Velayudhan and Janaki v. V. Guruvayoorappan and Ors

MACA.1004/2006 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 MACA NO. 1004 OF 2006 AGAINST THE ORDER/JUDGMENT OPMV 1478/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD_ ## _PETITIONERS/APPELLANTS:_ _1 VELAYUDHAN, ARYANPADAM HOUSE, MANNUKKAD, PALLACHIRA, VENGEDI POST, PALAKKAD. 2 JANAKI W/O.VELAYUDHAN, ARYANPADAM, MANNUKKAD, PALLACHIRA, VENGEDI POST, PALAKKAD. BY ADVS. SRI.GEEN T.MATHEW SRI.O.RAMACHANDRAN NAMBIAR_ ## _RESPONDENT/S:_ - _1 V.GURUVAYOORAPPAN, 101-105, D.B.ROAD, R.S.PURAM, COIMBATORE. (DELETED) RESTORED_ - _2 NATIONAL INSURANCE COMPANY LTD., PALAKKAD BRANCH OFFICE, 3RD FLOOR,, EAST FORT COMPLEX, PALAKKAD.(R1 AND R2 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 8/4/16 IN IA NO.1388/2016) (DELETED) RESTORED_ - _3 R.KALIMANI(DIED), SO.RAGOTHAMAN 1/97, N.MAIN ROAD, KODUVANNURPOST, SANKARAPURAM TALUK, VRP DISTIRCT, TAMILNADU. (DIED)_ MACA.1004/2006 2 _4 V.SENTHILKUMAR, S/O.GOPAL, 2/94, MARIYAMMAN KOIL STREET, KODUVANNUR POST, SANKARAPAURAM TALUK, TAMILNADU. 5 GEETHA KALAIMANI, W/O.LATE R.KALAIMANI, C/O LATE RANGANATHAN, 1/93,1/97, MAIN ROAD, ROAD STREET, KADUVANUR POST-605 801, KADUVANUR VILAGE, RISHIVANDIYAM, SANKARAPURAM TALUK,VILLUPURAM DISTRICT, TAMILNADU STATE 6 VIJAYAN KALAIMANI(**IMPLEADED) S/OLATE R.KALAIMANI, C/O LATE RANGANATHAN, 1/93, 1/97, MAIN ROAD, ROAD STREET, KADUVANUR POST-605801,KADUVANUR VILLAGE, RISHIVANDIYAM SANKARAPURAM TALUK, VILLUPURAM DISTRICT, TAMILNADU STATE._ _(* *LEGAL REPRESENTATIVES OF RESPONDENT 3 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 AND 6 BEING LEGAL HEIRS OF DECEASED THIRD RESPONDENT AS PER ORDER DATED 26/10/16 IN IA 1336/2016) R1 AND R2 DELETED R1 AND R2 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 08/04/2016 IN I.A. 1388/2016. THE ORDER DATED 08/04/2016 IN I.A. NO. 1388/2016 IN MACA 1004/2006 IS RECALLED AS PER ORDER DATED 16/01/2020 IN I.A. NO. 1/2020, CONSEQUENTLY RESPONDENT I, RESPONDENT 2 ARE RESTORED TO THEIR ORIGINAL STATUS IN THE CAUSE TITLE._ ## _BYADVS.V.A.VINOD JOE KALLIATH_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR_ _ADMISSION ON 05.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.1004/2006 3 ## **JUDGMENT** The appellants are the petitioners in O.P.(MV).No.1478 of 2000 on the file of the Motor Accidents Claims Tribunal, Palakkad. The said claim petition was submitted by them seeking compensation for the death of one Krishnamoorthy, the son of the appellants. 2. According to the appellants, the accident occurred when the Tata Sumo bearing registration No.TN-37 M- 7756, in which the deceased was travelling, collided with a tractor with a trailer bearing registration No.TN-45/E-8568, which came from the opposite side. Due to the accident, the son of the appellant and the driver of the Tata Sumo sustained serious injuries, and both died while undergoing treatment. According to the appellants, the deceased was working as a mechanical operator in a private firm with a monthly salary of Rs.4,187/-. At the relevant time, he was aged 28 years. The 1[st] respondent was the registered owner of the Tata Sumo vehicle in which the deceased was travelling, and the 2[nd] respondent was the vehicle's insurer. The 3[rd] respondent was the owner of the Tractor, and the 4[th] respondent was the driver of the same. The compensation was sought for in such circumstances. MACA.1004/2006 4 3. Respondents 1, 3 and 4 remained ex parte. The 2[nd] respondent Insurance Company filed a written statement admitting the policy for the Tata Sumo vehicle, but the liability was disputed. According to them, the accident occurred due to negligence on the part of the driver of the tractor. They also disputed the quantum of compensation claimed by the appellants. 4. The evidence in this case consists of oral evidence of PW1 and PW2 and Exts.A1 to A10 from the side of the appellants. No evidence was adduced from the side of the respondents. 5. After examining the materials placed on record, the Tribunal came to the finding that the accident occurred due to the negligence on the part of the driver of the tractor and therefore, the 1[st] and 2[nd] respondents in the claim petition were exonerated from the liability. The quantum of compensation granted by the Tribunal is Rs.2,79,700/- and the said amount was directed to be deposited by the 3[rd] and 4[th] respondents, with interest at the rate of 6% per annum from the date of petition till realization with a cost of Rs.500/-. This appeal is filed by the appellants, challenging the finding of negligence and consequential exoneration of the 2[nd] MACA.1004/2006 5 respondent Insurance Company and seeking enhancement of compensation. 6. Heard Sri. Geen T. Mathew, learned counsel for the appellants, Sri. Joe Kalliyath, learned counsel for the 2[nd] respondent Insurance Company and Sri. V.A. Vinod, learned counsel for the 1[st] respondent. The 3[rd] respondent expired during the pendency of this appeal, and additional respondents 4, 5 and 6 were impleaded. Even though notices were served on them, they did not appear. 7. The first contention raised by the learned counsel for the appellants is regarding the finding on the question of negligence. It was pointed out that the accident occurred in the middle of the road and was a head-on collision. Therefore, there is contribution on the part of the driver of the Tata Sumo vehicle in the accident. The learned counsel also places reliance upon the common award passed in O.P(MV).No.1077/2001, 1078/2001, 1079/2001 and 1082/2001 dated 02.09.2013 passed by the Motor Accidents Claims Tribunal, Palakkad. All the said claim petitions arise from the very same accident, and after discussing the materials on record, the Tribunal came to the finding that both the drivers have contributed MACA.1004/2006 6 to the accident equally, and the liability was apportioned among them equally. 8. On the other hand, the learned counsel for the 1[st] and 2[nd] respondents would oppose the aforesaid contention by pointing out that the finding entered into by the Tribunal in Annexure-A1 cannot be relied on as it is not legally sustainable. It is pointed out that the Tribunal relied on hearsay evidence while deciding on the question of negligence. 9. However, after carefully going through the contents of the materials placed before this Court and the findings entered by the Tribunal in O.P.(MV).No.1077 of 2001 and connected cases, I find some force in the contention put forward by the learned counsel for the appellant. First of all, it is to be noted that the Tribunal entered the finding in the said case after considering the evidence of eyewitnesses who were examined in the said case. It was also observed that it was a head-on collision, and the other relevant circumstances in which the accident occurred were also taken into consideration. More importantly, even though the award in OP(MV) 1077/2001 and connected cases was passed in the year MACA.1004/2006 7 2013, none of the 1[st] and 2[nd] respondents have ever challenged the said finding, and the same has thus attained finality. In such circumstances, I am of the view that as there is already a finding, holding the driver of the Tata Sumo also responsible for the accident and imposing a consequential liability upon the 1[st] and 2[nd] respondents, which has now become final, a different contention cannot be raised by the 1[st] and 2[nd] respondents in this regard. The contention as to the illegality or unsustainability of the findings in the common award passed in O.P.(MV).No.1077 of 2001 and connected cases cannot also be considered in this case, as the same was never challenged at the instance of the 1[st] and 2[nd] respondents. Therefore, it is to be held that the question of negligence has to be decided in tune with the finding of the Tribunal in O.P.(MV).No.107 of 2001 and connected cases, thereby holding both the drivers are responsible for the accident. The natural consequence of the said finding is that compensation awarded in this case has to be recovered from both parties as their liability is joint and several 10. When moving on to the quantum of compensation, the learned counsel for the appellant would submit that the amount MACA.1004/2006 8 awarded under the head of loss of dependency is inadequate. It was pointed out that to determine the compensation, the monthly income was taken as only Rs.2,500/-, whereas the Ext.A8 certificate produced before the Tribunal would show that the monthly income was Rs.4,187/-. I have gone through the contents of Annexure-A8, which was accepted by the Tribunal. It is seen from the observations made in the award that, while fixing the monthly income, the Tribunal deducted the House Rent Allowance, Fixed Dearness Allowance, Conveyance Allowance, Special Allowance and Washing Allowance, which form part of the salary. However, after considering the relevant materials, I am of the view that the House Rent Allowance should not have been deducted as that forms part of the basic salary. Therefore, while considering the monthly income by accepting the figures shown in the salary certificate for basic salary, Fixed Dearness Allowance, Variable Dearness Allowance and House Rent Allowance would come to Rs.3,691/- and the said amount is accepted as monthly income. It is also to be noted that no addition was made by the Tribunal towards future prospects. As it is evident that the deceased was working in regular MACA.1004/2006 9 permanent employment and was aged 28 years, the addition to be made was 50% of the income. However, at the same time, as the deceased died as a bachelor, the deduction to be made towards personal expenses is 50%. While reassessing the quantum of compensation under the head of loss of dependency, with the above revised criteria, the amount would come to Rs.5,64,723/[(3691+50%) x 12 x 17 x 1/2]. After deducting Rs.2,65,200/already awarded by the Tribunal under the said head, the amount would be Rs.2,99,523/- 11. In addition to the above, a further amount of Rs.13,000/is to be granted towards funeral expenses, as the Tribunal granted only Rs 2000/-. Similarly, Rs.12,500/- is to be awarded under the head of loss of estate as the amount awarded by the Tribunal was only Rs.2,500/-. Another aspect to be considered is that no amount was granted towards the loss of consortium. The appellants are the parents of the deceased, and going by the decision rendered in **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760],** the appellants are entitled to compensation for the loss of consortium of Rs.40,000/- each and thereby an amount of MACA.1004/2006 10 Rs.80,000/- has to be awarded. However, it is seen that an amount of Rs.1,500/- is granted towards the loss of love and affection. In **New India Assurance Company Ltd. v. Somwathi & Ors [2020** **(9) SCC 644]** , it was held by the Honourable Supreme Court that when compensation is awarded for loss of consortium, no further amount needs to be awarded under the head of loss of love and affection. Therefore, Rs.1,500/- awarded under the head of loss of love and affection is adjusted against the compensation for loss of consortium, thereby awarding additional compensation of Rs 78,500/- under the said head. Thus, additional compensation receivable under this head by the appellant is Rs.4,03,523/(299523 + 13000 +12500 + 78500). Accordingly, the total amount of compensation receivable by the appellants is revised as Rs.6,83,223/- (Rupees six lakhs eighty three thousand two hundred and twenty three only) 12. The learned counsel for the appellant further contends that the rate of interest awarded was only 6%, which is on the lower side. I find some force in the contention, and therefore, the rate of interest is fixed as 7%. At this juncture, the learned counsel MACA.1004/2006 11 for the 2[nd] respondent would point out that, even though the 2[nd] respondent was made as one of the parties, they were deleted from the party array on 08.04.2016, and only on 16.01.2020, they were subsequently impleaded again. Therefore, during the said period, they should be exonerated from the liability to pay the interest. The said contention is to be accepted. Thus, while revising the rate of interest as 7%, it is clarified that the 1[st] and 2[nd] respondents shall be entitled to exclude the period between 08.04.2016 to 16.01.2020 for the purpose of computation of interest on the amount awarded. In such circumstances, the award dated 06.01.2006 in O.P. (MV).N0.1478 of 2000 passed by the Motor Accidents Claims Tribunal, Palakkad is hereby modified by holding that both the driver of the Tata Sumo as well as the driver of the Tractor were equally responsible for the accident and the liability to pay the compensation shall be apportioned among the 1[st] and 2[nd] respondent on one side and 3[rd] and 4[th] respondents on the other side in equal proportions. The total amount of compensation is fixed as Rs.6,83,223/- (Rupees six lakhs eighty three thousand two hundred and twenty three only), and the said amount shall be MACA.1004/2006 12 recoverable by the appellant with interest at the rate of 7% per annum from the respondent Nos 1, 2, 3 and 4, from the date of petition till realization, subject to the exclusion of the period as referred to above. With the above observations, this appeal is disposed of. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/6.10.23