Sarada Varikkattuvila Veedu v. Siju B.S. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945** ## **MACA NO. 2278 OF 2013** **AGAINST THE ORDER/JUDGMENT DATED 27.07.2013 IN OPMV NO.1481 OF** **2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL** ## **APPELLANTS/APPLICANTS:** - **1 SARADA VARIKKATTUVILA VEEDU, VETTAMPALLY, IRINCHAYAM P.O.** **2 VISHNU S AGED 20 YEARS, VARIKKATTUVILA VEEDU, VETTAMPALLY, IRINCHAYAM P.O.** - **3 JISHNU MINOR,AGED 16 YEARS, VARIKKATTUVILA VEEDU, VETTAMPALLY, IRINCHAYAM P.O.** **BY ADVS. SRI.C.R.SIVAKUMAR SRI.PRATHAP PILLAI SRI.S.SURESH VAMANAPURAM MRS.S.SREELAKSHMY** ## **RESPONDENTS/RESPONDENTS:** - **1 SIJU.B.S. S/O.N. SOMAN NAIR, 3TRG, BN SPORTS COLONY, IEME CENTRE, SECUNDRABAD, HYDRABAD, ANDHRA PRADESH - 500 003.** - **2 BINU P. S/O. PRABHAKARAN, VINEETHA BHAVAN, NEAR C.S.I CHURCH, KARAMCODE, VEMBAYAM - 695 615.** - **3 THE MANAGER UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, ATTINGAL - 695 101.** **BY ADVS. S.K.AJAY KUMAR SRI.P.V.JYOTHI PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A No. 2278 of 2013 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1481/2006 on the files of the Motor Accidents Claims Tribunal, Attingal. The said claim petition was filed by them seeking compensation for the death of one Jayasree, due to the injuries sustained in a motor accident that occurred on 20.08.2006. The deceased was the daughter of the first respondent and the mother of the appellants 2 and 3. The deceased was aged 38 years at the time of the accident and she was a homemaker as well as a tailor, with a monthly income of Rs.4,000/-. 2. According to the appellants, the accident occurred when the deceased was travelling as a pillion rider on a scooter, it collided with a motorcycle bearing registration No.AP-10/A-1030 , ridden by the second respondent herein. The said motorcycle was owned by the first respondent and it was insured with the third respondent. The claim petition was submitted in such circumstances. 3. The third respondent submitted a written statement admitting the existence of a valid insurance policy for the motorcycle. However, they denied the negligence on the part of 3 ## M.A.C.A No. 2278 of 2013 the second respondent in riding the motorcycle and according to them, the accident occurred due to the negligence of the rider of the scooter on which, the deceased was the pillion rider. The quantum of compensation was also disputed by them. The said claim petition was tried along with OP(MV) No.1345/2007, which was submitted by the rider of the scooter on which the appellant was traveling. 4. The evidence in these cases consist of Exts. A1 to A7 from the side of the claimants and as court exhibit Ext.X1, the legal heirship certificate of the deceased, was marked. After evaluating the materials placed on record, the Tribunal arrived at the conclusion that the accident occurred due to the rash and negligent riding of both the riders and the liability was apportioned among them equally. The quantum of compensation was fixed as Rs.7,64,500/- but in the light of the apportionment of liability between the riders of the scooter and motorcycle, the entitlement of the appellants to recover the compensation from the third respondent, the insurer of the motorcycle, was limited to the extent of 50% of the compensation i.e Rs.3,82,250/-. Thus the said amount was directed to be deposited by the third respondent 4 M.A.C.A No. 2278 of 2013 with interest at the rate of 9% per annum from the rate of petition till realisation. This appeal is submitted in such circumstances challenging the finding of the Tribunal on the question of negligence and also seeking enhancement of compensation. 5. Heard, Smt. Surya Gayathri, the learned counsel appearing for the appellants and Sri. S K Ajay Kumar, the learned counsel appearing for the third respondent. 6. The first question to be considered is with reference to the finding of the Tribunal regarding the negligence. The Tribunal seems to have arrived at the conclusion that both the riders have contributed to the accident, mainly relying upon the scene mahazar wherein, the spot of the accident was the middle of the road. However, the crucial aspect to be noticed is that, the Nedumangadu police registered Crime No.693/2006 in connection with the accident and after completing the investigation, Ext.A6 final report has been submitted before the court concerned, implicating the second respondent, the rider of the motorcycle insured with the third respondent, as the accused. In **New India Assurance Co.Ltd v, Pazhaniammal** [2011 (3) KLT 648], a Division Bench of this Court categorically observed that in the 5 M.A.C.A No. 2278 of 2013 absence of any contra evidence, the conclusions arrived at by the police after the investigation conducted in the crime registered in connection with the accident,could be treated as a _prima facie_ proof, for determining the negligence in a proceeding under Section 166 of Motor Vehicles Act. In this case, despite the fact that the final report implicating the second respondent as an accused was already on record, none of the respondents have made any attempt to adduce any contra evidence. As far as the finding of the Tribunal by relying upon the scene mahazar is concerned, the same also cannot be accepted in view of the observations made by the Honourable Supreme Court in **Jiju** ## **Kuruvila and Others v. Kunjunjamma Mohan and Others** [(2013) 9 SCC 166], wherein, it was categorically observed that, the spot of the accident as revealed from the scene mahazar cannot be the sole factor to determine the negligence between the parties. Thus, in the light of the observations made in the decisions referred to above, the finding of the Tribunal attributing contributory negligence upon the rider of the scooter on which the appellant was pillion riding, has to be interfered with. 6 M.A.C.A No. 2278 of 2013 7. Even if it is assumed that the rider of the scooter on which the deceased was travelling was also responsible for the accident, the entitlement of the appellants to claim compensation from the third respondent could not have been limited to 50%. This is particularly because of the fact that the deceased was only a pillion rider, and therefore, this could be a case of composite negligence, and not contributory negligence. Only in a case of contributory negligence, the entitlement of the claimant could be curtailed, depending upon the extent of the liability imposed upon the rider. As far as composite negligence is concerned, in the light of **Khenyei v. New India Assurance Co. Ltd and Others** [2015 (2) KLJ 593], the victim shall be entitled to claim compensation from any of the tortfeasors, as the liability of the joint tortfeasors are joint and several. Therefore, under no circumstances the Tribunal could have confined the right of the appellants to claim the entire compensation to 50%. Thus, the only conclusion possible is that the appellants are entitled to the entire compensation as determined which can be recovered from the respondents herein, particularly the insurer of the motorcycle. 7 M.A.C.A No. 2278 of 2013 8. The next aspect relates to the quantum of compensation. The Tribunal assessed the compensation for loss of dependency by taking the monthly income as Rs.4,000/-. Of course, it is true that the claim in this regard was only Rs. 4,000/-. However, the fact that the accident occurred in the year 2006 cannot be ignored. When the method of computation evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd** [2014 (2) SCC 735] is taken into account, under no circumstances, the monthly income in respect of an accident occurred in the year 2006 could be less than Rs.5,500/- irrespective of the question whether any evidence was adduced or not. It is also to be noted that, merely because a lesser income was shown in the claim petition, that by itself would not preclude this Court or the Tribunal, from taking a higher monthly income, if the facts and circumstances of the case warrant adoption of such a higher income. In this case, I have already found that in the light of **Ramachandrappa and Syed** 8 M.A.C.A No. 2278 of 2013 **Sadiq** cases (supra), the reasonable monthly income for the year 2006 is Rs.5,500/- and therefore, this is a case in which the monthly income of Rs.5,500/- has to be adopted, irrespective of the fact that the claim in this regard was for a lesser amount. The view taken by this Court is fortified by the observations made by the Honourable Supreme Court in **Minu Rout & Another v. Satyapradyumna Mohapatra & Ors.** [(2013) 10 SCC 695], Therefore, the monthly income is taken as Rs.5,500/-. 9. Since the deceased was aged 38 years, the compensation has to be calculated by taking into account the future prospects and in the light of **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], the addition to be made in this regard should be 40%. As the deceased left behind three dependents, the deduction to be made towards personal expenses, should be one-third. Thus, while reassessing the compensation with the above revised criteria, the amount towards loss of dependency would come to Rs.9,24,000/- [(5,500 + 40%) x 12 x 15 x 2/3]. The amount already awarded by the Tribunal is Rs.7,20,000/- and thus the additional amount is Rs. **2,04,000** /-. 9 M.A.C.A No. 2278 of 2013 10. The Tribunal awarded Rs.8,000/- only, towards funeral expenses, whereas in the light of **Pranay Sethi** (supra), a further sum of Rs.7,000/- is to be awarded. Similarly, the Tribunal awarded only Rs.10,000/- towards loss of estate and hence a further sum of Rs.5,000/- is to be awarded in the light of **Pranay Sethi** . 11. The learned counsel for the appellants at this juncture pointed out that the appellant is entitled to get 20% addition in respect of the amount fixed towards loss of estate and funeral expenses. I am not inclined to accept the said contention. This is particularly because there is no observation in **Pranay Sethi** 's case to the effect that the periodical enhancement contemplated in every three years is with reference to the date of the accident. Since there is no such clear observation in the said decision, it can only be with reference to the date of the accidents that occurred after the date of pronouncement of the judgment in **Pranay Sethi** (supra) 12. The learned counsel for the appellants further points out that, the deceased died while undergoing treatment in the hospital and her death was on 23.08.2006 i.e, after three days of 10 M.A.C.A No. 2278 of 2013 the accident. Therefore the learned counsel claimed that a reasonable compensation has to be awarded for the pain and sufferings of the deceased and also towards the expenses for bystanders. The said contention has to be accepted. Accordingly, considering the fact that the death of the deceased was after three days of the accident, an amount of Rs.10,000/- is granted as compensation for pain and sufferings of the deceased. Towards bystander expenses, an amount of Rs.500/- is awarded. 13. The next head which requires consideration is loss of consortium. The appellants, being the mother and the children of the deceased were entitled to compensation for loss of consortium at the rate of Rs.40,000/- each in the light of observations made in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others** [2018 (3) KLT Online 3095 (SC)] and **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780]. The total amount thus would come to Rs.1,20,000/-. However, the Tribunal has already awarded an amount of Rs.20,000 towards loss of loss of love and affection. In the light of **Satinder Kaur (supra),** when compensation is awarded for loss of consortium, no separate compensation needs to be 11 M.A.C.A No. 2278 of 2013 granted for loss of love and affection and hence, the said amount of Rs. 20,000/- is adjusted towards the amount fixed by this Court towards loss of consortium. This would result in an additional compensation of Rs. 1,00,000/- under the head of loss of consortium. Thus, the total additional compensation is determined as Rs.3,26,500/- (2,04,000 + 7,000 + 5,000 + 10,000 + 500 + 100,000). Accordingly, the total compensation receivable by the appellant is determined as Rs. 10,91,000/(3,26,500+7,64,500). In the result, this appeal is allowed. The award dated 27.07.2013, passed by the Motor Accidents Claims Tribunal Attingal in OP(MV) 1481/2006 is hereby modified with the following findings. i) The finding of the Tribunal, imposing 50% negligence upon the rider of the scooter on which the appellant was travelling is set aside. The appellant is entitled to get the entire compensation. It is held that the accident occurred due to the sole negligence of the second respondent in riding the motorcycle and being the registered owner of the said vehicle, the first respondent and the third respondent, being the insurer of the 12 M.A.C.A No. 2278 of 2013 vehicle shall be jointly and severally liable to pay the compensation along with the second respondent. As the coverage of policy is admitted by the third respondent, the entire compensation is to be deposited by the third respondent. ii) The quantum of compensation is reassessed as Rs.10,91,000/- (Rupees ten lakh ninety one thousand only) and the third respondent is directed to deposit the entire amount of compensation along with interest at the rate as ordered by the Tribunal, with proportionate costs within a period of three months from the date of receipt of a copy of this judgment, after adjusting the amounts already deposited by them. Sd/- ## **ZIYAD RAHMAN A.A** **JUDGE** rpk