Radhakrishna Pillai vs Saji Abraham
2021 Latest Caselaw 8822 Ker

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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.
            ======================
                  MACA No.950 of 2010
             ======================
          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

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

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.

MACA.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

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

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

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

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

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

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

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.

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

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