Sunitha and Pooja Pushparaj v. Annie Babu, Jose and The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** ## **MACA.No.1913 OF 2013** **AGAINST THE AWARD IN OP(MV)No.2440/2005 DATED 08-02-2013 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS/PETITIONERS:** **1 SUNITHA, AGED 42 YEARS W/O. LATE PUSHPARAJ 2 POOJA PUSHPARAJ, AGED 20 YEARS, D/O. LATE PUSHPARAJ, BOTH ARE RESIDING AT AMBALASSERY HOUSE, THRIKKUMARAMKUDAM P.O, AYYANTHOLE, THRISSUR DISTRICT BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **1 ANNIES BABU, W/O. BABU, RESIDING AT KURUTHUKULANGARA HOUSE, P.O, CHEVOOR, THRISSUR – 680 027. 2 JOSE, S/O OUSEPH, RESIDING AT CHITTILAPPILLY HOUSE, P.O. CHERPU, THRISSUR - 680 561. 3 THE NATIONAL INSURANCE COMPANY LIMITED, AMBIKA ARACDE, M.G ROAD, THRISSUR – 680 001. R3 BY ADVS. SRI.K.B.RAMANAND SMT. DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.1913 of 2013 2 ## **J U D G M E N T** The claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal have come up in this appeal challenging the decision of the Tribunal. 2. One Pushparaj aged 44 years died on 31.05.2005 on account of the injuries sustained by him in a motor accident took place on 14.04.2005. It is stated in the claim petition that he was engaged in business. His wife and daughter were the claimants in the proceedings. A sum of Rs.10,00,000/- was the claim made in the proceedings. Though the Tribunal found that the claimants are entitled to a sum of Rs.7,73,200/- by way of compensation, an award was passed only for 80% of the same holding that there was contributory negligence on the part of the deceased to the tune of 20%. The claimants are aggrieved by the said decision of the Tribunal. 3. Heard the learned counsel for the parties. 4. Though it is stated in the claim petition that the M.A.C.A No.1913 of 2013 3 deceased was earning a sum of Rs.10,000/- per month, in the absence of supporting evidence, the Tribunal has reckoned the monthly income of the deceased only at Rs.5,000/- for the purpose of computing the compensation payable to the claimants for loss of dependency. 5. In the absence of any evidence in support of the plea as regards the income of the deceased, I am of the view that in the light of the decision of the Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited** , [(2011) 13 SCC 236], where the Apex Court has reckoned the monthly income of a similarly placed person at Rs.4,500/- in the context of the accidents took place in the year 2004, I am of the view that in so far as the accident in the instant case is one that took place in the year 2005, the Tribunal cannot be found fault with for having reckoned the monthly income of the deceased at Rs.5,000/- for the purpose of computing the compensation for loss of M.A.C.A No.1913 of 2013 4 dependency. However, it is seen that the Tribunal had not taken note of the future prospects of the deceased while arriving at the compensation payable under that head. The compensation payable under that head is therefore to be re-computed. In the light of the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], as the dependants of the deceased were two in number, one third of the income has to be deducted towards personal expenses, and as the deceased was aged above 40 and below 50, 25% of the income reckoned has to be added towards future prospects for arriving at the multiplicand while computing the compensation for loss of dependency. As the deceased was aged 44, the multiplier to be applied for the said purpose is '14'. If compensation for loss of dependency is arrived at on that basis, the same would come to Rs.7,00,000/(Rs.5,000x12x2/3x125/100x14). As the Tribunal has granted only a sum of Rs.5,60,000/- towards compensation under that 5 M.A.C.A No.1913 of 2013 head, the claimants would be entitled to an additional compensation of Rs.1,40,000/-. 6. It is trite that a conventional amount has to be granted in all cases of death towards compensation for pain and suffering. The Tribunal has granted a sum of Rs.18,000/- under that head. Having regard to the facts and circumstances of the case, especially the fact that the death of the deceased was almost 45 days after the accident, I am of the view that Rs.25,000/- would have been the appropriate compensation payable to the claimants under that head. The claimants are, therefore, granted a sum of Rs.7,000/- by way of additional compensation. 7. In the light of the decision of the Apex Court in **Pranay Sethi** , and having regard to the fact that the accident in the instant case is one that took place in the year 2005, I am of the view that the Tribunal should have granted Rs.35,000/- to the wife of the deceased towards compensation for loss of 6 M.A.C.A No.1913 of 2013 consortium. Similarly, the Tribunal should have granted to the claimants Rs.12,500/- towards compensation for loss of estate and Rs.12,500/- towards funeral expenses. The Tribunal has granted only a sum of Rs.35,000/- under those three heads. The claimants are, therefore, entitled to a further sum of Rs.25,000/- under those heads. 8. Coming to the compensation for loss of love and affection, in the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782) and having regard to the fact that the accident in the instant case is one that took place in the year 2005, I am of the view that the daughter of the deceased is entitled to a sum of Rs.40,000/-. As the claimants were granted only a sum of Rs.25,000/- under that head, they are entitled to a sum of Rs.15,000/- by way of additional compensation. 9. The compensation granted by the Tribunal under 7 M.A.C.A No.1913 of 2013 the remaining heads appear to be in order. 10. The deceased was riding a motor cycle at the time of accident. He was knocked down by an autorickshaw. It is seen that in the crime registered in connection with the accident, after due investigation, the police laid a charge against the driver of the offending autorickshaw. There was no independent evidence to prove the negligence of the driver of the autorickshaw. In other words, in the light of the decision of this court in [ **New India Assurance Co. Ltd.** v. **Pazhaniammal** (2011(3) KLT 648)], the Tribunal should have held that the accident occurred on account of the negligence of the driver of the autorickshaw. It is seen that the Tribunal has found contributory negligence on the part of the deceased based on the place of occurrence shown in the scene mahazer prepared by the police in connection with the case registered. It is now trite that when a charge sheet is laid after considering the scene mahazer and other related documents, in the 8 M.A.C.A No.1913 of 2013 absence of any evidence discrediting the police investigation, the Tribunal shall not arrive at a different conclusion based on scene mahazer and related documents as to the negligence. (See **Fazal Mahmood M.T. And Others v. Rasheed C.P and Others** [2015 (4) KHC 440]) In the circumstances, the finding rendered by the Tribunal as regards the contributory negligence on the part of the deceased is liable to be vacated and I do so. As noted earlier, though the Tribunal found that the claimants are entitled to a sum of Rs.7,73,200/- by way of compensation, an award was passed in their favour only for Rs.6,18,560/-. The claimants are therefore entitled to the deficit namely Rs.1,54,640/- also by way of additional compensation. 11. In short, the claimants are entitled to Rs.3,41,640/- by way of additional compensation. In the result, the appeal is allowed granting to the claimants a sum of Rs.3,41,640/- by way of additional compensation. Needless to say, the claimants will be entitled 9 ## M.A.C.A No.1913 of 2013 to interest for the additional compensation at the rate of 7.5%. It is clarified that all other directions contained in the impugned award will stand. The parties will be at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. **Sd/P.B.SURESH KUMAR, JUDGE.** DK