Sindhu M. and others v. K.K. Rajan, Rasheed and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** ## **MACA NO. 476 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 2181/2005 OF THE PRINCIPAL** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** - 1 SINDHU M, W/O.LATE SATHEESAN AGED 29 YEARS, KAVASSERY HOUSE P.O., KOLATHARA,, KOZHIKODE. - 2 APARNA ,MINOR, AGED 9 YEARS D/O.LATE SATHEESAN, KAVASSERY HOUSE, P.O.KOLATHARA, KOZHIKODE, REP.BY HER MOTHER & LEGAL GUARDIAN, SINDHU.M. - 3 BABY SINDHU, MINOR, AGED 4 YEARS D/O.LATE SATHEESAN, KAVASSERY HOUSE,, P.O.KOLATHARA, KOZHIKODE, REP.BY HER MOTHER &, LEGAL GUARDIAN SINDHU.M. - 4 BHASKARAN, S/O.AYYAPPAN, AGED 69 YEARS KAVASSERY HOUSE, P.O.KOLATHARA, KOZHIKODE. - 5 JANAKI, W/O.BHASKARAN AGED 64 YEARS KAVASSERY HOUSE , P.O.KOLATHARA, KOZHIKODE. BY ADV K.V.RASHMI ## **RESPONDENT/S:** - 1 K.K.RAJAN, VARIYAM VEETTIL HOUSE, G.A.COLLEGE, KOZHIKODE. - 2 RASHEED, S/O.MARAKKAR, AGED 34 YEARS PULOOKACHALIL HOUSE, IRINGALLOOR P.O.,, G.A.COLLEGE, KOZHIKODE DISTRICT. - 3 UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, WHILE LINES BUILDING,, P.B.NO.533, KALLAI ROAD, KOZHIKODE. BY ADVS. P.K.SANTHAMMA -R3 SRI.P.V.JYOTHI PRASAD -R3 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.476 of 2010 ## **C.S.DIAS, J.** ## **====================== MACA No.476 of 2010** ## **====================== Dated this the 8[th] day of March, 2022.** ## **JUDGMENT** The petitioners in OP (MV) No.2181/2005 of the Principal Motor Accidents Claims Tribunal, Kozhikode, are the appellants. The respondents in the claim petition are the respondents in the appeal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Satheesan (deceased) - the husband of the first appellant, the father of the appellants 2 and 3 and the son of the appellants 4 and 5. They had averred in the claim petition that, on 5.7.2005, while the deceased was travelling pillion on a motorcycle bearing registration No.KL-11/P 6838 from Palazhi to Kolathara, when they reached a place named Vengalath Thazhath, the said 3 MACA No.476 of 2010 motorcycle was hit by another motorcycle bearing registration No.KL-11/A 3224 (offending motorcycle), ridden by the second respondent in a rash and negligent manner. The deceased sustained multiple injuries and was treated at the Medical College Hospital, Kozhikode, where he lost his life on 21.7.2005. The offending motorcycle was owned by the first respondent and insured with the third respondent. The deceased was a Building Supervisor with M/s.R.K Constructions, Chevayoor and was drawing a monthly income of Rs.7,000/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.5,20,000/- from the respondents, which claim was limited to Rs.5,00,000/-. 3. The respondents 1 and 2 had filed a joint written-statement denying the allegations in the claim petition. They had pleaded that the motorcycle bearing registration No.KL-11/P 6838 was ridden by the deceased 4 MACA No.476 of 2010 with a person named Lineesh on the pillion, and the accident happened due to the negligence of the deceased. Therefore, the respondents 1 and 2 were not liable to pay the compensation. Nonetheless, they contended that, as the offending motorcycle had a valid insurance coverage, if at all the respondents 1 and 2 were liable, it was the third respondent who was to indemnify their liability. 4. The third respondent/insurer had filed a written statement reiterating the same pleadings as of the respondents 1 and 2. The third respondent also disputed the age, income and occupation of the deceased. The third respondent further alleged that, as the deceased did not have a valid driving licence, the appellants deliberately made Lineesh as the rider of the motorcycle. The third respondent also contended that the compensation claimed was excessive. 5. The alleged pillion rider Lineesh and other 5 MACA No.476 of 2010 injured named, C.Abdul Kareem, also filed OP(MV) Nos 2017/2005 and 2503/2005 before the same Tribunal, seeking compensation from the respondents. 6. The Tribunal consolidated and jointly tried the three claim petitions. 7. The appellants had produced and marked Exts A1 to A4 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, entered a finding that as the respondents had specifically stated that it was the deceased who was riding the motorcycle and not Lineesh and the appellants not examining Lineesh – the first informant, the appellants failed to prove that it was Lineesh who rode the motorcycle. Furthermore, without any material or pleading, the Tribunal on the basis of assumptions and surmises held that Lineesh was a name lender for similar bogus claims and, therefore, the 6 ## MACA No.476 of 2010 appellants' claim cannot be believed. The Tribunal also deprecated the appellants for not producing the charge- sheet laid by the Police. Consequently, the Tribunal dismissed the claim petition. 9. Aggrieved by the dismissal of the claim petition, the petitioners are in appeal. 10. Heard; Smt.Rashmi K.V,, the learned counsel appearing for the appellants/petitioners and Smt.P.K Santhamma, the learned counsel appearing for the third respondent/insurer . 11. The points that arise for consideration in the appeal are: - (i) whether the dismissal of the claim petition is sustainable in law? and - (ii) whether the appellants are entitled for any compensation? If so, what is the just and reasonable compensation? 7 MACA No.476 of 2010 ## **Question No.(i)** 12. The definite case of the appellants in the claim petition was that the deceased was the pillion rider on the motorcycle ridden by Lineesh and it was due to the negligence of the second respondent, the rider of the offending motorcycle, that the accident occurred. To substantiate their contention, they themselves produced Ext A1 FIR, which was the first information statement given by Lineesh to the Police, stating that Lineesh was the rider of the motorcycle bearing registration No.KL11/P 6838 and the deceased was on the pillion. 13. The learned counsel appearing for the appellants vehemently argued that even though the charge-sheet was produced before the Tribunal, for reasons only known to the Tribunal, the charge-sheet was totally ignored. 14. In the light of the above submission, this Court had verified the lower court records and found that the 8 MACA No.476 of 2010 appellants had produced the certified copy of the chargesheet, laid by the City Traffic Police, Kozhikode, in crime No.1030/2005, before the Tribunal on 31.10.2007. The impugned award was passed on 8.5.2009. Therefore, the finding of the Tribunal that the charge-sheet was not produced is incorrect and misleading. 15. In view of the production of the charge-sheet, the Tribunal ought to have considered the same for the purpose of ascertaining the question of negligence, especially since the respondents have not let in any evidence contrary to the charge-sheet. Hence, this Court accepts the charge-sheet in evidence and the same is marked as Ext A5. 16. On a reading of Ext A5, it is seen that the Police have categorically found that the accident occurred due to the negligence of the second respondent, who was charged for the offences punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code. There is no 9 MACA No.476 of 2010 charge laid against the deceased, even though the Police after investigation found that it was the deceased who was riding the motorcycle on the ill-fated day. 17. It is to be borne in mind that the appellants had filed the claim petition on the basis of Ext A1 FIR. But, later, it was found that it was the deceased who rode the motorcycle. The fact remains that, as per Ext A5, that there was no negligence on the part of the deceased. Therefore, the so-called discrepancy in the claim petition, as regards the person who was riding the motorcycle, is inconsequential and irrelevant. The mere fact that the appellants had averred in the claim petition, that the deceased was a pillion rider is not a ground to non-suit them. Thus, I am of the definite view, particularly since there is no evidence to the contrary to discredit Ext A5 final report, as per the mandate in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648] and **Kolavan v. Salim** [2018 (1) KLT 489], 10 MACA No.476 of 2010 that it is the second respondent who was negligent in causing the accident. 18. Indisputably, the first respondent was the owner and the third respondent was the insurer of the offending motorcycle. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. Hence, I answer question No.(i) in favour of the appellants, and hold that the impugned award dismissing the claim petition is unsustainable in law and patently wrong. 19. In the light of the findings of this Court on Question No.(i), I proceed to decide Question No.(ii). ## **Question No.(ii)** ## **Notional Income** 20. The specific case of the appellants in the claim petition was that the deceased was a Building Supervisor 11 MACA No.476 of 2010 with M/s.R.K Constructions and was drawing a monthly income of Rs.7,000/-. However, they have not produced any material to substantiate the pleading. 21. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 22. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2005, I fix the monthly income of the deceased on a notional basis at Rs.5,000/-. ## **Multiplier** 23. The appellants had stated that the deceased was aged 28 years at the time of the accident/death. In Ext A2 postmortem report, it is written that the deceased was aged 29 years. I accept the certification in Ext A2 and fix the age of the deceased at 29. In the light of the 12 MACA No.476 of 2010 law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '17'. ## **Personal living expenses of the deceased** 24. The appellants have claimed that they are the wife, children and parents of the deceased, who are five in number. To substantiate their contention, they have produced Ext A3 family membership certificate. 25. Taking into consideration the law laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , one – fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 26. In the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 29 years at the time of his death, I hold that the appellants are entitled to future 13 MACA No.476 of 2010 prospects @ 40%. ## **Loss of dependency** 27. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.5,000/-, the multiplier at 17, future prospects at 40% and after deducting one-fourth of the compensation towards the personal living expenses of the deceased, I fix the compensation for loss of dependency of the appellants at Rs.10,71,000/-. ## **Conventional/Traditional heads of compensation** 28. In paragraph 59.8 of **Pranay Sethi (supra)** it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 29. In **N.Jayasree vs. Cholamandalam M.S,** 14 MACA No.476 of 2010 **General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 30. In the light of the afore-cited decisions, I award 15 MACA No.476 of 2010 the appellants an amount of Rs.16,500/- each under the heads 'loss of estate' and 'funeral expenses'. As the appellants 1 to 3 were the wife and children of the deceased, I award them an amount of Rs.44,000/- each towards ‘loss of consortium’.,i.e., a total amount of Rs.1,32,000/-. But, as the appellants 4 and 5 were the parents of the deceased and were aged 65 and 60 at the time of the accident/death of the deceased and were leading independent lives, I decline to award them any amount under the head 'loss of consortium'. ## **Pain and sufferings** 31. It is proved and established that, although the deceased met with the accident on 5.7.2005, he lost his life, as per Ext A2, only on 21.7.2005. Therefore, I award the appellants an amount of Rs.15,000/- under the head ‘pain and sufferings’. Likewise, I award them an amount of Rs.1000/- under the head 'transportation expenses' and Rs.500/- under the head 'damage to clothing'. 16 MACA No.476 of 2010 32. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, and in view of the findings of this Court on Question No.(i), I hold that the appellants 1 to 3/petitioners 1 to 3 are entitled for compensation as calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|The amount calculated by<br>this Court| |---|---|---| |1|Transport to hospital|1,000/-| |2|Damage to clothing|500/-| |3|Pain and sufferings|15,000/-| |4|Loss of consortium to<br>the appellants 1 to 3|1,32,000/-| |5|Funeral expenses|16,500/-| |6|Loss of estate|16,500/-| |7|Loss of dependency|10,71,000/-| ||Total|12,52,500/-| 33. Even though the appellants had claimed only an amount of Rs.5,00,000/- as compensation, I have awarded them more compensation than what is claimed 17 MACA No.476 of 2010 in the claim petition, following the principles laid down in **Sarla Varma** and **Pranay Sethi** (supra), by awarding them future prospects as well as compensation under the conventional heads. The said course is permissible in view of the law laid down in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC)** and **Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)].** In the result, the appeal is allowed by setting aside the award of dismissal and allowing OP(MV) 2181/2005 by awarding the appellants 1 to 3/petitioners 1 to 3 an amount of **Rs.12,52,500/-** with interest at the rate of 6% per annum from the date of petition till the date of realisation, after deducting interest for a period of 133 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 9.11.2021 in C.M Appln No.1/2010, and proportionate cost. The third respondent/insurer is ordered to deposit the compensation amount with interest and cost before the 18 MACA No.476 of 2010 Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants 1 to 3/petitioners 1 to 3, after deducting the liability towards court-fee, if any, in the ratio of 40:30:30, and in accordance with law. Sd/- sks/8.3.2022 **C.S.DIAS, JUDGE**