Usha Saju and Others v. Ratheesh Joseph and Others

MACA.No.849/2015 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945_ _MACA NO. 849 OF 2015_ _AGAINST THE ORDER/JUDGMENT OPMV 613/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA_ ## _APPELLANTS/PETITIONERS:_ - _1 USHA SAJU, W/O.LATE SAJU, PEEDIKAPPARAMBIL HOUSE, KOOTHATTUKULAM POST, PALAKUZHA VILLAGE._ - _2 ANEESH, S/O.LATE SAJU, PEEDIKAPPARAMBIL HOUSE, KOOTHATTUKULAM POST, PALAKUZHA VILLAGE._ - _3 AJEESH, S/O.LATE SAJU, PEEDIKAPPARAMBIL HOUSE, KOOTHATTUKULAM POST, PALAKUZHA VILLAGE._ _BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY_ ## _RESPONDENTS/RESPONDENTS:_ - _1 RATHEESH JOSEPH, S/O.JOSEPH, THOTTUNGAL HOUSE, KOOTHATTUKULAM VILLAGE & POST, 686 662._ - _2 RAJESH.T.J., S/O.JOSEPH, THOTTUNGAL HOUSE, KOOTHATTUKULAM VILLAGE & POST, 686 662._ MACA.No.849/2015 2 - _3 THE ORIENTAL INSURANCE CO.LTD. T.H.TOWER, FIRST FLOOR, STADIUM ROAD, MARKET POST, MUVATTUPUZHA-686 661._ _SRI. VPK PANICKER -R3_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.849/2015 3 ## **J U D G M E N T** Appellants are the petitioners in O.P.(MV).No.613 of 2012 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. 2. The said claim petition was submitted by them seeking compensation for the death of one Saju, who died due to the injuries sustained in a motor accident that occurred on 18.03.2012. The deceased was the husband of the 1[st] appellant and the father of the 2[nd] and 3[rd] appellants. It was contended that the deceased was working as a timber worker with a monthly income of Rs.7,500/- and was aged 48 years at the time of the accident. According to the appellants, the accident occurred when the car driven by the 1[st] respondent hit the motorcycle ridden by the deceased. Due to the accident, the deceased sustained serious injuries, and he was taken to the Medical College Hospital, Kolenchery. While undergoing the treatment, he passed away on 05.06.2012. According to the claimants, the accident occurred due to the negligence on the part of the 2[nd] respondent driver of the vehicle. The 1[st] MACA.No.849/2015 4 respondent was the owner, and the 3[rd] respondent was the insurer of the vehicle. 3. The owner and the driver remained ex-parte. The 3[rd] respondent filed a written statement admitting the coverage of policy in respect of the vehicle, but they disputed the liability on various grounds. They contended that there was a violation of policy conditions. They disputed the quantum of compensation as well. 4. Evidence in this case consists of Exts.A1 to A11 from the side of the appellant. No evidence was adduced from the side of the respondents. After examining the materials placed on record, even though the Tribunal found a significant contribution for causing the accident from the driver of the car, the deceased was also found to have contributed to the accident to the extent of 7.5%. The quantum of compensation was fixed as Rs.12,66,500/-, and the 3[rd] respondent was directed to deposit 92.5% of the said amount along with interest at the rate of 8% per annum from the date of petition till realization. This appeal is submitted by the appellant challenging the finding of MACA.No.849/2015 5 contributory negligence on the part of the deceased and also seeking enhancement of compensation. 5. Heard Sri.Mathew John, learned counsel for the appellant and Sri.V.P.K.Panicker, learned counsel for the Insurance Company. 6. The first contention raised by the learned counsel for the appellant is with respect to the contributory negligence found by the Tribunal. The only reason for the said finding was that the deceased did not have a valid driving license to ride the motorcycle at the relevant time. However, the crucial aspect to be noticed in this regard is that as per Ext.A5 final report submitted in crime No.118 of 2012 by the Koothattukulam Police Station, the driver of the car was found responsible for the accident. It is a well settled position of law as held by this Court in **New India Assurance Co.Ltd v. Pazhaniammal[ 2011 (3) KLT 648]** that, in the absence of any contra evidence, the conclusion arrived at by the police after investigation, can be accepted for determining the question of negligence. In this case, there is no contra evidence adduced by the respondents. MACA.No.849/2015 6 The finding of the Tribunal was based on the fact that the deceased did not have any valid license at the relevant time. However, the mere absence of a licence alone cannot be a factor in determining contributory negligence. Such a finding can be arrived at only if it is established from the materials that the driving of the vehicle by the said party contributed to the accident in any manner. In the absence of any materials to show such contribution, no contributory negligence can be attributed to any person. Therefore, the lack of a driving licence as such cannot be a reason to hold that the person has contributed to the accident in the absence of any materials indicating the actual contribution to the accident. Therefore, I am of the view that the finding of the Tribunal contributed 7.5% contributory negligence upon the deceased is not legally sustainable, and it is accordingly set aside. 7. When moving on to the quantum of compensation, it is seen from the records that even though the appellants have claimed a monthly income of Rs.7,500/-from his avocation as a timber worker, the Tribunal has taken only Rs.4,000/-. Of MACA.No.849/2015 7 course, it is true that to substantiate the said contention, no evidence was adduced. When considering the method of computation evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]** , **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735],** under no circumstances, the monthly income of Rs.7,500/- claimed by the police can be treated as unreasonable since the accident has occurred in the year 2012. Therefore, the entire monthly income can be accepted, and it is ordered accordingly. Thus, while reassessing the compensation with the above revised criteria, the amount of compensation under the said head would come to Rs.9,75,000/- [ (7500 + 25%) x 12 x 13 x2/3]. After deducting Rs.5,40,852/- already awarded by the Tribunal, the additional amount would come to Rs.4,34,148/-. 5. Another aspect to be noticed is that the Tribunal has granted only an amount of Rs.50,000/- under the head of loss of consortium, whereas the deceased left behind three persons, MACA.No.849/2015 8 who were wife and children. As per the principles laid down in **United India Insurance Co.Ltd. v. Sathinder Kaur [2020 SCC Online SC 410]** , all the appellants are entitled to compensation under the said head at the rate of 40,000/- each, thereby the total amount under the said head would be 1,20,000/-. However, another relevant aspect to be noticed is that the Tribunal awarded an amount of Rs.40,000/- under the head of loss of love and affection. In the light of the principles laid down by the Honourable Supreme Court in **Sathinder Kaur (supra),** when compensation is awarded for loss of consortium, no separate amount is to be awarded to loss of love and affection. Therefore, the amount of Rs.40,000/- awarded under the head of loss of love and affection should be adjusted against the amount awarded under the head of loss of consortium, and thus, the additional amount entitled under this head would come to Rs.30,000/-. Similarly, the amounts awarded under the head loss of estate and loss of love and affection, which are Rs.5,000/- each, are on the lower side. Therefore, Rs.10,000/- each is granted under the said heads. MACA.No.849/2015 9 Thus, the total additional compensation is determined as Rs.4,84,148/- (434148+30000+10000+10000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 01.07.2014 in O.P. (MV).No.613 of 2012 passed by the Motor Accidents Claims Tribunal, Muvattupuzha, is hereby modified by granting an additional amount of Rs.4,84,148/- (Rupees four lakhs eighty four thousand one hundred and forty eight only) and the finding of contributory negligence on the part of the deceased is also set aside. Consequently, the respondent Insurance Company is directed to deposit the said additional amount and also the remaining amount as per the award passed by the Tribunal (7.5% of the award) along with interest at the rate as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/11.10.23