SMITHA and others v Nazar P.M. and National Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943 MACA NO. 209 OF 2013** **AGAINST THE AWARD IN OPMV 1120/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS:** 1 SMITHA AGED 29 YEARS W/O LATE RAJESH, NEDUMPILLICHALIL HOUSE, CHALIKKAVATTOM KARA, VENNALA P.O, KOCHI 28 2 MINOR POORNIMA RAJESH AGED 5 YEARS D/O LATE RAJESH REPRESENTED BY NEXT FRIEND, AND MOTHER SMITHA, W/O LATE RAJESH, NEDUMPILLICHALIL HOUSE, CHALIKKAVATTOM KARA, VENNALA P.O, KOCHI 28 3 MINOR ABINMANUE RAJESH AGED 3 YEARS SO LATE RAJESH REPRESENTED BY NEXT FRIEND, AND MOTHER SMITHA, W/O LATE RAJESH, NEDUMPILLICHALIL HOUSE, CHALIKKAVATTOM KARA, VENNALA P.O, KOCHI 28 4 KUNJAMMA K.B AGED 57 YEARS W/O VIJAYAN, NEDUMPILLICHALIL HOUS,E CHALIKKAVATTOM KARA, VENNALA P.O, KOCHI 28 BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ## **RESPONDENT/S:** 1 NAZAR P.M. S/O MOIDEEN, 33/ 629-A, PEREPARAMBIL HOUSE, VENNALA P.O, KOCHI 682028 2 NATIONAL INSURANCE COMPANY LTD THIRD PARTY CLAIMS CELL, AJAY VIHAR, K.G. ROAD, COCHIN 682016 R2 BY SRI A.A.MOHAMMED NAZIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.12.2021, THE COURT ON 03.1.2022 DELIVERED THE FOLLOWING: M.A.C.A. No.209 of 2013 2 ## **T.R. RAVI, J.** ## **--------------------------------------------** M.A.C.A. No.209 of 2013 -------------------------------------------Dated this the 3[rd] day of January, 2022 ## **JUDGMENT** On 20.05.2010, the motor cycle driven by the 1[st] appellant's husband was hit by another motorcycle. The 1[st] appellant's husband suffered serious injuries and was taken to the hospital, where he succumbed to the injuries on 18.06.2010, while under treatment. The Tribunal dismissed the claim petition finding that the deceased was riding the two wheeler without driving license in a rash and negligent manner and the two wheeler overturned and he fell on the road resulting in head injuries and that no other vehicle was involved in the accident. 2. Heard the learned counsel for the appellants and the learned counsel for the 2[nd] respondent Insurer. 3. The learned counsel for the appellants submitted that Ext.A4 final report will clearly show that the death of the 1[st] appellant's husband was due to a motor accident involving another vehicle. It is seen from Ext.A4 that the driver of the offending vehicle was chargesheeted. Going by the judgment in **New India Assurance Co. Ltd. v. Pazhaniammal** reported in **[(2011) 1** M.A.C.A. No.209 of 2013 3 **KLT 648]** the final report is sufficient proof to show negligence, particularly in the absence of any evidence which negates the statements in the final report. 4. The learned counsel for the insurer would submit that the deceased was first taken to the ESI Hospital and thereafter to the Ernakulam Medical Centre and Ext.A9 report of the AMVI would show that the offending vehicle did not have any damage. According to the counsel this would suggest that the offending vehicle was not involved in the accident. 5. It can be seen from the award that even though a contention was taken by the Insurer that the offending vehicle was not involved in the accident, no attempt was made to let in any evidence on that aspect. The only contention taken was that the deceased did not possess a valid driving licence. A reading of the award will show that the finding that no other vehicle was involved is based entirely on presumptions and surmises, which are totally unwarranted, when a final report is available as a prima facie evidence. The Tribunal has assumed that since there was damage to the vehicle in which the deceased was travelling, there will necessarily be damage to the offending two wheeler also. There can be no such assumption, since an accident can take place even M.A.C.A. No.209 of 2013 4 without the offending vehicle being damaged. The Tribunal appears to have misdirected itself from the fact that the deceased did not have a driving licence. While considering a case of contributory negligence, a Division Bench of this Court in **Muhammed Noufal v. Majeed & Ors.** reported in **[2018 (1) KLT 507]** has held that the absence of driving licence would not lead to an inference that the deceased had contributed to the accident. The Tribunal has again assumed that the person examined as PW1 is related to the deceased for the sole reason that they share the same house name. The Tribunal has gone ahead to hold that PW1 is a tutored witness and was even hiding his relationship with the deceased. Such a conclusion has been drawn even without any supporting material in evidence. The manner in which the Tribunal has approached the issue is far from satisfactory. In the absence of any positive and legal evidence, I am of the opinion that the final report has to be taken as the evidence regarding negligence and hence the claim petition is very much maintainable. 6. The next question is whether this Court should act as the Court of first instance and decide on the quantum of the compensation that is to be paid. The parties have led evidence M.A.C.A. No.209 of 2013 5 regarding the income of the deceased and other details and the appellants submit that there is no necessity to remand the case back to the Tribunal for fixing the compensation payable. 7. According to the appellants, the deceased was working as a Canteen helper in the Cochin Shipyard and was aged 34 years at the time of the accident. He is stated to have been earning Rs.6,000/- as monthly income. He was an inpatient in the Ernakulam Medical Centre from 20.05.2010 to 04.06.2010. He was shifted to Lourdes Hospital on 04.06.2010 where he remained till 11.06.2010. He was once again admitted in Lourdes Hospital on 15.06.2010 and was under treatment till his death on 18.06.2010. The appellants had claimed a sum of Rs.2,25,000/towards treatment expenses and Rs.15,000/- towards transportation to different hospitals. A sum of Rs.9 lakhs was claimed towards compensation for loss of dependency and amounts have been claimed under the heads loss of companionship, pain and suffering, loss of estate and funeral expenses. Ext.A15 is the salary certificate issued from the Cochin Shipyard which would show that the deceased was earning a consolidated pay of Rs.7,300/- per month. The certificate is signed by the Deputy Manager (Finance) of the Cochin Shipyard M.A.C.A. No.209 of 2013 6 who has been examined as PW2. There is no reason to disbelieve the contents of the salary certificate. Ext.A16 is again a certificate issued from the Cochin Shipyard, which shows that the deceased was appointed under the compassionate appointment scheme of the Company and was hence on the regular rolls of the Company. Ext.A17 is the transfer certificate issued from the School where the deceased had studied, which would show that the date of birth of the deceased is 25.02.1976. The above document would show that in 2010, when the accident took place, the deceased had completed 34 years of age. The appellants are entitled to have the monthly income increased by 40% towards future prospects. Along with the future prospects, the monthly income to be taken for the purpose of arriving at the compensation for loss of dependency will be Rs.10,220/-. Considering the age of the deceased, the multiplier to be adopted will be 16. An amount equivalent to 1/4[th] of the income has to be deducted towards personal expenses of the deceased. The appellants will hence be entitled to a sum of **Rs.14,71,680/-** (7300x140%x12x16x3/4) towards loss of dependency. A sum of **Rs.1,60,000/-** (40000x4) has to be awarded towards loss of consortium. A sum of **Rs.15,000/-** has to be granted towards funeral expenses and M.A.C.A. No.209 of 2013 7 another **Rs.15,000/-** has to be awarded towards loss of estate. Since the deceased had to be taken to the hospital and shifted to other hospitals on three occasions, I am of the opinion that a sum of **Rs.10,000/-** can be awarded towards transportation charges. The deceased had to remain in hospital for 27 days. A sum of **Rs.6,000/- each** is awarded under the heads bystander expenses and extranourishment. Ext.A13 bills issued by the Ernakulam Medical Centre during the treatment of the deceased will show that an amount of **Rs.1,42,884/-** was expended towards medical bills. The appellants are entitled to the above amounts also towards medical expenses. 8. In the result, the appeal is allowed and the appellants are awarded compensation of **₹18,26,564/- (Rupees Eighteen Lakhs Twenty Six Thousand Five Hundred and Sixty Four only)** with interest at the rate of 9% per annum from the date of filing of the claim petition (23.7.2010) till the date of realisation, with proportionate costs. The appeal was filed with a delay of 136 days. By order dated 6.6.2018, this Court condoned the delay in filing the appeal on condition that the appellants will not be entitled to interest on the enhanced compensation which may be awarded by this Court for the period of 136 days. The interest M.A.C.A. No.209 of 2013 8 payable on the enhanced compensation shall be hence excluding the period of 136 days. The 2nd respondent insurer shall deposit the compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal, within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn