V.K. Umer and Hafsath v. Muhammed Shafi and ICICI Lombard Motor Insurance Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 MACA NO. 2300 OF 2012** **AGAINST THE JUDGMENT 18.11.2011 IN OPMV 418/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANTS/PETITIONERS:** 1 V.K.UMMER S/O.POCKER @ ABOOBACKER 2 HAFSATH W/O.V.K.UMMER - BOTH ARE RESIDING AT: VATTAKALARI HOUSE, EDAYATTOOR.P.O., VIA.MELATTUR, PERINTALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV SRI.P.VENUGOPAL (1086/92) ## **RESPONDENTS/RESPONDENTS:** 1 MUHAMMED SHAFI S/O.UNNEENKUTTY, PUKKUNNAN HOUSE, P.O.THUVVUR, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679327. 2 ICICI LOMBARD MOTOR INSURANCE LIMITED ZENITH HOUSE, KESHAVARAO KHADE MARG, MAHALAXMI, MUMBAI, MHARASHTRA STATE, PIN:400 034. BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH SRI.LATHEESH SEBASTIAN SC-R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2300/2012 2 ## **M.R.ANITHA, J** ****************** M.A.C.A.No.2300 of 2012 ---------------------------------------------------------Dated this the 8[th] day of March, 2022 ## **JUDGMENT** Appellants/claimants are the claimants in O.P.(MV) No.418/2008 on the file of Motor Accidents Claims Tribunal (for short 'the Tribunal'), Manjeri. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') for compensation due to the death of their minor son, on a motor accident occurred on 25.12.2007 at about 2.15 p.m, while the deceased was riding motor cycle by hit with a tanker lorry bearing Reg.No.KL 10AA 5313 at Akkarapuram. It is alleged that the accident happened due to the rash and negligent driving of the driver/owner of the tanker lorry, who is the first respondent. 2[nd] respondent is the insurer of the tanker lorry. Total compensation of Rs.8 lakhs was claimed. 2. Before the Tribunal, respondents 1 and 2 filed written M.A.C.A.No.2300/2012 3 statement denying the negligence and rashness on the part of the first respondent. Policy coverage with respect to the offending vehicle is admitted by the second respondent and it is further contended that the deceased had been overtaking the tanker lorry in utmost disregard of traffic rules and safety measures and invited the accident and hence the deceased had contributed to the accident. It is also contended that he was not qualified to apply for licence to ride the motorcycle since he was only 16 years old. 3. Exts.A1 to A7 were marked from the side of the appellants/claimants. There was no oral evidence from either side. 4. The Tribunal, on evaluating the evidence as well as the documents produced from the side of the appellants/claimants, found that there is 50% contributory negligence on the part of the deceased. A total compensation of Rs.3,06,000/- was arrived at, but after deducting 50% towards contributory negligence, Rs.1,53,000/- was awarded with interest @ 9% per annum from the date of petition till realisation. M.A.C.A.No.2300/2012 4 5. Aggrieved by the award passed by the Tribunal, the appellants/claimants (hereinafter be referred as 'the claimants') are in appeal before this Court. 6. The first and the second respondents were duly served and there was no appearance for the first respondent. Second respondent appeared through Standing Counsel Sri.Latheesh Sebastian. Heard the learned counsel for the claimants as well as the learned Standing Counsel for the insurer. Lower court records were called for and perused. 7. According to the learned counsel for the claimants, the finding of contributory negligence made by the Tribunal is illegal and irrational and has to be set aside. He would also contend that the deceased was a salesman in a shop earning Rs.6,000/per month but the Tribunal has taken only Rs.3,000/- as the monthly income. Compensation under the conventional heads awarded is also very low and hence he seeks for enhancement of monthly income and amount awarded under the conventional heads. 8. Learned Standing Counsel for the insurer, on the other M.A.C.A.No.2300/2012 5 hand, would contend that the deceased was a minor boy who did not have a valid driving licence to ride the motorcycle and the parents also permitted him to ride the motorcycle in his tender age without having any driving licence and thereafter they are coming before the court for claiming compensation due to the death of the son and it should not be encouraged. Hence the contributory negligence found by the Tribunal is not to be interfered with. It would atleast be a lesson to other parents also who are not taking proper care and caution in avoiding the minor children riding motorcycles and other vehicles and causing accidents. He would also contend that the deceased was only 16 years and 7 months old and hence the case of the claimants that the deceased was earning Rs.6000/- per month cannot, be accepted and hence Rs.3,000/- taken by the Tribunal as notional income is perfectly legal and there is no need to enhance the monthly income. 9. I would first deal with the finding regarding contributory negligence. It has been found by the Tribunal that the deceased was attempting to overtake the slower moving big M.A.C.A.No.2300/2012 6 vehicle ahead of him. Age of the motorcyclist also would go to show that he was not qualified to apply for a licence to ride a motorcycle at the time of the accident. It was further found that the possibility that the impatient teenager was itching to overtake the slow moving vehicle ahead of him and was oblivious of the need to follow the rules of the road and obtain a green signal from the driver of the vehicle ahead of him cannot be ruled out. It is further found that he was on the wrong side of the road at the time of the accident and had not obtained a clearance to pass ahead from the first respondent. It was also concluded that whether there was actually a hit is also a matter of speculation since the lorry did not suffer any damage and the motorcycle had only minor damage as per Exts.A6 and A6(a) respectively. So, it was found that it is equally possible that the motorcyclist lost balance when he failed in his attempt to overtake the lorry. Hence the Tribunal was of the view that it cannot blindly follow Ext.A4 charge to hold that first respondent is responsible for the accident and consequent death of the motorcyclist. It was also found that he was riding the motorcycle without being qualified M.A.C.A.No.2300/2012 7 to apply for a licence and it is a reckless act which spoke for itself and hence 50% contributory negligence was found upon the deceased. 10. Learned counsel for the insurer supports the findings made by the Tribunal in the above regard whereas the learned counsel for the claimants would contend that all the conclusions are based on surmises and speculations and there is no evidence to substantiate any of the inferences drawn by the Tribunal and all that are not sufficient to disprove the police charge laid against the first respondent. 11. In **New India Assurance Co.Ltd v. Pazhaniammal : 2011(3) KLT 648** a Division Bench of this Court held that when charge sheet is produced it will follow that the negligence is on the part of the person against whom the charge has been laid. The parties who wanted to object that has to adduce evidence to disprove the same. It is also held that production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. M.A.C.A.No.2300/2012 8 12. In the present case, from the claimants' side Ext.A1 copy of the FIR, Ext.A4 copy of the charge sheet and Ext.A5 copy of the scene mahazer have been produced. No contra evidence has been adduced from the side of the respondents to controvert the police charge. Hence the course adopted by the Tribunal in drawing inference that the teenager was itching to overtake the slow moving vehicle ahead of him without getting signal from the driver of the vehicle etc. are only assumptions without any materials. Moreover, it has come out from the scene mahazar that it was a straight road having vision of about100 meters towards east and 150 metres towards west. So, it appears that it was a straight road and the minor damages sustained to the lorry as well as the motorcycle would go to show that both vehicles were not in high speed. The police charge specifically states that the accident occurred when the first respondent was negligently driving the vehicle when the motorcyclist tried to overtake the lorry, driver of lorry, the first respondent did not permit the same and he twisted his vehicle towards the motorcycle and thereby the motorcyclist lost control and collided with the lorry. So, the M.A.C.A.No.2300/2012 9 accident prima facie seems to have occurred when the first respondent tried to twist the lorry in order to prevent the motorcyclist from overtaking the lorry. The minor damages sustained by the lorry as well as the motorcycle also would substantiate that the motorcyclist was also not in a high speed. So, the police charge laid against the first accused could not be discredited by the respondents by adducing contra evidence. So, as per the principles laid down in **Pazhaniammal** referred above, the Tribunal ought not have found negligence on the part of the motorcyclist. 13. In **Sudhir Kumar Rana v. Surinder Singh & Ors. : AIR 2008 SC 2405** it has been held that though a person drives a vehicle without licence may constitute an offence that by itself may not lead to a finding of negligence as regards the accident. 14. Learned counsel for the appellant also bring to my attention **Dineshkumar.J @ Dinesh J. v. National Insurance Co.Ltd and Others : 2017 KHC 6871 : 2018(1) SCC 750 : 2018 ACJ 535** wherein it has been held that once finding of M.A.C.A.No.2300/2012 10 contributory negligence on the part of appellant is held to be without any basis, the fact that the appellant had not produced the driving licence would be of no relevance. So, the fact that the motorcyclist, the minor boy, did not hold valid driving licence is also not a justifiable reason to attribute contributory negligence against him. So, at any rate, the finding of contributory negligence upon the deceased by the Tribunal is without any legal or factual basis and hence is hereby set aside. 15. In **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802)** the Apex Court laid down the principles to be followed in determining the quantum of compensation in a case of death out of Motor Vehicle accident. It is held that just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make good the loss sustained by the victim of accident as far as money can do. 16. In **National Insurance Company Limited v. Pranay Sethi and Ors. (2017 (4) KLT 662)** Constitution Bench of Apex Court held that Section 168 of the Act deals with 11 M.A.C.A.No.2300/2012 the concept of “just compensation” and that has to be determined on the foundation of fairness, reasonableness and equitable on acceptable legal standard because such determination can never be with arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. 17. In the present case, the deceased was 16 years 7 months old at the time of the incident. He is claimed to be a salesman in a shop. Though a monthly income of Rs.6,000/- is claimed, no document as such has been produced to prove the actual income of the deceased. So, the income of Rs.3,000/notionally taken by the Tribunal is only to be approved. 18. The learned counsel for the appellants further claims for 40% enhancement towards future prospects as has been held in **Pranay Sethi** . In **Sarla Verma** , the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was below 40 years and the said addition was reduced by 30% if the age of the M.A.C.A.No.2300/2012 12 deceased was 40-50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons having permanent job. 19. But in **Pranay Sethi** , the Apex Court though accepted the findings in **Sarla Verma** in fixing the multiplier, made some variance with regard to the grant of future prospects in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust and the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. It is also laid down in **Pranay Sethi** that with respect to self-employed or persons with fixed salary when the deceased was below 40 years an addition of 40% can be M.A.C.A.No.2300/2012 13 granted and in the case of between 40-50, an addition of 25% and with respect to persons between 50-60 years, the addition has been fixed as 10%. The established income also provided as the income minus tax component. 20. In the present case, monthly income of the deceased has already been taken as Rs.3,000/-, 40% of which would come to Rs.1,200/-. So total monthly income would be Rs.3,000 + Rs.1,200 = Rs.4,200/-. 21. On the question of deduction towards personal expenses and living expenses, in **Sarla Verma** , the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependents and where the deceased is a bachelor it would be 'half' because it is assumed that a bachelor would tend to spend more on himself and where number of dependent family members is between 2 and 3, the deduction towards dependent family members is 1/3 and where number of dependent family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six M.A.C.A.No.2300/2012 14 ## and that is followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65]** . 22. In the present case, the deceased was a bachelor and hence half of the monthly income is to be deducted. Then, the monthly income would be Rs.2,100/- (Rs.4,200 x ½). So, compensation towards loss of dependency would be Rs.2,100 x 18 x 12 = Rs.4,53,600/-. From that, the amount awarded by the Tribunal is to be deducted. Though Tribunal awarded Rs.2,88,000/- towards loss of dependency, half of which has been deducted towards contributory negligence. So, ½ x 2,88,000/- = Rs.1,44,000/- is to be deducted towards amount awarded by the Tribunal. Then the amount would be Rs.4,53,600 – Rs.1,44,000/- = Rs.3,09,600/-. 23. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in **Pranay Sethi** followed by **Magma General Insurance Co.Ltd v. Nanu Ram Alias Chuhru Ram & Ors.** **[2018 (18) SCC 130]** . In that decision, the Apex Court has held that Rs.15,000/- is to be awarded under the head loss of M.A.C.A.No.2300/2012 15 estate, Rs.40,000/- towards loss of consortium and Rs.15,000/towards funeral expenses. 24. The Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in **Pranay Sethi** was on 31.10.2017. So three years have been elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 25. In this context, **Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC** 1024] is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in **Pranay Sethi** , the claimants were M.A.C.A.No.2300/2012 16 found to be entitled for 10% enhancement of Rs.16,500/towards loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In **Pranay Sethi** while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 26. Next is with regard to the consortium to be awarded. The law laid down by the Apex Court in Magma General Insurance Co.'s case is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5[th] ed. 1979). M.A.C.A.No.2300/2012 17 Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 27. In the present case, claimants are the parents of the deceased boy and hence both of them are entitled for filial consortium. i.e. Rs.44,000 x 2 = Rs.88,000/-. Once compensation is awarded under consortium, claimants are not entitled to get further consortium towards loss of love and M.A.C.A.No.2300/2012 18 affection [See **New India Insurance Company Limited v. Somwati and Others : 2020 (9) SCC 644** ]. Tribunal found Rs.10,000/- as compensation towards love and affection, Rs.5,000/- towards loss of estate and Rs.3,000/- towards funeral expenses. But deducting 50% towards contributory negligence, only half of the above amounts were awarded. Hence towards consortium, claimants are entitled to get Rs.83,000/- [Rs.88,000 – Rs.5,000 (1/2 of 10,000)] towards loss of estate, claimants are entitled to get Rs.14,000/- [Rs.16,500 -Rs.2,500] and Rs.15,000 (Rs.16,500 – Rs.1,500) towards funeral expenses. Hence, in total, claimants are entitled to get enhanced compensation of Rs.4,21,600/- [Rs.3,09,600 + 83,000 + 15000 + 14,000] 28. In the result, claimants are allowed to realize enhanced compensation of **Rs.4,21,600/-** (Rupees four lakhs twenty one thousand and six hundred only) in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Second respondent is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of M.A.C.A.No.2300/2012 19 certified copy of this judgment after deducting the liability of the claimants towards balance court fee. Enhanced compensation shall be apportioned among the claimants in the ratio 40 : 60. 29. The disbursement of enhanced compensation to the claimants shall be made taking note of the law on the point and in terms of directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of a certified copy of this judgment. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge