Kerala High Court

M.Deepa vs K.M.Rajan on 13 July, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
         TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                           MACA NO. 700 OF 2010
  AGAINST THE ORDER/JUDGMENT IN OP(MV) 428/2005 OF MOTOR ACCIDENTS
                       CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT:(APPELLANT)
           M.DEEPA, W/O.LATE LALU, AGED 27,
           MARATHADATHIL HOUSE, NEDUVA POST, NEDUVA AMSOM DESOM,
           MALAPPURAM.

             BY ADV SRI.HARISH R. MENON


RESPONDENTS/RESPONDENTS:

     1       K.M.RAJAN, S/O.KESAVAN,
             POOLAPARAMBIL HOUSE, M.M.PARAMBA,, UNNIKULAM
             VIA,BALUSSERY, KOZHIKODE.

     2       THE UNITED INDIA INSURANCE CO.LTD.,
             CITY BRANCH, RAMEEZ ARCADE, C.B.FLY OVER JUNCTION,
             CHEROOTY ROAD, KOZHIKODE.

     3       SHERLI.P,
             D/O.LATE DAMODARAN, AGED 38 VILAMTHANGAL ROAD,
             KALAKKURICHI, VILLAPURAM DT, TAMIL NADU. (DELETED)

     4       SREEJA T, D/O.LATE DAMODARAN, AGED 36, KANAYAM PARAMBIL,
             ALAPPUZHA. (DELETED).

              * R3 AND R4 DELETED FROM THE PARTY ARRAY AT THE RISK OF
             THE APPELLANT VIDE ORDER DATED 23.03.2021 IN I.A.NO.1 OF
             2021 AT THE RISK OF THE APPELLANT.

             BY ADVS.
             SRI.P.JACOB MATHEW
             SMT.T.A.LUXY
             SRI.MATHEWS JACOB SR.


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 700 OF 2010               2




                          JUDGMENT

The appellant was the petitioner in OP(MV) No.428

of 2005 on the file of the Principal Motor Accidents

Claims Tribunal, Kozhikode. The respondents in the

appeal were the respondents before the Tribunal.

Pursuant to the direction of this Court on 23.3.2021 in

I.A.No.1 of 2021 the respondents 3 and 4 were deleted

from the party array. It is seen from the records that,

the 3rd respondent before the Tribunal had expired

during the pendency of the claim petition, and as per the

order in I.A.No.2560 of 2006, the respondents 3 and 4 in

the appeal were impleaded as supplemental

respondents 4 and 5 before the Tribunal. Therefore, for

the sake of convenience, the parties are referred to as

per their status in the claim petition.

2. The petitioner had claimed in the claim petition

u/S.166 of the Motor Vehicles Act claiming compensation

on account of the death of Lalu (deceased) her husband.

The 3rd respondent was the father of the deceased.

3. The concise case of the petitioner in the claim

petition, relevant for the determination of the appeal is

that: on 6.6.2004 while the deceased was riding a

motorcycle bearing Reg. No.KL-11-J-2672 from

Naduvattom to Thampi road, the motorcycle hit a lorry

bearing Reg.No.KL-07-B-4392, (offending vehicle) which

was loaded with timber and parked on the road without

parking lights or reflector. The deceased was taken to

the MIMS Hospital, Kozhikode and, thereafter, treated at

the Medical College Hospital, Kozhikode. He succumbed

to his injuries on the very same day. The deceased was a

goldsmith by profession and earning a monthly income

of Rs.7,000/-. The 1st respondent was the owner of the

offending vehicle and the 2nd respondent was the insurer

of the offending vehicle. Hence, the appellant claimed

compensation from the respondents at Rs.10,22,000/-,

which was limited to Rs.6,00,000/-.

4. The respondents 1 and 3 did not contest the

proceedings and were set ex parte. During the

pendency of the claim petition, the 3 rd respondent died

and the supplemental respondents 4 and 5 were

impleaded. They also did not contest the proceedings.

5. The 2nd respondent Insurance Company filed a

written statement, inter alia, contending that the

accident was caused on account of the negligence on the

part of the deceased, who hit the motorcycle on the rear

portion of the offending vehicle. Therefore, the

deceased was guilty for contributory negligence.

6. The appellant produced and marked Exts.A1 to

A3 in evidence.

7. The Tribunal, after analysing the pleadings

and materials on record, by the impugned award allowed

the claim petition by awarding a compensation of

Rs.3,12,178/- but deducted 50% of the amount, holding

that the deceased was guilty for contributory negligence

to the extent of 50% as he had hit on the rear portion of

the parked lorry. Accordingly, the Tribunal permitted the

petitioner and the respondents 4 and 5 to recover an

amount of Rs.1,56,089/- from respondents 1 and 2 with

interest @ 7% per annum from the date of filing of the

claim petition till the date of realization and Rs.500/- as

costs.

8. Aggrieved by the fixation of contributory

negligence, the direction that the respondents 4 and 5

were entitled to compensation and also dissatisfied with

the quantum of compensation awarded by the Tribunal,

the petitioner is in appeal.

9. Heard, the learned counsel appearing for the

appellant/petitioner and the learned counsel appearing

for the 2nd respondent/ Insurance Company.

10. The questions that arise for consideration in

this appeal are:

(i) Whether the deceased can be held to be

guilty of contributory negligence ?

(ii) Whether the respondents 4 and 5 before

the Tribunal are entitled for a share in

compensation ?

(iii) Whether the quantum of compensation

awarded by the Tribunal is reasonable and just ?

11. Ext.A1 FIR, proves that the deceased had hit on

the rear portion of a parked lorry which caused the

accident.

12. The Division Benches of this Court in Rose

Lynd v. Lekha (2008 4 KLT Short Note 43 (Case

No.38) and Mirshad.C.K. v. Babu Mathew and

others (2017 1 KHC 887) have held when the

driver/rider of the vehicle hit on a parked lorry certainly

it has to be held that there was contributory negligence

on the part of the driver/rider of the vehicle.

13. In view of the categoric declaration of law in

Rose Lynd and Mirshad.C.K (supra) and Ext.A1 FIR, I

answer Question No.1 against the appellant and hold

that the deceased was guilty for contributory negligence

to the extent of 25%.

14. Now, coming to the 2nd question whether the

father of the deceased was a legal heir entitled to claim

compensation on account of the death of the deceased

son, and consequentially were his daughters -

respondents 4 and 5 entitled to a share in the

compensation.

15. The parties are Hindus by religion. They are

governed by the provisions of the Hindu Succession Act

1956 (in short 'Act'). Section 9 of the Act deals with the

general rules of succession in case of males. A wife falls

within Class I of the Schedule of the Act. Only when

there is no legal heir in Clause I of the Schedule of the

Act, would an heir under the Class II get a share in the

property of the Hindu male who dies intestate.

16. In light of the above statutory stipulation in the

Act, it is clear that only the widow of the deceased Hindu

who dies intestate is entitled to inherit the estate of the

deceased. Therefore, I hold that the father of the

deceased, namely the deceased 3rd respondent was not

entitled for a share in the compensation. Resultantly, his

legal heirs/representatives the respondents 4 and 5 are

not entitled to a share in the compensation. Hence, the

findings of the Tribunal that the respondents 4 and 5 are

entitled to a share in the compensation is erroneous and

wrong. Hence, I set aside the said finding and answer

Question No.2 in favour of the appellant.

17. Now coming to the 3rd question with regard to

reasonable and just compensation to be fixed.

18. The deceased was a gold smith by profession

and was stated to be an earning a monthly income of

Rs.7,000/-. The Tribunal fixed the notional income of the

deceased at Rs.2,000/-.

     19. The           Hon'ble      Supreme             Court   in

Ramachandrappa           vs.     Manager,       Royal    Sundaram

Alliance Insurance Company Ltd., (2011 (13) SCC 236)

has fixed the notional income of a Coolie Worker in the

year 2004 at Rs.4,500/- per month.

20. Following the ratio in the above decision, I refix

the notional income of the deceased at Rs.4,500/- as the

accident was in the year 2004.

Multiplier

21. The deceased was aged 27 on the date of his

death. Hence, the relevant multiplier in light of the

decisions in Sarala Verma v. Delhi Transport

Corporation (2009) 6 SCC 121 and National

Insurance Co.Ltd., v. Pranay Sethi (2017) 16 SCC

680) is '17'. Similarly, in Sarala Verma and Pranay

Sethi, the Hon'ble Supreme Court has held that the

dependence of the deceased, if the deceased is aged 27,

is entitled for future prospects at 40%.

Personal living expenses of the deceased

22. As only the appellant was a dependent of the

deceased, one half of the compensation on the loss of

dependency has to be deducted towards the personal

living expenses of the deceased.

Loss due to dependency with Future Prospects

23. In view of the aforecited parameters, namely,

the relevant multiplier being '17', the notional income

being Rs.4,500/- per month, future prospects at 40% and

one half of the amount to be deducted towards the

personal living expenses of the deceased, I refix the

compensation for loss due to dependency at

Rs.6,42,600/- instead of Rs.2,87,928/- fixed by the

Tribunal.

Conventional heads of compensation

24. In Clause (viii) of paragraph 61 of Pranay

Sethi (supra), the Hon'ble Supreme Court has held that

the dependents of the deceased are entitled for

compensation under the conventional heads namely;

funeral expenses, loss of estate and loss of consortium at

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

Accordingly, I fix the compensation under the aforesaid

heads at the aforesaid amounts.

Compensation for loss of Love and Affection

25. The Tribunal has awarded an amount of

Rs.5,000/- under the head loss of love and affection. In

light of the law laid down in Kunjandy and others v.

Rajendran (2020(2) KLT 315), I set aside the amount

of compensation of Rs.5,000/- awarded under the said

head in view of the grant of compensation under the

head loss of consortium.

26. With respect to the other heads of

compensation, namely; transport and clothing, I find that

the Tribunal has awarded reasonable and just

compensation.

27. On an over all re-appreciation 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

appellant/petitioner is entitled for enhancement of

compensation as modified and recalculated above and

given in the table below for easy reference.

Head of claim                     Amount             Amounts
                                  Awarded by         modified    and
                                  the Tribunal       recalculated by
                                  (in Rs.)           this Court

Transportation                    1,000/-            1,000/-
expenses

Damages to clothing               250/-              250/-

Funeral expenses                  3,000/-            15,000/-

Loss of Estate                    -                  15,000/-

Love and affection                5,000/-            -

Loss of consortium                15,000/-           40,000/-

Loss of dependency                2,87,928/-         6,42,600/-

Total                             3,12,178/-         7,13,850/-

28. In light of the finding of this Court that the

deceased was guilty for contributory negligence to the

extent of 25%, I deduct 25% from the total compensation

i.e., an amount of Rs.1,78,463/-. Therefore, the appellant

is entitled for a compensation of Rs.5,35,387/- i.e., an

enhancement of Rs.2,23,209/-.

In the result, the appeal is allowed, by allowing the

appellant to realise the entire compensation amount of

Rs.5,35,387/- from the 2nd respondent- with interest at

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

the date of deposit, after deducting a period of 166 days,

i.e., the period of delay in filing the appeal as ordered by