Subhadra and others v. C.K. Rajan and others

MACA NO. 2476 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943** ## **MACA NO. 2476 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 718/2003 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH** ## **PARAVUR, ERNAKULAM** ## **APPELLANT/S:** 1 SUBHADRA, W/O. VELAYUDHAN,EDAKKULATHU HOUSE, MANJUMMAL,, ELOOR P.O., ELOOR VILLAGE, PARAVUR TALUK,, ERNAKULAM DISTRICT. 2 UMA DO.VELAYUDHAN DO. DO. 3 UNNI SO.VELAYUDHAN DO. DO. BY ADVS. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.N.T.NANDAKUMAR PARAVUR **RESPONDENT/S:** 1 C.K. RAJAN, CHUNDANTHURUTHIL HOUSE, S/O.KUMARAN, POIKKATTUSSERY P.O.,, CHENGAMANADU VILLAGE, ALUVA TALUK,, ERNAKULAM DISTRICT. 2 JYOTHI RAMACHANDRAN, SHANTHI BHAVAN, VAPPALASSERY KARA,, CHENGAMANADU P.O., ALUVA TALUK,, ERNAKULAM DISTRICT. 3 NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, ANGAMALI P.O., PIN-683572, ERNAKULAM DISTRICT. BY ADVS. SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD. KKM.SHERIF A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2476 OF 2009 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.718 / 2003 on the file of the Motor Accidents Claims Tribunal, N. Paravur. The respondents in the appeal were the respondents before the Tribunal. 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 E.K. Velayudhan (deceased), husband of the 1[st] appellant and father of the appellants 2 and 3. It was their case that, on 26.01.1999, while the deceased was riding pillion on a motor cycle bearing registration No.KL 7J 8420, driven by one Manoharan along the Angamali – Aluva National Highway , when they reached near Mangalpuzha bridge, a lorry bearing registration No.KEF 9658 (lorry) coming from the opposite direction and driven by the 1[st] respondent in a negligent manner, hit the motor cycle. The deceased sustained fatal injuries and instantaneously lost his life. The deceased was employed as Senior Postmaster in the Post and Telegraphic Department, Changampuzha Nagar, MACA NO. 2476 OF 2009 3 Kalamasseri and was drawing a monthly income of Rs.5,500/-. The lorry was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellants were the dependents of deceased. They claimed a compensation of Rs.5,05,000/- from the respondents, which was limited to Rs.5,00,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent had filed a written statement and an additional written statement admitting that the lorry had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the rider of the motor cycle, who rode the motor cycle on the wrong side of the road. The claim petition was bad for non-joinder of necessary parties. Therefore, the claim petition be dismissed. 5. The appellants produced and marked Exts.A1 to A4 and the 3[rd] respondent produced and marked Exts.B1 to B5 in evidence. 4 MACA NO. 2476 OF 2009 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by holding that the appellants are entitled for a compensation of Rs.3,77,455/-, but deducted 10% of the compensation amount as composite negligence of the deceased. Hence, the Tribunal held that the appellants are entitled to recover an amount of Rs.3,24,747/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate cost. 7. Aggrieved by the finding of contributory negligence of the deceased and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. G. Balamuraleedharan, the learned counsel appearing for the appellants/petitioners and Sri. Lal K. Joseph, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The questions that arise for consideration in this appeal are: 1. Whether the finding of composite negligence on the MACA NO. 2476 OF 2009 5 deceased is sustainable in law ? 2. Whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.I** 10. Ext.B2 charge sheet filed by the Aluva Police in crime No.82/1999 establishes that the accident occurred due to the negligence of the 1[st] respondent. 11. The Division Bench of this Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648] has succinctly held that, production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act. The charge sheet can be accepted as evidence of negligence against the accused driver. If any of the parties do not accept such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet; only then charge sheet would fall into a pale of insignificance. 12. Again in **Kolavan and Others vs. Salim and Others** [2018 (1) KLT 489] another Division Bench of this Court has held that once charge sheet is filed, the Tribunal MACA NO. 2476 OF 2009 6 will not be justified in finding negligence, contrary to the findings in the charge sheet merely relying on the scene mahazer prepared in the case, without there being any direct or corroborative evidence. 13. In the instant case, the Tribunal based on the scene mahazer has arrived at the conclusion that there was contributory negligence on the part of the drivers of the motor cycle as well as the lorry. Therefore, the Tribunal arrived at a finding that 10% of the compensation amount has to be deducted as composite negligence of the deceased. 14. In **Sajad Saheer vs Rajeev** [2017 (3) KLT SN 34 case no.45], this Court has held that there can be no contributory negligence attributed against the pillion rider. 15. Likewise, a three Bench of the Honourable Supreme Court in **Khenyei vs. New India Assurance Co. Ltd. & others** [(2015) 3 KHC 17] has held that in a case of contributory negligence, it is the prerogative of the injured claimant/legal representatives of the deceased to proceed MACA NO. 2476 OF 2009 7 against either of the joint tortfeasors. 16. As already observed, the Police in Ext.B2 charge sheet has found that the accident happened due to the negligence of the 1[st] respondent. The respondents have not let in any evidence to discredit the charge sheet. In the said factual and legal matrix, the finding of the Tribunal that 10% of the compensation amount has to be deducted as composite negligence is erroneous and wrong and is to be set aside. Hence, I answer question No.1 in favour of the appellants and set aside the deduction of 10% towards composite negligence. ## **Question No.II** ## **Negligence and Liability** 17. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The 3[rd] respondent had admitted that the lorry had a valid insurance coverage and had not proved that the 2[nd] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of MACA NO. 2476 OF 2009 8 the 2[nd] respondent arising out of the accident. ## **Income of the deceased** 18. The appellants had claimed that the deceased was a Senior Grade Postmaster in the Post and Telegraphic Department and was earning a monthly income of Rs.5,500/-. In order to substantiate their assertion, the appellants had produced Ex.A3 salary certificate, wherein it is certified that the deceased was earning a monthly income of Rs.5,491/- as on 14.01.2004. 19. On a reading of Ext.A3, it is seen that the deceased was drawing a monthly salary of Rs.3880/-, DA of Rs.854/and HRA of Rs.582/- totalling to an amount of Rs.5,361/-. Therefore, I fix the monthly income of the deceased at Rs.5,316/- instead of Rs.2,440/- fixed by the Tribunal. Since the said amount falls within the income tax exemption slab, no amount is deducted towards income tax. ## **Multiplier** 20. The deceased was aged 54 years at the time of the accident. 21. In the light of the law laid down in **Sarla Varma** MACA NO. 2476 OF 2009 9 **vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '11'. ## **Dependents of the deceased** 22. It is undisputed that the appellants were wife and children of the deceased, who are three in number. . 23. Going by the law in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 24. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 54 years and was a permanent employee at the time of the accident, I hold that the appellants are entitled to future prospects at 15% on the compensation for loss due to dependency. ## **Loss due to Dependency** 25. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at MACA NO. 2476 OF 2009 10 Rs.5,316/-, multiplier at 11, future prospects at 15% and after deducting one third of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.5,37,979/-, instead of Rs.3,22,080/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 26. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled to 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. 27. In the instant case, the Tribunal has awarded only an amount of Rs.2,500/- under the head 'funeral expenses' and Rs.10,000/- towards 'loss of consortium'. Therefore, I award a further amount of Rs.12,500/- under the head 'funeral expenses' and enhance the compensation under the head 'loss of consortium' by a further amount of Rs.1,20,000/- i.e. Rs.40,000/- each, to each of the appellants. I also award an amount of Rs.15,000/- under the head 'loss MACA NO. 2476 OF 2009 11 of estate'. ## **Compensation for pain and suffering and loss of love** ## **and affection** 28. In paragraph 19 of **Sarla Verma** (supra), the Honourable Supreme Court has held that in the case of instantaneous death, no amount shall be awarded under the head ‘pain and suffering’. 29. Similarly, in **New India Assurance Company Ltd. vs. Somvathy and others :** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount of compensation shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. 30. Therefore, I set aside the amounts of Rs.5,000/awarded under the head 'pain and suffering' and Rs.20,000/awarded under the head 'loss of love and affection'. 31. With respect to the compensation awarded under the heads 'transportation expenses' and 'damage to clothing', I find that the Tribunal has awarded reasonable MACA NO. 2476 OF 2009 12 and just compensation. 32. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [416 x 367] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>awarded by modified<br>No the and<br>Tribunal(in recalculated<br>rupees) by this<br>Court(in<br>rupees)<br>1. Transportation 1,000 1,000<br>expenses<br>2. Damage to clothing 250 250<br>3. Funeral expenses 2500 15,000<br>4. Pain and suffering 5000 0<br>5. Loss of estate 0 15,000<br>6. Loss of consortium 10,000 1,20,000<br>7. Loss of love and 20,000 0<br>affection<br>8. Loss of dependence 3,22,080 5,37,979<br>Total 3,60830 – 6,89,300<br>10%<br>contributory<br>negligence =<br>Rs.3,24,747<br>**----- End of picture text -----**<br> 33. Even though the appellants had claimed only an MACA NO. 2476 OF 2009 13 amount of Rs.5,00,000/- in the claim petition, in the light of the law in **Sarla Verma** and **Pranay Sethi** (supra) that the dependents of the deceased are entitled to future prospects and also compensation under the conventional heads, I have awarded more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down by the Honourable Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed by enhancing the compensation to Rs.3,64,553/- and adding the amount of Rs.36,083/- that was deducted towards 10% contributory negligence totaling to an amount of Rs.4,00,636/- (Rupees Fourt lakh six hundred and thirty six only) with interest on the said amount at the rate of 7% per annum from the date of petition till the date of realisation, after deducting interest for a period of 570 days and as ordered by this Court in C.M.Appln. No.1/2009 on 14.09.2021, and proportionate cost. The 3[rd] respondent - insurer of the lorry is ordered to deposit the amount of Rs.4,00,636/- with 14 MACA NO. 2476 OF 2009 interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall immediately on the deposit being made, disburse the compensation amount to the appellants/petitioners in the ratio of 50:25:25 and in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc