishment. It was pointed out that despite all these, the Tribunal has rendered a finding as to the income of the deceased ignoring the said evidence and fixed the monthly income of the deceased at Rs.5000/-. It was pointed out that the approach made by the Tribunal in this regard is also faulty. 4. Per contra, the learned counsel for the insurer submitted that the scene mahazar prepared by the police in connection with the accident demonstrates that the offending vehicle was coming in the right side and the deceased was on the wrong side. According to the learned counsel, in the circumstances, the Tribunal cannot be faulted for having found contributory negligence to the tune of 25% on his part. 5. I have considered the contentions raised by the learned counsel on either side. 6. Ext.A4 is the scene mahazar prepared by the police in connection with the accident. Ext.A4 indicates that the width of the road that lies in the north south direction at the place of occurrence is 7.30 metres. It is shown in the scene mahazar that the place of occurrence is 3.10 metres west from MACA 901 of 2014 6 the eastern tar end. Going by the scene of occurrence shown in the scene mahazar, the accident took place on the side of the lorry and it is in the said circumstances that the Tribunal came to the conclusion that there was negligence on the part of the deceased as well. In **New India Assurance Co. Ltd. v. Pazhaniammal** [2011 (3) KLT 648], this court held that the police charge against the driver of the offending vehicle can be accepted by the Motor Accidents Claims Tribunals as prima facie proof of negligence in proceedings before it and the parties who do not accept the same shall let in evidence to prove the contrary. Further, in **Fazal Mahmood** , it was clarified by this court that in the case where the police after due investigation comes to the conclusion that the accident occurred on account of the negligence of one person, based on the materials collected including the scene mahazar, the Tribunal cannot come to a different conclusion based on the scene mahazar, when the police investigation is not discredited. In the light of the aforesaid judgments, I am of the view that the finding rendered by the Tribunal as regards the contributory MACA 901 of 2014 7 negligence on the part of the deceased is unsustainable and the same is liable to be vacated. 7. Coming to the quantum of compensation, it is seen that as pointed out by the learned counsel for the appellants, a certificate issued by the employer of the deceased was produced by the claimants as Ext.A9 to establish the salary of the deceased. Ext.A9 does not recite the particulars of the person who issued it. PW1, the Manager of the establishment who was examined on the side of the claimants to prove Ext.A9 though deposed that Ext.A9 is one issued from the firm, the evidence tendered by him was not in tune with the certificate as regards the salary of the deceased. Be that as it may. Even in the absence of any evidence, in so far as the accident took place in the year 2011, according to me, in the light of the decisions of the Apex Court in **Ramachandrappa v. Manager,** **Royal Sundaram Alliance Insurance Company Limited,** (2011) 13 SCC 236 and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.,** (2014) 2 SCC 735, where the Apex Court has reckoned the monthly income of persons MACA 901 of 2014 8 whose income could not be established by independent evidence at Rs.4,500/- and Rs.6,500/- in the context of accidents took place in the year 2004 and 2008 respectively, I am of the view that in so far as the accident in the instant case took place in the year 2011, the monthly income of the deceased could have been reckoned by the Tribunal certainly at Rs.8,000/-. If the income of the deceased is reckoned at Rs.8,000/-, the claimants could have been granted a sum of Rs.12,60,000/- (8,000 x 125/100 x 12 x 14 x 3/4) by way of compensation for loss of dependency. The aforesaid amount is arrived at by adding 25% of the income reckoned towards future prospects and applying the multiplier '14'. The Tribunal has granted only a sum of Rs.8,19,000/- to the claimants towards compensation for loss of dependency. In other words, the claimants are entitled to a further sum of Rs.4,41,000/towards loss of dependency. It is seen that the Tribunal has granted only a sum of Rs.10,000/- to the claimants towards loss of estate. In the light of decision of the Apex court in **National Insurance Company Ltd V. Pranay Sethi** [2017(4) KLT 662 MACA 901 of 2014 9 (SC)], the claimants are entitled to a sum of Rs.15,000/- under that head. The claimants are, therefore, entitled to a further sum of Rs.5,000/- under that head. In the light of the decision of the Apex court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), the Tribunal could have granted compensation for loss of love and affection to the two children and mother of the deceased at the rate of Rs.40,000/- each. The Tribunal has granted only a sum of Rs.50,000/- under that head. The claimants are, therefore, entitled to an additional compensation of Rs.70,000/- under that head. Thus, the total additional compensation payable to the claimants would come to Rs.5,16,000/-. 8. At the same time, it is seen that the Tribunal has granted a sum of Rs.25,000/- to the claimants towards funeral expenses. Likewise, it is seen that the Tribunal has granted a sum of Rs.1,00,000/- towards loss of consortium to the wife of the deceased. In the light of the decision of the Apex court in **Pranay Sethi,** the claimants are entitled to only a sum of Rs.15,000/- and Rs.40,000/- respectively under those MACA 901 of 2014 10 heads. In other words, a sum of Rs.70,000/- granted by the Tribunal under those heads are in excess. If the excess compensation is adjusted against the additional compensation found payable to the claimants, the net additional compensation payable to the claimants would come to Rs.4,46,000/-. In the result, the appeal is allowed and the total compensation payable to the claimants is re-fixed at Rs.14,53,000/-. Needless to say that the insurer shall satisfy the entire award with interest at the rate of 7.5%. The parties are at liberty to move the Tribunal for directions as regards deposit of the said amount and for the disbursal thereof. **Sd/P.B.SURESH KUMAR, JUDGE** DK