Shajitha and others v. Ifthikkar Babu, Habeeb and United India Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 ``` ## `MACA NO. 2176 OF 2010` ``` AGAINST THE AWARD IN OP(MV)NO.3755/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## `APPELLANTS/PETITIONERS:` ``` 1SHAJITHA, W/O.LATE SHAHUL HAMEED K.K, KULANGARAKATH KANAPULLY HOUSE, P.O.KURUMPILAVU, THRISSUR DISTRICT. 2MINOR AISHA THASNEEM K.S AGED 8 YEARS, D/O.LATE SHAHUL HAMEED.K.S,, DO. DO. 3MINOR MOOSA MUHAMMED SHAHID K.S AGED 5 YEARS, D/O.LATE SHAHUL HAMEED.K.K.,, DO. DO. 4ISHABI AGED 60 W/O.LATE MOOSA, KULANGARAKATH KANAPULLY HOUSE,P.O.KURUMPILAVU, THRISSUR DISTRICT. (MINOR, APPELLANTS 2 AND 3 ARE REP. BY THEIR GUARDIAN,NEXT, FRIEND AND MOTHER SHAJITHA, W/O.LATE SHAHUL HAMEED, KULANGARAKATH KANAPULLY HOUSE,, P.O.KURUMPILAVU, THRISSUR DISTRICT. ``` ``` BY ADV SRI.P.V.CHANDRA MOHAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1IFTHIKKAR BABU, S/O.HANEEFA, PANIKKASSERY HOUSE, PERINGOTTUKARA, THRISSUR DISTRICT-680 001. 2HABEEB, S/O.KHADER VELIPARAMBIL HOUSE, PAZHUVIL WEST, KURUMPILAVU, THRISSUR DISTRICT-680 001. 3UNITED INDIA INSURANCE CO.LTD. SIMIS COMPLEX, KURUPPAM ROAD,, THRISSUR-680 001. BY ADVS. SRI.PMM.NAJEEB KHAN, SC FOR R3 ``` ``` THIS MOTOR ACCIDENTs CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2176 OF 2010 ``` 2 ## `JUDGMENT` ``` The appellant is the petitioner in OP(MV)No.3755 of 2033 on the files of the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was submitted by the appellants seeking compensation for the death of one Shahul Hameed K.K., who died due to the injuries ``` ``` sustained in a motor accident that occurred on 19.07.2003. ``` ``` 2.The accident occurred when the motorcycle driven by the deceased was hit by a Jeep bearing Registration No.KL-8-Q-9828. After that, he was ``` ``` taken to the Elite Hospital at Thrissur and was later referred to Ganga Hospital in Coimbatore. He succumbed to the injuries on 31.07.2003. ``` ``` According to the appellants, he was a driver of ``` ``` Sheik in Abudhabi, UAE, with a monthly income of Rs.30,000/-. The claim petition was submitted in such circumstances seeking compensation of ``` ``` MACA NO. 2176 OF 2010 ``` 3 ``` Rs.34,63,500/-. The vehicle was driven by the second respondent and owned by the first respondent. ``` ``` 3.The third respondent, the Insurance ``` ``` Company, submitted a written statement admitting the policy coverage concerning the vehicle. It was contended that the accident was not due to ``` ``` the negligence of the second respondent but due ``` ``` to the negligence of the deceased in riding the ``` ``` motorcycle. The quantum of compensation was also disputed. ``` ``` 4.The evidence, in this case, consists of oral evidence of PW1, and as documentary ``` ``` evidence, Exts.A1 to A25 were marked from the side of the appellants. Ext.B1 was marked from the side of the third respondent. ``` ``` 5.After appreciating the materials placed on record, the Tribunal came to the conclusion that the accident occurred due to the negligence of the deceased and the driver of the jeep. ``` ``` MACA NO. 2176 OF 2010 ``` 4 ``` Accordingly, 50% of contributory negligence was attributed to the deceased. The total quantum of ``` ``` compensation was fixed as Rs.9,49,500/- and the ``` ``` third respondent was directed to deposit ``` ``` Rs.4,75,000/- being 50% of the award with interest @ 8% per annum from the date of petition till realization. ``` ``` 6.This appeal is submitted by the ``` ``` appellants challenging the finding of negligence and seeking enhancement of compensation in such circumstances. ``` ``` 7.Heard Advocate Sri.P.V.Chandramohan, the ``` ``` learned counsel appearing for the appellants and ``` ``` Adv.Sri.PMM Najeeb Khan, the learned counsel appearing for the third respondent-Insurance Company. ``` ``` 8.The first contention of the learned ``` ``` counsel for the appellants is relating to the finding of the Tribunal, as to the question of contributory negligence. It is evident from the ``` ``` MACA NO. 2176 OF 2010 ``` 5 ``` award that, to attribute the contributory negligence to the deceased, the Tribunal mainly relied upon the scene mahazar. However, as far as the scene mahazar is concerned, the same cannot be treated as a sole document for ``` ``` decidingthequestionofcontributory negligence. The scene mahazar was prepared by the police after the accident, and the same by ``` ``` itself cannot be accepted in the absence of any other corroborative evidence. The said issue is already settled as per the decision rendered by the Honourable Supreme Court inJiju Kuruvila and others v. Kunjunjamma Mohan and others (2013 ``` ``` (3) KLT 261), wherein it was held that the mere ``` ``` position of the vehicle after the accident as shown in the scene mahazer could not be treated as a substantial proof to establish the rash and negligent driving of any of the drivers. ``` ``` 9.It is to be noted that, as rightly pointed out by the learned counsel for the ``` ``` MACA NO. 2176 OF 2010 ``` 6 ``` appellants, the police registered a case against the driver of the jeep, and after investigation, Exhibit A6 final report has been submitted implicating him as an accused. No contra evidence was also adduced by the respondents. Therefore, in the light of the principles laid down inNew India Assurance Company Ltd. v. Pazhani Ammal [2011(3) KLT 648], the question of ``` ``` negligence has to be decided based on the conclusion arrived at by the police in the final ``` ``` report. In such circumstances, the finding of the Tribunal holding that the deceased ``` ``` contributed to the accident to the extent of 50% ``` ``` is therefore unsustainable, and it is hereby set aside. ``` ``` 10. The next question related to the quantum ``` ``` of compensation. It is seen that Exts.A16 and ``` ``` A19 passports revealed that the deceased had been working abroad from 1985 onwards. As per ``` ``` Exhibit A10, the monthly income of the deceased ``` ``` MACA NO. 2176 OF 2010 ``` 7 ``` was shown as 2000 Dirhams with free food and accommodation and paid flight tickets every two years. Of course, the Tribunal did not accept Exhibit P10 and fixed the monthly income of the deceased as Rs.5,000/-. Exhibit A14 is the driving licence of the deceased issued from the State of Kerala, which he obtained in 1982, and it includes authorization to drive transport vehicles as well. Exhibit A15 is the driving licence of the deceased issued from UAE, revealing his qualification as a heavy vehicle driver. Exhibits A11 and A12 are the documents indicating that he purchased certain landed properties during the years 1992 and 2001. Thus, the documents above would clearly reveal that the deceased had been working abroad since 1985. 11.Thedocumentsreferredto ``` ``` above also would clearly indicate the financial status of the deceased, which was reasonably good.Therefore,theprobabilityof ``` ``` MACA NO. 2176 OF 2010 ``` 8 ``` the monthly income as certified in Exhibit A10 salary certificate cannot be ruled out, mainly because he was a qualified heavy-duty driver working in the Gulf since 1985. The amount shown in Exhibit A10 as salary was 2000 UAE Dirhams. The exchange value of the said currency in 2003 was about Rs.12/-; thus, the monthly salary would come to Rs.24,000/-. It is also to be noted that, besides the salary referred to above, he was also getting free food and accommodation, in addition to periodical flight tickets to the native place, and therefore, the actual package of salary was much higher. Thus, the monthly income of the deceased can be fixed as Rs.24,000/- per month. However, while taking the monthly income and the contribution from the same to his family, the crucial aspect to be noticed is the uncertainty in continuing the employment in Gulf and the higher living expenses that he is likely to incur in Gulf. ``` ``` MACA NO. 2176 OF 2010 ``` 9 ``` Even if he was provided with accommodation and food, there would be other expenses as well, which must be considered. Therefore, I am of the view that 50% of the income can only be reckoned ``` ``` as the monthly contribution to the family, and thus, it is determined as Rs.12,000/-. As the deceased was aged 43 years at the time of the accident, an addition of 25% can be made towards ``` ``` future prospects. The multiplier applicable in this case is 14, considering the age of the deceased. Since Rs.12,000/- is determined as the monthly contribution to the family, further deduction is not necessary towards personal ``` ``` expenses. While re-assessing the compensation with the above monthly contribution, the compensation receivable by the claimants under the head of loss of dependency would come to Rs.25,20,000/-[(12000+25%)x12x14]. ``` ``` 12.The other heads which require re-consideration are loss of estate and funeral ``` ``` MACA NO. 2176 OF 2010 ``` 10 `expenses. The Tribunal awarded Rs.5,000/towards transportation and funeral expenses,` ``` which is on the lower side. As per the decision ``` ``` inNational Insurance Company Ltd. v. Pranay Sethi [(2017)16 SCC 680], the amount to be ``` ``` awarded under the head of funeral expenses is 15,000/-anditisawarded.Towards ``` ``` transportation expenses, an amount of Rs.1,000/- ``` ``` is granted as separate compensation. Towards ``` ``` loss of estate, the Tribunal awarded an amount of Rs.10,000/-, and the same is revised as Rs.15,000/- in the light of the decision in ``` ``` Pranay Sethi’s case (supra). ``` ``` 13.Another head in which the enhancement is ``` ``` necessitated is the loss of consortium. The ``` ``` amount awarded by the Tribunal is Rs.10,000/- only, whereas in the light of the observations made in Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram and Others [(2018)18 SCC 130] and United India Insurance Company Ltd. v. ``` ``` MACA NO. 2176 OF 2010 ``` ## 11 ``` Satinder Kaur @ Satwinder Kaur,all the appellants, being the wife, two children and the mother are entitled to compensation of Rs.40,000/- each, under this head, thereby, the total amount of compensation to be awarded under this head is Rs.1,60,000/-. However, it is seen that the Tribunal awarded an amount of Rs 10,000/- under the head of love and affection. In the light of the observations made by the Honourable Supreme Court inSatinder Kaur @ Satwinder Kaur (supra),when compensation is awarded for loss of consortium, no separate compensation is necessary for loss of love and affection. Therefore, the said amount is ordered ``` ``` to be deducted. ``` ``` 14. Thus, in the light of the observations above, the total amount receivable by the appellants is re-assessed in the following ``` ``` manner: ``` ``` MACA NO. 2176 OF 2010 ``` 12 |`NO. 2176 OF 2010`<br>12||| |---|---|---| |`Loss of dependency`|`Rs.`|`25,20,000`| |`Pain and suffering`|`Rs.`|`15,000`| |`Funeral expenses`|`Rs.`|`15,000`| |`Transportation`|`Rs.`|`1,000`| |`Loss of estate`|`Rs.`|`15,000`| |`Loss of consortium`|`Rs. `|`1,60,000`| |`Medical expenses`|`Rs. `|`2,74,403`| |`Damage to vehicle`|`Rs.`|`14,932`| ||`------------`|| |`Total`|`Rs. `|`30,15,335`| ``` In the light of the aforesaid observations and findings, this appeal is allowed with the ``` ``` following: ``` ``` i)The finding of the Tribunal attributing 50% contributory negligence to the deceased is hereby set aside, and it is held that the accident was solely due to negligence on the part of the 2[nd] respondent while driving the ``` ``` jeep. Therefore, being the insurer, the 3[rd] ``` ``` respondent is liable to pay the compensation; ``` ``` ii)The quantum of compensation is re-fixed ``` ``` as Rs.30,15,335 (Rupees Thirty Lakhs, Fifteen thousand Three hundred and Thirty Five only). The said amount shall be deposited by the 3[rd] ``` ``` MACA NO. 2176 OF 2010 ``` 13 `respondent-Insurance Company, along with` ``` interest at the rate of 8% per annum from the date of petition till realization with ``` ``` proportionate costs within three months from the ``` ``` date of receipt of a copy of this judgment, after adjusting the amounts already deposited. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN, A.A, JUDGE ``` ``` R.AV/pkk ```