Valsala W/o Late Somasundaran; Atheena Sunder (Minor), D/o Late Somasundaran; Pareekshith Sunder (Minor), S/o Late Somasundaran v. Mohammed Shafi; Raghunathan V. and Oriental Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946 MACA NO. 1162 OF 2013`** ``` AGAINSTTHEORDER/JUDGMENTDATED15.11.2012INOPMVNO.1986OF 2006OFMOTORACCIDENTCLAIMSTRIBUNAL,THRISSUR APPELLANTS/PETITIONERS1TO3: ``` ## **`1 VALSALA`** ``` W/O.LATESOMASUNDARAN. ``` ## **`2 ATHEENA SUNDER`** - **`(MINOR), D/O.LATE SOMASUNDARAN.`** ## **`3 PAREEKSHITH SUNDER`** ``` (MINOR),S/O.LATESOMASUNDARAN(MINORAPPELLANTS2 AND3REPRESENTEDBYTHEIRGUARDIANMOTHERTHE1ST APPELLANTHEREIN)ALLARERESIDINGATKANNANCHERY HOUSE,PLAKKATPAYYUR,CHOONDAL,THRISSURDISTRICT. ``` ``` BYADVS. SRI.T.C.SURESHMENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ## **`1 MOHAMMED SHAFI`** ``` RESIDINGATKANNADANHOUSE,EDARIKODE, MALAPPURAM-676501. ``` ## **`2 RAGHUNATHAN.V.`** ``` S/O.GOPALANNAIR,RESIDINGATALAPPUZHAHOUSE, CHENDRAPPINNI,THRISSUR-680687. ``` - **`3 THE ORIENTAL INSURANCE COMPANY LIMITED NO.7 UTHAMAR GANDHI SALAI, 2ND FLOOR, ROSY TOWERS, NUNGAMBAKKAM, CHENNAI, TAMIL NADU-600034.`** ``` BYADVS. ``` - **`SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON02.04.2024,THECOURTON09.04.2024DELIVEREDTHEFOLLOWING: ``` MACA No.1162 of 2013 2 ## **J U D G M E N T** The petitioners 1 to 3 in OP (MV) No.1986 of 2006 on the file of Motor Accidents Claims Tribunal, Thrissur are the appellants herein, challenging the Award on the ground of inadequacy of compensation, as well as contributory negligence found against the deceased. 2. The appellants are the wife and children of deceased Somasundaran. On 21.06.2006 at 4 p.m, while Sri.Somasundaran was driving KL-8/N 8618 Maruti car towards Changaramkulam through Changaramkulam–Thrissur public road, KL-10/P 8515 private bus driven by the 2[nd] respondent in a rash and negligent manner dashed against his car. He sustained very serious injuries and succumbed to the injuries, on the way to Amala hospital. Sri.Somasundaran was 46 years old at the time of his death, and he was working as an LIC agent, and he was running a goat farm also, and his monthly income was Rs.50,000/-. His family was solely depending upon his income for their livelihood. His legal heirs i.e. his wife, two children and mother approached the Tribunal claiming compensation of Rs.50 lakh. But, learned Tribunal awarded only Rs.18,28,000/-, and even reduced it to Rs.15,53,800/- finding contributory negligence to the extent of 15%. MACA No.1162 of 2013 3 Hence this appeal. 3. The 1[st] respondent was the owner of the offending bus, 2[nd] respondent was its driver and the 3[rd] respondent was its insurer. Respondents 1 and 2 remained ex parte. The 3[rd] respondent/insurer contested the case, but admitted the policy. 4. Before filing the appeal, the 4[th] petitioner, mother of the deceased, passed away. So, the appeal was filed by petitioners 1 to 3 i.e. the wife and children of the deceased. The legal heirs of deceased 4[th] petitioner is not made a party in the appeal, and there is no petition even to record appellants 1 to 3 as the legal heirs of the deceased 4[th] petitioner, if at all no other legal heirs are there for the deceased 4[th] petitioner. 5. In the appeal, notice to respondents 1 and 2 was dispensed with, since the 3[rd] respondent/insurer entered appearance and admitted the policy. 6. Now this Court is called upon to find out whether there is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court. 7. Heard learned counsel for the appellants and learned counsel MACA No.1162 of 2013 4 for the 3[rd] respondent/insurer. 8. The first ground urged by the appellants to assail the award is the finding of the Tribunal, as to the contributory negligence from the part of the deceased to the extent of 15%. Learned counsel for the appellants would submit that, Ext.B2 copy of the final report will show that, the accident occurred due to the rash and negligent driving of the offending bus by the 2[nd] respondent, and there was no charge against the deceased alleging rash and negligent driving of the Maruti car by him. The road at the place of occurrence was lying east west and the bus was proceeding towards east through the northern side of the road. The car was coming from the opposite direction and it was proceeding towards west. So, it should have kept its proper side, i.e. the southern side of the road. Ext.B1 copy of scene mahazar will show that, the accident occurred 5.55 meters north from the southern tar end. The mahazar further shows that, the tar road was having width of 12 meters. So, according to the investigating agency, the accident occurred at the middle of the road. But, the photographs appended with Ext.B1 mahazar will show that, the bus and the car collided on the northern part of the road and if so, the bus was keeping its proper MACA No.1162 of 2013 5 side. But, learned counsel for the appellants would submit that, the vehicles were drawn to some distance due to the impact of the collision, and the photographs show the position of the vehicles after it was being dragged to a distance, and it is not the actual place of incident. 9. PW2 is an occurrence witness examined by the appellants to prove the accident. He would say that, he was riding his motorcycle just behind the Maruti car, and the bus which came from opposite direction dashed against the car and according to him, the accident occurred due to the rash and negligent driving of the bus by its driver. Ext.B2 copy of the final report will show that, after investigation, the Police found that, the accident occurred due to the rash and negligent driving of KL-10/P 8515 bus by the 2[nd] respondent/driver. 10. In **New India Assurance Co. Ltd v. 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 prima facie sufficient evidence of negligence for the 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_ MACA No.1162 of 2013 6 _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_ ’. 11. Learned counsel for the appellants would submit that, the Tribunal, relying on Ext.B1 scene mahazar which says that, the place of occurrence was 5.55 meters south from the northern tar end of the road which was having width of 12 meters, came to the conclusion that the deceased who was driving the car also contributed towards the accident. No evidence was adduced by the 3[rd] respondent/insurer to substantiate their case that the accident occurred due to the contributory negligence from the part of the deceased also. So, there was no reason to discard Ext.B2 final report which says that, the accident occurred due to the sole negligence of the 2[nd] respondent who was driving the offending bus. So, the 15% contributory negligence found by the Tribunal on the deceased is liable to be set aside. 12. Now, coming to the quantum of compensation, learned counsel for the appellants would submit that, the deceased was an LIC agent having membership of Chairman club, and he was earning MACA No.1162 of 2013 7 annual income of more than Rs.5 lakh every year. Moreover, he was running a goat farm also with substantial profit out of it. Ext.A1 was relied on by the appellants to show the commission received from the - insurance company during the period 2000 2006. Ext.A14 is copy of - income tax returns filed by the deceased for the period 2002 2007. Along with the income tax returns filed every year, the income and expenditure statement in respect of LIC commission also is seen appended. The accident occurred in the year 2006. Ext.A1 shows that, during the financial year 2005-2006, the commission received by the deceased from the insurance company was Rs.4,98,304/-. The income tax return submitted on 26.07.2006 shows his income from profession as Rs.1,93,137/-. The income and expenditure statement appended along with that return also will show that his total income was Rs.1,93,136/-. So, this Court is inclined to accept that amount as his annual income. 10% was liable to be deducted towards income tax. So, the balance will come to Rs.1,73,822/-. So, his monthly income could be assessed as Rs.14,485/-. Since he was aged only 46, and self-employed, going by the decision **National Insurance Company Ltd. v. Pranay Sethi and Others [(2017) 16 SCC 680]** , MACA No.1162 of 2013 8 he was eligible to get addition of 25% towards future prospects. So, his monthly income could have been fixed at Rs.18,106/-. Since he was having four dependents, 1/4[th] has to be deducted towards his personal expenses. So, the balance income would be Rs.13,580/-. The multiplier applicable is 13 as he was aged 46. So, the compensation for loss of dependency could have been assessed as Rs.21,18,480/(13580x12x13). After deducting Rs.17,50,000/awarded by the Tribunal, the balance amount entitled is Rs.3,68,480/-. 13. Towards funeral expenses, the Tribunal awarded only Rs.5,000/-. As per the decision **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680]** , the appellants are entitled to get Rs.10,000/more towards funeral expenses. 14. For loss of consortium, the appellants, who are the wife and children of the deceased, are entitled to get Rs.40,000/- each. So, they are entitled to get Rs.1,20,000/under the head ‘loss of consortium’. But, then Rs.20,000/- awarded for love and affection and Rs.30,000/- awarded for loss of consortium by the Tribunal have to be deducted. So, the balance amount will be Rs.70,000/-. MACA No.1162 of 2013 9 15. Towards loss of estate, the Tribunal awarded only Rs.5,000/-. Based on _Pranay Sethi’s case_ cited supra, the appellants are entitled to get Rs.10,000/- more under that head. 16. Relying on the decisions **Sarla Verma** v. **Delhi Transport Corporation and another** (2009 KHC 4634), **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others** (2020 ACJ 2131) and **Oriental Insurance Company Limited** **v. Kahlon alias Jasmail Singh Kahlon** (2021 SCC Online SC 691), learned counsel for the 3[rd] respondent/insurer would submit that, the appellants, who are the legal heirs of the deceased, were not entitled to get any amount for the pain and suffering undergone by the deceased as it was personal in nature. The Tribunal awarded Rs.10,000/- towards pain and suffering. Since it is a death case, the legal heirs of the deceased are not entitled to get that amount and hence the said amount is liable to be deducted from the enhanced compensation. 17. As we have set aside 15% contributory negligence found by the Tribunal against the deceased, the appellants are entitled to receive the amount which was reduced towards 15% contributory MACA No.1162 of 2013 10 negligence. The amount so reduced was Rs.2,74,200/-. The 3[rd] respondent/insurer is liable to deposit that amount also as part of enhanced compensation. 18. The compensation awarded under all other heads seems to be reasonable and hence it needs no modification. |**Head of claim**<br>**(1)**|**Amount**<br>**awarded by**<br>**the Tribunal**<br>**(2)**|**Amount**<br>**awarded in**<br>**appeal**<br>**(3)**|**Amount**<br>**deducted in**<br>**appeal**<br>**(4)**|**Difference to be**<br>**drawn as**<br>**enhanced**<br>**compensation**<br>**(5)**| |---|---|---|---|---| |Loss of<br>dependency|Rs.17,50,000/-|Rs.21,18,480/-|-|Rs.3,68,480/-| |Funeral<br>expenses|Rs.5,000/-|Rs.15,000/-|-|Rs.10,000/-| |Loss of<br>consortium/<br>Loss of love<br>and affection|Rs.30,000/-<br>Rs.20,000/-|Rs.1,20,000/-|-|Rs.70,000/-| |Loss of estate|Rs.5,000/-|Rs.15,000/-|-|Rs.10,000/-| |Pain and<br>suffering|Rs.10,000/-|-|Rs.10,000/-|-| |Add: 15% contributory negligence||||Rs.2,74,200/-| |**Total**|||**Rs.10,000/-**|**Rs.7,32,680/-**| |**Enhanced compensation = Rs.7,22,680/- (732680 -10000)**||||| 19. In the result, the appellants are entitled to get enhanced compensation of Rs.7,22,680/(3,68,480+10000+70000+10000+ - 2,74,200) (10000). MACA No.1162 of 2013 11 20. The appellants are the wife and children of the deceased. They are entitled to receive the enhanced compensation in equal share. The 3[rd] respondent/insurer is directed to deposit the enhanced compensation of Rs.7,22,680/(Rupees Seven lakh twenty two thousand six hundred and eighty only) with interest @ 8% per annum from the date of petition till the date of deposit (except 58 days of delay in filing the appeal) before Motor Accidents Claims Tribunal, Thrissur, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to appellants 1 to 3 in equal share, after deducting the liabilities, if any, of appellants towards Tax, balance court fee and legal benefit fund. The appeal is allowed to the extent as above. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp