Subair and Nabeesa v. Ismail and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 1[ST] DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944** ## **MACA NO. 1506 OF 2010** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 124/2002 OF DISTRICT COURT &** **SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANTS/ PETITIONER 1 & 2:** - **1 SUBAIR, S/O LATE POKER, AGED 54, RESIDING AT MAKKUMMAL HOUSE, KAPPAMKOLLY, KOTTANAD POST, MEPPADI.** - **2 NABEESA, W/O.SUBAIR, AGED 48, RESIDING AT MAKKUMMAL HOUSE, KAPPAMKOLLY, KOTTANAD POST, MEPPADI. BY ADV SMT.CELINE JOSEPH** ## **RESPONDENTS/RESPONDENTS:** - **1 ISMAIL, AGED 54 YEARS, S/O MOIDU, KARIMPANAKKAL HOUSE, THRIKKAIPETTA (VIA), MUTTIL POST, VYTHIRI TALUK, (DVR. OF KL 12B/1643 BUS).** - **2 C.V.VARGHESE AGE AND FATHER'S NAME NOT KNOWN, CHENGANAMADATHIL HOUSE, THRIKKAIPETTA POST, MEPPADI, VYTHIRI TALUK, (RC OWNER OF KL 12B/1643 BUS). (DIED)** - **3 THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., KORAMBAYI ARCADE, PANDIKKAD ROAD, MANJERI, MALAPPURAM DT., ( INSURER OF KL 12B/1643 BUS).** - **ADDL. 4 TO 7 IMPLEADED** - **4 SUPPL. RES. NO 4. ANNAMMA VARGHESE,. AGED 57 YEARS, W/O. LATE C.V. VARGHESE, CHENGANAMDADATHIL HOUSE, THRIKKAIPETTA POST, MEPPADI, VYTHIRI TALUK.** - **5 SUPPL. RES.NO.5 REJI.C.V, AGED 39 YEARS, S/O. LATE C.V.VARGHESE, CHANGANAMADATHIL HOUSE, THRIKKAIPETTA POST, MEPPADI, VYTHIRI TALUK.** - **6 SUPPL. RES.6. BAIJU C.V, AGED 36 YEARS, S/O. LATE C.V. VARGHESE, CHENGANAMADATHIL HOUSE, THRIKKAIPETTA POST , MEPPADI, VYTHIRI TALUK.** - **7 SUPPL. RES. NO.7 SHEEJA C.V, AGED 34 YEARS, D/O. LATE C.V. VARGHESE, CHENGANAMADATHIL HOUSE, THRIKKAIPETTA POST, MEPPADI, VYTHIRI TALUK.** M.A.C.A. NO. 1506 OF 2010 2 **DEATH OF SUPPLEMENTAL RESPONDENT NO.4 RECORDED: THE SUPPLEMENTAL 4TH RESPONDENT IN IA 1/21 IN M.A.C.A. 1506/2010 EXPIRED AND SUPPLEMENTAL RESPONDENTS NO. 5 TO 8 IN IA 1/21 ARE THE LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT AS PER MEMO DATED 28.9.2021 IS RECORDED AS PER ORDER DATED 14.12.2021 IN IA 1/21, IA 2/21 & CMA 3/21 IN M.A.C.A. NO. 1506 OF 2010. THE RESPONDENTS NO. 5 TO 8 ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS 4 TO 7 AS PER ORDER DATED 14.12.2021 IN IA 1/21 IN M.A.C.A. NO. 1506 OF 2010 BY ADVS. A.X.VARGHESE SMT.RAJI T.BHASKAR - R3 A.V.JOJO** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. NO. 1506 OF 2010 3 ## **JUDGMENT** ## Dated this the 1[st] day of September, 2022 This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging award dated 07.05.2008 in O.P.(M.V) No.124/2002 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The appellants are the 1[st] and 2[nd] petitioners before the Tribunal. The respondents before the Tribunal are the respondents herein also. 2. Heard both sides. 3. Brief facts of the case: According to the appellants, one Jamsheer died in consequence of a motor accident occurred at 8.15 am on 8.2.2002 when a bus bearing registration NO. KL-12/B 1643 driven by the 1[st] respondent in rash and negligent manner knocked against the motorcycle bearing registration NO. KL-12/A 2463 ridden by the above said Jamsheer on M.A.C.A. NO. 1506 OF 2010 4 the date of the accident. Accordingly the appellants who are father, mother, sister's husband and sister of the deceased lodged Claim Petition under Section 166 of the Motor Vehicles act before the M.A.C.T, Kalpetta claiming compensation to the tune of Rs.6,00,000/-. 4. 1[st] and 2[nd] respondents were declared ex- parte by the Tribunal. 5. The 3[rd] respondent Insurance Company filed written statement and additional written statement resisting the contentions. The specific case put up by the insurer is that the accident occurred due to the rash and negligent driving of Jamsheer and the negligence alleged against the 1[st] respondent is false. In the additional written statement a contention raised to the effect that Police laid charge against Jamsheer also in this occurrence. In the written statement policy also denied though it was admitted subsequently. 6. The Tribunal tried the matter. PW1 and 2 M.A.C.A. NO. 1506 OF 2010 5 examined and Ext.A1 to A4 marked on the side of appellants. Ext.B1 Police charge against Jamsheer got marked on the side of the Insurance Company. 7. The Tribunal adjudicated negligence in this matter and found that Ext.B1, the copy of B- charge against the 1[st] respondent and A-charge against Jamsheer read with oral evidence of PW1 proved that the accident occurred due to the rash and negligent driving of the vehicles by its drivers. Finally half of the amount assessed was granted as compensation. Thus 50% negligence virtually found by the Tribunal against the 1[st] respondent and 50% on the part of Jamsheer also. 8. It is submitted by the learned counsel for the appellants that though on investigation the Police filed A-charge and B-charge as Ext.B1, the appellants examined PW2 an independent witness and proved the negligence on the part of the 1[st] respondent alone and therefore the contributory negligence found by the Tribunal is M.A.C.A. NO. 1506 OF 2010 6 liable to be interfered and set aside. 9. Per contra, it is submitted by the learned counsel for the insurer that the Tribunal evaluated Ext.A1 and Ext.B1 along with evidence of PW2 and finally found negligence in the proportion 50:50 and the same does not require any interference. 10. Going by Ext.B1 charge sheet, it has to be held that the accident was the outcome of negligence on the part of the deceased as well as the 1[st] respondent. It is true that PW2, advocate's clerk attached to the office of Adv. A.J. Antony, was examined to prove that the accident was the outcome of negligence on the part of the 1[st] respondent alone. It is relevant to note that Adv. A.J. Antony is the counsel for the appellant before the Tribunal. He himself offered his clerk as a witness to prove the negligence. In fact, PW2 is a tutored and he had given evidence while working as clerk of the M.A.C.A. NO. 1506 OF 2010 7 counsel for the appellant. Although the Tribunal relied in the evidence of PW2 to find contributory negligence. I am not inclined to give any credence to the evidence of PW2. None other than PW2 was examined to prove the negligence otherwise. Therefore it is held the Tribunal rightly found negligence in the proportion 50:50 and it does not require any interference. 11. The 2[nd] challenge is regarding the quantum of compensation. It is submitted by the learned counsel for the appellant that though the deceased Jamsheer was earning Rs. 6,000/- as his monthly income at the time of accident by doing gold covering works, the Tribunal not accepted the said income. 12. In the synopsis of this appeal it has been stated that the deceased was aged 17 years at the time of accident though it has been stated in the petition that the deceased was aged 20 M.A.C.A. NO. 1506 OF 2010 8 years at the time of accident. Though a certificate alleged to be issued by a person named N. Gireeshdas stating that Jamsheer was worker in his concern for 2000 onwards and received salary of Rs. 6,000/- per month as per letter dated 4.1.2008, the same is not proved. If the age shown in the synopsis of this appeal as 17 and 20 in the petition, the age of Jamsheer itself is doubtful. The appellants not produced any documents to prove the age of the deceased. The accident was in the year 2002 and the certificate shows that the deceased was working from 2000 onwards in Mangalya Gold Covering Works and an expert in the said work. It is at this juncture, the learned counsel for the appellants submitted that Rs. 3,500/- to be fixed in this case following the ratio in [(2011) 13 SCC 236], ## **Ramachandrappa v. Manager, Royal Sundaram** ## **Alliance Insurance Company Ltd.** 13. The submission is not opposed by the M.A.C.A. NO. 1506 OF 2010 9 learned counsel for the insurer. Therefore, following the ratio in **Ramachandrappa's** Case (Supra), Rs. 3,500/- is fixed as a monthly income in this case as against Rs. 2,100/- fixed by the Tribunal. 40% addition also is given towards future prospects following the ratio in [2017 16 SCC 650], **National Insurance Company Ltd. v.** **Pranay Sethi & Ors** , since the deceased was aged below 40 years at the time of accident. In this case deduction is 1/3 since only three dependents, viz appellants No. 1,2 and 4. The 3[rd] appellant is none other than the husband of the 4[th] appellant as deposed by him as PW1, and his dependency is not established. Thus the disability income is recalculated as under; 3500 + 1400 X 12 X 18/3 X 2 = 7,05,600/- Apart from that, appellants No. 1 and 2 are entitled to get Rs. 80,000/- towards 'loss of consortium' at the rate of Rs. 40,000/- each following the ratio. Similarly Rs. 15,000/- each M.A.C.A. NO. 1506 OF 2010 10 under the head of 'funeral expense' and 'loss of estate' also is entitled. 14. It is noticed that the Tribunal granted Rs. 40,000/- under the head 'love and affection' the same cannot be granted in view of the decisions in [AIR 2020 SC 3076], **United India** **Insurance Co.Ltd v. Satinder Kaur.** Thus the total compensation in this matter would come to 705600 + 80000 + 15000 + 15000 = 8,15,600/- Since contributory negligence found against the deceased would come to 50%, the appellants are entitled to get only 50% of the amount assessed, viz, **Rs. 4,07,800/-.** 15. In the result, this appeal is allowed. It is held that the appellants are entitled to get **Rs.4,07,800/-** (Rupees Four Lakh Seven Thousand and Eight Hundred Only)as compensation inclusive of the amount granted by the Tribunal and the same includes Rs. 50,000/- granted under Section 140 of the Motor Vehicles Act at the rate of 7.5% M.A.C.A. NO. 1506 OF 2010 11 per annum from the date of petition till the date of deposit or realization. 16. The Insurance Company is directed to deposit the amount in the proportion, 45% in the name of the 1[st] appellant, 35% in the name of the 2[nd] appellant and 20% in the name of the 4[th] appellant. No amount is entitled by the 3[rd] appellant who is the husband of the 4[th] appellant. The Insurance Company is directed to deposit the amount in the name of the appellants 1,2 and 4, within two months from today. On deposit, they are entitled to release the same. ## **Sd/-** ## **A.BADHARUDEEN, JUDGE.** SK/1.9.22