Kerala High Court · 2024

JAYASREE, AGED 35 YEARS, W/O.LATE AJAYAKUMAR,SOPANAM, CHAVARA MURI, CHAVARA VILLAGE,KARUNAGAPPALLY TALUK. AKHILESH KANNAN, AGED 12 YEARS (MINOR), S/O.LATE AJAYAKUMAR, SOPANAM, CHAVARA MURI, CHAVARA VILLAGE, KARUNAGAPPALLY TALUK, REP. BY GUARDIAN 1ST APPELLANT. ATHULYASREE, AGED 8 YEARS (MINOR), D/O.LATE AJAYAKUMAR,SOPANAM, CHAVARA MURI, CHAVARA VILLAGE,KARUNAGAPPALLY TALUK, REP. BY GUARDIAN 1ST APPELLANT. BY ADVS.SRI.M.BALAGOVINDAN SRI.S.R. PRASANTH SRI.BHANU THILAK RESPONDENTS/RESPONDENTS: 1 2 3 ANANDAVALLY AMMA, W/O.PRABHAKARAN NAIR, CHITHIRAYIL VEEDU, HOUSE NO.711/2233, KAIKULANGARA WARD, KOLLAM – 690001. MANOJ, S/O.PRABHAKARAN NAIR, CHITHIRAYIL VEEDU, HOUSE NO.711/2233, KAIKULANGARA WARD, KOLLAM-690001 THE NEW INDIA INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER,KAYAMKULAM BRANCH OFFICE, KAYAMKULAM - 690001 R1 AND R2 BY ADVS.SRI.FIROZ K.M. SMT.M.SHAJNA R3 BY ADV. SRI.LAL K.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

06.03.2024, ALONG WITH MACA.449/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.449 of 2017 & 1017 of 2017 3 JUDGMENT Dated this the 6th day of March, 2024 These appeals are originated from an award passed by III Additional Motor Accidents Claims Tribunal, Kollam (for short ‘the Tribunal’) on 19.09.2016 in OP (MV) No.321/2012. MACA No.1017/2017 was filed by the petitioners before the Tribunal who are legal representatives of one Mr.Ajayakumar who died due to the injuries sustained in the motor accident. MACA No.449/2017 was filed by the insurer of the offending vehicle which is a car bearing Registration No.KL-2/W-5000 allegedly involved in the motor accident.

2. Before adverting to the contentions of the appellants in the above appeals, it is relevant to have a brief discussion about the facts of the case in OP(MV)No.321/2012.

3. At about 8:30 p.m., while one Mr.Ajaykumar was riding a scooter bearing Registration No.KL-23/7270 through NH 47, a car bearing Registration No.KL-2/W 5000 driven by the 2nd respondent in a rash and negligent manner dashed against his scooter near Parimanam petrol pump in M.A.C.A.Nos.449 of 2017 & 1017 of 2017 4 Neendakara Muri. He sustained serious injuries and was rushed to District Hospital, Kollam where he succumbed to the injuries. His wife alongwith two minor children filed the above Original Petition seeking for a total sum of `19,34,000/- as compensation. The registered owner, the driver and the insurer of the offending vehicle were arrayed as respondents 1 to 3 in the Original Petition.

4. For the sake of convenience the parties to this appeal will hereinafter be referred to as petitioners and respondents 1 to 3 in accordance with their status before the Tribunal.

5. Respondents were served with notice from the Tribunal. 1st and 2nd respondents entered appearance and filed a joint written statement and the 3rd respondent filed a separate written statement. In the joint written statement filed, respondents 1 and 2 have taken a contention that the car bearing Registration No. KL-2/W-5000 was not involved in the alleged accident. It was contended furthermore that the motor accident was a hit and run one, and the car was falsely brought into picture. Neither the car nor the driver of the M.A.C.A.Nos.449 of 2017 & 1017 of 2017 5 same was identified by the petitioners. Therefore, the car and the driver remained unidentified even as on date. Accordingly they sought for dismissal of the Original Petition.

6. 3rd respondent filed written statement admitting insurance coverage for the car bearing Registration No. KL- 02/W-5000 as on date of the motor accident. The involvement of the car and the identity of the driver were denied. Their liability to indemnify the insured for the purpose of compensation payable was also denied.

7. Before the Tribunal, PWs 1 to 3 were examined and documents were marked as Exts.A1 to A20. 1st and 2nd respondents did not adduce any evidence. Divisional Manager of the 3rd respondent was examined as RW1. PW1 is none otherthan the wife of the deceased. PW2 is an independent witness and PW3 is the Sub Inspector of Chavara Police Station. RW1 is none otherthan the Divisional Manager of New India Assurance Company Limited, Divisional Office, Khaisee Building, Kollam.

8. On the basis of the evidence on record the Tribunal found that the motor accident in question was occurred due to M.A.C.A.Nos.449 of 2017 & 1017 of 2017 6 the involvement of a car bearing Registration No.KL-2/W 5000 and rash and negligent driving of the same by it’s driver who was arrayed as the 2nd respondent in the above Original Petition. The Tribunal also found that the petitioners in their capacity as legal representatives of Mr.Ajayakumar who died due to the injuries sustained in the motor accident are entitled to get compensation. The Tribunal arrived at `12,01,000/- as the compensation payable in favour of the petitioners. The Tribunal made respondents 1 to 3 jointly and severally liable to pay the compensation and directed the 3rd respondent to indemnify the insured. Aggrieved by the award referred to above, the claimants as well as the insurer have approached this Court in the appeals referred to supra.

9. The prime contention raised by the learned counsel for the appellant in MACA No.449/2017 was that the car bearing Registration No. KL-2/W 5000 was not involved in the motor accident. According to him the person who was arrayed as the driver of the offending vehicle was not at all involved in the motor accident. According to him the Tribunal has fixed liability upon the 1st and 2nd respondents and ultimately on the M.A.C.A.Nos.449 of 2017 & 1017 of 2017 7 3rd respondent without any basis. According to him a report was filed by the Chavara Police after concluding the investigation in the crime registered with reference to the motor accident stating that the vehicle as well as it’s driver could not be identified. The final report was marked in evidence as Ext.A4. According to him in the context on hand when a report as Ext.A4 was filed stating that the vehicle and it’s driver were not traced out, the Tribunal is unjustified in reaching a finding that a car bearing Registration No.KL-2/W 5000 was involved and the motor accident was resulted due to the rash and negligent driving by it’s driver.

10. The learned counsel contended furthermore that the compensation stood awarded by the Tribunal is also excessive and without any basis. According to him the monthly income was fixed by the Tribunal on a notional basis and the income fixed is reasonable also. Accordingly he seeks for maintaining the compensation stood awarded by the Tribunal under the head loss of dependency. Challenge was raised against the compensation stood awarded by the Tribunal under the conventional heads, for the reason that it is not in tune with M.A.C.A.Nos.449 of 2017 & 1017 of 2017 8 the direction issued by the Constitution Bench of the Apex Court in National Insurance Company Limited V. Pranay Sethi and Ors. [2017 (4) KLT 662 (SC)]. Thus he seeks for reduction of the amount which were awarded by the Tribunal in excess, than that was payable. It was pointed out that the Tribunal is not justified in awarding compensation towards pain and sufferings, loss of love and affection and for loss of care and guidance. Thus, the learned counsel seeks for interference with the compensation stood awarded by the Tribunal under those counts and to re-fix, in terms of the entitlement of the petitioners.

11. The learned counsel for the appellant in MACA No.449/2017, has vehemently opposed the involvement of the vehicle and the driver in the motor accident in question. He has relied on Ext.A4 to rest his contention as above. According to him, the Tribunal has relied on Ex.A4 and found the involvement of the car bearing Registration No.KL-2/W 5000 in the motor accident and the 2nd respondent as it’s driver who has driven it in a rash and negligent manner. According to him when the police who investigated the crime has filed a M.A.C.A.Nos.449 of 2017 & 1017 of 2017 9 report stating that the car and the driver were undetected, the Tribunal ought not to have overlooked that and fixed the liability on the 2nd respondent. According to him, the oral evidence adduced by the petitioners cannot be relied on by the Tribunal in the context.

12. As rightly pointed out by the learned counsel, after completion of the investigation in the crime registered with reference to the motor accident, the police has laid a UN report which is marked in evidence as Ext.A4. As stated in Ext.A4, the vehicle bearing registration No.KL-2/W 5000 and it’s driver were not traced out by them during the course of investigation. According to them in the said context that UN report was filed in the matter. But it is pertinent to note from the certified copy of the order passed by Judicial First Class Magistrate Court, Karunagappally in CMP No.3289/2011 in CC No.160/2012 marked in evidence as Ext.A8 that the wife of the deceased after filing of Ext.A4 by the investigating officer, has filed a protest complaint challenging the same. Sworn statement of a witness claimed as occular witness was recorded by the Magistrate and following that Ext.A8 order was M.A.C.A.Nos.449 of 2017 & 1017 of 2017 10 passed. The Magistrate has decided to take cognizance on the allegations raised in CMP No.3289/2011 and decided to issue summons to the accused on being convinced prima facie about the allegation that the rash and negligent driving of the car by it’s driver caused the death of Mr.Ajaykumar. The involvement of the vehicle and it’s number were also stated there. It is reported in Ext.A4 that a portion of the number plate was detected by the police during the course of investigation and it was also sent for forensic examination. It is further revealed from Ext.A4 report that husband of the registered owner of the vehicle bearing Registration No.KL-2/W 5000 also appeared before the investigating officer. It is also pertinent to note that challenge was not raised against Ext.A8 order passed by Judicial First Class Magistrate Court, Karunagappally taking cognizance of the private complaint under Sections 279, 337, 338 and 304 (A) of the Indian Penal Code, 1860 (for short ‘the IPC’) and Sections 134(a)(b) of the Motor Vehicles Act, 1988 (for short the M.V. Act) by the 1st or 2nd respondents before any legal Forum. Therefore, the order taking cognizance for the offences has become final and it would form prima facie M.A.C.A.Nos.449 of 2017 & 1017 of 2017 11 evidence against the accused for his rash and negligent driving and causing of the motor accident. Therefore, the arguments putforth by the learned counsel for the appellant in MACA No.449/2017 that the Tribunal went wrong and unjustified in arriving at a finding of involvement of the car bearing Registration No.KL-2/W 5000 in the motor accident and fixing of liability upon it’s driver for rash and negligent driving are only liable to be repelled and this Court do so. The Tribunal has found so correctly and the finding is only to be maintained.

13. The learned counsel for the appellants in MACA No.1017/2017 have also raised challenge against the quantum of compensation stood awarded. The main challenge was raised against the fixation by the Tribunal of the monthly income of the deceased. According to him despite production and marking of documents in evidence as Exts.A13 to A18 which are sufficient and satisfactory to establish the occupation and monthly income of the deceased, the Tribunal discarded those and fixed the monthly income as `5,000/- notionally. According to him, being reasonable, interference is not warranted to re-fix it. As already referred to, Exts.A13 to M.A.C.A.Nos.449 of 2017 & 1017 of 2017 12 A18 are relied on by the learned counsel for the petitioners to establish the occupation and the monthly income of the deceased at the relevant time of the motor accident.

14. Ext.A13 is nothing but a Certificate of Registration, valid with effect from 21.08.2006. Ext.A14 is nothing but a Certificate of Registration which shows that the petitioner was qualified to work as a Supervisor B Grade and it was valid for a period from 14.05.2007 till 14.05.2010. Ext.A15 is a document issued on 11.01.1996 and it shows that the petitioner was authorised to work as category ‘C’ Grade contractor. Whether it was valid at the relevant time of the motor accident is not disclosed from the document. Ext.A16 is the PAN Card of the deceased. Ext.A17, is the licence, valid for a period from 10.10.2007 till 31.03.2008 and it is established therefrom that the deceased was licenced to work as proprietor of Akhi Constructions. The said document is also not valid as on the date of the motor accident, which was occurred on 08.11.2008. Ext.A18 also is found as a document not relevant for the date on which the motor accident was occurred. M.A.C.A.Nos.449 of 2017 & 1017 of 2017 13

15. Though the documents were not valid on the date when the motor accident took place, it can be taken as basis for holding that the petitioner was qualified to work as a Contractor and as a Supervisor of construction work. But it is unfortunate that the petitioner has not produced any documents to establish his monthly income. Therefore, the Tribunal was constrained to fix his monthly income notionally as `5,000/-. Even for a coolie worker who died in a motor accident in the year 2004, the Apex Court has fixed the monthly income as `4,500/- in Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]. The Apex Court has also directed in the case to have a proportionate increase of `500/- from year to year. If that be the case of a coolie worker, the Tribunal is highly unjustified in the present case in fixing `5,000/- for a person who has proved before the Tribunal as qualified to act as Contractor-cum-Supervisor of construction work. Moreover, the motor accident in question was occurred in the year 2008. This Court is inclined to accept the argument advanced by the learned counsel for the appellants in MACA M.A.C.A.Nos.449 of 2017 & 1017 of 2017 14 No.1017/2017 and to re-fix the monthly income as `12,000/-. The Tribunal has added 50% to the monthly income in consideration of loss of future prospects which is incorrect when viewed in the light of the dictum of the Constitution Bench of the Apex Court in Pranay Sethi supra. Since the deceased was a self employed man aged below 40 years, 40% can be added to his monthly income in consideration of loss of future prospects. This Court adds 40% to the monthly income re-fixed as `12,000/-, to arrive at the multiplicand as `16,800/- (`12,000/- + 40% of `12,000/-). The multiplier and deduction towards personal expenditure of the deceased were correctly applied by the Tribunal, and those are maintained. When compensation for loss of dependency is calculated based on the modified factors as above, `20,16,000/- (`16,800/- x12x15x2/3) is arrived at. It is found from the impugned award that the Tribunal has awarded `25,000/- towards funeral expenses and `1,00,000/- towards loss of love and affection. The petitioners being not entitled to get those, are deducted from the total sum payable as compensation. It is also found that the Tribunal has awarded `1,00,000/- as M.A.C.A.Nos.449 of 2017 & 1017 of 2017 15 compensation towards loss of consortium and `50,000/-, towards loss of care and guidance. Consortium would take within it, care, guidance and love and affection. Moreover, the petitioners being the wife and minor children of the deceased two in numbers, each of them are entitled to get `40,000/- as compensation towards loss of consortium as per Pranay Sethi supra. Thus, `1,20,000/- (`40,000/-x3) is payable as compensation towards loss of consortium. It is found that the Tribunal has awarded `1,00,000/- towards loss of consortium and `50,000/- towards loss of care and guidance. Therefore, `30,000/- [ `1,00,000/- + `50,000/- - `1,20,000/-] is liable to be deducted from the total compensation found payable in the calculation afresh with the modified factors. As compensation towards funeral expenses, the Tribunal has awarded `10,000/- in excess than that was payable to the petitioners as per the dictum in Pranay Sethi supra. Therefore, `10,000/- is liable to be deducted and this Court do so. As compensation towards loss of estate, the Tribunal has awarded only `10,000/-. Therefore, this Court is inclined to award `5,000/- in tune with the payment directed in Pranay M.A.C.A.Nos.449 of 2017 & 1017 of 2017 16 Sethi supra. Compensation stood awarded under the heads, damages to clothing and transportation charges being reasonable are maintained.

16. In the calculation of compensation afresh with the modified factors the petitioners will get `21,72,000/-(Rupees twenty one lakh seventy two thousand only) [`1,20,000 + `15,000 + `15,000 + `3,000/- + `3,000/- + `20,16,000/-] as total compensation in the place of `12,01,000/- stood awarded by the Tribunal. The said amount would also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. While depositing the amount, the Tribunal shall adjust any amount already deposited by the 3rd respondent towards the compensation payable. The amount to be paid with interest and costs shall be deposited in equal proportion in favour of the petitioners, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the apportionment of the amount by the Tribunal. The directions issued by this Court in Circular No.03/2019 dated

06.09.2019 shall be complied with while disbursing the amount M.A.C.A.Nos.449 of 2017 & 1017 of 2017 17 in favour of the petitioners. 3rd respondent is exonerated from paying interest for the period of delay, if any, occurred in filing the appeal. MACA No.449/2017 and MACA No.1017/2017 are allowed in part. Sd/- MARY JOSEPH JUDGE MJL