The Oriental Insurance Company Ltd. v. Abdul Sathar and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** ## **TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937** ## **MACA.No. 1605 of 2011 ( )** **-------------------------AGAINST THE AWARD IN OPMV 11/2006 of M.A.C.T.,NEYYATTINKARA DATED 06-04-2011** **--------------------------------------------------** **APPELLANT(S)/2ND RESPONDENT IN THE OP :** **---------------------------------------------------------------------** **THE ORIENTAL INSURANCE CO.LTD.** **REPRESENTED BY ITS AUTHORISED SIGNATORY,, REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18.** ## **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENT(S)/CLAIMANTS/IST RESPONDENT IN THE OP :** **-------------------------------------------------** ## **1. ABDUL SATHAR, S/O KUNJASAN,** **F/O.FEROZKHAN, SREE VIHAR, KANJIRAMPARA,, KANJIRAMPARA.P.O., VATTIYOORKAVU VILLAGE,, THIRUVANANTHAPURAM TALUK.695 030.** ## **2. NASEEMA BEEVI, M/O.FEROZKHAN,** - **-DO- -DO- 695 030.** ## **3. MUSAMMILKHAN, S/O.SATHAR,** - **-DO- -DO- 695 030.** ## **4. MADHAVAN.K.,** **S/O.KUNJUKRISHNAN, OMKAR BHAVAN, POTTAYIL,, PERUMKAVU.P.O., PEYADU, TRIVANDRUM-695 573.** ## **Addl. 5. SURUMI, AGED 25 YEARS,** ## **D/O.ABDUL SATHAR, SREE VIHAR, KANJIRAMPARA, KANJIRAMPARA PO., VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT.** **R1-R3 & ADDL.5 BY ADV. SRI.R.NIKHIL R4 BY ADV. SRI.D.KISHORE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VS** ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ. --------------------------------------------------M.A.C.A. No.1605 of 2011** **---------------------------------------------------** Dated this the 5[th] day of January, 2016 ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** This appeal is filed by the Oriental Insurance Company Ltd., aggrieved by the award passed by the Motor Accidents Claims Tribunal, Neyyantinkara in O.P. (M.V.)No.11/2006 dated 06.04.2011. 2. The appellant/Insurance company was the second respondent, the respondents 1 to 3 and additional 5[th] respondent were the claimants and the 4[th] respondent herein was the first respondent, before the Tribunal. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988(hereinafter called 'the Act' for short) for compensation for the death of one Firozkhan on 26.04.2005. He was driving the motor cycle bearing Registration No.KL-01L/6383 from east to west through Malayinkeezhu-Pappanamcode public road and the 4[th] respondent was driving a motor cycle bearing Registration _M.A.C.A. No.1605 of 2011 -2-_ No.KL-01W/9302 from west to east through the same road. When they reached a place called Vilavoorkal their motor cycle collided and Firoskhan succumbed to the injuries on 29.04.2005 from KIMS Hosptial, Thiruvananthapuram. The respondents 1 to 3 and 5 herein then filed the claim petition for a total compensation of Rs.16,00,000/-. The 4[th] respondent was set _ex-parte_ and the appellant herein filed a written statement and contested the case. 4. On the side of the claimants one Dominic Maichel and Abdul Sathar were examined as PWs 1 and 2 respectively and Exts.A1 to A26 were got marked. No oral evidence was adduced on the side of the respondent/appellant. However, Exts.B1 to B4 were got marked. After appreciating the rival contentions and the evidence on record, the learned Tribunal allowed the application and passed an award for Rs.10,54,324/- with interest at the rate of 9% per annum from 04.01.2006 till the date of realisation of the amount. 5. Heard Sri.A.R.George, the learned counsel _M.A.C.A. No.1605 of 2011 -3-_ appearing for the appellant, Sri.Nikhil.R, the learned counsel appearing for the respondents 1 to 3 and Addl. 5[th] respondent and Sri.D.Kishore, the learned counsel appearing for the 4[th] respondent. 6. Manifold contentions have been raised by the appellant against the award passed by the Tribunal. The core contention is that the Tribunal had erred in applying the dictum laid down by the Honourable Apex Court in _**Sarala Varma v. Delhi Transport Corporation**_ reported in 2010 (2) KLT 802 (SC) in the matter of deduction of income reckoning the personal expenses which the deceased would have incurred had he been alive, while computing compensation for loss of dependency. The contention is that the Tribunal had deducted only 1/3[rd] from the monthly income of the deceased even after taking note of the fact that he was a bachelor and that the claimants are his parents and siblings. It is contended that instead of making such a deduction 50% of the income ought to have been deducted in conformity with the dictum laid down in _M.A.C.A. No.1605 of 2011_ _-4-_ **Sarala Varma** 's case (supra). Evidently it is contended that in the absence of any evidence the siblings ought not have been considered as dependants and the parents alone ought to have been considered as dependants. The learned counsel also contended that the Tribunal went wrong in not properly appreciating the contentions raised based on Ext.B1 which is a complaint lodged by the 4[th] respondent in relation to the accident. 7. Per contra, the learned counsel appearing for respondents 1 to 3 and 5 contended that it is incorrect to say that the Tribunal had wrongly applied the dictum laid down by the Apex Court in **Sarala Varma** 's case( _supra_ ). The learned counsel further contended that the Tribunal had in fact, gone wrong in making a deduction towards contributory negligence relying on the decision of this Court in _**Siby Paul v. Praveen Kumar**_ reported in _**2009**_ _**(1) KLT 322,**_ that too, after returning a definite finding to the effect that the deceased could not be said to have been contributed to the accident. 8. While appreciating the rival contentions as _M.A.C.A. No.1605 of 2011_ _-5-_ referred above certain indisputable facts have to be looked into. The accident and the policy are also not disputed. The fact that the vehicles being driven by the deceased and the offending vehicle were proceeding then, in the opposite directions, is also not disputed. As noticed hereinbefore, the 4[th] respondent was driving the vehicle from west to east and the deceased was driving the vehicle from east to west, at the relevant point of time. The place of occurrence as revealed from Ext.A3 scene mahazar would indicate that the accident occurred on the correct side pathway of the motor cycle which was being driven by the deceased Firoskhan. To be precise, going by Ext.A3 which was prepared on 27.04.2005 by the Sub Inspector of Police, Malayinkizhu, the spot of accident is identified as the tarred portion at a distance of 60 cms north from the southern tarred end, where the tarred road had a width of 3.97 metres. Needless to say, it would indicate that the accident occurred on the wrong side of the 4[th] respondent. The accident occurred on 26.04.2005 and Firoskhan succumbed to the injuries on 29.04.2005. _M.A.C.A. No.1605 of 2011_ _-6-_ Respondents 1 and 2 are the parents of the deceased and 3 and 5 are his siblings. As noticed hereinbefore, one of the contentions of the learned counsel appearing for the appellant, based on the decision in **Sarala Varma** 's case ( _supra_ ), is to the effect that since the deceased was a bachelor, deduction for personal and living expenditure ought to have been 50% of the monthly income instead of its 1/3[rd] . In the light of the decision in **Sarala Varma** 's case ( _supra_ ) the said contention is only to be sustained. In unambiguous terms, in paragraph 31 thereunder the Honourable Apex Court held that in regard to bachelors 50% of the income has to be deducted as personal and living expenses as it should be assumed that the bachelor would spend more money on himself. The Honourable Apex Court has also taken note of the possibility of such a bachelor getting married in a short time and consequential cut in the contribution to parents and siblings. Obviously, in this case the Tribunal had deducted only 1/3[rd] towards the personal and living expenses of the deceased instead of making a deduction _M.A.C.A. No.1605 of 2011 -7-_ of 50% in terms of dictum laid down in **Sarala Varma** 's case( _supra_ ). The learned counsel appearing for respondents 1 to 3 and 5 though attempted to justify the findings of the Tribunal, we are afraid that the said contention cannot be upheld in the light of the Honourable Apex Court in **Sarala Varma** 's case( _supra_ ). In the said circumstances we are incline to uphold the contention made by the learned counsel for the appellant that the Tribunal had erred in effecting a deduction only by 1/3[rd] instead of 50% towards the personal and living expenses of the deceased. 7. Though the learned counsel appearing for the appellant attempted to canvas the position that the Tribunal has also erred in ignoring Ext.B1, we are of the considered view that the said contention is bereft of any basis or merit. Ext.B1 is only a complaint lodged by the 4[th] respondent in relation to the incident to the effect that at the time of the accident the deceased was using a mobile. At the same time, it is evident that after lodging such a complaint the 4[th] respondent did not take any _M.A.C.A. No.1605 of 2011_ _-8-_ follow up action, in accordance with law and in such circumstances merely because the insurer had lodged such a complaint, it would not and could not improve its case. We have no hesitation to hold, in such circumstances, that Ext.B1 is absolutely insufficient to fix any contributory negligence on the part of the deceased in relation to the accident. At the same time, we are of the view that taking into account the fact that the accident occurred on the correct side of the deceased, there was absolutely no reason for holding that the deceased had contributed to bring about the accident. It is also pertinent to note in this context that as against the question of negligence, the Tribunal arrived at a definite finding, from the evidence on record, that the deceased could not be held to have contributed to the accident in question and it occurred due to be negligence on the part of the first respondent therein viz., the 4[th] respondent herein. At the same time, it is to be noted that after arriving at such a positive finding a deduction to the tune of 15% was made by the Tribunal as per the award on the _M.A.C.A. No.1605 of 2011_ _-9-_ ground of contributory negligence relying on a decision of this Court in _**Siby Paul** 's_ Case _(Supra)_ . Such a deduction was made taking into account of the fact that at the time of the accident the deceased was not wearing a helmet disregarding the statutory mandate under Section 128 of the Act. The learned counsel appearing for the appellant contended that in the light of the decision of this Court in _**Siby Paul** 's_ case _(supra)_ the Tribunal was justified in making such a deduction. 8. Per contra, the learned counsel appearing for the respondents 1 to 3 and 5 viz., the claimants contended that after arriving at a positive finding to the effect that the deceased could not have been held to have contributed to the accident, solely for the reason that he was not wearing a helmet, contributory negligence to the tune of 15% ought not have been fixed on his side and at any rate it is contended that there was absolutely no justification for making a deduction to the tune of 15% on the aforesaid ground in the circumstances. 9. In the light of the rival contentions we have _M.A.C.A. No.1605 of 2011 -10-_ carefully gone through the judgment in _**Siby Paul** 's_ case _(supra)_ . An anxious consideration of the decision would reveal that nowhere in the said decision this Court held that deduction to the tune of 15% should be made for failure to comply with the statutory mandate under Section 128 of the Motor Vehicle Act. True that relying on the decision in _**Ajay Canu v. Union of India**_ reported in _**1988(2)KLT SN.50(Case.No.68),**_ it was held that wearing a crash helmet is mandatory for drivers of two wheelers. The said question was discussed by this Court in para 4 thereunder. _“When protection to that a helmet provides to a rider is statutory recognised and when it is mandatory under statute for the riders and drivers of two wheelers to wear the same, we feel it is a matter to be considered by the Motor Accidents Tribunal as to whether the injured in a motor bike accident had suffered heavy injury and if so whether at the time of accident the driver of pillion rider as the case may be, who claims compensation for head injury was wearing a helmet. If the protecting head gear, namely helmet, the use of which is mandatory under Section 129 of the Act was not worn by drivers or the pillion riders who sustained head injury, then contributory negligence can be_ _M.A.C.A. No.1605 of 2011_ _-11-_ _assumed, if not for causing the accident but for sustaining the injury which could have been prevented or the impact of which could have been reduced through compliance of the statutory provisions by wearing a helmet”._ 10. But in this case as noticed hereinabove, the evidence on record would reveal that the offending vehicle which was proceeded towards east from west and the accident occurred on the wrong side of the 4[th] respondent who was driving the said vehicle. A scanning of the impugned award would reveal absolute absence of any discussion as to how the Tribunal has arrived at the conclusion that 15% is to be deducted towards contributory negligence, relying on the decision in **Siby Paul** 's case( _supra_ ). True that, in this case no appeal has been preferred by the claimants. But at the same time we are of the view that when it is evident from the impugned judgment itself that the Tribunal had positively arrived at a finding against the respondent in regard to the question of contributory negligence and that it is not founded on any sustainable reason and there was absolutely no reason for making a reduction to the tune of 15% on the _M.A.C.A. No.1605 of 2011 -12-_ ground of contributory negligence solely relying on the decision in **Siby Paul** 's case( _supra_ )in case and without making a detailed discussions with reference relevant aspects, we do not find any reason to maintain the said finding. The fact that the claimants had not filed an appeal or taken up a cross-objection shall not be taken as a ground to sustain such a perverse finding. The said illegality infecting the award is liable to be set right. 11. We have found that the contention raised by the learned counsel for the appellant relying on the decision of the Honourable Apex Court in **Sarala Varma** 's case( _supra_ ) is a well founded one. At the same time while considering the scope of interference with the award the findings of the Tribunal that no contributory negligence could be attributed on the deceased and at the same time the Tribunal did make a reduction on the same ground cannot be lost site of. Taking into account of all such aspects we are of the view that this appeal can be allowed to the following extent, bearing in mind all the aspects already expatiated herein above. By applying the _M.A.C.A. No.1605 of 2011_ _-13-_ decision of the Honourable Apex Court in **Sarala Varma** 's case ( _supra_ ), the loss of dependency ought to have been Rs.8,64,000/- instead of Rs.11,52,000/- as the deceased was a bachelor and consequently, instead of 1/3[rd] and 50% of the income ought to have deducted towards personal expenses. At the same time we have already taken note of the fact that by improperly applying the dictum of this Court in _**Siby Paul**_ 's case, 15% of the award amount was deducted towards contributory negligence, that too, after making a positive finding that the deceased could not have been attributed with contributory negligence. In the said circumstances according to us a total amount of Rs.9,52,381/- which we rounded to _**Rs.9,52,500/-**_ (Rupees Nine lakhs fifty two thousand and five hundred only) is the amount to which the claimants are legally entitled. Hence, the impugned award stands modified to the above extent and the appeal stands allowed to the said extent. The said amount will carry interest at the rate of 9% per annum from from the date of _M.A.C.A. No.1605 of 2011_ _-14-_ the filing of the application i.e., 04.01.2006 till the date of realisation, if the appellant has already deposited any amount towards the compensation amount, certainly, the appellant need to deposit only the balance amount. In the said circumstances, the parties shall bear their respective costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **MARY JOSEPH, JUDGE** vs /TRUE COPY/ PA TO JUDGE