Sophy and Others v. Santosh S/o Joseph; Tomy S/o Mathew; National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943** **MACA NO. 652 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 367/2007 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL MUVATTUPUZHA, ERNAKULAM** ## **APPELLANTS/CLAIMANTS:** 1 SOPHY AGED 41 YEARS, W/O.LATE GEORGE, PULPARAYIL HOUSE, KAVALANGAD, OONNUKAL. 2 NIMMY AGED 22 YEARS, D/O.LATE GEORGE, PULPARAYIL HOUSE,KAVALANGAD, OONNUKAL. 3 NEETHU AGED 21 YEARS, D/O.LATE GEORGE, PULPARAYIL HOUSE,KAVALANGAD, OONNUKAL. 4 NEENU AGED 21 YEARS, D/O.LATE GEORGE, PULPARAYIL HOUSE,KAVALANGAD, OONNUKAL. BY ADVS. SRI.JOY C. PAUL DR.ABRAHAM P.MEACHINKARA ## **RESPONDENTS/RESPONDENTS 1 TO 3 :** 1 SANTHOSH S/O.JOSEPH, VELLARIKKATTU THAZHE VEEDU HOUSE,VELLICHIRA KARA, NEAR CHERUKARA CHURCHVELLICHIRA VILLAGE, MEENACHIL TALUK,KOTTAYAM DT. ( DELETED) 2 TOMY S/O.MATHEW (OWNER) PALAKUDIYIL (H)POOVARANI P.O., PAIKA, ELIKULAMKANJIRAPPALLY, KOTTAYAM DT. ( DELETED) 3 NATIONAL INSURANCE CO.LTD. BRAUDA, PALAI. **MACA NO. 652 OF 2012** **2** RESPONDENTS 1 AND 2 ARE DELETED FROM THE MACA AT THE RISK OF THE APPELLANT AS PER ORDER DATED 29/7/2019 IN I.A.NO. 1/2019 IN MACA 652/2012. BY ADV SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 652 OF 2012** **3** ## **JUDGMENT** The appellants were the petitioners in O.P (MV) No.367/2007 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The respondents in the appeal were the respondents before the Tribunal. This Court by order dated 29.7.2019 in I.A No.1 of 2019 had deleted the respondents 1 and 2 from the party array. Thus, only the Insurance Company is the respondent in the appeal. The parties are for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 (for brevity referred to as “Act”) inter alia, stating that on 29.4.2006, while George (deceased) – the husband of the 1[st] petitioner and the father of the petitioners 2 to 4 - was **MACA NO. 652 OF 2012** **4** walking through the side of the National Highway-49 near Thalakkode check post, a bus bearing Reg.No. KL-341006 (offending vehicle) driven by the 1st respondent in a rash and negligent manner hit the deceased. He succumbed to the injuries on the very same day. The offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The deceased was a timber merchant by profession and earning a monthly income of Rs.5,000/-. The petitioners claimed a compensation of Rs.12,35,500/- from the respondents, but limited the same to Rs.8,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd ] respondent - the Insurance Company of the offending vehicle – filed a written statement, inter alia, admitting that the offending vehicle had a valid insurance policy. However, it was contended that the accident **MACA NO. 652 OF 2012** **5** occurred on account of the negligence on the the part of the deceased who cut- across the road without obeying the traffic rules, which stands proved by the scene mahazar prepared by the Police. As the negligence was on the part of the deceased, the petitioners were not entitled for any compensation. At any rate, the deceased was guilty for contributory negligence and, therefore, the compensation has to be reduced by fixing contributory negligence. The age, income and occupation of the deceased were also disputed. 5. The petitioners produced and marked Exts. A1 to A7 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record and though fixed the compensation at Rs.4,17,500/- fixed the contributory negligence on the part of the deceased at 25%. Accordingly, the 3[rd] respondent was directed to pay an amount of Rs.4,17,500/-, directed **MACA NO. 652 OF 2012** **6** only an amount of Rs.3,13,125/- to be paid with interest at the rate of 8% per annum from the date of petition till the date of deposit and proportionate costs. 7. Aggrieved by the fixation of contributory negligence to the extent of 25% on the part of the deceased and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the 3[rd] respondent – insurance company 9. The questions that emerge for consideration in the appeal are: (i) Whether there was contributory negligence on the part of the deceased? and (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? **MACA NO. 652 OF 2012** **7** 10. As per Ext.A3 final report filed by the Oonnukal Police Station in Crime No.120/2006, it is found that it was the 1[st] respondent who was negligent in causing the accident. Even though the 3[rd] respondent has taken up a plea of contributory negligence in the written statement, no evidence was adduced to substantiate the said contention. It is trite law that pleading is not proof. 11. A Division Bench of this Court in **New India Insurance Co.Ltd v. Pazhaniammal and Others** [2011 (3) KLT 648 **]** has succinctly laid down the law that prima facie, a charge sheet filed by the Police after investigation can be accepted as evidence of negligence against the driver of the vehicle. If any of the parties do not accept the charge-sheet, the onus of proof is on such party to adduce oral evidence. If the oral evidence is adduced by such party, then the charge-sheet falls into a pale of insignificance. **MACA NO. 652 OF 2012** **8** 12. In the instant case, the 3[rd] respondent has not adduced any evidence to disprove or discredit Ext.A3 final report filed by the Police. 13. In light of the law laid down in **Pazhaniammal (supra)** and the fact that the 3[rd] respondent has not let in any contra evidence, I hold that the finding of the Tribunal that the deceased was guilty for contributory negligence to the extent of 25% is erroneous and wrong. Therefore, I set aside the said finding and answer question No.(i) in favour of the appellants/petitioners. 14. Coming to the next question regarding the quantum of compensation awarded by the Tribunal. 15. The appellants had claimed that the deceased was a timber merchant by profession and earning a monthly income of Rs.5,000/-. The Tribunal fixed the notional income of the deceased at Rs.3,000/- per month. 16. In **Ramachandrappa v. Manager, Royal** **MACA NO. 652 OF 2012** **9** ## **Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. It was further held that the said amount has to be enhanced by Rs.500/- every year. 17. Following the parameters laid down in the afore cited decisions and considering the fact that the accident occurred in the year 2006, I re-fix the income of the deceased as claimed for in the claim petition at Rs.5,000/per month. ## **Multiplier** 18. The deceased was aged 44 years at the time of accident. In light of the law laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier is '14'. **MACA NO. 652 OF 2012** **10** ## . **Personal living expenses** 19. On a perusal of the impugned award, it is seen that the Tribunal has deducted 1/3rd of the total compensation under the head ' loss of dependency towards 'personal living expenses' of the deceased. Un-disputedly, the 1[st] appellant was the wife and the appellants 2 to 4 were the daughters of the deceased. Therefore, they are four in number. 20. In **Sarala Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** the Hon'ble Supreme Court has held that if the dependents are four in number, 1/4th of the total compensation only has to be deducted towards personal living expenses of the deceased. Therefore, I deduct only ¼[th] of the compensation under the head 'loss of dependency' instead of 1/3rd towards the personal living expenses of the deceased. **MACA NO. 652 OF 2012** **11** ## **Future prospects** 21. In **Sarla Verma** as well as **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are also entitled for future prospects. As the deceased was aged 44 years and the multiplier is '14', the appellants are entitled for 25% of compensation for 'loss of dependency towards future prospects. ## **Loss due to dependency** 22. Taking into account the above factors, i.e, the notional income of the deceased fixed at Rs.5,000, the multiplier at 14, future prospects at 25% and personal living expenses as 1/4th of the total compensation, I re-fix the compensation under the head 'loss of dependency' at Rs.7,87,500/- instead of Rs.3,36,000/- awarded by the Tribunal, i.e, also after setting aside 25% contributory negligence fixed by the Tribunal. ## **Conventional heads of compensation** **MACA NO. 652 OF 2012** **12** 23. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely, Funeral expenses, Loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. In the said circumstances, I enhance the compensation under the head 'funeral expenses' by a further amount of Rs.5,000/ and under the head 'loss of estate' by a further amount of Rs.12,500/-. With respect to loss of consortium, the Tribunal has only awarded Rs.15,000/- to the 1[st] petitioner. 24. In light of the ratio stated in **Pranay Sethi** (supra), I hold that all the appellants are entitled to Rs.40,000/- each towards spousal consortium and parental consortium. Therefore, the appellants are entitled to a total amount of Rs.1,60,000/- under the said head. **MACA NO. 652 OF 2012** **13** **Loss of love and affection and pain and suffering** 25. The Hon'ble Supreme Court in **United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and others** [(2020(3)KHC 760] has held that the dependents of the deceased are not entitled for any compensation under the head 'pain and suffering'. Hence, I set aside the compensation awarded under the head 'pain and suffering'. 26. In view of the law laid down by this Court in **Kunjandy.L and others v. Rajendran and Others** [2020 (2) KLT 315], this Court has held that if compensation is awarded under the head 'loss of consortium', no compensation under the head 'loss of love and affection' can be awarded. Therefore, I set aside the compensation awarded under the head 'loss of love and affection'. **MACA NO. 652 OF 2012** **14** 27. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the aforecited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |SI<br>.No|Head of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Funeral expenses|10,000|15,000| |2.|Loss of estate|2,500|15,000| |3.|Loss of love and affection|45,000|---| |4.|Loss of consortium|15,000|1,60,000| |5.|Pain and suffering|9,000|---| |6.|Loss of dependency with future<br>prospects|3,36,000|7,87,500| |||4,17,500|9,77,500| **MACA NO. 652 OF 2012** **15** In the result, the appeal is allowed by setting aside the finding that the deceased was guilty for contributory negligence to the extent of 25% and by enhancing the compensation by a further amount of Rs.5,60,000/-/-with interest at the rate of 8% per annum on the enhanced compensation from the date of petition till the date of deposit and proportionate costs. The 3[rd] respondent/Insurance Company shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The enhanced compensation shall be disbursed to the appellants/petitioners by the Tribunal in equal shares and in accordance with law. **ma/13.7.2021** **Sd/- C.S.DIAS, JUDGE**