Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 26TH DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 MACA NO. 1258 OF 2009 AGAINST THE AWARD DATED 5.4.2008 IN OPMV 2153/2000 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM APPELLANTS/CLAIMANTS: 1 LEANDER , AGED 50 YEARS, S/O RAPHAEL 2 LILLY,AGED 45 YEARS W/O.LEANDER 3 JANEESH,AGED 23 YEARS,D/O.LEANDER 4 RAJEESH @ RAPHAEL JOSEPH, AGED 21 YEARS S/O.LEANDER, 5 ANISHA @ MARY TRESSA, AGED 18 YEARS D/O.LEANDER,ALL ARE RESIDING AT POLLAYIL HOUSE,, MANASSERY,KANNAMALY P.O.,KOCHI-8. BY ADV SRI.SREELAL N.WARRIER RESPONDENTS/RESPONDENTS: 1 P.G. SABU,S/O GOPALAN PARAPPEL NIKARTHIL,VAYALAR EAST P.O.,, CHERTHALA,ERNAKULAM DISTRICT. 2 JOSEPH KURIAKOSE, S/O.IYP KURIAKOSE UPPOODAN HOUSE,NEAR OEN COMPANY,, CHOTTANIKKARA P.O.,ERNAKULAM DISTRICT. 3 UNITED INDIA INSURANCE COMPANY LTD. BY ITS MANAGER,MTPC OFFICE,VETTUKATTIL BUILDING,, M.G.ROAD,KOCHI-16. MACA NO. 1258-2009 2 BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1258-2009 3
JUDGMENT
Dated this the 26th day of November, 2021 The appellants were the petitioners in O.P (MV) No.2153/2000 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal.
2. The appellants had filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988(in short ‘Act’) claiming compensation on account of the death of Ratheesh (deceased) - the son of appellants 1 and 2 and the brother of the appellants 3 to 5. It was their case that, on 08.06.2000, while the deceased was riding his scooter bearing registration No. KL-7/Z 2355 through the Thevara West Island road, when he reached Vathuruthy, a bus bearing registration No. KL-7/A 6768 (bus), driven by the second respondent in a rash and
MACA NO. 1258-2009 4 negligent manner, hit the scooter of the deceased. The deceased sustained serious injuries and lost his life instantaneously. The deceased was aged 19 years and he was a welder by profession. He was earning a monthly income of Rs.4000/-. The appellants were the dependents of the deceased. The first respondent was the owner and the third respondent was the insurer of the bus. Hence,
the appellants claimed a total compensation of Rs.4,00,000/- from the respondents.
3. The first respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the deceased. The first respondent also disputed the age, income and occupation of the deceased.
4. The third respondent had filed a written
statement reiterating the very same pleadings as that of the first respondent. However, the third respondent admitted that the bus had a valid insurance coverage.
5. The appellants had produced and marked MACA NO. 1258-2009 5 Exhibits A1 to A3 in evidence. The respondents did not let in any evidence.
6. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part,
by holding that the appellants are entitled to compensation of Rs.2,56,000/-, but entered into a finding that there was contributory negligence on the part of the deceased to the extent of 50%. Consequently, the
Tribunal reduced 50% of the compensation and permitted the appellants to realise from the third respondent an amount of Rs.1,28,000/-. As the appellants were paid interim compensation under Section 140 of the Act, the Tribunal directed the 3rd respondent to pay the appellant an amount of Rs.74,750/- with interest and cost.
7. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal.
8. Heard; Sri. Sreelal Warriar, the learned counsel MACA NO. 1258-2009 6 appearing for the appellants/petitioners and Smt.Deepa George, the learned counsel appearing for the third respondent /insurer.
9. The questions that arise for consideration in this
appeal are (i) whether the finding of contributory negligence on the part of the deceased is sustainable in law? (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. Question No.(i)
10. The specific case of the appellants was that, the
accident was caused due to the negligence of the 2 nd respondent. The Tribunal has found, as per the charge sheet filed by the Kochi City Traffic Police in Crime No.1274/2000, that the accident happened due to the negligence of the second respondent. Nonetheless, as the accident occurred in the middle of the road, the Tribunal found contributory negligence on the part of the deceased.
11. Surprisingly, in O.P.(M.V) No.2470/2000 filed before the same Tribunal by the pillion rider of the same MACA NO. 1258-2009 7 scooter, wherein the charge sheet was produced, the Tribunal held that it was the second respondent who caused the accident.
12. The course adopted by the Tribunal is improper
and irregular because when the two claim petitions arise out of the same accident, the Tribunal ought to have consolidated and jointly tried the claim petitions, which would have saved judicial time and avoided this conflicting findings. 13 The learned counsel for the appellants has handed over a copy of the award passed by the Tribunal in O.P.(M.V) No.2470/2000, wherein the charge sheet was marked as Exhibit A3 and the Tribunal has held that the accident occurred due to the negligence of the second respondent.
14. In the light of Exhibit A3 charge sheet and the
findings in O.P.(M.V) No.2470/2000, especially that the respondents have not let in any evidence to the contrary to discredit the charge sheet, I set aside the finding of the Tribunal that there was contributory negligence on
MACA NO. 1258-2009 8 the part of the deceased to the extent of 50%. Accordingly, I answer question No.(i) in favour of the appellants by finding that the accident was caused due to the negligence of the 2nd respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the bus. The third respondent has not proved that the first respondent had violated the
insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. Question No.(ii)
15. The appellants had claimed that the deceased was a welder by profession and earning a monthly income of Rs.4000/-. The Tribunal, for the want of material, fixed the notional monthly income of the deceased at Rs.2500/-.
16. In Chameli Devi and others v. Jivrail Mian and others [2019 KHC 5352], the Honourable Supreme Court has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5000/-. Similarly, in
MACA NO. 1258-2009 9 Chandra @ Chanda v. Mukesh Kumar [LL 2021 SC 531], the Honourable Supreme Court has fixed the notional monthly income of a driver in year 2004 at Rs.6000/- .
17. Following the yardsticks in the afore-cited decisions and considering the fact that the deceased was a welder by profession, as evidenced by Exhibit A1, I fix the notional monthly income of the deceased at Rs.4000/-, as claimed in the claim petition. Multiplier
18. The deceased was aged 19 years at the time of accident. Following the ratio in Sarala Verma v Delhi Transport Corporation [2010(2) KLT 802 (SC)], the relevant multiplier to be adopted is ‘18’. Future prospects
19. In Sarala Verma (Supra) and National
Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], the Honourable Supreme Court has held that the dependents of the deceased are entitled for future prospects at 40% as the deceased was aged 19 years at MACA NO. 1258-2009 10 the time of the accident. Personal living expenses of the deceased
20. As the deceased was a bachelor at the time of his death, one half of the compensation has to be deducted following the principles in Sarla Verma and Pranay Sethi (supra). Loss of dependency
21. Taking into account the above mentioned factors, namely, the monthly income of the deceased at 4000/-,
the multiplier at ‘18’, future prospects at 40% and deducting one half of the compensation towards personal living expense of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.6,04,800/- instead of Rs.2,20,000/- awarded by the Tribunal. Conventional heads of compensation
22. In clause (viii) of paragraph 61 of Pranay Sethi (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely, funeral expenses, loss of estate and loss of consortium at MACA NO. 1258-2009 11 Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively.
23. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- towards 'funeral expenses' and Rs.2500/- towards loss of estate.
24. In view of the law laid down in Pranay Sethi (supra), I enhance the compensation under the respective heads by a further amount of Rs.10,000/- and 12,500/- respectively.
25. It is on record that the appellants were the parents and siblings of the deceased. However, the appellants 3 and 4 were older brothers of the deceased.
Hence, I hold that only the appellants 1, 2 and 5 are entitled for loss of consortium at Rs.40,000/- each which works out to Rs.1, 20,000/-. Pain and sufferings and loss of love and affection
26. The Tribunal has awarded an amount of Rs.7500/- under the head ‘pain and sufferings’ and Rs.20,000/- under the head ‘loss of love and affection’.
23. In paragraph 19 of the Sarla Verma, the Hon'ble Supreme Court has held that in a case of instantaneous MACA NO. 1258-2009 12 death, no amount shall be awarded under the head ‘Pain and Sufferings’.
27. Similarly, in New India Assurance Co. Ltd. v.
Somwati and others [(2020) 9 SCC 644], the Hon'ble Supreme Court has held that once the compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to overlapping or duplication of compensation.
28. In the above legal and factual matrix, I set aside the amounts of Rs.7500/- and Rs.20,000/-awarded by the Tribunal under the above said heads.
29. With respect to the amount awarded under the head transportation expenses, I find the same to be reasonable and just.
30. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are entitled to enhancement of compensation as modified and re-calculated above and MACA NO. 1258-2009 13 given in the table below for easy reference.
Sl No. Head of Claim Amount Amounts
awarded by modified and
the Tribunal recalculated
(in rupees) by this Court
1 Transportation 1000 1000expenses 2 Funeral expenses 5000 15000 3 Loss of estate 2500 15000 Pain and 7000 0 sufferings 4 Loss of love and 20000 --- affection 5 Loss of 0 1,20,000 consortium 6 Loss of 2,20,000 6,04,800 dependency Total 2,56,000-50% 7,55,800 towards contributory negligence = 128000 - 50,000= 74,750
31. Even though the appellants had claimed only an
MACA NO. 1258-2009 14 amount of Rs.4,00,000/- as compensation, following ratio in Sarla Verma and Pranay Sethi (supra), I have awarded future prospects and compensation under the conventional heads to the appellants. Accordingly, the compensation awarded has exceeded the amount claimed in the claim petition. The said course is permissible in view of the law laid down in Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC], In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.4,99,800/- and also ordering the 3rd respondent to pay the balance amount of Rs.74,750/- (i.e. the amount that was deducted
towards the 50% contributory negligence of the deceased viz, Rs.1,28,000 and 50000/- which paid under Section 140 of the Motor Vehicles Act), totalling to an amount of Rs.5,74,550/-. The third respondent is ordered to deposit Rs.5,74,550/- with interest at the rate of 7% per annum from the date of petition till the date of deposit after deducting interest for a period of 93 days
MACA NO. 1258-2009 15 i.e. the period of delay in filing the appeal and as ordered by this Court on 14/9/2021 in C.M.Application 1/2009, and proportionate cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellants 1,2 and 5 in the ratio of 40:40;20, after deducting their liability, if any, towards court fee and in accordance with law. Sd/- C.S.DIAS JUDGE rmm/27/11/2021