United India Insurance Co. Ltd. v. Sheela w/o Johny K.P. and others (MACA No. 469 of 2010; CO No. 124 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY,THE 13TH DAY OF MARCH 2019 / 22ND PHALGUNA, 1940** ## **MACA.No. 469 of 2010** **AGAINST THE AWARD IN OPMV 640/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA DATED 31-08-2009** ## **APPELLANT/THIRD RESPONDENT IN OPMV:** **UNITED INDIA INSURANCE COMPANY LTD. PERINTHALMANNA BRANCH, REPRESENTED BY THE ASSISTANT MANAGER, UNITED INDIA INSURANCE CO. LTD., OFFICE OF THE REGIONAL MANAGER, HOSPITAL ROAD, ERNAKULAM.** **BY ADVS. SMT.DEEPA GEORGE SMT.DEEPA GEORGE** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 AND 2 IN THE OPMV:** - **1 SHEELA W/O JOHNY K.P., KURUMOLATH HOUSE, VALLUVADY P.O.,, KIDANGANADU VILLAGE, S.BATHERY TALUK,, WAYANAD DISTRICT.** - **2 NIKHILA AGED 6 YEARS KURUMOLATH HOUSE, VALLUVADY P.O.,, KIDANGANADU VILLAGE, S.BATHERY TALUK,, WAYANAD DISTRICT.** - **3 NIDHIGA AGED 2 YEARS KURUMOLATH HOUSE, VALLUVADY P.O.,, KIDANGANADU VILLAGE, S.BATHERY TALUK,, WAYANAD DISTRICT.** - **4 K.K.PAILY S/O KURIYAN** **KURUMOLATH HOUSE, VALLUVADY P.O.,, KIDANGANADU VILLAGE, S.BATHERY TALUK,, WAYANAD DISTRICT.** - **5 SARAMMA W/O PAILY KURUMOLATH HOUSE, VALLUVADY P.O.,, KIDANGANADU VILLAGE, S.BATHERY TALUK,, WAYANAD DISTRICT.** - **6 RADHAKRISHNAN S/O NARAYANAN NAIR** **MALOL MEETHAL HOUSE, ODAPPALLAM,, MOOLANKAVU P.O., S.BATHERY THALUK,, WAYANAD DISTRICT.** MACA.No. 469 of 2010 2 AND CROSS OBJECTION NO.124 OF 2017 **7 K.KRISHNAN S/O CHAKKAPPAN KUZHITHODY HOUSE, PAZHUPATHOOR P.O., S.BATHERY TALUK, WAYANAD DISTRICT.** **BY ADVS. SRI.N.S.DAYA SINDHU SHREE HARI SMT.CELINE JOSEPH SRI.LALJI P.THOMAS SRI.SHARATH NARAYAN NAMBIAR SRI.SUVIN.R.MENON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2019, ALONG WITH CO.124/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 469 of 2010 3 AND CROSS OBJECTION NO.124 OF 2017 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY,THE 13TH DAY OF MARCH 2019 / 22ND PHALGUNA, 1940** **CO.No. 124 of 2017 IN MACA. 469/2010** **AGAINST THE AWARD DATED 31.08.2009 IN O.P.(M.V.) NO.640/2001 IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA.** ## **CROSS APPELLANTS/RESPONDENT 1 TO 5:** - **1 SHEELA AGED 46 YEARS, W/O. JOHNY.K.P, KURUMOLATH HOUSE, VALLUVADY P.O, KIDANGNADU VILLAGE, SULTHAN BATHERY TALU, WAYANAD DISTRICT.** - **2 NIKHILA AGED 22 YEARS, D/O. JOHNY K.P, KURUMOLATH HOUSE, VALLUVADY P.O, KIDANGNADU VILLAGE, SULTHAN BATHERY TALU, WAYANAD DISTRICT.** - **3 NIDHIGA AGED 18 YEARS, D/O. JOHNY K.P, KURUMOLATH HOUSE, VALLUVADY P.O, KIDANGNADU VILLAGE, SULTHAN BATHERY TALU, WAYANAD DISTRICT.** - **4 K.K. PAILY** **AGED 76 YEARS, S/O. KURIYAN, KURUMOLATH HOUSE, VALLUVADY P.O, KIDANGNADU VILLAGE, SULTHAN BATHERY TALU, WAYANAD DISTRICT. (FATHER OF THE DECEASED JOHNY).** - **5 SARAMMA** **AGED 71 YEARS, W/O PAILY, KURUMOLATH HOUSE, VALLUVADY P.O, KIDANGNADU VILLAGE, SULTHAN BATHERY TALU, WAYANAD DISTRICT. (MOTHER OF DECEASED JOHNY).** ## **BY ADV. SMT.CELINE JOSEPH** MACA.No. 469 of 2010 4 AND CROSS OBJECTION NO.124 OF 2017 ## **RESPONDENT/S:** |**1**|**UNITED INDIA INSURANCE CO. LTD.**| |---|---| ||**PERINTHALMANNA BRANCH, PERINTHALMANNA.679 322**| |**2**|**RADHAKRISHNAN**| ||**S/O. NARAYANAN NAIR, MALOL MEETHAL HOUSE,**| ||**ODAPPALAM, MOOLANKAVU P.O, SULTHAN BATHERY TALUK,**| ||**WAYANAD DISTRICT.673 592**| |**3**|**K. KRISHNAN**| ||**S/O. CHAKKAPPAN, KUZHITHODY HOUSE, PAZHUPATHOOR**| ||**P.O, SULTHAN BATHERY TALUK, WAYANAD DISTRICT.673592**| ||**BY ADV. SRI.LALJI P.THOMAS**| **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2019, ALONG WITH MACA.469/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 469 of 2010 5 AND CROSS OBJECTION NO.124 OF 2017 ## **JUDGMENT** The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the award in so far as it relates to the quantum of compensation. The cross objection filed in the appeal by the claimants also relates to the adequacy of the quantum of compensation. 2. The predecessor of the claimants died in a motor accident which took place on 07.07.2001. He was riding a motor cycle. The motor cycle ridden by the deceased hit on a bus. The case set out by the claimants in the claim petition is that the accident occurred on account of the negligence of the driver of the bus. On that basis, they claimed compensation from the insurer of the bus. The amount of compensation claimed in the proceedings was Rs.10 lakhs. The insurer contested the claim petition contending, inter alia, that the accident occurred on account of the negligence of the deceased himself and they are, therefore, not liable to indemnify the owner of the bus. It was also contended by the insurer that the compensation claimed under various heads is excessive. The Tribunal attributed contributory negligence on the part of the deceased to the extent of 20%. As regards the quantum of compensation, the Tribunal found that MACA.No. 469 of 2010 AND CROSS OBJECTION NO.124 OF 2017 6 the claimants are entitled to a sum of Rs.6,44,900/-. However, in the light of the finding as regards the contributory negligence, the insurer was directed to pay 80% of the amount determined as compensation due to the claimants. It is aggrieved by the said decisions of the Tribunal that this appeal and the cross objection are preferred. 3. Heard the learned counsel for the appellant as also the learned counsel for the contesting respondents/claimants. 4. After having noticed that though a crime was registered in connection with the accident, the claimants have not made available the final report submitted by the police in the case, the Tribunal took the view that since the accident occurred on account of the collision of two vehicles, it has to be presumed that the accident occurred on account of the negligence of the drivers of both vehicles as both of them could have avoided the accident had they been careful. It is on that basis that the Tribunal fixed contributory negligence on the part of the deceased at 20%. I cannot accept the reasons stated by the Tribunal in the impugned award for arriving at the conclusion that the deceased was also negligent in the matter of causing the accident. It is not necessary that the final report in the police case has to be produced in every case. The proceedings before the Tribunal being an independent one, the requirement of law is only that satisfactory evidence will have to be adduced by the claimants to establish that the accident occurred on account of the negligence of MACA.No. 469 of 2010 7 AND CROSS OBJECTION NO.124 OF 2017 the driver of the offending vehicle. The final report in a case registered by the Police will be one of the pieces of evidence, which could be let in by the claimants. Further, the view that since the accident occurred on account of the collision of two vehicles, it has to be presumed that the drivers of both vehicles are negligent, also cannot be accepted. Merely because the accident occurred on account of the collision of two vehicles, it cannot be said that the drivers of both vehicles are negligent. It is seen that in the crime registered by the police against the driver of the bus in connection with the accident involved in this matter, a final report has been filed against the driver alleging that the accident occurred on account of his negligence. A certified copy of the final report has been produced by the claimants along with the cross objection with an application under Order 41 Rule 27 of the Code of Civil Procedure. The final report produced by the claimants indicates that after due investigation, the Police charge sheeted the driver of the bus for offences punishable under Sections 279, 337 and 304A of the Indian Penal Code. As it is found that the reasons given by the Tribunal for attributing negligence on the deceased is unsustainable in law, in the light of the final report filed by the police, I am of the view that for the purpose of this case it can be safely concluded that the accident occurred on account of the negligence of the bus driver. The finding rendered by the Tribunal as regards the contributory negligence of the deceased is therefore, MACA.No. 469 of 2010 8 AND CROSS OBJECTION NO.124 OF 2017 vacated. 5. The deceased was employed as a welder. He was aged 36 years at the time of accident. In order to establish his income, the claimants produced a few wage slips issued to the deceased by his employer K.K.Anilkumar. The materials indicate that K.K.Anilkumar is a contractor undertaking the works of Bharat Petroleum Limited and the deceased was working under him as a welder. The wage slips indicates that he was being paid wages at the rate of Rs.9,131/- per month. Admittedly, the deceased was not on a permanent employment. Even assuming that the wage slips produced are the wage slips issued to the deceased, merely for the reason that for few months, the deceased was able to earn about Rs.10,000/- per month, it cannot be said that the same was his regular monthly income. The Tribunal, having regard to the facts and circumstances, reckoned the monthly income of the claimant at Rs.4,800/-. According to me, in so far as the accident took place on 07.07.2001, the monthly income of the deceased, as assessed by the Tribunal is, in order. Even if the monthly income of the deceased is reckoned at Rs.4,800/- the assessment of the compensation made based on the same by the Tribunal cannot be said to be correct. I am unable to accept the assessment of the compensation made by the Tribunal on other heads as well. As such, I am refixing the compensation. 6. If the monthly income of the deceased is reckoned at MACA.No. 469 of 2010 9 AND CROSS OBJECTION NO.124 OF 2017 Rs.4,800/-, as he was only aged 36 years at the time of accident, 40% of the income has to be added to the income towards future prospects while computing the compensation for loss of dependency. [See **National Insurance Company Ltd** v. **Pranay Sethi** (2017(4) KLT 662)]. The multiplier to be applied in a case of this nature is '15'. As the number of dependants of the deceased exceed three, one fourth of the income has to be deducted towards personal expenses. If compensation for loss of dependency is worked out in this fashion, the compensation under the said head would be Rs.9,07,200/- . 7. The learned counsel for the claimants, placing reliance on the decision of the Apex Court in **Magma General Insurance Company Limited** v. **Nanu Ram and others** (2018 ACJ 2782) contended that in addition to the compensation for loss of dependency, the wife, children and also the parents are entitled to compensation for loss of consortium. It is pointed out that the wife is entitled to spousal consortium, the children are entitled to parental consortium and the parents are entitled to filial consortium. Per contra, the learned counsel for the appellant, placing reliance on **Pranay Sethi,** contended that only wife could be granted compensation for loss of consortium. It is seen that **Magma General Insurance Company Limited** is a case decided after adverting to **Pranay Sethi** . If the aforesaid decisions are harmoniously construed, it is evident that the loss of consortium provided for in **Pranay Sethi** MACA.No. 469 of 2010 AND CROSS OBJECTION NO.124 OF 2017 10 is only the loss of consortium to the wife and the Tribunal is empowered to grant parental consortium and filial consortium in addition, in appropriate cases. In the instant case, only a sum of Rs.10,000/- is granted by the Tribunal towards compensation for loss of consortium for the wife of the deceased. Having regard to the decisions aforesaid, I am of the view that a sum of Rs.10,000/- each can be granted to all the five claimants towards loss of consortium. The claimants are also entitled to a sum of Rs.5,000/- towards pain and suffering, Rs.10,000/- towards loss of estate, Rs.10,000/- towards funeral expenses and a sum of Rs.1,000/- towards damage to clothing. Thus, the total compensation payable to the claimants would come to Rs.9,83,200/-. As the claimants have been awarded a sum of Rs.6,44,900/-, the additional compensation payable would be Rs.3,38,300/-. In the result, the appeal and cross objection are disposed of, refixing the total compensation payable to the claimants at Rs.9,83,000/-. The additional compensation would come to Rs.3,38,300/-. It is brought to the notice of this Court that the appellant has deposited only 50% of Rs.6,44,900/- with interest upto date. The appellant is, therefore, liable to pay interest at the rate of 7.5% for the balance compensation directed to be paid by the Tribunal for the entire period as ordered by the Tribunal. As regards the additional compensation, the claimants will not be entitled to claim MACA.No. 469 of 2010 11 AND CROSS OBJECTION NO.124 OF 2017 interest for the period of delay in filing the cross objection, viz, 1,783 days. **Sd/-** ## **P.B.SURESH KUMAR** **SKS** **JUDGE**