VASANTHI (1), VALSALA (2), ANIL KUMAR (3), AJANTHAKUMARI (4) and THANKAPPAN (5) v. SHERIN SHAFATH, AZEEZ BABU and ORIENTAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 30TH DAY OF JULY 2013/8TH SRAVANA, 1935** ## **MACA.No. 951 of 2010 ( )** **------------------------OPMV 936/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM.** **.........** ## **APPELLANT/PETITIONER:** **-------------------------------------** **1. VASANTHI, W/O.THANKAPPAN, PARAMESWARATH VEEDU, PADINJATTAKKARA, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM DISTRICT.** **2. VALSALA, D/O.VASANTHI, PARAMESWARATH VEEDU, PADINJATTAKKARA, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM DISTRICT.** **3. ANIL KUMAR, S/O.THANKAPPAN, PARAMESWARATH VEEDU, PADINJATTAKKARA, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM DISTRICT.** **4. AJANTHAKUMARI, D/O.VASANTHA, PARAMESWARATH VEEDU, PADINJATTAKKARA, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM DISTRICT.** **5. THANKAPPAN, F/O.AJAYAKUMAR, PARAMESWARATH VEEDU, PADINJATTAKKARA, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM DISTRICT.** **BY ADV. SRI.C.RAJENDRAN.** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------** ## **1. SHERIN SHAFAHATH,** - **PARAMBIL THOPPU, PALLIPPURAM, KANIYAPURAM, THIRUVANANTHAPURAM.** **2. AZEEZ BABU, S/O.BASHEER KOYA.A, T.C.17/1684, PILLAR PALACE, POOJAPPURAM, THIRUVANANTHAPURAM.** **3. THE DIVISIONAL MANAGER,** - **THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, IIND ST.MARYVILLA, ULLOOR, THIRUVANANTHAPURAM, REPRESENTED BY THE DIVISIONAL OFFICE.** **R3 BY ADV. SRI.VPK.PANICKER.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------M.A.C.A. No.951 of 2010-E --------------------------------------------------------------Dated this, the 30[th] day of July 2013 ## Judgment ## Siri Jagan, J. The parents and siblings of deceased Ajayakumar, who died in an accident caused by the negligent driving of a motor vehicle owned by the first respondent, driven by the second respondent and insured with the third respondent filed OP(MV) No.930/0 before the Motor Accidents Claims Tribunal, Kottayam, claiming compensation for the death of Ajayakumar. During the pendency of the OP(MV), the father of Ajayakumar died. The Tribunal, after finding negligence on the part of the second respondent to the extent of 70% and to the extent of 30% on the deceased, assessed compensation under various heads as follows : MACA No.951/2010 2 |**_Head_**|**_Amount ₹_**| |---|---| |**_Transport to hospital &_**<br>**_funeral expenses_**|**_5,000.00_**| |**_Pain and sufferings_**|**_5,000.00_**| |**_Permanent disability_**<br>**_(Rs.1500 x 12 x 8)_**|**_144,000.00_**| |**_Loss of love and affection_**|**_10,000.00_**| |**_Total_**|**_164,000.00_**| From the same, 30% was deducted for contributory negligence of the deceased. Dissatisfied with the quantum of compensation awarded and challenging the finding of contributory negligence, petitioners 1 to 4 in the claim petition have filed this appeal, seeking enhanced compensation. 2. The first contention raised by the appellants is that despite the fact that the police have charged criminal case against the second respondent alone for the offences punishable under Sections 279 and 304A of the Indian Penal Code, the Tribunal erroneously fixed 30% contributory negligence on the part of the deceased. It is pointed out that PW2, who was an occurrence witness, deposed before the MACA No.951/2010 3 Tribunal that the accident occurred on the wrong side of the vehicle driven by the second respondent and the deceased was riding a cycle on the correct side of the road. Despite the same, the Tribunal found 30% contributory negligence on the part of the deceased, which is unsustainable, is the contention raised. 3. As far as the quantum of compensation is concerned, the appellants would contend that the Tribunal wrongly fixed the multiplier as 8, whereas the deceased having been 24 years old at the time of accident, the multiplier applicable was 18. Further, 50% was wrongly deducted for personal expenses of the deceased. It is submitted that apart from the aged parents, three unmarried sisters were also depending on the deceased and therefore, only 1/3[rd] should have been deducted. It is further submitted that the compensation for loss of love and affection is on the lower side and no amount has been awarded for loss of estate. 4. On the other hand, the learned Standing Counsel MACA No.951/2010 4 for the Insurance Company vehemently argued that the multiplier is to be based on the age of the parents in this case, going by the decision of the Supreme Court in **New India Assurance Limited v. Smt.Shanthi Pathak and others** (AIR 2007 (SC) 2649). He points out that although in the decision of the Supreme Court in **Amrit Bhanu Shali v. National Insurance Company Limited** (2012 ACJ 2002), , it has been held that the multiplier should be based on the age of the deceased and not on the basis of the age of the dependants, insofar as **Santhi Pathak** 's case (supra) is of a Bench of three Judges and **Amrit Bhanu Shali** 's case is of a Bench of two Judges, the former should be relied on for the purpose of fixing the multiplier. He further submits that the Tribunal correctly fixed 30% contributory negligence on the deceased. The counsel for the Insurance Company would, therefore, argue for sustaining the impugned award. 5. We have considered the rival contentions in detail. MACA No.951/2010 5 6. Despite the difference is the Bench strength of the two decisions, insofar as the decision in **Amrit Bhanu Shali** 's case relies on the earlier three Bench decision of the Supreme Court in **U.P.State Transport Corporation v. Trilok Chandra** (ACJ 1996 ACJ 831)(SC), we are of the opinion that **Amrit Bhanu Shali** 's case should be accepted as the present law governing the issue. Therefore, what is relevant for the purpose of fixing the multiplier is the age of the deceased and not the age of the dependants. Further, apart from the parents, there were three unmarried sisters also, depending on the deceased. That being so, we are of the opinion that the deduction for personal expenses should be 1/3[rd] and not 50%. Calculated on the basis of these inputs, the compensation for loss of dependency would be Rs.4,32,000/- instead of Rs.1,44,000/-. The difference would be Rs.2,88,000/-. We are inclined to enhance the compensation for loss of love and affection to Rs.20,000/- from Rs.10,000/-. We are also inclined to award Rs.5,000/- for loss of estate. Consequently, the MACA No.951/2010 6 appellants would be entitled to an additional compensation of Rs.3,03,000/-, over and above what as been awarded by the Tribunal. 7. As far as the question of negligence is concerned, it has been proved by evidence that the police laid charge only against the second respondent. Further, the appellants have examined PW2, an occurrence witness to the accident, to prove negligence on the part of the second respondent. The accident was on a road, lying north-south. The width of the road was 10 metres. PW2 stated that the accident was on the western side of the road, which is the correct side of the deceased and the wrong side of the second respondent. The Tribunal has entered a specific finding that nothing was brought out in cross examination of PW2 to discredit his evidence. If that be so, the Tribunal could not have validly fixed 30% contributory negligence on the deceased. Consequently, we vacate the finding of the Tribunal that the deceased contributed to the accident by his MACA No.951/2010 7 negligence. 8. Accordingly, the appellants are entitled to an additional compensation of Rs.3,03,000/-, over and above what has been awarded by the Tribunal. This amount would carry interest @ 9% per annum from the date of the claim petition till the date of payment. Apart from the same, the appellants are entitled to the 30% deducted from the compensation assessed by the Tribunal on account of the contributory negligence of deceased. The same, with interest at the rate fixed by the Tribunal along with the additional compensation awarded by us as above, shall be deposited by the third respondent Insurance Company within two months. With the above modification of the impugned award, the appeal is disposed of. ## **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA No.951/2010 8 MACA No.951/2010 9