Sheeja & Ors v. Sukumara Menon & Ors (MACA No. 863/2010)

MACA.No.863/2010 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945_ ## _MACA NO. 863 OF 2010_ _AGAINST THE ORDER/JUDGMENT OPMV 739/2006 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL , IRINJALAKUDA_ ## _APPELLANTS/PETITIONERS:_ - _1 SHEEJA, VELLANI HOUSE, ANANDAPURAM DESOM, VILLAGE P.O., MUKUNDAPURAM TALUK._ _2 KOCHUPENNU (DIED), W/O.KUTTAPPAN & M/O.GOPI, VELLANI HOUSE, ANANDAPURAM DESOM, VILLAGE P.O., MUKUNDAPURAM TALUK._ - _3 MINOR, GOPIKA KRISHNA, AGED 6 YEARS, D/O.LATE GOPI, VELLANI HOUSE, ANANDAPURAM DESOM, VILLAGE P.O., MUKUNDAPURAM TALUK, REP. BY NATURAL, GUARDIAN MOTHER MRS.SHEEJA, W/O.LATE GOPI, VELLANI HOUSE, ANANDAPURAM DESOM, VILLAGE._ ## _LEGAL HEIRS RECORDED_ _APPELLANTS 1 AND 3 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED SECOND APPELLANT AS PER ORDER DATED 25/3/2021 IN MEMO DATED 21/3/2021 IN MEMO DATED 21.03.2021 IN MACA 863/2010._ _BY ADV SRI.V.BINOY RAM_ ## _RESPONDENTS/RESPONDENTS:_ _1 SUKUMARA MENON (DIED), ARAKKAL PUTHANVEEDU HOUSE, CHAPPARA, PULLUT,_ MACA.No.863/2010 2 _KODUNGALLUR._ - _2 SURESH BABU, S/O.SANKARAN, PARAMBIKATTIL HOUSE, CHAPPARA, PULLUT VILLAGE, P.O.KODUNGALLUR._ - _3 THE MANAGER, UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, TANA, IRINJALAKUDA._ _4 KRISHNAMMA, AGED 63 YEARS, W/O. LATE SUKUMARA MENON, BALANANDANAM, VIYAGARDENIA, KUNDUVELIL LANE, SOCIETY ROAD, MARAD, ERNAKULAM, PIN - 682 704._ - _5 SREEJITH, AGED 43 YEARS, S/O. LATE SUKUMARA MENON, BALANANDANAM, VIYAGARDENIA, KUNDUVELIL LANE, SOCIETY ROAD, MARAD, ERNAKULAM, PIN- 682 704._ _6 SREEJA, AGED 41 YEARS, D/O. LATE SUKUMARA MENON, C/O. SREEJITH, BALANANDANAM, VIYAGARDENIA, KUNDUVELIL LANE, SOCIETY ROAD, MARAD, ERNAKULAM, PIN - 682704._ _(ADDITIONAL RESPONDENTS 4 TO 6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED IST RESPONDENT, AS PER THE ORDER DATED 21/12/2023 IN IA 1/2022 IN MACA 863/2010)_ _BY ADVS. P.K.MANOJKUMAR BABU KARUKAPADATH JAGAN GEORGE KANDAMPULLY RAHUL K.A.NOUSHAD P.G.PRAMOD P.K.SANTHAMMA M.A.VAHEEDA BABU_ _R3 ADV.P.K.SANTHAMMA_ MACA.No.863/2010 3 _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.863/2010 4 ## **JUDGMENT** The appellants 1 to 3 herein were the claimants in O.P(M.V) No.739 of 2006 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. The 2nd appellant died during the pendency of this appeal and the 1st and the 3rd appellants were recorded as the legal heirs of the deceased 2 nd appellant. The claim petition was filed by them seeking compensation for the death of one 'Gopi' due to the injuries sustained in a motor accident that occurred on 08.05.2006. The deceased was the husband of the 1st appellant, the son of the 2nd appellant and the father of the 3rd appellant. 2. The accident occurred when the motorcycle ridden by the deceased was hit by a Maruti car bearing registration No.KL - 9/M 4715 driven by the 2nd respondent in the claim petition in a rash and negligent manner. The said vehicle was owned by the 1st respondent in the claim petition and was insured with the 3rd respondent herein. The deceased was a coolie aged 36 years at the time of the accident. His income was claimed to be Rs.40,000/- per annum. The claim petition was submitted in such circumstances. MACA.No.863/2010 5 3. The respondents 1 and 2 filed written statements disputing the involvement of a Maruti car in the accident. The 3rd respondent filed a written statement admitting the insurance coverage for the car but disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were also disputed by them. 4. The evidence in this case consists of Exts.A1 to A7 from the side of the appellants and the policy certificate was marked as Ext.B1. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the deceased as well as the 2nd respondent, the driver of the car. Accordingly, the contributory negligence to the extent of 50% was attributed to the deceased. The quantum of compensation was fixed at Rs.3,63,000/-, and 50% of the said compensation was recoverable from respondents 1 to 3 jointly and severally with interest at the rate of 7% per annum from the date of petition till realization. As the vehicle was covered with a valid policy, the 3rd respondent/insurer was directed to deposit 50% of the amount awarded. This appeal is submitted by the appellants seeking enhancement of compensation in such circumstances. MACA.No.863/2010 6 5. Heard, Sri.Binoy Ram V, the learned counsel appearing for the appellants, Sri.Babu Karukapadath, the learned counsel appearing for the respondents 4 to 6 who are the legal heirs of the deceased 2nd respondent and Smt.P.K Santhamma, the learned counsel appearing for the 3rd respondent/insurance company. 6. The first challenge in this appeal is with respect to the finding of the Tribunal regarding contributory negligence. However, it is seen from the records that, in respect of the accident, Ext.A1 FIR was registered against the deceased by Irinjalakuda Police. After completing the investigation, a final report was submitted by the police in which A charge was against the deceased rider and B charge was against the driver of the car. Taking note of the aforesaid final report, the contributory negligence was attributed to the deceased. Apart from Exts.A1 and A2, there is no other evidence adduced by any of the parties with regard to the question of negligence. In **New India Assurance Co.Ltd v. Pazhaniammal** [2011 (3) KLT 648], a Division Bench of this Court held in categorical terms that, in the absence of any contra evidence, the conclusion arrived by the police in the final report submitted in the crime registered in MACA.No.863/2010 7 connection with the incident could be accepted for determining the question of negligence. In this case, apart from Ext.A1 and A2, no other evidence was adduced by the appellants. In such circumstances, the only conclusion that can be drawn is that both the drivers were responsible for the accident in equal proportion as both of them were charge-sheeted by the police. In such circumstances, I do not find any scope for any interference in the finding of the Tribunal with respect to the question of negligence. 7. The next aspect relates to the quantum of compensation. The learned counsel for the appellant would submit that the amount awarded under various heads, particularly under the head of loss of dependency, was meagre and requires reconsideration. 8. On perusal of the records, I find some force in the said contention. It is to be noted that the monthly income taken by the Tribunal for assessing the compensation was only Rs.2,500/-. The deceased, according to the appellants was a coolie with an annual income of Rs.40,000/-. Of course, no evidence was adduced to substantiate the same. However, when the method of computation evolved from the principles laid down in MACA.No.863/2010 8 **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 adopted, the monthly income of an ordinary worker even in the absence of the evidence can be taken as Rs.4,500/- in respect of an accident occurred in the year 2004. The usual method that is adopted to determine the monthly income for the subsequent years, is to add Rs.500/each per year. When adopting the said method, the monthly income in this case would be fixed as Rs.5,500/- as the accident occurred in the year 2006. 9. Of course it is true that, the annual income claimed was Rs.40,000/- which is less than the income referred to above. However, the said fact cannot stand in the way of this Court in ensuring just compensation to the victims. In **Minu Rout v. Satya Pradumna Mohapatra [2013(3) KLT Online 1128** **(SC)]** the Honourable Supreme Court was pleased to take monthly income at higher rates than claimed in the claim petition. Therefore, since, the facts and circumstances of the case clearly indicate the necessity of taking a higher monthly income, I deem MACA.No.863/2010 9 it appropriate to accept the same. Accordingly, the monthly income in this case is fixed as Rs.5,500/-. 10. The next aspect to be considered is the lack of any addition made by the Tribunal towards future prospects. In the light of the observations made in **National Insurance Co. Ltd v.** **Pranay Sethi [2017 (4) KLT 662 (SC)]** , in respect of the death of a person coming within the age group of below 40 years, an addition of 40% has to be made in the monthly income. As the deceased was aged 36 years, the multiplier applicable is 15. Thus, while re-assessing the compensation with the above revised criteria, the amount of compensation under the head of loss of dependency would come to Rs.9,24,000/[(5500+40%)x12x15x2/3]. Amount already awarded by the Tribunal is Rs.3,20,000/- and the additional amount under this head would come to Rs.6,04,000/-. 11. When moving on to the other heads, it can be seen that the amount awarded towards funeral expenses was only Rs.3,000/-, whereas the amount to be awarded under the said head is Rs.15,000/- as per **Pranay Sethi (supra).** Therefore, a further sum of Rs.12,000/- is awarded. Similarly, no amount is MACA.No.863/2010 10 seen awarded towards loss of estate and in the light of **Pranay Sethi (supra),** I deem it appropriate to grant Rs.15,000/- under the said head. 12. Next aspect is relating to the compensation for consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760],** as the deceased left behind the 1[st] appellant, the wife, the 2[nd] appellant, the mother and the 3[rd] appellant, the daughter, all of them are entitled for compensation for loss of consortium at the rate of Rs.40,000/- each. Thus, the total amount would come to Rs.1,20,000/-. However, it is to be noted that the Tribunal granted compensation of Rs.15,000/- under the head of loss of love and affection. In **Satinder Kaur (supra)** it was categorically observed that when loss of consortium is awarded, no further amount needs to be granted for loss of love and affection. In such circumstances, amount of Rs.15,000/- awarded by the Tribunal towards loss of love and affection can be adjusted against the loss of consortium. Thus, additional compensation would come to Rs.1,05,000/-. Accordingly, the total additional MACA.No.863/2010 11 compensation in this case is determined as Rs.7,36,000/[604000+1,05,000+15000+12000] and the total compensation is re-fixed as Rs.10,99,000/- [736000+363000]. In the light of the aforesaid findings and observations, this appeal is allowed. The award dated 29.10.2010 passed by the Motor Accidents Claims Tribunal, Irinjalakuda is hereby modified by re-assessing the total compensation as Rs.10,99,000/-. (Rupees ten lakhs ninety nine thousand only). However, as this Court confirmed the finding of the Tribunal attributing 50% contributory negligence upon the deceased, appellant shall be entitled to recover 50% of the compensation determined above from the respondents herein. As the vehicle was covered with a valid insurance policy, the 3[rd] respondent is directed to deposit the said amount, i.e Rs 5,49,500/- (Rupees five lakhs forty-nine thousand and five hundred only) along with interest at the rate as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. _Sd/-_ ## **ZIYAD RAHMAN A.A.** ## **JUDGE** MACA.No.863/2010 12 **The sentence “If any amount has already been deposited by the 3[rd] respondent Insurance Company, the said amount can be deducted from the amount of Rs.5,49,500/- and the interest payable is only for the balance amount.” is additionally incorporated, as the last sentence, in the operative portion of the judgment dated 09.01.2024 in MACA.863/2010 as per order dated 19.03.2024 in MACA.863/2010.** **Sd/DEPUTY REGISTRAR** rpk/DG/10.1.23