Saranya (through her mother and natural guardian) v. The Managing Director, AY Broadcast Foundation, Joby Kurian, and M/s National Insurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **MACA.No.2317 OF 2014** **AGAINST THE AWARD IN OPMV 1211/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL** ## **APPELLANT/S:** **SARANYA AGED 18 YEARS D/O.LATE SUYODHAANAN, PRESENTLY RESIDING AT C/O.SUSHA KUMAR, SUSHAMALAYAM, THOTTACKADU, KARAVARAM P.O., VIA KALLAMBALAM, TRIVANDRUM. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI SRI.PRATHAP PILLAI SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.VIVEK V. KANNANKERI** ## **RESPONDENT/S:** **1 THE MANAGING DIRECTOR AYBROADCAST FOUNDATION, MANJADI P.O., THIRUVALLA, PATHANAMTHITTA-691 502.** **2 JOBY KURIAN S/O.KURIAN KURIAN, KUNNAKUZHIYIL HOUSE, ERAVI PEROOR, THIRUVALLA, PATHANAMTHITTA DISTRICT-691 502. 3 M/S.NATIONAL INSURANCE COMPNAY LTD THIRUVANANTHAPURAM DIVISIONAL OFFICE, 11ND FLOOR, KESAVA TOWERS, GANDHARI AMMANCOIL ROAD, PULIMOODU, THIRUVANANTHAPURAM-695 101.- REPRESENTED BY MANAGER** **R1 BY ADV. SRI.P.HARIDAS R1 BY ADV. SRI.P.C.SHIJIN R3 BY ADV. SMT.P.A.REZIYA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2317 OF 2014** **2** ## **JUDGMENT** The appellant was the applicant in O.PMV) No.1211/2006 of the Motor Accident Claims Tribunal, Attingal. The respondents 1 to 3 in the appeal were the respondents in the claim petition. 2. The appellant, who was then a minor, had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 (for short hereinafter referred to as “Act”) claiming compensation on account of the death of her father in a motor accident. 3. The case of the appellant in the claim petition, in brief, is that, on 12.5.2006, while her father late Suyodhanan was riding a motorcycle bearing Reg.KL01/AK/6805 along the Attingal-Kazhakootam National Highway, when he reached Karikkuzhi, a Maruthi Omni bearing Reg. No.KL-03/N-9133 driven by the 2[nd] respondent, in a rash and negligent manner, hit the motorcycle. Sri.Suyodhanan was rushed to the Medical College Hospital, Thiruvananthapuram, where he was **MACA.No.2317 OF 2014** **3** admitted as an inpatient. He had sustained multiple fractures to his skull and damage to his brain. He was treated in the hospital till 2.6.2006, where he succumbed to the injuries. The deceased was aged 43 years at the time of his death. He was working as a Subedar Major in the CRPF. He had 17 more years of service and would have retired as a Major. The appellant has to go a long way in her life without the support of the father. Now she is undergoing intense mental trauma and ill. She has lost her sole bread winner. Her parents were divorced. The present application is filed by through her mother and her natural guardian. She sought a compensation of Rs.27,01,000/- under various heads, which was limited to 25,00,000/-. 4. The respondents 1 and 3 contested the proceedings. The 2[nd] respondent was set ex parte. The 3[rd] respondent – the Insurance Company - filed a written statement and an additional written statement, inter alia, contending that the deceased was not wearing a helmet at the time of accident, which was the sole cause of the **MACA.No.2317 OF 2014** **4** accident. Therefore, the deceased was guilty for negligence as held by this Court in **National Insurance Company Ltd. v. Assainar** (2019 (4) KLT 39). The charge-sheet filed by the Police is wrong and untenable. Hence, the claim petition may be dismissed. 5. Neither party adduced any oral evidence. Exts.A1 to A13 were marked in evidence on the side of the appellant. 6. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by holding that the appellant was entitled to a total compensation of Rs.18,77,412/-. However, the Tribunal entered a finding that, in view of Ext. A2 scene mahazar, Ext.A3 vehicle mahazar and Ext.A5 AMVI report, wherein, it was seen that the deceased was also negligent in driving the vehicle. Thus, the deceased was guilty for contributory negligence to the extent of 50%. Accordingly, the Tribunal deducted 50% of the compensation and directed the 3[rd] respondent to pay an amount of Rs.9,38,706/- as compensation with interest at **MACA.No.2317 OF 2014** **5** the rate of 9% per annum from the date of petition till the date of award and thereafter at the rate of 12% per annum till the date of payment. The comparative table showing the compensation that was claimed by the appellant and that was awarded by the Tribunal is as follows: |SI.<br>No|Head of claim|Amount claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)| |---|---|---|---| |1|**Part-I**<br>Loss of earning|Nil|Nil| |2|Partial loss of earning|Nil|Nil| |3|Transportation to <br>the<br>hospital|5,000|3,000| |4|Extra nourishment|Nil|Nil| |5|**Others**<br>Compensation for loss of<br>personal<br>articles<br>and<br>clothing|1,000|5,00| |6|Medical expenses|10,000|Nil| |7|Funeral<br>expenses<br>and<br>expenses for bring in<br>relatives to attend the<br>funeral and other obsequies|18,000|8,000| |8|**Part-II**<br>Compensation for pain and<br>suffering|25,000|Nil| |9.|Compensation for loss of<br>dependency, future earning<br>and other benefits|25,00,000|18, 30, 912| |10.|Compensation for loss of<br>love, affection and guidance|50,000|25,000| |11.|Compensation for loss of<br>estate|50,000|10,000| ||Total|(Limited to<br>Rs.25,00,000/-)|18, 77,412/-<br>=======| **MACA.No.2317 OF 2014** **6** 7. Dissatisfied with the finding regarding contributory negligence and the quantum of compensation awarded by the Tribunal, this appeal is filed. 8. Heard the learned counsel appearing for the appellant and the learned standing counsel appearing for the 3[rd] respondent. Even though notice was served on respondents 1 and 2, there is no appearance for them. 9. The points that emerge for consideration in this appeal is: (i) Whether the finding of the Tribunal that the deceased was guilty for contributory negligence to the extent of 50% is justifiable? (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## Point No.(i) 10. Undisputedly, the Police after investigation have filed Ext.A6 charge sheet on 13.5.2006. The Police have arrived at the conclusion that, it was the 2[nd] respondent who was responsible for causing the accident. The 2[nd] respondent was charged for having committed the offences punishable under Sections 279, 337, 338 and 304- **MACA.No.2317 OF 2014** **7** A of the Indian Penal Code. It is discernible from the charge-sheet that the 2[nd] respondent had admitted during the course of investigation that he was the person responsible for the cause of the accident. 11. The Division Benches of this Court in **New India Assurance Co. Ltd v. Pazhaniammal.[2011 (3) KLT 648],** and **National Insurance Co.Ltd, Thalassery v. Ramla and Others** [2016 (4) KHC 891] and a learned Single Judge of this Court in **Samadh M.B and Others v. Binu and others** [2020 KHC 444), have categorically laid down the law that the charge-sheet filed by the Police, after investigation, can be accepted as evidence of negligence of the accused named in the charge-sheet. If any person is aggrieved by the investigation, it is for the aggrieved person to let in the best possible evidence to disprove the charge-sheet. 12. In the case on hand, the defence of the 3[rd] respondent -Insurance Company – in the additional written statement filed was that the deceased was negligent for not wearing the helmet. It is nobody's case that the **MACA.No.2317 OF 2014** **8** deceased was guilty for contributory negligence, as found by the Tribunal. Going by the findings of the Tribunal,it is seen that the Tribunal has placed heavy reliance on Ext.A2 – scene mahazar and Ext.A3, vehicle mahazar which were prepared on 14.5.2006, that is two days after the accident. It is solely on the basis of the Exts.A2 and A3 mahazars that the Tribunal had arrived at the finding that the vehicle driven by the deceased was seen slightly away from the middle portion of the road. 13. Moreover, it is seen on page 12 of the award that the Tribunal has observed as follows:- “ On going through the evidence adduced on record the Tribunal can come only to an irresisitible conslusion that, the accident occurred on account of the rashness and negligence on the part of the 2[nd] respondent and that of the deceased whose negligence in driving the respective vehicles caused the accident. Hence, they are equally negligent or to the extent of 50% each”. 14. On a re-appreciation of the evidence on record and the law laid down by this Court in **Pazhaniammal,** **MACA.No.2317 OF 2014** **9** **Ramla and Samadh** (cited supra), I am of the considered opinion neither the respondents have such a case in the written statement nor have the respondents mounted the box and let in any evidence to disprove Ext.A6 chargesheet. Hence, the Tribunal has transgressed its limits and entered into a finding without any foundation or basis, which is totally unwarranted. In the said circumstances, I hold that the finding of the Tribunal, that the deceased was guilty for contributory negligence to the extent of 50%, is erroneous and wrong and the same is set aside. ## Point No.(ii) 15. Coming to the second point whether the compensation awarded by the Tribunal is reasonable and just. 16. The Hon'ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] has held that 'just compensation' is 'adequate compensation', which is fair and equitable depending on the facts and circumstances of the case, to make good the loss suffered as a result of a wrong, as far as money can do so, by **MACA.No.2317 OF 2014** **10** applying the well settled principles relating to the award of compensation. 17. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 18. In a recent decision, a three Judge Bench of the Hon'ble Supreme Court in **Pappu Deo Yadav Vs. Naresh Kumar and others** (Civil Appeal No.2567 of 2020), relying on the decision in **Govind Yadav v. New India Insurance Company Ltd** [(2011) 10 SCC 683] has held that the principle consistently followed by the Supreme Court in assessing motor vehicle compensation is to place the victim in as near a position as he was before the **MACA.No.2317 OF 2014** **11** accident, with the other compensatory directions for the loss of amenities and other claims, and that 'just compensation' should include all elements that would go to place the victim as a near position as he was before the occurrence of the accident. It is also emphasized that the Courts should not adopt a stereotypical or myopic approach, but instead hear the matter taking into account the realities of life both in assessment of the extent of disabilities and compensation under the various heads. 19. Keeping in mind the law laid down in the aforecited precedents, I proceed to decide Point No.(ii). 20. On a re-appreciation of the materials on record, it is seen that the Tribunal has rightly on the basis of Ext.A8 salary certificate fixed the salary of the deceased. Similarly, the Tribunal has adopted the correct multiplier i.e, '14' as laid down in **Sarla Verma & Others v. Delhi Transport Corporation** and **National Insurance Company Ltd. v. Pranay Sethi** .(supra) 21. In respect of the compensation for loss of dependency, future prospects and other benefits, the **MACA.No.2317 OF 2014** **12** Tribunal has deducted only 1/3rd towards the personal and living expenses of the deceased. Admittedly, the appellant is the sole legal heir of the deceased, as evidenced by Ext.A10 and that he had divorced his wife as per Ext.A9 judgment. Therefore, the appellant is the sole dependent of the deceased. Going by the ratio in **Sarla Verma,** one half of the compensation has to be deducted towards the personal living expenses of the deceased, but the Tribunal has deducted 1/3rd which is wrong. Hence, I deduct one half of the total compensation i.e. payable to the deceased. In the said circumstances, the appellant would be entitled to an amount of Rs.17,22,739.20 instead of Rs.18,30,912/- granted by the Tribunal, as compensation. 22. Coming to other heads of compensation in the award, it is seen that the Tribunal had awarded only an amount of Rs.8,000/- towards funeral expenses. The Tribunal ought to have awarded an amount of Rs.15,000/under the head 'funeral expenses'. Likewise, the Tribunal has only awarded Rs.25,000/- towards 'parental **MACA.No.2317 OF 2014** **13** consortium', but, the appellant was entitled to an amount of Rs.40,000/- i.e, a further amount of Rs.15,000/-. Also, the Tribunal has only awarded Rs.10,000/- under the head 'Loss of estate', but the appellant is entitled to Rs.15,000 as laid down in **Sarla Verma & Others, Pranay Sethi** (cited supra) and **United India Insurance Co.Ltd v. Satinder Kaur @ Satwinder Kaur** [2020 (3) KL5 760]. Hence,I enhance the compensation under the above three heads. 23. It is also seen that the Tribunal had failed to award any compensation under the head 'pain and suffering. The deceased was treated as an inpatient for 21 days. In view of the law laid down in the above-cited decisions, I hold that an amount of Rs.2000/- per day towards pain and sufferings would be reasonable and just. Hence, I award an amount of Rs.42,000/- under the said head. 24. Coming to the other heads of compensation, it is seen that the Tribunal has awarded Rs.3,000/- under the head 'Transportation to hospital' and Rs.500/- under head **MACA.No.2317 OF 2014** **14** 'compensation for loss of personal articles and clothing', which I find is reasonable and just. . 25. Therefore, on an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the considered opinion that the appellant is entitled for enhancement of compensation modified and re-calculated above, and given in the table below for easy reference. |SI.No|Head of claim|Amount<br>claimed in<br>claim<br>petition<br>(in<br>rupees)|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|**Part-I**<br>Loss of earning|Nil|Nil|Nil| |2|Partial loss of earning|Nil|Nil|Nil| |3|Transportation to the<br>hospital|5,000|3,000|3,000| |4|Extra nourishment|Nil|Nil|Nil| |5|**Others**<br>Compensation for loss<br>of personal articles and<br>clothing|1,000|5,00|500| |6|Medical expenses|10,000|Nil|Nil| |7|Funeral expenses and<br>expenses for bring in<br>relatives to attend the<br>funeral<br>and<br>other<br>obsequies|18,000|8,000|15,000| ## **MACA.No.2317 OF 2014** ## **15** |8|**Part-II**<br>Compensation for pain<br>and sufferings|25,000|Nil|42,000| |---|---|---|---|---| |9.|Compensation for loss<br>of dependency, future<br>earning and other<br>benefits|25,00,000|18, 30, 912|17,22,739.20| |10.|Compensation for loss<br>of love, affection and<br>guidance|50,000|25,000|40,000| |11.|Compensation for loss<br>of estate|50,000|10,000|15,000| ||Total||18, 77,412<br>=======|18,38,239.20<br>=========| In the result, the appeal is allowed by setting aside the finding of the Tribunal that the deceased was guilty of contributory negligence to the extent of 50%. Hence, the appellant would be entitled to an amount of Rs.18,38,239.20 as compensation with interest at the rate of 9% per annum from the date of petition till the date of realisation and proportionate costs. The 3[rd] respondent shall satisfy the additional compensation allowed in the appeal with interest and proportionate costs by depositing the above amount before the Tribunal within a period of two months from the date of reeceipt of a certified copy of the judgment after deducting the liability, if any, of the appellant towards balance court fee and legal **16** ## **MACA.No.2317 OF 2014** benefit fund. The Tribunal shall, especially taking into consideration the fact that the appellant has now attained majority, forthwith release the amount to the appellant immediately on deposit made by the 3[rd] respondent, in accordance with law. ma/06.11.2020 Sd/- C.S.DIAS, JUDGE /True copy/