Thomas and others vs Vinod S/O Narayanan and The National Insurance Company Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MRS. JUSTICE SOPHY THOMAS` ``` FRIDAY,THE17[TH]DAYOFMARCH2023/26THPHALGUNA,1944 ``` ## `MACA NO. 1599 OF 2013` ``` AGAINSTTHEORDER/JUDGMENTINOPMV455/2010OFMOTOR ACCIDENTSCLAIMSTRIBUNAL,PALA ``` ## `- APPELLANTS PETITIONERS:` `1. THOMAS, S/O. JOSEPH (DIED).` `2. BRIDGET, W/O. THOMAS, VALLITHANAM HOUSE, KAINAKARY KARA & VILLAGE, KAINAKARY.` `3. MARIAMMA THOMAS, D/O. THOMAS,` ``` VALLITHANAMHOUSE,KAINAKARYKARA&VILLAGE,KAINAKARY. ``` `4. MINI THOMAS, D/O. THOMAS, VALLITHANAM HOUSE,` ``` KAINAKARYKARA&VILLAGE,KAINAKARY. ``` `5. MANJU THOMAS, D/O. THOMAS, VALLITHANAM HOUSE,` ``` KAINAKARYKARA&VILLAGE,KAINAKARY. ``` `6. METTY THOMAS, D/O. THOMAS, VALLITHANAM HOUSE, KAINAKARY KARA & VILLAGE, KAINAKARY.` `7. MERRY THOMAS, D/O. THOMAS, VALLITHANAM HOUSE, KAINAKARY KARA & VILLAGE, KAINAKARY.` ``` 8.MERLYTHOMAS,D/O.THOMAS,VALLITHANAMHOUSE, KAINAKARYKARA&VILLAGE,KAINAKARY. ``` MACA No.1599 of 2013 2 ``` BYADVS. ``` ``` SRI.MATHEWJOHN(K) ``` ``` SRI.DOMSONJ.VATTAKKUZHY ``` ``` - RESPONDENTSRESPONDENTS: ``` ``` 1.VINOD,S/ONARAYANAN,HOUSENOT.C.11/245, KARTHIKAHOUSE,NEARVELLAYAMABALAMJUNCTION, NANDANCODE,KAVADIYARVILLAGE,TRIVANDRUM695003. ``` ``` 2.THENATIONALINSURANCECOMPANYLTD.REPRESENTEDBY - ITSMANAGERPALABRANCH686575. ``` ``` BYADV.SRI.SARAHSALVYFORR2. ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEEN FINALLYHEARDON09.03.2023,THECOURTON17.03.2023 DELIVEREDTHEFOLLOWING: ``` MACA No.1599 of 2013 3 ## **SOPHY THOMAS, J.** --------------------------------------------- ## MACA No.1599 of 2013 ---------------------------------------------- Dated this the 17[th] day of March, 2023 ## **J U D G M E N T** The claimants in OP(MV) No.455 of 2010 on the file of Motor Accidents Claims Tribunal, Pala, are the appellants herein, impugning the award on the ground of inadequacy of compensation. 2. The original claimant Sri.Thomas met with a road traffic accident on 07.01.2010 at about 7.40 p.m while he was trying to cross the road at Kainakary junction in Changanassery-Alappuzha public road. KL-1/AL 6983 car driven by the 1[st] respondent, in a rash and negligent manner, knocked him down and he sustained serious injuries. He was hospitalised and he was in an unconscious state and on continuous treatment till he died on 13.06.2010. On his death, his legal heirs were impleaded as additional claimants 2 to 8. Though the Tribunal found that the original claimant died due to the injuries suffered in the accident, MACA No.1599 of 2013 4 only Rs.6,63,202/- was awarded as compensation against their claim of Rs.10,64,000/-. Hence this appeal. 3. The 1[st] respondent was the owner cum driver of the offending car and the 2[nd] respondent was its insurer. The accident, injuries and death of the original claimant are not in dispute. The policy of the offending vehicle, as on the date of accident, is admitted by the 2[nd] respondent/insurer, though negligence from the part of the 1[st] respondent is denied. 4. Before the Tribunal, PWs 1 and 2 were examined and Exts.A1 to A10 and B1 were marked. 5. Now let us see whether any interference is warranted in the impugned award. 6. Heard Sri.Mathew John, learned counsel appearing for the appellants and Smt.Sarah Salvy, learned counsel appearing for the 2[nd] respondent. 7. According to the appellants, the original claimant Sri.Thomas was a 64 year old agriculturist, earning monthly income of Rs.5,000/-. But, the Tribunal fixed his notional income as Rs.4,000/-. It is true that an agriculturist may not have any document to prove his monthly income. But, going by the decision MACA No.1599 of 2013 5 ## _**Ramchandrappa**_ vs. _**Manager, Royal Sundaram Alliance**_ _**Insurance Company Limited**_ (AIR 2011 SC 2951), even a casual labourer was eligible to get his notional income fixed at Rs.7,500/-, in the year 2010. But, here, even according to the deceased original claimant, he was earning monthly income of Rs.5,000/- only. So, we can fix his notional income at that rate. 8. Though the claim petition was filed before the Tribunal as an injury claim, subsequently, the original claimant died and so it was treated as a death claim. Learned Tribunal found that the deceased remained in hospital for a total period of 123 days with multiple fractures. The evidence given by PW2-doctor also was sufficient to show that the injured person was under prolonged treatment due to fractures and head injury and he died after discharge from hospital. The treatment given to the injured from the hospital of PW2 was only nursing care and palliative care. Moreover, PW2 stated that when the injured was discharged on 13.05.2010, he was in an unconscious state. Since no more treatment remained to be done for that patient, he was discharged from hospital. So, nothing more is needed to arrive at a conclusion that though the original claimant died after discharge MACA No.1599 of 2013 6 from hospital, his death was due to the injuries suffered in the accident which occurred on 07.01.2010. 9. We have to assess the compensation for loss of dependency, taking the monthly income of the deceased at Rs.5,000/- as fixed by us. Since the original claimant was aged 64, no addition is permissible towards future prospects. He was having wife and six children, but only the wife was found to be the dependent. So, 1/3[rd] has to be deducted towards his personal expenses. So, the balance would be Rs.3,333/-. The multiplier applicable is 7, as he was aged 64. So, the compensation for loss of dependency could be Rs.2,79,972/-. The Tribunal already awarded Rs.1,60,000/- under the head ‘loss of dependency’. So, the balance eligible is Rs.1,19,972/-. 10. Towards loss of love and affection and loss of consortium, learned Tribunal awarded Rs.25,000/and Rs.20,000/- respectively. The appellants herein are the wife and six children of the deceased. Though the Tribunal found that only the wife of the deceased was dependent on the deceased, as far as love and affection of a father is concerned, the children despite they being matured, married or age old, they lost the love of their MACA No.1599 of 2013 7 father forever. So, this Court is inclined to award Rs.10,000/each to appellants 3 to 8 for loss of love and affection of father. Going by the decision **National Insurance Company Ltd.** vs. **Pranay Sethi and Others** [AIR 2017 SC 5157], this Court is inclined to award Rs.40,000/- to the wife for loss of consortium. So, the appellants are eligible to get Rs.1,00,000/- in total instead of Rs.45,000/- awarded by the Tribunal. So, they will get the balance amount of Rs.55,000/under the head loss of consortium/love and affection. 11. Towards loss of earning, the Tribunal awarded Rs.20,000/-. Since the original claimant died and the Tribunal treated the case as a death claim, no amount could have been awarded under the head ‘loss of earning’. So, Rs.20,000/awarded under the head ‘loss of earning’ is liable to be deducted. 12. For pain and suffering, the Tribunal awarded Rs.30,000/-. Since it was a death claim, the legal heirs were not eligible to get compensation for pain and suffering of the deceased. So, Rs.30,000/- awarded under that head also is liable to be deducted. 13. So, the appellants are eligible to get Rs.1,24,972/- as enhanced compensation, on deducting Rs.50,000/-, awarded in MACA No.1599 of 2013 8 excess by the Tribunal towards loss of earning and pain and suffering. 14. Learned Tribunal while awarding compensation of Rs.6,63,202/- found that the accident occurred due to contributory negligence from the part of the deceased. It was found that the deceased was crossing the road at the time of accident and moreover, he was in an inebriated condition. So, the Tribunal came to the conclusion that, since the deceased crossed the road in a drunken state, he contributed towards the accident. In order to reach that conclusion, the Tribunal relied on Ext.B1 wound certificate of the deceased, which will show that he had smell of alcohol. When PW2-doctor was examined to prove the condition of the injured when he was discharged from hospital, learned counsel for the 2[nd] respondent confronted the doctor with Ext.B1 document, and got it marked subject to admissibility. PW2 would say that, in Ext.B1 certificate, the plus signs shown towards smell of alcohol might have been indicating excess consumption of alcohol. But, the doctor who issued that certificate was not examined by the respondent. There is nothing to show that the deceased had consumed alcohol exceeding the permissible limit at MACA No.1599 of 2013 9 the time of accident. Mere mention in the wound certificate, that there was a smell of alcohol, is not sufficient to hold that he was intoxicated. Since Ext.B1 certificate was not proved through the doctor who issued the same, and no other independent evidence is there to show that the deceased was intoxicated and was unable to take care of himself at the time of accident, the Tribunal cannot be justified in finding that the accident occurred due to his contributory negligence. There is no factual foundation for the Tribunal to fix the contributory negligence from the part of the deceased at 30%. 15. Ext.A5, copy of final report, shows that the accident occurred due to the rash and negligent driving of KL-1/AL 6983 car by the 1[st] respondent. When there is police charge against the 1[st] respondent, after a thorough investigation, without adducing any independent evidence to prove the contra, the Tribunal ought not have fixed 30% contributory negligence from the part of the deceased. 16. In _**New India Assurance Co. Ltd**_ vs. _**Pazhaniammal**_ (2011 (3) KLT 648)], a Division Bench of this Court held that, ‘ _as a_ _general rule it can be accepted that production of charge sheet is_ MACA No.1599 of 2013 10 _prima facie sufficient evidence of negligence for purpose of a claim under S.166. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence. If Court feels that charge sheet is collusive, Tribunal can record that charge sheet cannot be accepted and call upon the parties, at any stage, to adduce oral evidence of accident and alleged negligence. In such case, issue of negligence must be decided on other evidence, ignoring charge sheet_ ’. 17. In the case on hand, the police charge is not suggesting any contributory negligence from the part of the deceased. 18. So, this Court is inclined to set aside the finding of the Tribunal that the deceased contributed 30% of the negligence to cause the accident. 19. The Tribunal awarded Rs.6,63,202/-, and after reducing 30% towards contributory negligence, awarded Rs.4,64,241/,- and so, the appellants are entitled to get the balance amount of Rs.1,98,961/- (6,63,202-4,64,241), by setting aside the finding of contributory negligence from the part of the deceased. MACA No.1599 of 2013 11 |**Head of claim**<br>**(1)**|**Amount**<br>**awarded by the**<br>**Tribunal**<br>**(2)**|**Amount**<br>**awarded in**<br>**appeal**<br>**(3)**|**Amount**<br>**deducted in**<br>**appeal**<br>**(4)**|**Difference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**<br>**(5)**| |---|---|---|---|---| |Loss of<br>dependency|Rs.1,60,000/-|Rs.2,79,972/-|-|Rs.1,19,972/-| |Loss of earning|Rs.20,000/-|-|Rs.20,000/-|-| |Pain and<br>suffering|Rs.30,000/-|-|Rs.30,000/-|-| |Loss of love and<br>affection/loss of<br>consortium|Rs.45,000/-<br>(25000+20000)|Rs.1,00,000/-<br>(40000+60000)|-|Rs.55,000/-| |**Total**|**Rs.2,55,000/-**|**Rs.3,79,972/-**|**Rs.50,000/-**|**Rs.1,74,972/-**| |Net amount eligible is : **Rs.1,24,972/-** (174972-50000)||||| |Total amount awarded by the Tribunal|Rs.6,63,202/-| |---|---| |Total amount awarded after 30% reduction for<br>contributory negligence|Rs.4,64,241/-| |Difference to be drawn on setting aside the finding<br>of contributory negligence|Rs.1,98,961/-| 20. In this appeal, we have awarded enhanced compensation of Rs.1,24,972/-. Including Rs.1,98,961/- which was deducted on account of contributory negligence, the appellants are eligible to get Rs.3,23,933/- (1,24,972+1,98,961) in total. The 2[nd] respondent/insurer is directed to deposit Rs.10,000/- MACA No.1599 of 2013 12 each in the Bank Account of appellants 3 to 8 and the balance amount in the Account of the 2[nd] appellant with interest @ 7.5% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- ## **SOPHY THOMAS** **JUDGE** smp