Sindhu and others v. Parasmal Jain and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939 MACA.No. 108 of 2013 () -----------------------OPMV 391/2009 of M.A.C.T.,KOLLAM APPELLANTS: ------------------ 1. SINDHU, W/O.LATE FRANCIS, PALLIVADAKKATHIL, KARITHURA, CHAVARA, KOLLAM. 2. BENSON, S/O.LATE FRANCIS, PALLIVADAKKATHIL, KARITHURA, CHAVARA, KOLLAM. 3. JACKSON, S/O.LATE FRANCIS, PALLIVADAKKATHIL, KARITHURA, CHAVARA, KOLLAM. 4. ROSAMMA, M/O.LATE FRANCIS, PALLIVADAKKATHIL, KARITHURA, CHAVARA, KOLLAM. BY ADVS.SRI.PRATHEESH.P SRI.K.T.ANILRAJ RESPONDENTS: - ------------------- 1. PARASMAL JAIN, SIDDALINGAPPA MARKET, BANGALORE 560 053. 2. V.G.LEKSHAN SHAH, S/O.GANGURA, NO.14/21 CROSS KILLARI ROAD, BANGALORE 560 053. 3. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD, KOLLAM 691 001. 4. SAJEEVAN PILLAI, S/O.CHANDRASEKHARAN PILLAI, KIDAVANNUR VADAKKATHIL, VADAKUMBHAGAM MURI, KARUNAGAPPALLY, KOLLAM 690 518. 5. THE BRANCH MANAGER THE NEW INDIA INSURANCE CO.LTD, KOLLAM 691 001. R3 BY ADV. SRI.PMM.NAJEEB KHAN R5 BY ADV. SRI.VIJU THOMAS R5 BY ADV. SMT.M.MEENA JOHN R BY SRI.M.A.GEORGE R BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - M.A.C.A. No.108 of 2013 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of October 2017 ## JUDGMENT ## **Sudheendrakumar J.,** The appellants are the wife, children and the mother of deceased Francis, who succumbed to the injuries sustained by him in a road traffic accident which occurred on 19.5.2008 at 9.15 p.m. The deceased Francis was walking along Kollam - Thiruvananthapuram National High Way through the western side of the road. When he reached Kavanadu junction, an autorikshaw bearing Reg.No.KL- M.A.C.A. No.108 of 2013 : 2 : 2/M 5254 driven by the fourth respondent came from a pocket road from east to west and entered into the main road, without waiting for the road clearance and as a consequence, the said autorikshaw hit against a Maruti Omni van, which was coming from north to south. Due to the forcible hit of the autorikshaw on the Maruti Van, the second respondent, who was driving the Maruti Van, lost control over the vehicle and consequently, the said Maruti Van knocked down deceased Francis and as a consequence, the deceased sustained fatal injuries. He was taken to the hospital. However, he succumbed to the injuries on 22.5.2008 while undergoing treatment in the hospital. In connection with the death of the deceased, the appellants claimed a compensation of Rs.5,00,000/-. The Tribunal granted a compensation of Rs.3,86,000/-. M.A.C.A. No.108 of 2013 : 3 : 2. The Tribunal found that the fourth respondent, who was the driver-cum-owner of the autorikshaw involved in the accident, was negligent in driving the autorikshaw and the accident occurred only due to the negligence of the fourth respondent in driving the autorikshaw. The said autorikshaw was not having a valid insurance policy. Therefore, the fourth respondent was directed by the Tribunal to pay the compensation. 3. Service is complete. However, there is no appearance for the fourth respondent. 4. We have heard the learned counsel for the appellants and the learned counsel for the 5[th] respondent. 5. The learned counsel for the appellants has argued that the accident occurred due to the negligence of the drivers of both the vehicles involved in the accident and in M.A.C.A. No.108 of 2013 : 4 : the said circumstances, the second respondent, who is the driver of the Maruti Omni, is also liable to compensate the appellants. It has been further argued by the learned counsel for the appellants that if composite negligence is found against both the drivers, the appellants, who are the wife, children and the mother of deceased Francis, would be able to get the compensation from the insurer of the second respondent, who is the third respondent herein. **6** . We have gone through the pleadings in the claim petition. It is clearly pleaded in the claim petition by the appellants that the accident occurred due to the rash and negligent driving of the autorikshaw by the fourth respondent. The first appellant had given evidence as PW1. She had given evidence fully supporting the above contention taken by the appellants in the claim petition. M.A.C.A. No.108 of 2013 : 5 : Ext.A1 is the copy of F.I.R. which would show that the accident occurred due to the rash and negligent driving of the autorikshaw by the fourth respondent. Ext.B1 is the copy of the final report which would also show that the accident occurred due to the rash and negligent driving of the autorikshaw by the fourth respondent. The fourth respondent got himself examined as RW1. His version is that he stopped the autorikshaw for a passenger to get down from the autorikshaw and thereafter, while he was collecting the autorikshaw charge from the said passenger, the Maruti Van in question hit against the autorikshaw and thereafter, the said Maruti van hit against the deceased. However, apart from the _ipsedixit_ of RW1, there is absolutely no material before the Tribunal to support the said contention of RW1. Having gone through the relevant M.A.C.A. No.108 of 2013 : 6 : inputs, we are not persuaded to accept the evidence of RW1 that the accident occurred due to the rash and negligent driving of the Maruti Van by the second respondent. RW1 admitted that the autorikshaw was not having any valid insurance policy or fitness certificate. Even though the learned counsel for the appellants has argued that the accident occurred due to the negligence of the drivers of both the vehicles, there is absolutely no pleading or evidence to support the said argument. In view of the specific evidence of PW1 complied with Exts.A1 and B1 and the contention in the claim petition, we are persuaded to hold that the Tribunal was perfectly justified in holding that the accident occurred due to the rash and negligent driving of the autorikshaw by the fourth respondent. In view of the above reasons, the arguments advanced by the M.A.C.A. No.108 of 2013 : 7 : learned counsel for the appellants in this regard cannot be accepted. 7. The appellants claimed that the deceased was aged 50 years during the relevant period. However, there is no evidence to prove the same. Since no material has been produced to prove the date of birth of the deceased, we consider that the deceased had crossed the age of 50 years. So we take 51 years as the age of the appellant. Since the deceased was aged 51 years, 11 must be the multiplier for the purpose of calculating the dependency compensation as held by the Apex Court in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]. The appellants claimed that the deceased was a fisherman by profession, getting Rs.6,000/- per month. The Tribunal had taken Rs.3,500/- as the monthly income of the deceased in M.A.C.A. No.108 of 2013 : 8 : the absence of any evidence to prove the same. The accident was during the year 2008. Therefore, we accept the income of the deceased as Rs.6,000/- without any evidence in this regard. Since there are four dependents, ¼[th] of the income of the deceased has to be deducted as the deceased would have spent so much amount for the purpose of personal expenses of the deceased. Therefore, the appellants are entitled to an amount of Rs.5,94,000/(6,000x12x11x3/4) as compensation towards loss of dependency. Subtracting the amount of Rs.3,51,000/granted by the Tribunal, the appellants are entitled to an amount of Rs.2,43,000/- as additional compensation towards loss of dependency. Even though the accident in this case was on 19.5.2008, the deceased died only on 22.5.2008. Therefore, we are granting an additional M.A.C.A. No.108 of 2013 : 9 : amount of Rs.10,000/- as compensation towards pain and suffering, as the Tribunal had granted only Rs.5,000/- as compensation under the said count. Towards loss of consortium, we are granting an additional amount of Rs.90,000/- to the first appellant, who is the wife of the deceased. Towards love and affection, we are granting an additional amount of Rs.25,000/- as the Tribunal awarded only Rs.5,000/- under the said head. The Tribunal did not award any amount of compensation towards funeral expenses. We are granting an amount of Rs.15,000/- as compensation towards funeral expenses. Thus the appellants are entitled to a total amount of Rs.3,83,000/- as additional compensation. The above amount carries interest at the rate of 8% per annum from the date of petition till the date of realisation. The direction of the M.A.C.A. No.108 of 2013 : 10 : Tribunal to the fourth respondent to deposit the compensation amount does not warrant any interference by this court. The amount shall be released to the appellants only after deducting the balance court fee. In the result, this appeal stands disposed of as above. **Sd/- C.T.RAVIKUMAR, JUDGE** **Sd/- B.SUDHEENDRA KUMAR, JUDGE** _dl/19.10.2017_ _// True Copy //_ _PA to Judge_