Kerala High Court

P.P.Janu vs T.V.Abdul Salam on 7 April, 2021

                                  1
MACA.No.2443 OF 2012

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

  WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                         MACA.No.2443 OF 2012

  AGAINST THE AWARD IN OPMV 1630/2005 DATED 10-11-2008 OF THE
     PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE


APPELLANT/S:

      1         P.P.JANU
                WIFE OF LATE VELAYUDHAN, POOLAPARAMBIL HOUSE, P.O
                CHOOLOOR, KOZHIKODE.

      2         P.P.RAJANI
                DAUGHTER OF LATE VELAYUDHAN, POOLAPARAMBIL HOUSE,
                P.O CHOOLOOR, KOZHIKODE

      3         P.P.BIJIANA
                DAUGHTER OF LATE VELAYUDHAN, POOLAPARAMBIL HOUSE,
                P.O CHOOLOOR, KOZHIKODE.

                BY ADV. SHRI.JACOB ABRAHAM

RESPONDENT/S:

      1         T.V.ABDUL SALAM
                THAZHATHUVEETTIL HOUSE, KARUVAMPOYIL KODUVALLY P.O,
                KOZHIKODE 673 001.

      2         THE BRANCH MANAGER
                THE NEW INDIA ASSURANCE CO.LTD, SHAFEER COMPLEX,
                KOZHIKODE. 673 001.

                R2 BY ADV. SMT.A.SREEKALA

     THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 7.4.2021, THE COURT ON 07-04-2021 DELIVERED THE
FOLLOWING:
                                 2
MACA.No.2443 OF 2012



                          C.S.DIAS, J.
              ======================
                   MACA No.2443 of 2012
              ======================
             Dated this the 7th day of April, 2021.

                             JUDGMENT

The appellants were the petitioners in OP (MV)

No.1630/2005 on the file of the Principal Motor

Accidents Claims Tribunal, Kozhikode. The

respondents in the appeal were the respondents in the

claim petition.

2. The appellants had filed the claim petition

under Sec.166 of the Motor Vehicles Act, 1988,

claiming compensation on account of the death of one

P.P.Biju (deceased), who is the son of the first appellant

and brother of the appellants 2 and 3.

3. The facts in brief, for the determination of the

appeal, are: On 14.4.2005 while the deceased was

riding a motor cycle bearing registration No.KL-11/U

5772, when he reached Kolaikavu in Kozhikode

District, a bus bearing registration No.KL-11/U 2349

MACA.No.2443 OF 2012

(offending vehicle) owned by the first respondent and

insured with the second respondent hit the motor cycle

causing serious injuries to the deceased. The deceased

succumbed to the injuries on 17.4.2005 while he was

undergoing treatment. The deceased was a Barber by

profession and earning a monthly income of Rs.5,200/-.

The respondents 1 and 2 were jointly and severally

liable to pay the compensation amount, which the

appellants quantified at Rs.6,00,000/-.

4. The first respondent did not contest the

proceedings and was set ex parte.

5. The second respondent filed a written

statement admitting the insurance coverage of the

offending vehicle. However, it was contended that the

accident occurred due to the negligence of the

deceased.

6. The appellants marked Exts A1 to A3 in

evidence. The respondents did not let in any contra

evidence.

7. The Tribunal, after analysing the pleadings

MACA.No.2443 OF 2012

and materials on record, by the impugned award

allowed the claim petition, in part, by directing the

second respondent to pay an amount of Rs.1,55,008/-

with interest @ 7% per annum from 6.6.2005 till the

date of payment. The Tribunal found that the deceased

was responsible for contributory negligence to the

extent of 5%.

8. Dissatisfied with the quantum of

compensation awarded by the Tribunal, the appellants

preferred this appeal.

9. This Court by judgment dated 31.1.2018

allowed the appeal, in part, by enhancing the

compensation from Rs.1,55,008/- to Rs.8,60,550/-.

However, this Court found that the Tribunal had gone

wrong in fixing the contributory negligence on the

deceased at 5% instead of 50%. Consequently, this

Court by the impugned judgment fixed the contributory

negligence at 50% and reduced the compensation by

half.

10. Aggrieved by the above judgment, the

MACA.No.2443 OF 2012

appellants preferred RP 746/2018. This Court by order

dated 19.3.2021, on finding that as per Annexure A2

final report filed by the Sub-Inspector of Police, City

Traffic, Kozhikode in crime No.597/2005 that the

driver of the offending vehicle was negligent in

causing the accident, allowed the review petition as

there was an error apparent on the face of record.

Accordingly, the judgment was recalled and the appeal

was re-heard.

11. The appellants have produced the driving

licence of the deceased along with final report filed by

the Police with an application to accept the same. The

application was allowed and the above documents have

been accepted and marked in evidence as Exts A4 and

A5, respectively.

12. Heard Sri.Jacob Abraham, the learned

counsel appearing for the appellants and

Smt.A.Sreekala, the learned counsel appearing for the

second respondent.

13. The first question that emanates for

MACA.No.2443 OF 2012

consideration in the appeal is whether the deceased

can be held guilty for contributory negligence.

14. A Constitution Bench of the Hon'ble Supreme

Court in National Insurance Company Ltd. v.

Pranay Sethi [(2017) 16 SCC 680], has held that

Section 168 of the Motor Vehicles Act, 1988, deals with

the concept of 'just compensation' and the same has to

be determined on the foundation of fairness,

reasonableness and equitability on acceptable legal

standards. The conception of 'just compensation' has to

be viewed through the prism of fairness,

reasonableness and non-violation of the principle of

equitability.

15. It is an undisputed fact that the deceased

succumbed to the injuries on 17.4.2005, on account of

the accident, as discernible from Annexure A2

postmortem report. The Police after investigation have

filed Ext A5, wherein they have concluded that the

accident occurred due to the rash and negligent

driving of the offending vehicle by the first respondent.

MACA.No.2443 OF 2012

16. In view of the law laid down by the Division

Benches of this Court in New India Assurance

Co.Ltd v. Pazhaniammal - [(2011) (3) KLT

648] and Kolavan v. Salim [2018 (1) KLT 489],

the production of Ext A5 final report concludes the fact

of negligence on the part of the driver of the

offending vehicle, especially since no contra evidence

has been let in by the respondents. Therefore, I hold

that it was only the first respondent - the driver of the

offending vehicle - who was negligent in causing the

accident.

17. The Tribunal had found that as the appellants

did not produce the driving licence of the deceased to

prove that he was authorised to drive the motor cycle

on a public road. The Tribunal accordingly held that

the respondents are only liable to pay 50% of the

compensation amount. However, in the concluding

paragraph, the Tribunal fixed the contributory

negligence at 5%.

18. The appellants have produced Ext A4 extract

MACA.No.2443 OF 2012

of driving licence of the deceased, which proves that

the deceased had a valid driving licence as on the date

of accident. Therefore, the said finding of the Tribunal

is wrong and only to be set aside. In the said

circumstances, I am of the opinion that only the driver

of the offending vehicle can be held negligent for

having caused the accident. As the first respondent is

the owner of the vehicle and the second respondent is

the insurer of the offending vehicle, the second

respondent is liable to indemnify the first respondent

for compensation that he is liable to pay as per this

judgment. Therefore, the above question is answered

in favour of the appellants.

19. Now coming to the next question , i.e., what

is the just and reasonable compensation payable by the

respondents to pay to the appellants.

Notional Income

20. The appellants had claimed that the deceased

was a Barber by profession and having an income of

Rs.5,200/- per month. He was aged 30 years at the

MACA.No.2443 OF 2012

time of his death. The Tribunal fixed the notional

income of the deceased at Rs.4,000/- per month.

21. In Ramachandrappa v. Manager, Royal

Sundaram Alliance [(2011) 13 SCC 236], the

Hon'ble Supreme Court has fixed the notional income

of a coolie worker in the year 2004 @ Rs.4,500/- per

month.

22. Following the parameters in the aforecited

decision, I am of the considered opinion that the

deceased's notional income can safely be fixed at

Rs.5,200/- as claimed in the petition.

Multiplier

23. In view of the re-fixation of the notional

income of the deceased, the consequential

compensation has to be necessarily enhanced. As the

deceased was aged 30 years at the time of his death,

the relevant multiplier as per the law laid down in

Sarla Verma v. Delhi Transport Corporation

[(2009) 6 SCC 121] is 17. In view of the law laid

down in Sarla Verma and Pranay Sethi (supra), the

MACA.No.2443 OF 2012

appellants - the dependents of the deceased - are also

entitled for future prospects @ 40% on the

compensation for loss of dependency. As the deceased

was a bachelor, one-half of the compensation has to be

deducted towards his personal living expenses. In the

said circumstances, taking the above parameters into

account, I refix the compensation for loss of

dependency with future prospects at Rs.7,42,560/-

instead of Rs.1,38,666/- awarded by the Tribunal.

Conventional heads of claim

24. In light of the law laid down in Pranay Sethi

(supra), the appellants are entitled for compensation

under the conventional heads, namely, funeral

expenses, pain and sufferings and loss of consortium at

Rs.15,000/-. Rs.15,000/- and Rs.40,000/- respectively.

25. In the above circumstances, I fix the

compensation under the head 'funeral expenses' at

Rs.15,000/- instead of Rs.2,500/- fixed by the Tribunal,

compensation under head 'loss of estate' at

Rs.15,000/-, where nothing was awarded by the

MACA.No.2443 OF 2012

Tribunal and compensation under the head 'loss of

consortium' at Rs.40,000/- towards filial consortium to

the first appellant, where no amount was awarded by

the Tribunal.

Love and affection

26. This Court in Kunjandy. L & Ors v.

Rajendran & Ors [2020 (2) KLT 315] has laid

down the law that once the compensation is awarded

under the head 'loss of consortium', no compensation

can be awarded under the head 'loss of love and

affection'. Therefore, I set aside the compensation

awarded by the Tribunal under the head 'loss of love

and affection'.

Pain and sufferings

27. The Tribunal awarded an amount of

Rs.7,500/- as compensation under this head.

Undisputedly, the accident occurred on 14.4.2005 and

the deceased expired on 17.4.2005. Thus, the

deceased was treated as an inpatient for three days.

Therefore, I fix Rs.5000/- per day as reasonable

MACA.No.2443 OF 2012

compensation under the head pain and sufferings.

Accordingly, I refix the compensation under the head

'pain and sufferings' at Rs.15,000/- instead of

Rs.7,500/- fixed by the Tribunal.

Other heads of claim

28. With respect to other heads of claim, namely,

transportation expenses and medical expenses, I find

that the Tribunal has awarded reasonable and just

compensation.

29. On an overall reappreciation of the pleadings

and materials on record, and the law laid down by the

Hon'ble Supreme Court and this Court in the

aforecited decisions, I am of the definite opinion that

the appellants are entitled for enhancement of

compensation as modified and re-calculated above and

given in the table below for easy reference.

           SI.           Head of claim                Amount         Amounts
           No                                     awarded by the     modified    and
                                                    Tribunal (in     recalculated by
                                                      rupees)        this Court
           1     Loss of dependency                   1,38,666/-          7,42,560/
           2     Medical treatment (no bills)           3,000/-           3,000/-

MACA.No.2443 OF 2012

          3     Transportation expenses         1,500/-        1,500/-
          4     Pain and suffering              7,500/-       15,000/-
          5     Love and affection             10,000/-          nil
          6     Funeral expenses                2,500/-       15,000/-
          7     Loss of estate                    nil         15,000/-
          8     Loss of consortium                nil         40,000/-
                Total                          1,63,166/-     8,32,060/-



                In the result, the appeal is                allowed by

enhancing the compensation by a further amount of

Rs.6,68,894/- (Rupees Six Lakh Sixty Eight Thousand

Eight Hundred and Ninety Four only) with interest at

the rate of 7% per annum from the date of petition till

the date of deposit on the enhanced compensation,

after deducting the period of 1393 days, i.e., the

period of delay in filing the appeal and as ordered by

this Court in CM Appln No.2889/2012, and

proportionate costs. The second respondent/Insurance

Company shall deposit the enhanced compensation

awarded in this appeal before the Tribunal with

interest and proportionate costs within a period of two