Thressia Ouseph and Others v. T.B. Sunny and United India Insurance Co.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 MACA NO. 1315 OF 2009** **AGAINST THE JUDGMENT IN OP(MV) 818/2004 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL ,PERUMBAVOOR, ERNAKULAM** ## **APPELLANTS/PETITIONERS:** 1 THRESSIA OUSEPH AND OTHERS W/O.LATE OUSEPH, MATTAPPILLY HOUSE,, KARAYAMPARAMBU, KARUKUTTY P.O. 2 MERCY AGED 40 YEARS D/O.LATE OUSEPH, MATTAPPILLY HOUSE,, KARAYANPARAMBU KARA, KARUKUTTY. 3 POLACHAN AGED 38 YEARS S/O.LATE OUSEPH, MATTAPPILLY HOUSE,, KARAYAMPARAMBU, KARUKUTTY P.O. 4 MARTIN JOSEPH AGED 31 YEARS S/O.LATE OUSEPH, MATTAPPILLY HOUSE,, KARAYAMPARAMBU, KARUKUTTY P.O. BY ADV SRI.K.SUNILKUMAR ## **RESPONDENTS/RESPONDENTS:** 1 T.B.SUNNY, S/O.DEVASSY THAIKKENATH HOUSE, KUTTUMUKKU ROAD, RAMAVARMAPURAM P.O., THRISSUR. 2 UNITED INDIA INSURACE CO. SIMS COMPLEX, KURUEPAM ROAD, THRISSUR. BY ADVS. SRI.P.JACOB MATHEW SRI.M.RAJAGOPALAN SRI.RAJIT THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1315 OF 2009** **2** ## **JUDGMENT** The appellants were the petitioners in O.P (MV) No.818/2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. 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 Johnson (deceased) – the son of the 1[st] appellant and the brother of the appellants 2 to 4. The appellants had averred in the claim petition that: on 23.8.2003 while the deceased was driving a Maruti car bearing Reg. No.KL7-R-3585 (car) through the Thrissur – Angamaly National Highway Road, when the vehicle reached Karayamparambu, a Tempo van bearing Reg. No.KL-8/B-5794 (van) driven by one Lonappan in a rash and negligent manner suddenly applied the brake . The wooden logs that were loaded on **MACA NO. 1315 OF 2009** **3** the van and protruding 3.5 meters outside the van, pierced into the car driven by the deceased. The deceased and a fellow passenger named George sustained fatal injuries and another co-passenger named Tomy sustained severe injuries. Although the injured were taken to the Little Flower Hospital, Angamaly, Johnson and George lost their lives. The van was owned by the 1[st] respondent and insured with the 2[nd] respondent. The 3[rd] respondent was the insurer of the car. The deceased was a Contractor by profession and earning a monthly income of Rs.20,000/-. The petitioners claimed a total compensation of Rs.25,53,000/- which was limited to Rs.15,00,000/-. 3. The 2[nd] respondent – insurer of van filed a written statement contending that the claim petition was not maintainable. It was stated that the accident took place due to the negligence on the part of the deceased. The age, occupation and income of the deceased was also disputed. **MACA NO. 1315 OF 2009** **4** 4. The 3[rd] respondent filed a written statement admitting that the car had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the driver of the van, who was charge-sheeted by the Police on finding him negligent. Hence the 3[rd] respondent prayed that it may be exonerated from paying any liability. 5. The legal representatives of the George – the other deceased - and the injured Tomy - the copassengers in the car filed O.P (MV) Nos.2252/2003 and 2253/2003 before the same Tribunal. 6. The Tribunal consolidated and jointly tried the original petitions. 7. The petitioners in the three cases examined PW1 to P3 and marked Exts.A1 to A18 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and and materials on record, allowed the claim petition by **MACA NO. 1315 OF 2009** **5** awarding a total compensation of Rs. 1,48,250/-. However, the Tribunal reduced 10% of the compensation amount on the ground that the deceased was guilty for contributory negligence. 9. Aggrieved by the finding that the deceased was guilty for contributory negligence to the extent of 10% and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 10. Heard Sri.K.Sunil Kumar, the learned counsel appearing for the appellants/petitioners and Sri.P. Jacob Mathew, the learned counsel appearing for the 2[nd] respondent. 11. The questions that emerge for consideration in the appeal are: (i) Whether the finding of the Tribunal that the deceased was guilty for contributory negligence is correct ? (ii) Whether the quantum of compensation awarded **MACA NO. 1315 OF 2009** **6** ## by the Tribunal is reasonable and just? ## Question No.(i) 12. As per Ext.A14 charge-sheet filed by the Angamaly Police in Crime No.444/2003, it is proved beyond any semblance of doubt that it was due to the negligence on the part of the driver of the van that the accident occurred. The respondents had not let in any evidence to discredit the charge-sheet filed by the Police. 13. A Division Bench of this Court in **New India Insurance Co.Ltd v. Pazhaniammal and Others** [2011 (3) KLT 648 **]** has categorically held that production of a charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, 1988. A charge sheet filed by the Police after investigation can be accepted as evidence of negligence against the accused-driver of the vehicle. If any of the parties do not accept the charge-sheet, the onus of proof is on such party to adduce oral evidence and **MACA NO. 1315 OF 2009** **7** discredit the charge-sheet. If the oral evidence is adduced by such party, then the charge-sheet will fall into a pale of insignificance. 14. In the instant case, admittedly, the wooden logs were loaded on the tempo van which was protruding 3.5 meters outside the vehicle in flagrant violation of the Motor Vehicles Act and the Rules framed thereunder. The Police found that the driver of the van had applied sudden brake as a result of which the wooden logs pierced into the car resulting in the accident. In such circumstances, especially since no contra evidence has been let in by the respondents, I am of the definite opinion that the finding of the Tribunal that the deceased was guilty for contributory negligence is erroneous and wrong. Therefore, I set aside the said finding and answer question No.(i) in favour of the appellants. ## Question No.(ii) 15. The appellants had contended that the deceased **MACA NO. 1315 OF 2009** **8** was a Contractor by profession and earning an amount of Rs.20,000/- per month. The Tribunal fixed the notional income of the deceased at Rs.4,000/- per month. Although the petitioners had produced the income tax returns of the deceased, as per Ext.A7 Saral Form, dated on 12.9.2002 i.e., just prior to the accident, it seen that the deceased had an annual income of Rs.48,842/- i.e., an average income of Rs.4,000/- per month. Hence, the fixation of the notional income of the deceased at Rs.4,000/- per month by the Tribunal is correct and just. ## **Multiplier** 16. The Tribunal fixed the multiplier at '12'. As the deceased was aged 31 years as on the date of his death and in light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121] , the relevant multiplier is '16'. ## **Personal living expenses** 17. It is an undisputed fact that the deceased was a **MACA NO. 1315 OF 2009** **9** bachelor. In light of the law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], 1/2[th] of the compensation for 'loss of dependency' has to be deducted towards the personal living expenses of the deceased, which I do. ## **Dependents of the deceased** 18. The 1[st] appellant was the mother and the appellants 2 to 4 were the siblings of the deceased. Therefore, only the 1[st] appellant is treated as the dependent of the deceased. ## **Future prospects** 19. In **Sarla Varma** and **Pranay Sethi** (supra) **,** the Hon'ble Supreme Court has held that the dependents of the deceased are also entitled for future prospects. Keeping in mind that the deceased was aged 31 years and the multiplier is '16', the 1[st] appellant is entitled for future prospects at 40%. **MACA NO. 1315 OF 2009** **10** ## **Compensation for loss due to dependency** 20. Taking into account the above mentioned factors, ie., the the notional income of the deceased at Rs.4,000, the multiplier at '16', future prospects at 40% and after deducting ½ of the total compensation towards personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.5,37,600/- instead of Rs.1,20,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 21 **.** In clause (viii) of paragraph 61 of the **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for 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. In the said circumstances, I enhance the compensation under the heads 'funeral expenses' by a further amount of Rs.12,000/- and 'loss of estate' by a **MACA NO. 1315 OF 2009** **11** further amount of Rs.12,500/-. As already found, since only the 1[st] appellant was the dependent of the deceased, I award an amount of Rs.40,000/- towards compensation for 'loss of consortium'. ## **Compensation for love and affection and pain and suffering** 20. The Tribunal had awarded an amount of Rs.5,000/- under the head 'pain and suffering' and Rs. 15,000/- under the head 'loss of love and affection'. 21. The Hon'ble Supreme Court in **United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and others** [(2020(3)KHC 760] has held that the dependents of the deceased are not entitled for any compensation under the head 'pain and suffering'. Therefore, I set aside the compensation awarded under the the said head. 22. In **New Insurance Assurance Co. Ltd v. Somwati & Others** [(2020) (9) SCC 644], the Hon'ble **MACA NO. 1315 OF 2009** **12** Supreme Court has held that once the compensation for loss of consortium is awarded, no amount can be awarded under the head 'loss of love and affection', otherwise it will amount to duplication of compensation. Therefore, I set aside the amount of Rs.15,000/- awarded under the said head. 23. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **MACA NO. 1315 OF 2009** **13** |SI<br>.No|Head of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation to Hospital|2,500|2,500| |2.|Clothing|250|250| |3.|Funeral expenses|2500|15,000| |4.|Pain and suffering|5,000|….| |5.|Loss of love and affection|15,000|…..| |6.|Loss of estate|2500|15,000| |7.|Loss of consortium|…|40,000| |8.|Loss of dependency|120,000|5,37,600| ||Total|1,48,250<br>=======|6,10,350<br>========| In the result, the appeal is allowed by setting aside the finding of the Tribunal that the deceased was guilty for contributory negligence to the extent of 10%, i.e, holding that the apellants are also entitled to an amount of **MACA NO. 1315 OF 2009** **14** Rs.14,825/- and enhancement of compensation by a further amount of Rs.4,62,100/- totalling to an amount of Rs.4,76,925/- with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till the date of deposit along with proportionate costs. The 2[nd] respondent is ordered to deposit an amount of Rs.14,825/plus 4,62,100/- totalling to an amount of Rs.4,76,925/- with interest and proportionate costs within a period of two months from the date of reeceipt of a certified copy of the judgment. The Tribunal shall disburse 70% of the enhanced compensation to the 1[st] appellant and the remaining 30% in equal shares to the appellants 2 to 4, in accordance with law. ma/5.08.2021 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**