Pushpanjali vs Gulam Gose
2021 Latest Caselaw 21276 Ker

MACA NO. 740 OF 2006
                                1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
  FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                       MACA NO. 740 OF 2006
    AGAINST THE ORDER/JUDGMENT IN OPMV 1264/1998 OF MOTOR
        ACCIDENT CLAIMS TRIBUNAL , PALAKKAD, PALAKKAD
APPELLANT/S:

    1    PUSHPANJALI, W/O LATE VIJAYAKUMAR,
         AGED 35 YEARS
         SANKARAN KANDTH VEEDU, KONAN PUTHUR,, KANJIKODE
         P.O. PALAKKAD.

    2    ATHMAJA AGED 12 YEARS (MINOR)
         S/O.LATE VIJAYAKUMAR.

    3    AKSHAYAKUMAR AGED 9 YEARS (MINOR)
         D/O.LATE VIJAYAKUMAR.(MINOR APPELLANTS 2ND AND,
         3RD REPRESENTED BY MOTHER IST APPELLANT).

    4    KUPPAYE (DIED).

    5    PUSHPAM W/O.KUPPAYE.

    6    PACHU W/O.DECEASED KANDANKUTTY (DIED).

    7    SHARMILA WO.SIVADAS KAKKATH VEEDU
         VELLA ROAD, MANKARA,, PALAKKAD.

    8    SUDHEESH KUMAR S/O.KUPPAYE
         SANKARAN KANDATH VEEDU, KANNAN PUDUR,, KANJIKODE,
         PALAKKAD.

    9    SATHEESH KUMAR SO.KUPPAYE DO. DO.

   10    MANOJ KUMAR SO.KUPPAYE DO DO.

   11    PRMEELA WO.SREEDHARAN
 MACA NO. 740 OF 2006
                             2

         PANDARAKALATHIL VEEDU, KUTHANUR, ALATHUR TALUK.

         BY ADV SRI.T.K.SANDEEP



RESPONDENT/S:

    1    GULAM GOSE, S/OSULTHAN AHAMMED,
         CAMPAL ROAD, RAM NAGAR, TAGORE GUNCH, LUCKNOW,,
         UTTARPRADESH.

    2    MUKESH KUMAR SINGH SO.HARIHARAN SINGH
         KANCHANA, HARDOI, UTTARPRADESH.

    3    NATIONAL INSURANCE CO.LTD.
         HALVALRIA COURT, HAZHRATHUGUNCH, LUCKNOW 226 011.

    4    SULTHAN AHAMMED SO.SULAIMAN
         GANAPATH ROAD, RAM NAGAR, LUCKNOW.

         BY ADV SRI.LAL GEORGE, SC, NATIONAL INSURANCE
         COMPANY LIMITED




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 740 OF 2006
                               3




                        JUDGMENT

The appellants were the petitioners in OP(MV)

No.1264/1998 on the file of the Motor Accidents Claims

Tribunal, Palakkad. The respondents in the appeal were the

respondents before the Tribunal.

2. The appellants had filed the claim petition under

Section 166 of the Motor Vehicles Act, 1988, claiming

compensation on account of the death of Vijayakumar

(deceased), husband of the 1st appellant, father of the

appellants 2 and 3 and son of the appellants 4 and 5. The

appellants 6 to 11 are the legal representatives of the

deceased 4th appellant. It was the case of the appellants 1 to

5 in the claim petition that, on 02.09.1998, while the

deceased was driving his motor cycle bearing registration

No.TAR-7435, along the National Highway at Kanjikode, he

hit the rear portion of a parked lorry bearing registration

No.UP 30A 2382 (offending lorry), which was negligently

parked on the National Highway without any parking light or

signal. The 1st respondent was the driver, the 2 nd respondent MACA NO. 740 OF 2006

was the registered owner, the 3 rd respondent was the insurer

and the 4th respondent was the defacto owner of the lorry.

The deceased was a quarry worker and earning a monthly

income of Rs.4,000/-. The appellants 1 to 5 were the

dependents of the deceased. Hence, the appellants claimed a

compensation of Rs.5,00,000/- from the respondents.

3. The respondents 1, 2 and 4 did not contest the

proceedings and were set ex-parte.

4. The 3rd respondent had filed a written statement

admitting that the lorry had a valid insurance coverage.

However, it was contended that the accident occurred due to

the negligence of the deceased, who hit on the rear portion

of the lorry. The 3rd respondent also denied the age, income

and occupation of the deceased. The 3rd respondent prayed

that the claim petition be dismissed.

5. During the pendency of the claim petition the 4 th

appellant died and his legal representatives were impleaded

as the supplemental petitioners 6 to 11, who are the

appellants 6 to 11 in the appeal.

MACA NO. 740 OF 2006

6. The 1st appellant and witnesses were examined as

PWs 1 and 2 and Exts.A1 to A7 were marked in evidence.

The respondents did not let in any evidence.

7. The Tribunal, after analysing the pleadings and

materials on record, allowed the claim petition in part, by

permitting the appellants 1 to 3 and 5 to realise from the 3 rd

respondent an amount of Rs.2,44,900/-. Nevertheless, the

Tribunal held that as the deceased had hit on the rear

portion of the parked lorry, the deceased was guilty for

contributory negligence to the extent of 50%. Accordingly,

the compensation was deducted 50% of the compensation

amount and awarded only an amount of Rs.1,22,450/-. The

3rd respondent was directed to pay the aforesaid amount with

interest and cost to the appellants 1 to 3 and 5.

8. Aggrieved by the finding of contributory negligence

and dissatisfied with the quantum of compensation awarded

by the Tribunal, the petitioners are in appeal.

9. Heard; Sri. T.K. Sandeep, the learned counsel

appearing for the appellants/petitioners and Sri.Lal George, MACA NO. 740 OF 2006

the learned counsel appearing for the 3rd respondent/insurer.

10. The questions that emerge for consideration in this

appeal are:

1. Whether the finding of fixing the contributory negligence

on the deceased is sustainable in law?

2. Whether the quantum of compensation awarded by the

Tribunal is reasonable and just ?

Question No.I

11. The definite case of the appellants in the claim

petition was that, the accident occurred due to the negligent

parking of the lorry on the National Highway by the 1 st

respondent, without any signal or parking light. The Tribunal

for the reason that the deceased had hit on the rear portion

of the lorry found that the deceased was guilty for the

contributory negligence to the extent of 50%.

12. In Ext.A3 charge sheet filed by the Valayar Police in

Crime No.98/98, it is found that the accident occurred due

to the negligence of the 1st respondent. MACA NO. 740 OF 2006

13. In New India Assurance Company Ltd. vs.

Pazhaniammal [2011 (3) KLT 648] a Division Bench of this

this Court has categorically held that, as a general rule,

production of the charge sheet is prima facie sufficient

evidence of negligence for the purpose of a claim under

Section 166 of the Motor Vehicles Act, 1988. Charge sheet

can be accepted as evidence of negligence against the

accused driver. If any party does not accept such charge

sheet, the burden is on such party to adduce oral evidence

and discredit the charge sheet; only then the charge sheet

will fall into a pale of insignificance.

14. In the instant case, the respondents have not let in

any evidence to discredit Ext.A3 charge sheet filed by the

Police. Therefore following the ratio in Pazhaniammal

(supra) and considering the fact that the lorry was parked on

the National Highway without any signal or parking light, I

hold that the accident happened solely due to the negligence

of the 1st respondent. Hence, I set aside the finding of

contributory negligence in the impugned award. Accordingly

I answer Question No.1 in favour of the appellants and hold MACA NO. 740 OF 2006

that the appellants 1 to 3 and 5 are entitled for the entire

amount of compensation to be realised from the 3 rd

respondent, who admittedly is the insurer of the lorry and

has not proved that the 2nd respondent has violated any of

the insurance policy conditions.

Income of the deceased

15. The appellants had claimed that the deceased was a

quarry worker by profession and earning a monthly income

of Rs.4,000/-. The appellants had not produced cogent

evidence to substantiate the income of the deceased.

16. In Ramachandrappa vs. Manager, Royal

Sundaram Alliance Insruance Company Ltd. [(2011) 13

SCC 236] the Honourable Supreme Court has fixed the

notional income of a coolie worker in the year 2004 at

Rs.4,500/ per month.

17. Following the yardstick in the afore-cited decision

and considering the fact that the deceased was a quarry

worker and the accident happened in the year 1998, I hold

that an amount of Rs.2,000/- can safely be fixed as the MACA NO. 740 OF 2006

notional monthly income of the deceased.

Multiplier

18. The deceased was aged 35 years on the date of the

accident/death. In the light of the law laid down in Sarla

Varma vs. Delhi Transport Corporation [2010 (2) KLT

802], the relevant multiplier to be adopted is '16'.

Dependents of the deceased

19. It is proved by Ext.A7 legal heir-ship certificate that

the appellants 1 to 3 and 5 are the wife, children and mother

of the deceased. They are four in number. Therefore, going

by the law laid down in Sarla Varma (supra) and National

Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC

680], one fourth of the compensation has to be deducted

towards the personal living expenses of the deceased.

Future Prospects

20. Following the ratio in Sarla Varma and Pranay

Sethi (supra) and considering the fact that the deceased was

aged 35 years at the time of accident, I hold that the MACA NO. 740 OF 2006

appellants 1 to 3 and 5 are entitled for future prospects at

40% on the compensation for loss due to dependency.

Loss due to Dependency

21. Taking into account the above mentioned factors,

namely, the notional monthly income of the deceased at

Rs.2,000/-, multiplier at 16, future prospects at 40% and

after deducting one fourth of the compensation towards the

personal living expenses of the deceased, I refix the

compensation for loss of dependency at Rs.4,03,200/-,

instead of Rs.2,30,400/- fixed by the Tribunal.

Conventional Heads of Compensation

22. In clause (viii) of paragraph 61 of Pranay Sethi

(supra), the Honourable Supreme Court has held that the

dependents of the deceased are entitled for compensation

under the conventional heads i.e., funeral expenses, loss of

estate and loss of consortium at Rs.15,000, Rs.15,000 and

Rs.40,000 respectively.

23. In the instant case, the Tribunal has awarded only

an amount of Rs.2,000/- under the head funeral expenses, MACA NO. 740 OF 2006

Rs.2,500/- towards loss of estate and Rs.5,000/- towards loss

of consortium.

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

(supra), I enhance the compensation under the aforesaid

respective heads by a further amount of Rs.13,000/-,

Rs.12,500/- and Rs.1,55,000/-.

25. I award Rs.1,60,000/- towards loss of consortium in

view of the fact that the appellants 1 to 3 and 5 are the wife,

children and mother of the deceased, who are entitled for

loss of consortium.

Compensation for pain and sufferings

26. It is seen that the Tribunal has awarded an amount

of Rs.5,000/- under the head 'pain and sufferings'.

27. In paragraph 19 of Sarla Verma (supra), the

Honourable Supreme Court has held that in the case of

instantaneous death, no amount of compensation shall be

awarded under the head 'pain and sufferings'. Therefore, I

set aside the amount of Rs.5,000/- awarded under the

aforesaid head.

MACA NO. 740 OF 2006

28. On a comprehensive re-appreciation of the

pleadings and materials on record and the law laid down in

the above referred decisions, I hold that the appellants 1 to 3

and 5/petitioners 1 to 3 and 5 are entitled for enhancement

of compensation as recalculated above and given in the table

below for easy reference:

Amounts modified Amount SI. and awarded by Head of claim recalculat the Tribunal No ed by this (in Rs.) Court (in Rs.)

1. Funeral expenses 2,000 15,000

2. Loss of estate 2,500 15,000

4. Loss of consortium 5,000 1,60,000

5. Loss due to dependency 2,30,000 4,03,200

2,44,900-50% contributory Total 5,93,200 negligence =1,22,450

29. Even though the appellants had claimed only an MACA NO. 740 OF 2006

amount of Rs.5,00,000/-, in the claim petition, following the

ratio in Sarla Verma and Pranay Sethi (supra), that the

dependents of the deceased are entitled for future prospects

and compensation under the conventional heads, I award

more compensation than what is claimed in the claim

petition. The said course is permissible in view of the law laid

down in Nagappa v. Gurudayal Singh [2003 (1) KLT 115

(SC)] and Rajesh vs. Rajbir Sing [2013 (3) KLT 89 (SC)],

wherein the Honourable Supreme Court has held that there

is no restriction in awarding more compensation than what is

claimed in the claim petition.

In the result, the appeal is allowed in part by enhancing

the compensation by an amount of Rs.4,70,750/- (that is

Rs.3,48,300/- towards enhanced compensation +

Rs.1,22,450/- deducted by the Tribunal towards contributory

negligence) with interest at the rate of 7% per annum on the

above said amount from the date of petition till the date of

deposit and a consolidated cost of Rs.31,000/-. The 3 rd

respondent is ordered to deposit the compensation amount of MACA NO. 740 OF 2006

Rs.4,70,750/- with interest and cost within a period of 60

days from the date of receipt of a certified copy of the

judgment. The Tribunal shall disburse the enhanced

compensation with interest and cost to the appellants in the

ratio of 30:30:30:10 and in accordance with law.

Sd/-

C.S.DIAS JUDGE rkc