Kerala High Court
Radhakrishna Pillai vs Saji Abraham on 17 March, 2021
Equivalent citations: AIRONLINE 2021 KER 330
Author: C.S.Dias
Bench: C.S.Dias
1
MACA.No.950 OF 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942
MACA.No.950 OF 2010(C)
AGAINST THE AWARD IN OPMV 473/2004 DATED 17-11-2008 OF
ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL , ALAPPUZHA
APPELLANT/S:
1 RADHAKRISHNA PILLAI
S/O.VELU PILLAI
KOTTAKKATTU THEKKETHIL, WARD XI, HARIPAD PANCHAYAT,
ALAPPUZHA DIST.
2 JAYASREE
W/O. RADHAKRISHNA PILLAI -DO-
3 RAKHI RADHAKRISHNAN, D/O.RADHAKRISHNA PILLAI, AGED
22, -DO-.
BY ADV. SRI.R.AZAD BABU
RESPONDENT/S:
1 SAJI ABRAHAM
S/O ABRAHAM, VAZHAMALAYIL VEETTIL, WARD NO.VI
PIRAVAM PANCHAYAT,, ERNAKULAM - 686664.
2 JOHN K.VARKEY, S/O. VARKEY
PALAKATTUKUZHIYIL, -DO-
3 NATIONAL INSURANCE COMPANY LIMITED
THRIPPOONITHURA BRANCH, ERNAKULAM.
4 R.KARUNA MOORTHY S/O. RADHAKRISHNAN
NAIR, GOPI BHAVANAM, NORTH GATE,VAIKOM.
R3 BY ADV. SRI.P.JACOB MATHEW
R3 BY ADV. SRI.MATHEWS JACOB SR.
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 17-03-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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MACA.No.950 OF 2010
C.S.DIAS, J.
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MACA No.950 of 2010
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Dated this the 17th day of March, 2021.
JUDGMENT
The appellants were the petitioners in OP(MV) 473/2004 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition.
2. The petitioners had filed the claim petition under Sec.163A of the Motor Vehicles Act, 1988 (in short 'the Act'), claiming compensation on account of the death of one Rajesh (deceased), who was the son of petitioners 1 and 2 and the brother of the third petitioner.
3. The concise case of the petitioners in the claim petition was that on 7.3.2004, while the deceased was travelling in a car bearing registration No.KL-5/L 7444, the car hit on the rear portion of a lorry bearing registration 3 MACA.No.950 OF 2010 No.KL-4/E 9759. The deceased sustained serious injuries and died within a few minutes after the accident. There was negligence on the part of the drivers of the car as well as the lorry. The first respondent was the driver and second respondent was the owner of the lorry, the fourth respondent was the owner-cum-driver of the car and the third respondent was the Insurance Company of both the lorry as well as the car. The petitioners were entitled for compensation from the respondents, which they quantified at Rs.4,79,000/-.
4. The respondents 1, 2 and 4 did not contest the proceedings.
5. The third respondent filed a written statement admitting that the lorry as well as the car had a valid insurance policy issued by the third respondent. However, it was contended that the petition under Sec.163A of the Act was not maintainable as the Police had registered a case against the fourth respondent. It is also contended that the amount claimed in the claim petition was excessive.
6. The Tribunal, after analysing the pleadings and 4 MACA.No.950 OF 2010 materials on record treated the claim petition as one filed under Sec.166 of the Act and by the impugned award allowed the claim petition, in part, by allowing the petitioners to recover an amount of Rs.2,20,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. The Tribunal found that there was 75% negligence on the part of the car and 25% negligence on the part of the lorry. Accordingly, the Tribunal directed the third respondent to pay 25% of the compensation amount and the fourth respondent to pay 75% of the compensation amount. The Tribunal exonerated the third respondent - Insurance Company - from paying 75% of the compensation, which was imposed on the fourth respondent, as the car was covered only by an 'Act Policy'. However, the third respondent was directed to pay 25% of the compensation amount in respect of the lorry.
7. Dissatisfied with the quantum of compensation awarded by the Tribunal and the fixation of the composite negligence on the part of the two vehicles, the petitioners are in appeal.
5MACA.No.950 OF 2010
8. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the third respondent - Insurance Company.
9. The learned counsel appearing for the appellants argued that this Court in Rose Lynd E.T and Ors vs Lekha and Ors [2008 (3) KLJ 293] has gone onto hold that parking of the lorry on the road without keeping indicator lamps on is substantial negligence. The Tribunal ought to have followed the said ratio and fixed the composite negligence at least to the extent of 50% each on both the vehicles. Instead, the Tribunal solely on the basis of Ext A3 charge-sheet, fixed the composite negligence at 75% on the car and 25% on the lorry, which is erroneous. Similarly, the Tribunal has not awarded compensation under the conventional heads as laid down in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], improperly fixed the multiplier, which ought to be 18, instead of 16 as per the ratio in National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680], and also the Tribunal ought to have awarded future prospects as per the law laid down in 6 MACA.No.950 OF 2010 Pappu Deo Yadav Vs. Naresh Kumar and others [AIR 2020 SC 4424] and a catena of precedents. Hence, the appeal may be allowed and the composite negligence may be fixed at 50% each and the compensation may be enhanced.
10. The learned counsel appearing for the third respondent contended that as Ext A3 charge-sheet prima facie proves that it was the driver of the car who was negligent in causing the accident and in light of the law laid down by this Court in New India Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648], even the fixation of 25% composite negligence on the lorry driver is erroneous. Hence, the appeal is devoid of any merit and is only liable to be dismissed.
11. The points that emanate for consideration in the appeal is (i) whether the fixation of the composite negligence at the rate of 75% and 25% on the car and lorry, respectively, is correct, and (ii) whether the compensation awarded by the Tribunal is reasonable and just.
12. Ext A1 FIR substantiates the fact that the accident occurred on 7.3.2004 due to the collision between the car 7 MACA.No.950 OF 2010 and the lorry. As seen from Ext A2 inquest report and Ext A4 postmortem certificate, the deceased succumbed to the injuries on the same day as a consequence of the accident. The Police after investigation filed Ext A3 charge-sheet fixing negligence on the driver of the car, as the car hit on the rear portion of the parked lorry. The Tribunal, after considering Ext A4 charge-sheet, came to the conclusion that there was composite negligence on the part of the drivers of both vehicles, but fixed the liability at 75% on the car and 25% on the lorry.
13. The respondents have challenged the impugned award.
14. A Division Bench of this Court in Rose Lynd (supra) has categorically laid down the law that parking of trucks on the National Highways without keeping indicator lamps on, tantamounts to negligence on the part of the trucks. This Court construing Rule 15 (2) (iv) of the Rules of the Road Regulations, 1989 prescribed by the Government of India framed under Sec.118 of the Motor Vehicles Act, 1988, which prohibits parking of vehicles on main road or on 8 MACA.No.950 OF 2010 roads carrying fast traffic, held that there was composite negligence on the part of the truck in that case to the extent of 75% for parking the truck on the road. According to me, the ratio in the said decision applies on all fours to the facts of the present case.
15. It is a fact that as per Ext A3 charge-sheet, the Police after investigation found the driver of the car to have caused the accident. This Court in Pazhaniammal (supra) has laid down the law that the charge-sheet is prima facie evidence of negligence, which led to the accident.
16. Nevertheless, in light of the ratio in Pazhaniammal and Rose Lynd (supra) rendered by Division Benches of this Court and considering the undisputed fact that the lorry was parked on the side of the road and that the car hit on the rear portion of the lorry, I am of the considered opinion that the composite negligence fixed by the Tribunal at 75% and 25%, respectively, has to be modified, as both the drivers were equally negligent for the cause of the accident. In such circumstances, I am of the firm opinion that the ratio of composite negligence has to be 9 MACA.No.950 OF 2010 fixed at 50% each for both the vehicles. Accordingly, I hold that the owner of the car as well as the owner of the lorry are liable to pay compensation to the petitioners at 50% each. In view of the fact that the lorry was covered by a valid policy, it is the third respondent, who is liable to indemnify the second respondent. However, as the car of the fourth respondent was only covered by an 'Act Policy', the third respondent stands exonerated of its liability in respect of the car. Accordingly, question No.(i) is answered in favour of the appellants.
17. Now coming to question No.(ii) whether the quantum of compensation fixed by the Tribunal is reasonable and just.
18. The deceased was 17 years at the time of accident. The petitioners have claimed that the deceased was a Thakil Artist and was earning a monthly income of Rs.3,000/-. However, the Tribunal following the second schedule of the Act, held that the deceased was an earning person and fixed his notional income at Rs.15,000/- per year.
19. The Hon'ble Supreme Court in Radhakrishna and 10 MACA.No.950 OF 2010 Ors vs. Gokul and Ors [ 2013 (16) SCC 585] has fixed the notional income of an engineering student at Rs.42,000/- per annum. This Court in National Insurance Co. Ltd v. Assainar [ 2019(4) KLT 39] has fixed the notional income of school children at Rs.24,000/- per annum. Similarly, the Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236] has fixed the notional income of a coolie worker at Rs.4,500 per month in the year 2004.
20. Following the parameters laid down in the aforecited decisions, I am of the firm opinion that the deceased's notional income can safely be fixed at Rs.3,000/- per month.
21. The Tribunal has erroneously fixed the multiplier at
16. In light of the law laid down in Sarla Verma and Pranay Sethi (supra), the correct multiplier to be adopted is '18' as the deceased was only 17 years at the time of his death.
22. It is seen that the Tribunal had awarded only an amount of Rs.5,000/- towards transportation and funeral 11 MACA.No.950 OF 2010 expenses of the deceased, Rs.25,000/- towards loss of love and affection and Rs.25,000/- under the head short expectancy of life.
23. In view of the ratio laid down by the Hon'ble Supreme Court in United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others- [(2020(3)KHC 760], the petitioners are entitled for compensation under the conventional heads, i.e., funeral expenses and loss of estate at Rs.15,000/- each. Similarly, the petitioners 1 and 2 are entitled for filial consortium at Rs.40,000/- each. In the said circumstances, I modify the compensation under the heads ' funeral expenses' at Rs.15,000/-, 'loss of estate' at Rs.15,000/- and loss of filial consortium at Rs.40,000/- each for the petitioners 1 and 2 totalling to an amount of Rs.80,000/-. It is seen that the Tribunal had not awarded any amount under the head 'transportation expenses' and 'clothing', which I award Rs.500/- each under the said heads.
24. It is settled law in Sarla Verma and Pranay Sethi (supra), that the dependents are also entitled for loss of 12 MACA.No.950 OF 2010 future prospects. In the said circumstances, as the deceased was 17 years and the multiplier is 18, the petitioners 1 and 2 are entitled for future prospects at 40%. However, as the deceased was a bachelor one half of the compensation has to be deducted towards personal living expenses. Accordingly, I refix the loss of dependency with future prospects at Rs.4,53,600/-.
25. I find that the amount awarded by the Tribunal under the head 'loss of pain and sufferings' is reasonable and just, whereas the amount awarded under the head, 'short expectancy of life' is a duplication of the amount awarded under the head 'loss of dependency with future prospects'. Hence, I set aside the award of compensation under the said head of claim.
26. On an overall reappreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the considered opinion that the petitioners are entitled for enhanced compensation as modified and recalculated above and given in the table below for easy reference.
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MACA.No.950 OF 2010
SI. Amount Amount
No Head of claim awarded by modified and
the Tribunal re-calculated
(in rupees) by this Court
(in rupees)
1 Transportation Nil 500/-
expenses
2 Damage to clothing Nil 500/-
3 Funeral expenses 5,000/- 15,000/-
4 Loss of pain and 5,000/- 5,000/-
sufferings
5 Loss of love and 25,000/- Nil
affection
6 Loss of estate Nil 15,000/-
7 Loss of consortium Nil 80,000/-
8 Loss of expectancy of 25,000/- Nil
life
9 Loss of dependency 1,60,000/- 4,53,600/-
with future prospects
Total 2,20,000/- 5,69,600/-
In the result, the appeal is allowed by enhancing the compensation by an amount of Rs.3,49,600/- (Rupees Three Lakh Forty Nine Thousand Six Hundred only) with interest at the rate of 7.5% per annum on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. Needless to mention that the third respondent need only deposit 50% of the 14 MACA.No.950 OF 2010 compensation amount as fixed in this judgment. The Tribunal shall give credit to the amount, if any, deposited by the third respondent. The balance of compensation amount shall be deposited by the third respondent within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability of the petitioners towards balance court-fee. The Tribunal shall disburse the additional compensation to the appellants/petitioners in the same ratio of 40:40:20 as awarded by the Tribunal, in accordance with law. The appellants are also at liberty to execute this judgment as against the fourth respondent.
Sd/-
C.S.DIAS
SKS/17.3.2021 JUDGE