Sudha and others v. Jacob and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 8TH DAY OF SEPTEMBER 2015/17TH BHADRA, 1937** **MACA.No. 1784 of 2015 () -------------------------** **AGAINST THE AWARD IN OPMV 641/2011 of M.A.C.T.,PERUMBAVOOR DATED 29-01-2015 APPELLANT(S)/PETITIONERS: -------------------------** **1. SUDHA, AGED 53 YEARS, W/O. CHANDRAN, ARAKKAL HOUSE, PERINGENPARAMBU, THURAVUR P.O., THURAVUR VILLAGE, ALUVA.** **2. SINI, AGED 32 YEARS, W/O. BIJU, VIRUTHAMKANDATHIL HOUSE, ALATTUCHIRA P.O., KODANADU VILLAGE, KUNNATHUNADU TALUK.** **3. SIJI, AGED 30 YEARS, W/O. BABU, PANANCHIKKAL HOUSE, NORTH KIDANGOOR P.O., THURAVUR VILLAGE, ALUVA TALUK.** **BY ADVS.SRI.REJI GEORGE SMT.ANUPAMA JOHNY** **RESPONDENT(S)/RESPONDENTS :** **---------------------------** ## **1. JACOB** **S/O. MATHAI, KAREDATH HOUSE, THABORE P.O., MOOKKANNOOR - 683 577.** **2. JOHNSON K.B., S/O. BABY, KOORAN HOUSE, LAKSHAM VEEDU, KALARKUZHI, MOOKKANNOOR - 683577.** **3. I.C.I.C.I. LOMBARD GENERAL INSURANCE CO. LTD ZENITH HOUSE, KESHAVRAO KHADE MARG, MAHALAXMI, MUMBAI - 400 034.** **R3 BY ADV. SRI.R.AJITH KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OKB** ## P.R. RAMACHANDRA MENON & K. HARILAL, JJ. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ M.A.C.A.No.1784 of 2015 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 8[th] day of September, 2015. ## JUDGMENT ## Ramachandra Menon, J. The appellants/claimants are before this Court contending that the compensation of Rs.7,99,822/-, awarded by the Tribunal in respect of the death of the deceased, aged 54 years, is inadequate and that the deduction of the compensation by 5% in view of the contributory negligence attributed on the deceased rider of the scooter, who hit against the autorikshaw, bearing No.KL-41/D-4251 is not correct or proper. 2. The accident was on 6.5.2011 at 11.15 A.M. when there occurred a collision between and scooter ridden by the deceased and the autorikshaw, bearing No.KL-41/D-4251, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured by the 3[rd] respondent. Admittedly, both the vehicles were MACA.1784/15 **:2:** proceeding in the same direction and, according to the claimants, the driver of the autorikshaw took a sudden swerve to one side of the road without any signal, as a result of which the scooter ridden by the deceased dashed against the autorikshaw, resulting in fatal injuries leading to the death of the deceased. 3. According to the claimants, the accident was only because of the rash and negligent driving of the autorikshaw by the 1[st] respondent, which is sought to be compensated to an extent of Rs.20 lakhs. The 1[st] and 2[nd] respondents chose to remain ex parte. The claim was resisted by the Insurance Company raising various grounds and asserting that there was no negligence from the part of the driver of the autorikshaw; that the accident was occurred only because of the negligence on the part of the rider of the scooter, i.e., the deceased, who was riding the scooter without any valid driving licence and further that he was not wearing the head gear, which was in violation of the statutory provisions and resulting in serious head MACA.1784/15 **:3:** injuries, ultimately resulting the death of the deceased. It is seen that no oral evidence was adduced by either side and the only evidence consists of Exts.A1 to A12 produced from the part of the claimants. After analysing the materials on record, the Tribunal observed that, in spite of filing I.A.No.1470 of 2014 by the Insurance Company for causing production of the driving licence of the deceased and further steps, it was never produced and hence the petition was closed drawing adverse inference against the deceased. Nonpossession of the valid driving licence by the deceased was also evident from the police records as listed by the Tribunal in paragraphs 16 and 17 of the award and elsewhere. After discussing the relevant facts and circumstances, the Tribunal held that the deceased had also contributed to the accident, who was riding the scooter behind the autorikshaw without maintaining the safe distance, that too without valid driving licence and without wearing a helmet. Still, the Tribunal chose to fix negligence only to an extent of MACA.1784/15 **:4:** 10% upon the deceased. Considering the fact that it was a death claim and observing that a lenient view was required to be taken, the ratio of negligence of the 2[nd] respondent and the deceased was fixed as 95%:5%, thus, enabling the claimants/appellants herein to obtain 95% of the compensation awarded. This, in turn, is sought to be challenged by the appellants stating that the same is not correct or proper. 4. As mentioned hereinbefore, no evidence was adduced with regard to the monthly income of the deceased or as to the negligence or to the effect that the scooter was ridden by the deceased with valid driving licence. Despite the non-availability of any evidence, the Tribunal chose to reckon Rs.5,000/- as the monthly income of the deceased, considering the fact that the accident occurred in the year 2011 and that, he was maintaining a family consisting of the claimants/appellants. The amounts awarded by the Tribunal under different heads are as given below: MACA.1784/15 **:5:** |**Sl.**<br>**No.**|**Head of Claim**<br>**Compensation for**|**Amount**<br>**claimed**<br>**(in Rs.)**|**Amount**<br>**awarded**<br>**(in Rs.)**|**Amount**<br>**awarded**<br>**(in Rs.)**|**Basis- vital details in a**<br>**nut shell**| |---|---|---|---|---|---| |1|Funeral expense|0||25,000|As per decision of<br>Hon:SC| |2|Transport to hospital|25,000||5,000|| |3|Damage to clothing etc.|10,000||1,000|| |4|Medical Bills|75,000||50,366|Actual medical bills| |5|Loss of dependency|20,00,000||5,05,956|Rs.5750x2/3x12x11| |6|Pain and suffering|50,000||10,000|Died on the same day| |7|Loss of estate|50,000||2,500|| |8|Loss of consortium|500,000||1,00,000|Spouse 49 years| |9|Love and affection|5,00,000||1,00,000|| |10|Future prospects|15,00,000||Nil|| ||Total|50,00,000<br>Limited to<br>20,00,000||7,99,822|Rs.7,59,831/-(being<br>95% of a total sum of<br>Rs.7,99,822/-)<br>along<br>with interest @ 9% p.a| 5. After hearing the learned counsel for the appellants at length, this Court finds that, in view of the available materials on record, the reason for fixing the monthly income as Rs.5,000/- by the Tribunal is not liable to be interfered under any circumstance. With regard to the fixation of contributory negligence to an extent of 5% and the reduction of compensation by 5%, the observations made by the Tribunal in paragraphs 12 to 17 and 20 are relevant. They are MACA.1784/15 **:6:** ## extracted below for convenience of reference. “12. The records show that both the autorikshaw driven by R2 and the scooter driven by the deceased were moving in the same direction i.e. from south to north. It is seen that the autorikshaw had suddenly swerved to the right without giving out any signal by which the right side rear portion of the autorikshaw had hit at the scooter driven by the deceased, resulting in fatal injuries to him, to which he had succumbed to on the same day. 13. The report of the AMVI marked as Ext.A4(a) given after inspection of the scooter shows that all the damages noted herein are seen to have been caused on the front side of the scooter. It shows that the accident had occurred by R2 suddenly swerving the autorikshaw to one side, and by the scooter driven by the deceased moving behind R2, hitting at the backside of the autorikshaw. 14. So the incident that had actually occurred in this case is seen as the scooter driven by the deceased hitting at the rear side of the autorikshaw driven by R2, as R2 had taken a sudden swerve may be without giving out signals to one side. 15. The deceased driving the scooter without maintaining the safe distance from the vehicle moving in front, is a negligent act on his side which is seen to be one of the reasons resulting in the accident. Further there is no denial by the petitioners to the contention of R3 that the deceased was not having a licence and was not wearing a helmet as mandated by the rules. 16. R3 had filed I.A.1470/2014 directing the petitioners herein to produce the driving licence of the deceased before this Tribunal. Though notice in the said petition was received by the petitioners, they have not produced the same, and so the petition was closed drawing adverse inference against him. MACA.1784/15 **:7:** 17. The documents as the FIS, FIR and the charge sheet show that the scooter was driven behind the autorikshaw and the sudden swerving of the autorikshaw to the right side had resulted in the accident. The absence of licence for the deceased which shows his incompetency in driving the scooter also would have contributed to the accident. 20. The deceased driving the scooter without maintaining the safe distance that too in gross violation of the rules, by not wearing a helmet and by not holding a licence, is seen to have been negligent to a considerable extent and the petitioners herein are entitled to get 90% of the total compensation, in this case.” From the above, it is crystal clear that the scooter was being ridden by the deceased without possessing a valid driving licence, despite the mandate of Section 3 of the Motor Vehicles Act and thus, in clear contravention of the provisions of the M.V. Act. The gravity of the injuries, particularly, the head injury, turned to be fatal, because of non wearing of helmet, though the same cannot be termed as the cause or reason for the accident. Obviously, the autorikshaw was proceeding in front, in the same direction and even if it is presumed that the autorikshaw was swerved to one side by its driver without any signal, it still remains a fact that the deceased was not in a position MACA.1784/15 **:8:** to control his vehicle, which only reflects the fact that he was neither maintaining the safe distance between the two vehicles nor that he could apply brakes on time or else that he did not know riding a scooter. With regard to the question whether fixation of contribution by limiting the same only to an extent of '5%' or whether it should have been a higher extent, this Court does not intend to express any opinion in this appeal preferred by the claimants/appellants. To say the least, the compensation awarded by the Tribunal in no way does require to be enhanced under any circumstances, in view of the undisputed facts and figures. 6. The Tribunal has referred to the course to be pursued for working out the compensation in terms of loss of dependency, with reference to the mandate stipulated by the Supreme Court in the decision in Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]. This is evident from paragraphs 26 to 28 of the award. After fixing the monthly income as Rs.5,000/-, the Tribunal, MACA.1784/15 **:9:** considering the age factor of the deceased who had crossed the age of 50 years, added 15% more so as to fix the multiplicand. It was accordingly that Rs.5,750/was taken as the monthly salary of the deceased and after deducting 1/3[rd] towards personal expense adopted and applied the relevant multiplier, arriving at the loss of dependency as Rs.5,05,946/-. Based on the very same judgment passed by the Apex Court, a sum of Rs.1,00,000/- has been awarded towards the loss of 'consortium' and a further sum of Rs.1,00,000/- towards the loss of 'love and affection', besides granting a sum of Rs.25,000/- towards funeral expenses. We do not find any reasonable ground to call for interference. The appeal is devoid of merits. The same stands dismissed accordingly. Sd/- ## P.R. RAMACHANDRA MENON, JUDGE Sd/- K. HARILAL, JUDGE okb.