United India Insurance Company Limited v. Sheena M.H., Aysha Beevi, M.K. Saidu, and others (MACA Nos. 1757/2011, 1935/2011 & 112/2012)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938 MACA.No. 1757 of 2011 -------------------------- AGAINST THE AWARD IN OPMV 981/2005 of M.A.C.T.,ERNAKULAM DATED 15-062011 ## APPELLANT/3RD RESPONDENT: --------------------------- UNITED INDIA INSURANCE COMPANY LIMITED ERODE NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, 'SHARANYA', HOSPITAL ROAD,, KOCHI-11. ## BY ADV. SRI.JACOB MATHEW (SR.) RESPONDENTS/PETITIONER AND R 5&6:: ------------------------------------ 1. SMT.SHEENA M.H. W/O. LATE MOHAMMED SABIR, MULAYAMPILLY HOUSE, MALIPURAM P.O., ERNAKULAM, PIN-682029. 2. AYSHA BEEVI, W/O.SAIDU MOHAMMED, MANIKUNNETH, KODUNGALLUR, PIN-680530. 3. M.K.SAIDU, MANIKUNNETH, KODUNGALLUR, PIN-680532. R1 BY ADV. SRI.P.A.AZIZ R1 BY ADV. SRI.I.G.MANOHARAN R1 BY ADV. SRI.N.N.PANKAJAKSHAN R2,R3 BY ADV. SRI.M.M.SAIDU MUHAMMED THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2017, ALONG WITH MACA. 1935/2011, MACA. 112/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** ## **==============================** ## **M.A.C.A. Nos. 1757 of 2011, 1935 of 2011 & 112 of 2012** ## **============================== Dated this the 22[nd] day of February, 2017** ## **JUDGMENT** ## **C.K. Abdul Rehim, J.** All the above three appeals arise out of the same Award passed in O.P.(MV) No. 981/2005 by the Motor Accidents Claims Tribunal, Ernakulam. The 3[rd] RespondentInsurance Company is the Appellant in M.A.C.A. No. 1757/2001. The Claimant before the Tribunal is the Appellant in M.A.C.A. No. 1935/2011. The Appellants in M.A.C.A. No.112/2012 are Respondents 5 and 6 before the Tribunal. The Appellant-Insurance Company in M.A.C.A. No. 1757/2011 is mainly challenging the findings of the Tribunal regarding the aspect of negligence, which was found MACA 1757/11,1935/11 & 112/12 2 against the 2[nd] Respondent, who is the Driver of the Lorry which was insured with the Appellant. Inter alia, the quantum of compensation awarded by the Tribunal is also challenged in the said Appeal. In M.A.C.A. No. 1935/2011, the Claimant before the Tribunal is seeking enhancement of the amount of compensation awarded, contending that various amounts awarded under different heads are insufficient, inadequate and unreasonable. Respondents 5 and 6 before the Tribunal have filed M.A.C.A. No. 112/20112 assailing the Award mainly on the aspect of the apportionment of the compensation made by the Tribunal, between the Claimant and the Appellants. Inter alia, the Appellants are also seeking enhancement of the amount of compensation awarded. The parties are referred hereunder in this judgment in the order as they were before the Tribunal. 2. Husband of the Claimant, who is the son of MACA 1757/11,1935/11 & 112/12 3 Respondents 5 and 6, succumbed to the injuries sustained in a motor vehicle accident, which occurred on 1.10.2004 at Salem in Tamil Nadu State. The accident occurred when a Car bearing Reg.No.KA-03/ME-8484 collided on the back side of a Lorry bearing Reg.No.TN/28-X-9505, which was parked on the Highway, at about 5 a.m. At the first instance, we are inclined to deal with the issue relating to the aspect of negligence. Exts.A1 & A2 are the F.I.Rs. registered with respect to the accident. Evidently the F.I.Rs. was registered based on a statement given by the 2[nd] Respondent before the police. The statement is to the effect that he was carrying firewoods in his Lorry driven through Salem-Erode Highway. At about 4 a.m. on 1.10.2004, a Tanker Lorry collided with his Lorry at the spot of the accident. After the said accident, the Lorry driven by him was kept parked at the mud road portion on the left side of the Road. At about 5 a.m. a Car driven by the deceased in MACA 1757/11,1935/11 & 112/12 4 a rash and negligent manner hit on the rear side of the Lorry causing severe injuries to the deceased, who died on the spot of the accident itself. Other two persons travelling in the car, who sustained injuries in the accident, were taken to Hospital. It is not in dispute that Exts.A1 & A2 FIRs were registered against the deceased. It is also evident that the Police after investigation had referred the case finding that the accident occurred only due to the negligence on the part of the deceased. Ext.A13 is the report regarding inspection of the Car involved in the accident. It would reveal that front portion of the Car was completely damaged. Ext.A27 is the Scene Mahazar prepared by the Police Authorities. Even though the said document is written in Tamil language, A sketch of the Scene is appended along with the same. A brief description of the Scene of Occurrence written in English, signed by the Investigating Officer, is also attached along with Ext.A27. MACA 1757/11,1935/11 & 112/12 5 From the Scene Mahazar it is evident that the version contained in Exts.A1 and A2 that the Lorry was parked on the mud portion on the side of the Road is not true and correct. On the other hand it is evident that the Road in question is lying east-west and the spot of accident is on the southern side of the Road almost near to the southern tar end, but within the tarred portion of the road itself. The Tribunal found that there is no mention in Ext.A27 that any street lights were available at that portion of the road. Further it is observed that there is no evidence forthcoming to the effect that the Lorry in question was parked by lighting any park light. However, the findings of the Tribunal that the Lorry was parked leaving space in between the end of the tarred portion of the road and the left side of the body of the vehicle, has got no support from any of the documents produced. The Tribunal further observed that there is no evidence available to arrive at a conclusion that MACA 1757/11,1935/11 & 112/12 6 there were any lighted indicators on the Lorry. From the circumstances contained in the F.I. Statement, the Tribunal presumed that, due to the collision of the Lorry with another Tanker Lorry some mechanical defect could have been developed and therefore the 2[nd] Respondent might have left the Lorry around the middle portion of the Road waiting for the same to get repaired; and the accident in question might have occurred at that time. But we are of the considered opinion that there is absolutely no basis available for such conclusion from the evidence on record, in order to arrive at any such conclusions. As already mentioned, it is an undisputed fact that the Car hit on the back side of the Lorry, which was parked at the spot in the Highway due to the fact that it had collided with another Lorry. But the evidence is to the effect that, the Lorry was parked at the Southern tar end of the road, within the tarred portion itself. The extensive damages sustained to the Car would indicate MACA 1757/11,1935/11 & 112/12 7 that the Car was driven at a high speed. As observed by the Tribunal, there is no evidence forthcoming to the effect that the Lorry was parked on lighting any park light or after putting any indicator on its back. However the evidence would lead only to the conclusion that if the deceased was careful in driving, he could have avoided hitting on the back of a Lorry, which was parked on the extreme end of the tar road. Since there is evidence that the Lorry was parked within the tarred portion of the road itself, in a National Highway, without putting any special indicator or without lighting the park lights, it can safely be held that there is contribution of negligence on the part of the 2[nd] Respondent, who is the Driver of the Lorry. The principle ' _res ipsa loquitor'_ is applicable in this case. From the circumstances as narrated above, we are inclined to hold that the negligence on the part of both the drivers had contributed in causing the accident. Hence the contention raised by the MACA 1757/11,1935/11 & 112/12 8 Appellant-Insurance Company regarding the aspect of negligence need to be accepted partly. 3. Question arises as to how the apportionment of negligence need to be decided. From the circumstances narrated as above and from the evidence available on record, we are inclined to have a reasonable decision in this regard to apportion the contribution of negligence equally on both the drivers. Thus it is held that, the 2[nd] Respondent as well as the deceased have contributed at equal proportion in causing the accident. 4. With respect to reasonableness of the amount awarded as compensation, it is brought to our notice that the Claimant had produced Exts.A11, A15, A16 and A23 documents in order to prove that the deceased was employed as a Resident Representative of a Company named Global Saga Logistics Pvt.Ltd., at the time of the accident. Exts. A15 and A23 are one and the same MACA 1757/11,1935/11 & 112/12 9 documents. It is a letter issued by the above said company to the deceased on 30.06.2004, offering employment as Resident Representative, at the basic salary of Rs.10,500/along with Conveyance Allowance of Rs.4,000/-, House Rent Allowance of Rs.5500/- and City Compensatory Allowance of Rs.5000/-. Ext.A11 is the Salary slip of the deceased for the month of August 2004, which would indicate that he had a net 'take home salary' of Rs.24,220/-, along with Provident Fund deduction of Rs.780/-. The rate of salary indicated in Ext.A11 is further fortified from Ext.A16 which is a letter issued by the Company to the Claimant on 6.12.2004, after the death of the deceased. It is the covering letter through which two cheques were forwarded to the Claimant from the said company. In the description of the cheques it is mentioned that one of the cheques is for Rs.24,220/- which is towards salary for the month of September, 2004. Therefore it is evident that the deceased at the time of his MACA 1757/11,1935/11 & 112/12 10 death was drawing a salary of Rs.25,000/-, including Provident Fund deductions. The Claimants have produced Ext.A14 which is the copy of an order issued by the Government of India regarding posting of certain persons who were selected as Asst. Commissioner, Income Tax Probationers. Name of the deceased finds a place in the said order, as Sl.No.7. Date of the said order is 12.6.2004. But nothing is produced to show that the deceased had joined the Income Tax Department on any date after Ext.A14. On the other hand, evidence is to the effect that he was continuing in the employment of the above said company, till his death. The Tribunal had adopted monthly income of the deceased as Rs.20,000/- for the purpose of computing the loss of dependency. Learned counsel for the Appellants in M.A.C.A. No.112/2012 and 1935/2011 contended that the Tribunal had failed in considering the aspect of future prospects in the career of the deceased. It is pointed out MACA 1757/11,1935/11 & 112/12 11 that Exts.A19, A20 and A21 would indicate that the deceased had qualification of B.Com. degree and he had completed Diploma in IATA - UFTAA Examination - Standard Course during the year 1994. Therefore it is argued that, in the field of Logistics the deceased had experience and could have achieved more heights in the same company or in any other companies in the field, had he been alive. Considering the dictum laid down in the decision of the Honourable Supreme Court in **Sarla Verma & Others v. Delhi Transport Corporation and Another [2009 (6)SCC 121]** it is to be observed that the Tribunal had failed in considering the aspect of future prospects while fixing the multiplicand. As settled in the said precedent, being a person at the age of 29 years having fixed salaried employment, 50% of the existing salary need to be added towards future prospects. Learned Senior Counsel appearing for the Appellant-Insurance Company had fairly conceded MACA 1757/11,1935/11 & 112/12 12 that the correct multiplier ought to have been adopted is 17, instead of 16, considering the exact age of the deceased which is proved through Ext.A12 document. In the above mentioned circumstances, we are inclined to refix the compensation on account of loss of dependency by adding 50% of the existing salary of 25,000/-. The monthly salary for the purpose of computation can be taken as Rs.37,500/-. 10% of the said amount can reasonably be deducted towards payment of income tax. Therefore the monthly income for the purpose of arriving the multiplicand need to be worked out to Rs.33,750/-. Calculated on the said basis, after deducting 1/3[rd] towards personal expenses the monthly contribution towards dependency need to be fixed at Rs.22,500/-. When worked out on the said basis, compensation for loss of dependency need to be refixed as Rs.45,90,000/-. Deducting the amount already awarded under the said count, the total compensation need to be MACA 1757/11,1935/11 & 112/12 13 enhanced by Rs.20,30,000/-. 5. We find that the amount of Rs.5,000/- awarded towards funeral expenses is highly inadequate. We are inclined to enhance the amount by a further sum of Rs.20,000/-. The Tribunal had awarded only a sum of Rs.25,000/- towards loss of consortium. We are inclined to enhance the award under that head to Rs.1,00,000/-. Thereby a further enhancement of Rs.75,000/- is granted. Compensation towards loss of love and affection to Respondents 5 and 6 is fixed by the Tribunal at Rs.25,000/-. We are inclined to award a further sum of Rs.25,000/- on that head. Thus the total amount of compensation awarded by the Tribunal is enhanced by a total sum of Rs.21,50,000/-. 6. Based on the findings already rendered as above, the Claimant as well as Respondents 5 and 6 are entitled only for 50% of the amount awarded which will work out to MACA 1757/11,1935/11 & 112/12 14 Rs. 23,95,000/-. 7. The Appellants in M.A.C.A. No. 112/2012 raised vehement contentions that the apportionment of the compensation made by the Tribunal between the Claimant and Respondents 5 and 6 (Appellants in M.A.C.A. No. 112/2012) at the ratio of 80:10:10 is not just and proper. It is pointed out that the deceased had not left back any children and the Claimant is at her young age, and there is every chance of she being re-married. Counsel for the Appellants contended that Respondents 5 and 6, who were the parents, were at the age of 48 & 56 years respectively and they could have enjoyed the benefit of dependency received from the deceased, had he been alive. It is also pointed out that the deceased was the only son of Respondents 5 and 6. Per contra, counsel appearing for the Appellants in M.A.C.A. No. 1935/2011 contended that both Respondents 5 and 6 have got their own income since they MACA 1757/11,1935/11 & 112/12 15 were abroad. According to him, Respondents 5 and 6 were not at all depending upon the income of the deceased for their livelihood. While considering the question of apportionment of the compensation, we take note of the fact that the amount awarded under the head of loss of consortium need to be assigned exclusively in the share of the Claimant. So also the amount of Rs.50,000/- awarded towards compensation for loss of love and affection need to be exclusively assigned to the share of Respondents 5 and 6. Therefore both the said parties are entitled to take 50% of the respective amounts as their due share in the total compensation. We are of the opinion that it is quite reasonable and justifiable to share the balance amount of the compensation between the Appellant and Respondents 5 and 6 at the ratio 75:12.5:12.5. This is especially because of the fact that the deceased and the Claimant had no issues. MACA 1757/11,1935/11 & 112/12 16 8. Lastly, a question arose as to whether the 4[th] respondent, who is the insurer of the Car involved in the accident, is liable to pay 50% of the total compensation awarded, based on the finding that the deceased who was driving the Car have contributed negligence to that extent in causing the accident. Learned Standing Counsel appearing for the 4[th] Respondent pointed out that the deceased himself was the insured under the policy and therefore the Claimants are not entitled to get the compensation indemnified from the 4[th] respondent Insurance Company. It is further contended that, in fact the policy itself stood cancelled much prior to the date of the accident, on 9.4.2004 itself, since the cheque issued towards payment of premium was dishonoured. However, since it is found that the deceased himself is the insured, he will not fall within ambit of a third party with respect to whom liability can be fetched on the 4[th] respondent. Learned MACA 1757/11,1935/11 & 112/12 17 counsel appearing for the Appellants in M.A.C.A. 1935/2011 and M.A.C.A. No.112/2012 had raised a contention that there might be payment of additional premium towards liability of the owner-cum-driver and in that respect the 4[th] respondent is liable to pay compensation within the limits stipulated under the terms of the policy. But there is absolutely no evidence forthcoming with respect to such a claim. Moreover the contention of the 4[th] respondent is that the policy stood cancelled much prior to the date of the accident. Therefore we are not inclined to hold any liability on the 4[th] respondent in this regard. However it is left open to the dependents of the deceased to approach the 4[th] respondent raising any such claim, in case they are eligible and it will be left open to the 4[th] respondent to take an appropriate decision based on such liability if any. The amount as enhanced by this judgment will carry interest at the rate of 8% per annum from the date of the MACA 1757/11,1935/11 & 112/12 18 claim petition till realisation. The Appellant-Insurance Company in M.A.C.A. No. 1757/2011 shall make deposit of the amount less the amount if any already paid before the Tribunal within a period of two months. It is made clear that the Claimant as well as Respondents 5 & 6 will be entitled to approach the Tribunal seeking withdrawal of the amount and the Tribunal shall pass appropriate orders considering the question of permitting withdrawal, without any further delay. Sd/- ## **C.K. ABDUL REHIM JUDGE** ## **Sd/-** **SHIRCY V. JUDGE** **ks.** True copy P.S. to Judge MACA 1757/11,1935/11 & 112/12 19 MACA 1757/11,1935/11 & 112/12 20