Kerala High Court
Ayisha vs Subramanian on 18 December, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
SATURDAY, THE 18TH DAY OF DECEMBER 2021 / 27TH
AGRAHAYANA, 1943
MACA NO. 1700 OF 2011
AGAINST THE AWARD IN OP(MV) 580/2007 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL, MANJERI
APPELLANTS/PETITIONERS :
1 HAFSATH,
W/O ASSAIN, VELLILA PO,
MANKADA, MALAPPURAM DSITRICT.
2 ASARUDHEEN C.K. - MINOR,
REPRESENTED BY MOTHER - 1ST APPELLANT.
3 HASNA C.K.- MINOR,
REPRESENTED BY MOTHER - 1ST APPELLANT.
4 MOHAMMED ANFAS - MINOR,
REPRESENTED BY MOTHER - 1ST APPELLANT.
BY ADVS.
SRI.BABU S. NAIR
SRI.K.RAKESH
RESPONDENTS/RESPONDENTS :
1 SUBRAMANIAN M., S/O.MANI,
NORTH STREET,
KRISHNAPURAM,
GOVINDAPURAM P.O.,
THURAIYUR TALUK, TRICHI DISTCT,
TAMIL NADU, PIN-625 024.
2 S.SEKAR, S/O.P.K.SENGODAN,
D.NO.3141/2, PARALADKA, PUTTUR,
DK DISTRICT, KANARA SOUTH,
MANGALORE, KARNATAKA DISTRICT,
PIN-574 201.
M.A.C.A.Nos.1700 and 1709 of 2011
..2..
3 THE NEW INDIA ASSURANCE COMPANY LTD.,
VARIKKODAN BUILDINGS,
NILAMBUR ROAD, MANJERI, PIN-676 121.
BY SMT.A.SREEKALA, STANDING COUNSEL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 18.12.2021, ALONG WITH MACA.1709/2011,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.1700 and 1709 of 2011
..3..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
SATURDAY, THE 18TH DAY OF DECEMBER 2021 / 27TH AGRAHAYANA,
1943
MACA NO. 1709 OF 2011
AGAINST THE AWARD IN OP(MV) 581/2007 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL, MANJERI
APPELLANTS/PETITIONERS :
1 AYISHA, W/O.MOIDU,
THALAPPIL HOUSE,
VELLILA P.O., MANKDA,
ERNAD TALUK, MALAPPURAM DSITRICT.
2 JASEENA, W/O.SHAHUL HAMEED,
KOORIMANNIL, KOUKUNNUMMAL,
CHITTATH PARA, KADAMBODE,
PANDALLUR, MALAPPURAM DISTRICT.
3 JASHEETHA, W/O.ABOOBACKER SIDDIQUE,
KOORI HOUSE, KOOTTILANGADI,
MALAPPURAM DISTRICT.
BY ADVS.
SRI.BABU S. NAIR
SRI.K.RAKESH
RESPONDENTS/RESPONDENTS :
1 SUBRAMANIAN M., S/O.MANI,
NORTH STREET, KRISHNAPURAM,
GOVINDAPURAM P.O., THURAIYUR TALUK,
TRICHI DISTRICT, TAMIL NADU, PIN-645 024.
M.A.C.A.Nos.1700 and 1709 of 2011
..4..
2 S.SEKAR, S/O.P.K.SENGODAN,
D.NO.3141/12, PARALADKA,
PUTTUR, DK DISTRICT,
KANARA SOUTH, MANGALORE, KARNATAKA-583 301.
3 THE NEW INDIA ASSUIRANCE COMPANY LTD.,
VARIKKODAN BUILDINGS,
NILAMBUR ROAD, MANJERI, PIN-676 121.
BY SMT.A.SREEKALA, STANDING COUNSEL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 18.12.2021, ALONG WITH MACA.1700/2011,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.1700 and 1709 of 2011
..5..
M.A.C.A.Nos.1700 and 1709 of 2011
-------------------------------------------------------
COMMON JUDGMENT
The legal representatives of one Assain, who died as a
result of a motor accident on 17.12.2006 while riding his
motorcycle, preferred O.P.(MV)No.580 of 2007 before the Motor
Accidents Claims Tribunal, Manjeri and claimed compensation to
the tune of Rs.5,00,000/-. Similarly, the legal representatives of
the pillion rider of the above said motorcycle, who also died in the
same accident, had preferred O.P.(MV)No.581 of 2007 before the
Tribunal. The owner, driver and insurer of the lorry bearing
registration No.KA 21/D 7677 were arrayed as the respondents
alleging negligence on the part of the first respondent, the lorry
driver.
2. Insurance company in both cases filed written
statement and admitted the policy. However, serious dispute
raised in the matter of negligence by fastening the same solely
M.A.C.A.Nos.1700 and 1709 of 2011
..6..
against the rider of the motorcycle, Assain, despite disputing the
quantum of compensation under various heads.
3. The Tribunal tried both cases jointly. PW1 and
PW2 examined and Exts.A1 to A3 marked in O.P.(MV)No.580 of
2007 and Exts.A1 and A2 in O.P.(MV)No.581 of 2007 as
petitioners' evidence. Exts.B1 to B3 were marked on the part of
the third respondent in both cases.
4. Finally, the Tribunal granted Rs.2,38,000/- with
9% interest in O.P.(MV)No.580 of 2007 and Rs.1,66,500/- in O.P.
(MV)No.581 of 2007 payable by the third respondent being 50%
of the total amount assessed by the Tribunal on the finding that
50% negligence was the contribution of the rider of the
motorcycle.
5. The petitioners in the above original petitions
are assailing the award mainly on two grounds. According to the
appellants, the Tribunal went wrong in fixing 50% contributory
negligence on the part of the rider. Secondly, the compensation
granted under the various heads is also on a lower side.
6. The first question arises for consideration is
M.A.C.A.Nos.1700 and 1709 of 2011
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whether the Tribunal is justified in finding 50% negligence against
Assain, the rider of the motorcycle involved in the accident.
7. It is argued by the learned counsel for the
appellants that Ext.A1 FIR is against the first respondent.
Further, Ext.B1 police charge is also against the first respondent.
However, the Tribunal fastened 50% negligence on the part of the
rider of the motorcycle without any basis. Accordingly, the
learned counsel canvassed interference in the matter of finding
regarding negligence.
8. The learned counsel for the insurance company
refuted this contention and submitted that the Tribunal relied on
the evidence of PW2 to find 50% negligence on the part of the
rider and the oral evidence of PW2, an eye witness was given
predominance by the Tribunal.
9. In order to address the rival arguments, I have
perused Ext.B1 police charge. In fact, Ext.B1 would go to show
that the police registered crime against the first respondent as
per Ext.A1 FIR and after investigation, the police laid charge
against the first respondent alleging commission of offence under
M.A.C.A.Nos.1700 and 1709 of 2011
..8..
Section 304A of the Indian Penal Code. But, from the side of the
petitioners, PW2, an occurrence independent witness was
examined to corroborate the police charge. During chief-
examination itself, PW2 given evidence that the rider of the
motorcycle attempted to overtake the tanker lorry and he failed
to get space in this attempt. Consequently, the lorry hit against
the motorcycle and the lorry driven away without stopping.
During cross-examination, PW2 given evidence that motorcycle
hit on the side of the lorry while attempting to overtake. Thus, it
appears that in this case, the evidence of direct eye witness
supported negligence on the part of the rider. However, the
Tribunal find negligence in the ratio 50% and it was held that the
accident was the outcome of 50% negligence on the part of the
first respondent. Accordingly, 50% of the amount assessed in
each case was granted as compensation along with 9% interest
and the said sum was ordered to be realised from respondents 1
to 3.
10. Going by the evidence of PW2, the independent
eye witness already extracted, it could be noticed that the major
M.A.C.A.Nos.1700 and 1709 of 2011
..9..
contribution of the accident is on the part of the rider of the
motorcycle. When direct evidence is adduced to disbelieve the
police charge, the direct evidence would supersede the police
charge and the direct ocular evidence would have predominance
over the police charge. In view of the above finding, I do endorse
the view taken by the Tribunal in the matter of fixation of 50%
negligence on the part of the rider of the motorcycle after finding
50% negligence on the part of the first respondent in these cases,
where, the legal representatives/legal heirs of Assain (rider of the
motorcycle) also are parties.
11. Coming to the quantum of compensation in
MACA No. 1700 of 2011(O.P.MV)No.580 of 2007), it is argued by
the learned counsel for the appellants that though the income of
the deceased was claimed at Rs.5,000/- being coolie worker aged
34 years, the Tribunal fixed only at Rs.3,500/- as the monthly
income. In fact, the accident is of the year 2006. Therefore, by
applying the ratio in [(2011) 13 SCC 236], Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Company
Ltd. where, the income of a coolie was fixed at Rs.4,500/- during
M.A.C.A.Nos.1700 and 1709 of 2011
..10..
2004, Rs.5,000/- claimed by the appellants in O.P.(MV)No.580 of
2007 in relation to an accident during 2006 is just and
reasonable. Therefore, I fix Rs.5,000/- as the monthly income in
this case to calculate loss of dependency income. Needless to
say that 40% addition is also to be made following the ratio in
[2017 16 SCC 650], National Insurance Company Ltd. v.
Pranay Sethi & Ors. Thus, the loss of dependency income is
recalculated as under;
7,000x16x12x3/4=10,08,000/-
50% of the same would come to Rs.5,04,000/-.
Out of which, Rs.2,24,000/- was granted by the
Tribunal. Rs.5,04,000-Rs.2,24,000= Rs.2,80,000/- more is
granted under the head loss of dependency income.
12. The learned counsel for the appellants
canvassed income under the conventional heads also in this case
following the ratio in Pranay Sethi's case (Supra). But the
learned counsel for the insurance company pressed for reducing
Rs.10,000/- granted under the head loss of love and affection
following the ratio in [AIR 2020 SC 3076], United India
M.A.C.A.Nos.1700 and 1709 of 2011
..11..
Insurance Co.Ltd. v. Satinder Kaur.
13. In view of this submissions, I have perused the
award. It appears that Rs.5,000/- alone was assessed under the
head loss of estate and Rs.2,500/- was granted under this head.
Therefore, Rs.5,000/- (10,000/2) more is granted under the loss
of estate. Towards funeral expenses, the Tribunal assessed
Rs.3,000/- and granted Rs.1,500/-. Therefore, the appellants are
entitled to get Rs.6,000/-(12,000/2) more under this head.
Towards loss of consortium, the Tribunal granted only Rs.5,000/-
after assessing the said sum at Rs.10,000/-, though the
petitioners 1 to 4 together are entitled to get Rs.1,60,000/-.
Therefore, the appellants are entitled to get Rs.80,000/-
(1,60,000/2) more under the head loss of consortium. Rs.5,000/-
granted (after assessing Rs.10,000/-) under the head pain and
sufferings by the Tribunal, though the same is impermissible as
per the ratio in Satinder Kaur's case (Supra).
14. Coming to O.P.(MV)No.581 of 2007, the Tribunal
granted Rs.1,66,500/- as the total compensation by fixing the
monthly income of the deceased at Rs.3,500/-. In this case, the
M.A.C.A.Nos.1700 and 1709 of 2011
..12..
appellants claimed Rs.5,000/- as the monthly income of the
deceased. Following the ratio in Ramachandrappa's
case(Supra), Rs.5,000/- can be fixed as the monthly income in
this case also as discussed in the case of Assain. Needless to say
that 40% addition is to be made in this matter also. Thus, the
loss of dependency income is recalculated as under;
7,000x12x18/2=7,56,000/-
50% of the same would come to Rs.3,78,000/-
Out of which, Rs.1,57,500/- was granted by the
Tribunal. Rs.3,78,000-Rs.1,57,500=Rs.2,20,500/- more is
granted under the head loss of dependency income.
15. The learned counsel for the appellants
canvassed income under the conventional heads also in this case
following the ration in Pranay Sethi's case (Supra).
16. While addressing the rival contentions, I have
perused the award. It appears that Rs.5,000/- alone was assessed
under the head loss of estate and Rs.2,500/- was granted under
this head. Therefore, Rs.5,000/- (10,000/2) more is granted
under the loss of estate. Towards funeral expenses, the Tribunal
M.A.C.A.Nos.1700 and 1709 of 2011
..13..
assessed Rs.3,000/- and granted Rs.1,500/-. Therefore, the
appellants are entitled to get Rs.6,000/-(12,000/2) more under
this head. Towards loss of consortium, the Tribunal granted no
amount, though the petitioners 1 and 2 (parents of the deceased)
are entitled to get Rs.80,000/- at Rs.40,000/- each. Since the
Tribunal not granted any amount under this head, Rs.40,000/- is
granted under the head loss of consortium being 50%.
In the result, (i) MACA No.1700 of 2011 is allowed in
part. It is ordered that the appellants/claimants in O.P.(MV)No.580
of 2007 are entitled to get enhanced compensation to the tune of
Rs.3,71,000/- (Rupees Three lakh Seventy One Thousand only)
with interest at the rate of 9% granted by the Tribunal, excluding
the amount already granted by the Tribunal, from the date of
petition till the date of deposit or realisation. The insurance
company is directed to deposit the same in the name of the
appellants/claimants in equal proportion within two months from
today and on deposit, the appellants/claimants are at liberty to
release the same.
It is noticed that for the payment of court fee,
M.A.C.A.Nos.1700 and 1709 of 2011
..14..
Rs.5,00,000/- alone was valued by the appellants in O.P.
(MV)No.580 of 2007 and they are liable to pay court fee for the
enhanced compensation to the tune of Rs.1,090/-. Therefore, the
insurance company is directed to deposit Rs.1,090/- in addition to
the court fee already ordered by the Tribunal by separate cheque
in the name of M.A.C.T.
(ii) MACA No.1709 of 2011 is allowed in part. It is
ordered that the appellants/claimants in O.P.(MV)No.581 of 2007
are entitled to get enhanced compensation to the tune of
Rs.2,71,500/- (Rupees Two lakh Seventy One Thousand Five
Hundred only) with interest at the rate of 9% granted by the
Tribunal, excluding the amount already granted by the Tribunal,
from the date of petition till the date of deposit or realisation. The
insurance company is directed to deposit the same in the name
of the appellants/claimants in equal proportion within two months
from today and on deposit, the appellants/claimants are at liberty
to release the same.
It is noticed that for the payment of court fee,
Rs.4,00,000/- alone was valued by the appellants in O.P.
M.A.C.A.Nos.1700 and 1709 of 2011
..15..
(MV)No.581 of 2007 and they are liable to pay court fee for the
enhanced compensation to the tune of Rs.380/-. Therefore, the
insurance company is directed to deposit Rs.380/- in addition to
the court fee already ordered by the Tribunal by separate cheque
in the name of M.A.C.T.
Sd/-
A.BADHARUDEEN, JUDGE
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