SENTHILKUMARI v. BAJAJ ALLIANCE GENRAL INSURANCE PVT.LTD

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA, 1943** **MACA NO. 535 OF 2014** **AGAINST THE COMMON AWARD DATED 25.06.2013 IN OPMV 204/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** **SENTHILKUMARI, AGED 39 YEARS W/O.LATE SHANMUGHAN, 4/415, KALLEPPULLY, MARUTHA ROAD GRAMA PANCHAYAT, PALAKKAD.** **BY ADV SRI.JACOB SEBASTIAN** ## **RESPONDENT/3RD RESPONDENT:** **BAJAJ ALLIANCE GENRAL 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 03.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 535/2014 2 ## **JUDGMENT** The petitioner in O.P(MV) No.204/2009 on the files of the Motor Accidents Claims Tribunal, Palakkad has preferred this appeal on being aggrieved by the quantum of compensation awarded by the Tribunal for the death of her son in a motor vehicle accident which occurred on 30.03.2008. The parties in this appeal are referred to as per the status in the claim petition unless otherwise specifically mentioned. 2. While the deceased was riding a motor cycle along with two pillion riders, a jeep bearing Reg.No.KL-09/V-5802 driven by the second respondent in a rash and negligent manner, hit the motor cycle 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 19 years at the time of the accident and was working as an Electrician. 3. Respondents entered appearance before the Tribunal and contended that the accident happened due to the negligence of the deceased while riding the motor cycle. The third respondent insurance company filed written statement admitting that the offending vehicle MACA 535/2014 3 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 deceased and that the compensation claimed is excessive. 4. Exts.A1 to A12 were marked on the side of the petitioner. The Tribunal found that the accident happened due to the negligent driving of the jeep by the second respondent. The Tribunal apportioned 25% negligence on the deceased who was riding the motor cycle at the time of the accident. It was noted by the Tribunal that apart from the rider, there were two pillion riders on the motor cycle and that might have caused discomfort to the rider of the motor cycle. The Tribunal found that the petitioner is entitled for an amount of Rs.2,94,216/-. However, after deducting 25% of the said amount towards contributory negligence on the part of the deceased, the petitioner was awarded an amount of Rs.2,20,662/- as total compensation with 9% interest and proportionate costs. The third respondent insurance company was directed to satisfy the award. 5. With regard to the compensation awarded under various heads, the petitioner submits that the same is inadequate. Towards compensation for damage to clothing, no amount is awarded by the MACA 535/2014 4 Tribunal. An amount of **Rs.500/-** will be a reasonable compensation that can be awarded under the said head. Accordingly, the same is awarded. As regards transportation, though an amount of Rs.5,000/was claimed, no amount is awarded under the said head. **Rs.2,500/-** is a just compensation to be awarded under the said head. It is awarded. An amount of Rs.15,000/- was awarded under the head loss of love and affection. Going by the decision of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi [2017 (16) SCC 680]** , the petitioner, being the mother of the deceased, is entitled for an amount of Rs.40,000/- with 10% increase in every three years towards loss of consortium. In **N. Jayasree and others v. Cholamandalam Ms General Insurance Co.Ltd (2021 (6) KHC 163 SC)** , the Apex Court has granted enhancement by 10% in respect of an accident that . occurred on 20.6.2011 following the decision in **Pranay Sethi** Therefore, going by the dictum laid down in the above decisions, the towards loss of consortium is re-calculated as compensation Rs.44,000/-. Since already an amount of Rs.15,000/- is awarded by the Tribunal, the petitioner is entitled for an enhanced amount of **Rs.29,000/- (Rs.44,000-15,000)** under the said head. Towards loss of MACA 535/2014 5 estate, the Tribunal awarded an amount of Rs.5,000/-. The petitioner is entitled for an amount of Rs.15,000/- towards loss of estate plus 10% increase in every three years. Accordingly, the compensation for loss of estate is re-worked as Rs.16,500/-. After deducting the amount already awarded, the petitioner is entitled for an amount of **Rs.11,500/(Rs.16,500-5,000).** Towards funeral expenses also, the petitioner is entitled to get an amount of Rs.15,000/- plus 10% enhancement. Therefore, the compensation under the said head is re-worked as Rs.16,500/- and on deducting the amount already awarded, she will be entitled for an additional compensation of **Rs.11,500/- (Rs.16,5005,000)** . 6. The Tribunal has taken the monthly income of the deceased as Rs.3,000/-. Going by the decision of the Apex Court in **Ramachandrappa** _**v**_ **. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236: AIR 2011 SC 2951]** , the notional monthly income of the deceased has to be taken as Rs.5,000/-. Going by the decision in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the multiplier applicable in this case is '18'. With regard to future prospects, the same has to be MACA 535/2014 6 taken as 40% of the notional income. Taking the monthly income as Rs.5,000/- and adding 40% towards future prospects, the income would come to Rs.7,000/-. Since the deceased was a bachelor, 50% has to be deducted towards his personal and living expenses. Therefore, the monthly income of the deceased is re-fixed as Rs.3,500/-. Therefore, compensation towards loss of dependency is re- calculated and re-fixed as Rs.7,56,000/- (3500x12x18). After deducting the amount awarded by the Tribunal, the petitioner is entitled for an additional compensation of **Rs. 4,86,000/- (Rs.7,56,0002,70000)** . 7. Accordingly, the appellant is granted an enhanced compensation of **Rs.5,41,000/-** in this appeal. 8. The Tribunal found that the deceased rider of the motor cycle 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 motorcycle 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 MACA 535/2014 7 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 petitioner in OP 204/2009) had taken a risk by taking on two pillion-riders 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.” 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 MACA 535/2014 8 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 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. In the result, deduction of 25% from the total compensation on account of contributory negligence is set aside. The appellant will be entitled for an enhanced compensation of **Rs.5,41,000/-** with 9% interest and 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/**