SHRIRAM GENERAL INSURANCE COMPANY LTD. v. SASANGAN V. (deceased) and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940 MACA.No. 516 of 2014 OP(MV) 1518/2010 of ADD. MACT,ERANAKULAM DATED 17-10-2012 APPELLANT/3RD RESPONDENT SHRIRAM GENERAL INSURANCE COMPANY LTD., 10003, E8, RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR,RAJASTAN, REP BY ITS AUTHORISED SIGNATORY BY ADV.SRI.RAJAN P.KALIYATH RESPONDENTS/CLAIMANT 4 & 5 ADDL. RESPONDENT 6 & Lrs OF DECEASED CLAIMANT 1. SASANGAN.V. AGED 33 YEARS, S/O.VIKRAMAN, MULLACKAL HOUSE, KUNNUMPURAM POST, EDAPPALLY, KOCHI-682024, NOW R/A.1856A,MALIAKKAL HOUSE, THEVARA COLONY KOCHI-682013(DIED) 2. DHANYA M S, AGED 31 YEARS, W/O.LATE SASANGAN,R/A.1856A,MALIAKKAL HOUSE, THEVARA COLONY KOCHI-682013 3. HARIKRISHNAN S, AGED 4 ½ YEARS, S/O.LATE SASANGAN,,R/A.1856A,MALIAKKAL HOUSE, THEVARA COLONY KOCHI-682013 REP BY ITS MOTHER AND NATURAL GUARDIAN FIRST RESPONDENT 4. SUNDARA RAO V, AGED AND FATHER'S NAME NOT KNOWN,JAYALEKSHMI NIVAS,SAMYPADY ROAD, ELAMAKKARA, KOCHI-682026 5. RELIANCE GENERAL INSURANCE CO LTD XL/3599, 4TH FLOOR, ELIZABETH ALEXANDER BUILDING, SHANMUGHAM ROAD, MARINE DRIVE, KOCHI-682034 ## 6. CHELLAMMA W/O.VIKRAMAN, MULLACKAL HOUSE, KUNNUMPURAM POST, EDAPPALLY, KOCHI-682024(MOTHER OF SASANGAN)(SINCE THE VEHILE HAD A VALID POLICE THE DRIVER AND THE OWNER OF THE VEHICLE(RESPONDENTS ONE AND TWO IN THE OPMV)INSURED BY THE APPELLATN HAVE NOT BEEN MADE PARTIES IN THIS APPEAL AS THE APPEAL CAN BE DECIDED EVEN WITHOUT THEIR PRESENCE) MACA.No. 516 of 2014 -2- R5 BY ADV. SRI.K.B.RAMANAND R4 BY ADV. SRI.K.SHRIHARI RAO R4 BY ADV. SMT.N.SHOBHA R4 BY ADV. SRI.K.S.BALAKRISHNAN R6 BY ADV. SRI.K.V.JAYACHANDRAN R-R6 BY ADV. SRI.RAJU V.MATHEW R2,3 BY ADV. SRI.DINESH MATHEW J.MURIKAN(CAVEATOR) THIS MOTOR ACCIDENT CLAIMS APPEAL ALONG WITH CROSS OBJECTION 7/2015, HAVING BEEN FINALLY HEARD ON 13.6.2018, THE COURT ON 1207-2018 DELIVERED THE FOLLOWING: ## A.M.BABU, J. - - - - - - - - M.A.C.A.516 of 2014 and Cross-objection 7 of 2015 - - - - - - - - - - - - Dated : 12[th] July, 2018 - - - - - - - - - - - - - ## JUDGMENT - 1.A car and a bus collided on 2.2.2010. The driver of the car sustained injuries in the accident. He moved the tribunal for compensation. He alleged that the accident was the result of the rash and negligent driving of the bus. He impleaded the driver, owner and the insurer of the bus besides the owner and insurer of the car. The tribunal found that the driver of the bus was negligent. Under different heads the tribunal awarded the claimant a compensation of Rs 15,15,657/-. The insurer of the bus was directed to deposit the amount awarded as compensation. - 2.The appellant is the insurer of the bus. The claimant died after the passing of the award by the tribunal and before the filing of the appeal. The deceased claimant is shown as the 1[st] **MACA.516/2014 & C.O.7/2015** 2 respondent in the memorandum of appeal. His widow, son and mother are shown in the memorandum as respondents 2, 3 and 6 respectively. Respondents 4 and 5 in the appeal are respectively the owner and insurer of the car. The driver and owner of the bus are not made parties in the appeal since the appellant admits the policy of insurance. The widow and the son of the claimant filed cross-objection seeking enhancement in compensation. The mother of the deceased who is the 6[th] respondent in the appeal is made a respondent in the cross-objection also. The parties except the claimant are referred to in this judgment as they are shown in the memorandum of appeal. - 3.Heard the learned counsel appearing for the respective parties. - 4.The appeal is filed challenging the quantum of compensation awarded by the tribunal, besides the finding on negligence. The tribunal found the driver of the bus negligent. The criminal case **MACA.516/2014 & C.O.7/2015** **==> picture [6 x 9] intentionally omitted <==** was registered by the police against the bus driver. The charge-sheet was filed against him. Ext A1 is the copy of the FIR. Ext A5 is the copy of the charge-sheet. Going by the allegations in Exts A1 and A5, the rash and negligent driving of the bus by its driver caused the accident. A division bench of this court has held that as a general rule production of police charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Sec.166 of the Motor Vehicles Act. The decision is New India Assuraance Co.Ltd. v. Pazaniammal (2011 (3) KHC 595) . No evidence was produced to rebut the prima facie evidence produced by the claimant. I find no reason to interfere with the finding of the tribunal on negligence. 5.The tribunal awarded Rs 15,15,657/- as compensation under different heads. While the appellant wants this court to reduce the quantum of compensation, the legal representatives of the claimant want to enhance it. The claimant was admittedly a professional car driver. He claimed **MACA.516/2014 & C.O.7/2015** 4 to have a monthly income of Rs 5000/-. But he claimed a monthly income of Rs 8000/- at the time of trial. He examined his employer (the 4[th] respondent) as PW2 to prove Rs 8000/- to be the monthly income. The salary certificate issued by PW2 was marked as Ext A13. As rightly stated by the tribunal, the wage of a person is not a matter that can be proved by merely exhibiting a salary certificate in evidence. No other evidence was produced to prove the salary to be Rs 8000/per month. No explanation is seen offered why the monthly salary was shown in the petition as Rs 5000/- if the claimant was getting Rs 8000/-. The tribunal was right in not accepting Ext A13 and its author's evidence as PW2 as proof of the salary of the claimant. The monthly income stated by the claimant in his petition was only Rs 5000/-. The tribunal accepted it. A monthly income of Rs 5000/- was not beyond the reach of a professional car driver in 2010 in which year occurred the accident. The notional income of Rs 5000/- per month fixed by the tribunal is only to be upheld. I do not see any reason to reduce or **MACA.516/2014 & C.O.7/2015** **==> picture [6 x 9] intentionally omitted <==** enhance the notional income fixed by the tribunal. - 6.The claimant sustained serious injuries. The injuries resulted in his total paralysis. He who was a driver by profession became totally unable to drive vehicles. He was therefore assessed by the medical board to have a disability of 100%. Ext C1 is the report of the medical board. The tribunal was right in accepting Ext C1. The claimant at the time of the accident was aged 33 years. The multiplier was correctly taken by the tribunal at 16. - 7.The claimant died after the award passed by the tribunal. The learned counsel for the appellant submitted that the death of the claimant should be taken to be the result of the injuries sustained by him. Therefore, according to the learned counsel, the legal representatives of the claimant are entitled to compensation for loss of dependency after adding an amount considering the future prospects, but deducting one-third of the **MACA.516/2014 & C.O.7/2015** 6 monthly income considering the personal expenses of the claimant. It is submitted that when calculated so, the legal representatives are entitled to compensation for loss of dependency less than the amount awarded by the tribunal as compensation for permanent disability. The learned counsel for respondents 2 and 3 has submitted that if it is taken as a case of death, compensation should be paid for loss of consortium to the 2[nd] respondent and for loss of estate and loss of love and affection to all the dependents in addition to funeral expenses. In the absence of evidence it is impossible to find that the claimant succumbed to the injuries he sustained. There was no attempt under order XLI rule 27 of CPC to adduce evidence in appeal. As the real cause of death of the claimant is not known, the argument of the learned counsel for the appellant cannot be accepted. 8.The tribunal awarded Rs 9,60,000/- as compensation for permanent disability taking the monthly income at Rs 5000/-, disability at 100% **MACA.516/2014 & C.O.7/2015** 7 and the multiplier at 16. The learned counsel for respondents 2 and 3 submitted that the tribunal erred in not taking the future prospects of the claimant into consideration. According to the learned counsel for the appellant, future prospects can be taken into account only for granting compensation for loss of dependency and not for granting compensation for permanent disability. The learned counsel for respondents 2 and 3 relied on two decisions of the apex court. Syed Sadiq v. Divisional Manager, United India Ins.Co. (AIR 2014 SC 1052) was a case where the victim of the accident who was aged 24 years sustained a disability of 85%. It was held that the victim was entitled to an increment of 50% of the monthly income considering his future prospects. In Sanjay Kumar v.Ashok Kumar (2014 AIR SCW 1236) also 50% increment was allowed to the victim who was aged 35 years and whose disability was assessed to 70%. It is therefore appropriate in the present case too to add an increment considering the future prospects of the victim. But the percentage cannot be 50 inasmuch **MACA.516/2014 & C.O.7/2015** 8 as the claimant is no more. The accident was on 2.2.2010 and the claimant died before the appeal was filed on 19.2.2014. The claimant lived only four years after the accident. Taking note of the said fact I find that 10% of the monthly income of the claimant shall be added to it considering the future prospects. The compensation for permanent disability shall be re-fixed at Rs 10,56,000/- (5000 + 10% = 5,500 x 12 x 16). The tribunal awarded Rs 9,60,000/-. The compensation under the said head shall be enhanced by Rs 96,000/- (10,56,000 - 9,60,000). 9.The claimant claimed Rs 2,00,000/- as compensation for pain and sufferings. He was awarded Rs 50,000/- under the said head. The amount awarded by the tribunal is just and proper. I do not find any reason to enhance it. The cross-objection stands allowed to the extent of awarding Rs 96,000/- more under the head of compensation for permanent disability. 10.The tribunal awarded Rs 30,000/- as compensation **MACA.516/2014 & C.O.7/2015** 9 for loss of earnings for six months. I accept the argument of the learned counsel for the appellant that when compensation was awarded taking the disability at 100%, no further amount was to be awarded as compensation for loss of earnings for any particular period. The compensation awarded for loss of earnings for six months stands set aside. - 11.The tribunal awarded Rs 50,000/- for future treatment. That was not an amount spent by the claimant. Therefore the said sum shall carry interest only from the date of award as rightly submitted by the learned counsel for the appellant. The appellant is liable to interest on Rs 50,000/- only from the date of award. - 12.The appeal and cross-objection are allowed partly without costs. The compensation of Rs 30,000/- awarded by the tribunal for loss of earnings for six months is set aside, but the compensation for permanent disability is enhanced by Rs 96,000/-. The result is that there shall be **MACA.516/2014 & C.O.7/2015** **==> picture [12 x 9] intentionally omitted <==** an enhancement of Rs 66,000/- (sixty thousand only) in compensation. The enhanced compensation shall carry interest at 9% per annum from the date of filing of the application before the tribunal to the date of deposit of the amount before it. The amount of Rs 50,000/- awarded by the tribunal for future treatment shall carry interest only from the date of the award of the tribunal. The tribunal is authorized to apportion the compensation among respondents 2, 3 and 6. The appellant is given two months from the date of receipt of a copy of this judgment to deposit the compensation before the tribunal. Sd/- A.M.BABU Judge Mrcs/2.7. /True copy/ P.S.To Judge