Kerala High Court
Zeenath vs V.V.Kunjikannan on 10 June, 2020
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY,THE 10TH DAY OF JUNE 2020/20TH JYAISHTA, 1942
MACA.No.1622 OF 2017(A)
AGAINST THE AWARD DATED 24.01.2017 IN OP(MV) 144/2010 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANTS/PETITIONERS:
1 ZEENATH, 45 YEARS, W/O.LATE MUHAMMADALI,
THACHATT HOUSE,CHERPU DESOM P.O.,THRISSUR.
2 RAMZEENA (MINOR),21 YEARS,
D/O.MUHAMMADALI,REPRESENTED BY
MOTHER ZEENATH,DO-
3 MUHAMMAD RAMSAD (MINOR),18 YEARS,
-DO- REP. BY MOTHER ZEENATH.
4 FATHIMA,67 YEARS,W/O. SAIDU,
THACHATT HOUSE,CHERPU P.O.,THRISSUR.
BY ADV. SRI.SHEJI P.ABRAHAM
RESPONDENTS/RESPONDENTS:
1 V.V.KUNJIKANNAN,S/O.NARAYANAN,
PERIYA P.O., HOSDURGE 674 101
(DRIVER OF KL 15 6506 KSRTC BUS)
2 THE MANAGING DIRECTOR,KSRTC,
THIRUVANANTHAPURAM 695 001.
R2 BY ADV. SRI.P.C.CHACKO, SC, KSRTC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 02-06-2020, ALONG WITH CO.176/2019, THE
COURT ON 10-06-2020 DELIVERED THE FOLLOWING:
MACA No.1622/2017 & C.O. No. 176/2019
:2 :
JUDGMENT
~~~~~~~~~ Dated this the 10th day of June, 2020 [M.A.C.A. No.1622 of 2017 & C.O. No.176 of 2019] The appellants, who are the legal heirs of deceased Muhammadali and petitioners in OP(MV) No.144/2010 of the Motor Accidents Claims Tribunal, Irinjalakuda, are before this Court invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by the Award dated 24.01.2017 of the Tribunal.
2. In their OP(MV), the appellants stated that on 03.07.2009, while Sri.Muhammadali was travelling in a car, a KSRTC bus driven by the 1 st respondent came in a rash and negligent manner and hit the car. Sri.Muhammadali, MACA No.1622/2017 & C.O. No. 176/2019 :3 : who was travelling in the car, sustained serious injuries and died. The appellants claimed ₹17 lakhs as compensation for the death of late Muhammadali. Respondents 1 and 2 filed written statement denying the negligence alleged. They also disputed the compensation amount, the age, occupation and monthly income of the deceased.
3. The Tribunal held that the 1 st respondent being the driver of a heavy vehicle had the responsibility to drive the vehicle slowly and carefully, the KSRTC bus involved in the accident was driven over speed. The Tribunal found that the accident occurred due to the composite negligence of the 1st respondent-KSRTC driver and the driver of the car.
4. The Tribunal awarded ₹10,12,100/- as compensation to the appellants under the following heads:-
Sl. Head of Claim Amount Amount Basis Vital No. Claimed Awarded details in a nut (Rs.) (Rs.) shell.
01 Loss of earnings 30,000 --
02 Partial loss of earnings 30,000 -- 03 Transport to hospital 15,000 5,000 04 Extra nourishment 10,000 --
MACA No.1622/2017 & C.O. No. 176/2019 :4 : Sl. Head of Claim Amount Amount Basis Vital No. Claimed Awarded details in a nut (Rs.) (Rs.) shell.
05 Damage to clothing 10,000 --
06 Medical expenses 15,000 --
07 Bystander's expenses 10,000 --
08 Funeral expenses 25,000 25,000 09 Pain & suffering 50,000 15,000 10 Loss of dependency 4,00,000 7,37,100 5850x12x14x3/4 11 Loss of estate 3,00,000 30,000 12 Loss of consortium 3,00,000 1,00,000 13 Loss of love and affection 3,00,000 1,00,000 14 Future prospects 15,00,000 --
Total 29,95,000 10,12,100 Rs.10,12,100/-
Limited to along with
Rs.17,00,00 interest @ 9%
0/- p.a. from 27-02-
10 till realisation.
Interest was also awarded at the rate of 9% per annum from 27.02.2010.
5. Aggrieved by the limited amount of compensation awarded to them, the appellants are before this Court. The 2nd respondent-Managing Director of KSRTC filed Cross Objection No.176/2019. According to the 2nd respondent, Ext.A3 Final Report in respect of the accident indicted the driver of the car as being negligent. A Final Report is conclusive proof of negligence, in a motor accident claim in MACA No.1622/2017 & C.O. No. 176/2019 :5 : the absence of any better proof. The Tribunal therefore ought not have imposed liability on the 2nd respondent.
6. The counsel for the appellant argued that the appellants are the wife, 2 minor children and mother of the deceased Muhammadali. Deceased Muhammadali had an income of ₹10,000/- per month. The Tribunal, however, fixed the notional income of the deceased as ₹4,500/- per month. This is erroneous, contended the learned counsel for the appellants.
7. As regards compensation awarded under various heads, the learned counsel for the appellants pointed out that though an amount of ₹10,000/- was claimed towards damage to clothing, the Tribunal did not award any amount. As regards the compensation towards loss of dependency, the Tribunal fixed the functional disability at 25%, whereas it ought to have been 30%. The learned counsel for the appellants further argued that they are entitled to an amount of ₹40,000/- towards filial consortium. MACA No.1622/2017 & C.O. No. 176/2019 :6 :
8. The learned Standing Counsel for the 2 nd respondent-KSRTC, based on Cross Objection No.176/2019, argued that going by Ext.A3 final report filed in the court, it is evident that the KSRTC bus was not driven negligently, but it was the Santro Car in which the deceased was travelling, which was driven rashly and negligently. The Standing Counsel relied on Division Bench judgments of this Court in Kolavan and others v. Salim and others [2018 (1) KLJ 733] and New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648], to buttress the point. Therefore, the 2nd respondent-KSRTC cannot be mulcted with any liability, contended the Standing Counsel.
9. The learned Standing Counsel for the 2 nd respondent pointed out that though the appellants initially claimed that monthly income of the deceased is ₹10,000/-, subsequently, IA No.4893/2010 was filed in the Tribunal to convert appellant's claim into one coming under Section 163A of the Motor Vehicles Act. The action of the MACA No.1622/2017 & C.O. No. 176/2019 :7 : appellants in converting the claim into one under Section 163A would only show that the deceased had very meager income. Therefore, the quantum of compensation granted by the Tribunal is high. The Award as against respondents 1 and 2, is liable to be set aside since it erroneously finds that respondents 1 and 2 are liable to pay compensation.
10. I have heard the learned counsel for the appellants and learned Standing Counsel appearing for the 2nd respondent.
11. As regards the negligence resulting in accident, the Tribunal noted that Ext.A1 FIR was registered against the driver of KSRTC bus. The judgments in Kolavan (supra) and Pazhaniammal (supra) only state that charge sheet is prima facie sufficient evidence of negligence. When there are other materials too on record which would throw some light on the accident, a Tribunal can indeed come to its own conclusions based on those materials. In this case, Ext.A1 FIR would show that a passenger in the MACA No.1622/2017 & C.O. No. 176/2019 :8 : bus stated that the accident occurred due to over speed and rashness of the KSRTC driver. However, Ext.A3 Final Report alleges that negligence is on the part of the driver of the Santro Car, who died in accident. The evidence available regarding cause of accident were conflicting even in the police records. Neither party produced the scene mahazar of the case. The Tribunal noted that the accident was as a result of head on collision between the two vehicles. The Tribunal held that the 1 st respondent being the driver of a heavy vehicle (KSRTC bus), had the responsibility to drive his vehicle slowly and carefully. As the over speed of the KSRTC bus is evident, the Tribunal came to the conclusion that it is a case of composite negligence.
12. The contention of the Standing Counsel for KSRTC is that since the Final Report in respect of the Crime goes against the driver of the Santro Car, the driver of KSRTC bus should be absolved of any allegation of MACA No.1622/2017 & C.O. No. 176/2019 :9 : negligence. The apex Court in Kamlesh v. Attar Singh [2015 (4) KLT Suppl. 28 (SC)] held that even though a charge sheet was filed against one of the drivers, the same cannot be treated as conclusive proof, when there are other pieces of evidence showing composite negligence. In Khenyei v. New India Assurance Co. Ltd. [2015 (3) KHC 70], the Apex Court held that in the case of composite negligence, the injured can recover compensation at his option from any of the drivers. In this case, records would show that the KSRTC bus was being driven in over speed. From Ext.A1 FIR, it is seen that a person who has seen the accident had informed the police that the bus was being driven rashly. Therefore, this Court do not find anything wrong in the finding of the Tribunal that the accident was a result of composite negligence. The argument to the contrary made by the Standing Counsel for KSRTC, is therefore liable to be rejected.
13. The counsel for the appellants pointed out that MACA No.1622/2017 & C.O. No. 176/2019 : 10 : the Tribunal has not granted any compensation towards damage to clothing. Since the accident, consequential injuries and death of the injured are admitted, necessarily, the Tribunal ought to have granted compensation for damage to clothing. Therefore, this Court is inclined to award ₹1,000/- towards compensation for damage to clothing.
14. The Tribunal awarded ₹25,000/- towards funeral expenses. Going by the guidelines given in National Insurance Co. Ltd. v. Pranay Sethi and others [(2017) 16 SCC 680], the standardised amount for funeral expenses is ₹15,000/-. Therefore, the compensation under this head granted by the Tribunal is to be reduced by ₹10,000/-, limiting the compensation amount to ₹15,000/-.
15. Towards compensation for loss of dependency, while calculating notional income of the deceased, the Tribunal has granted 30% enhancement towards future prospects. It is to be noted that the Tribunal has fixed the MACA No.1622/2017 & C.O. No. 176/2019 : 11 : notional income of the deceased as ₹4,500/-. The deceased was aged 47 years at the time of the accident which occurred in the year 2009. The deceased was said to be an employee in Gulf, though the appellants sought to describe him as a Coolie worker for the purpose of bringing their claim under Section 163A. At any rate, it is evident that the deceased was an able-bodied person doing some work. In such circumstances, the year of death being 2009, in the absence of any evidence to show the income of the deceased, notional monthly income of the deceased should be taken as ₹7,000/-.
16. I am inclined to agree with the contention of the respondent that towards future prospects, the Tribunal ought to have added only 25% as against 30%. But, at the same time, it has to be noted that since the deceased was having four legal heirs, 1/4 th of his income has to be deducted towards his personal and living expenses, in the light of the judgment of the Apex Court in Sarla Verma and MACA No.1622/2017 & C.O. No. 176/2019 : 12 : others v. Delhi Transport Corporation and another [(2009) 6 SCC 121]. Similarly, the Tribunal has adopted "14" as multiplier. However, the deceased being aged 47 years, the proper multiplier to be applied is "13". The compensation for loss of dependency due to the appellants therefor would be ₹10,92,000/- [(₹7,000 + ₹1,750 - ₹1,750) x 12 x 13]. The Tribunal has already awarded ₹7,37,100/-. The appellants will therefore be entitled to an additional compensation of ₹3,54,900/-.
17. I also find that in view of the guidelines and standardised rates provided in Pranay Sethi (supra), the compensation awarded towards loss of estate is liable to be reduced from ₹30,000/- to ₹15,000/- and compensation of ₹1 lakh towards loss of consortium awarded by the Tribunal is liable to be reduced to ₹40,000/-.
Consequently, the appellants are entitled to get enhancement in compensation under the following heads:-
MACA No.1622/2017 & C.O. No. 176/2019 : 13 :
(i) Additional compensation towards loss of ₹3,54,900/-
dependency [(₹7,000/- + ₹1,750/- - ₹1,750/-) x 12 x 13] minus ₹7,37,100/- already awarded by the Tribunal]
(ii) Additional compensation towards damaged ₹1,000/-
clothing
Total ₹3,55,900/-
The compensation awarded by the Tribunal under the following heads, is to be reduced, to the extent shown below:-
(i) Compensation towards funeral expenses, by ₹10,000/-
(₹25,000 - ₹15,000)
(ii) Compensation towards loss of estate, by ₹15,000/-
(iii) Compensation towards loss of consortium, by ₹60,000/-
(₹1,00,000 - ₹40,000)
Total ₹85,000/-
The MACA and Cross Objection are disposed of on the afore lines. The appellants in MACA will be entitled MACA No.1622/2017 & C.O. No. 176/2019 : 14 : to receive additional compensation of ₹2,70,900/-, with 9% interest per annum from 27.02.2010. The 2nd respondent shall deposit the amount within three months.
Sd/-
N. NAGARESH, JUDGE aks/09/06/2020