Pankajakshi vs Shijesh
2022 Latest Caselaw 3808 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MRS. JUSTICE M.R.ANITHA
  TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
                   MACA NO. 1526 OF 2013
   AGAINST THE AWARD IN OPMV 1153/2011 OF MOTOR ACCIDENT
                 CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANTS/APPLICANTS:

    1    PANKAJAKSHI
         AGED 68 YEARS
         D/O.ACHUTHAN, AYANA, PO MALAPARAMBA, KOZHIKODE.
    2    MALLIKA
         AGED 64 YEARS
         D/O.ACHUTHAN, POOCHAKANDY PARAMBA, MANIVAS, PO
         KALLAI, KOZHIKODE.
    3    KOMALAM
         AGED 61 YEARS
         D/O.ACHUTHAN, 35/580, PRANAVAM, PO KARUVASSERY,
         KOZHIKODE.
    4    DHARMARAJ
         AGED 58 YEARS
         S/O.ACHUTHAN, KOLLOTH HOUSE, PO ERNAHIPALAM,
         KOZHIKODE.
         BY ADV SRI.P.M.HARRIS


RESPONDENTS/RESPONDENTS:

    1    SHIJESH
         S/O.DINESHAN, 33/3964, PANDARAPARAMBA, PO
         MALAPARAMBA, KOZHIKODE.
    2    DINESAN
         AGED 62 YEARS
         S/O.CHOYI, 33/3964, PANDARAPARAMBA, PO
         MALAPARAMBA, KOZHIKODE.
    3    BRANCH MANAGER
         THE NEW INDIA ASSURANCE CO.LTD., FAIRMOUNT
         BUILDINGS, PPO ERANNHIPALAM, KOZHIKODE.
 M.A.C.A.No.1526/2013
                                 2



            BY ADVS.
            SMT.M.MEENA JOHN
            SRI.VIJU THOMAS-R3


      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.03.2022, THE COURT ON 05.04.2022 DELIVERED
THE FOLLOWING:
 M.A.C.A.No.1526/2013
                                       3




                            M.R.ANITHA, J
                         ******************
                      M.A.C.A.No.1526 of 2013
            ------------------------------------------------
                Dated this the 5th day of April, 2022


                               JUDGMENT

This appeal has been filed against the award passed in O.P.

(M.V.) No.1153/2011 on the file of the Motor Accidents Claims

Tribunal, Kozhikode (in short 'Tribunal'). The claim petition has

been filed under Section 166 of Motor Vehicles Act, 1988 (in

short the Act).

2. It is alleged that on 07.09.2010 at about 6.45 p.m,

while the deceased was walking through Kozhikode-Wayanad

road, a motorcycle bearing Reg.No.KL-11-T-8355 hit him from

behind and he succumbed to death due to the injuries sustained.

It is alleged that the accident happened due to the rash and

negligent riding of the motor cycle by the second respondent. M.A.C.A.No.1526/2013

First respondent is the owner of the vehicle and the third

respondent is the insurer.

3. Before the Tribunal, third respondent alone contested

the matter by filing written statement admitting policy coverage

with respect to the offending vehicle at the time of the accident.

It is contended that the compensation claimed are highly

excessive. Claimants were also put to strict proof regarding age,

monthly income and occupation of the deceased. Negligence on

the part of the second respondent/rider of the motorcycle is also

denied.

4. 4th claimant was examined as PW1. Exts.A1 to A6

marked from the side of the claimants. Ext.B1 marked from the

side of the third respondent.

5. Tribunal, on evaluating the evidence and facts and

circumstances, found that the accident happened due to the rash

and negligent driving of the motorcycle by the second

respondent and that the third respondent/insurer was held liable

to pay compensation. A total compensation of Rs.1,96,000/- was M.A.C.A.No.1526/2013

awarded by the Tribunal.

6. Accident, death and liability of the third respondent is

not in dispute and challenge is only with respect to the quantum

of compensation awarded by the Tribunal.

7. Notice against the first and the second respondents

are dispensed with at the risk of the appellant. Adv.Meena John

appeared on behalf of the third respondent/insurer. Lower court

records were called for and perused. Heard learned counsel for

the appellants/claimants (hereinafter be referred as 'the

claimants') as well as the learned Standing Counsel for the third

respondent/insurer.

8. The claimants are the siblings of the deceased. Ext.A6

is the certificate issued on behalf of Assistant Engineer, PWD

Road Section certifying that deceased Ajithkumar was working as

Worker Grade-II and his pay and allowance as on 08.09.2010 in

total was Rs.16,837/-. The Tribunal did not accept Ext.A6 stating

that it is not proved by the claimants. But, it is to be noted that

it is a document issued by a public servant in discharge of his M.A.C.A.No.1526/2013

official duties and it was marked without objection. It is relevant

in this context to quote R.V.E.Venkatachala Gounder v.

Arulmigu Viswesaraswami and V.P.Temple and another

[(2003) 8 SCC 752 : AIR 2003 SC 4548] and Smt.

Dayamathi Bai v. Sri.K.M.Shaffi [(2004) 7 SCC 107 : AIR

2004 SC 4082].

9. In R.V.E.Venkatachala Gounder with respect to the

objection as to admissibility of documents the Apex Court held as

follows in paragraph 20:

"20.The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because adocument has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before M.A.C.A.No.1526/2013

the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons:

firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular M.A.C.A.No.1526/2013

mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to herein above, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."

10. In Smt.Dayamathi Bai also the objection as to

admissibility of document came up for consideration. The Apex

Court reiterated that objection as to mode of proof falls within

procedural law. Therefore, such objection could be waived. They

have to be taken before the document is marked as an exhibit

and admitted to the record. In the said decision, the Apex Court

quoted after approval, paragraph 20 of the decision in

R.V.E.Venkatachala Gounder.

11. In this case, the objection with regard to Ext.A6 is

about the mode of proof of the same. So, the party who have M.A.C.A.No.1526/2013

got any objection in marking the document, ought to have

raised it at the time of marking the same. So, without making

any objection in marking the document at the right time, at the

appellate stage, the admissibility of the same cannot be

challenged. Moreover, the fact that the deceased was a worker

in PWD Road Section is not in dispute. So, I am of the considered

view that the Tribunal went wrong in not accepting Ext.A6

certificate issued by the Assistant Engineer, PWD Road Section,

Kozhikode certifying the salary of the deceased at the time of the

accident. So, the income of the deceased at the time of accident

can very well be taken as Rs.16,837/- as borne out from Ext.A6.

12. As stated earlier, claimants are the siblings of the

deceased, who died as a bachelor. In Sarla Verma v. Delhi

Transport Corporation (2010 (2) KLT 802) the Apex Court

laid down the principles to be followed in determining the

quantum of compensation in a case of death out of Motor Vehicle

accident. It is held that just compensation is adequate

compensation which is fair and equitable on the facts and M.A.C.A.No.1526/2013

circumstances of the case to make good the loss sustained by

the victim of accident as far as money can do.

13. In National Insurance Company Limited v.

Pranay Sethi and Ors. (2017 (4) KLT 662) Constitution

Bench of Apex Court held that Section 168 of the Act deals with

the concept of "just compensation" and that has to be

determined on the foundation of fairness, reasonableness and

equitable on acceptable legal standard because such

determination can never be with arithmetical exactitude. The

aim is to achieve an acceptable degree of proximity to

arithmetical precision on the basis of materials brought on record

in an individual case.

14. On the question of deduction towards personal

expenses and living expenses, in Sarla Verma's case, the Apex

Court held that personal and living expenses of the deceased

should be deducted from the monthly income to calculate the

contribution to the dependents and where the deceased is a

bachelor it would be 'half' because it is assumed that a bachelor M.A.C.A.No.1526/2013

would tend to spend more on himself and where number of

dependent family members is between 2 and 3, the deduction

towards dependent family members is 1/3 and where number of

dependent family members is between 4 and 6 the deduction

would be ¼ and it would be 1/5 when the number of family

members exceeds six and that is followed in Reshma Kumari &

Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65].

15. In this case, the Tribunal deducted 1/3rd towards the

personal and living expenses of the deceased. But, according to

the learned counsel for the third respondent/insurer, deceased

died as a bachelor and since all the claimants are elder to him ,

half of the total income ought to have been deducted towards

personal and living expenses. He would also contend that the

Tribunal found that there is no financial dependency upon the

deceased by any of the claimants since they are elder to the

deceased. The Tribunal also found that PW1 is not a dependent

of the deceased. After making such a finding, the Tribunal

deducted 1/3rd towards personal and living expenses of the M.A.C.A.No.1526/2013

deceased. That, according to the learned counsel for the insurer,

is illegal and half of the income ought to have been deducted

towards personal and living expenses of the deceased.

16. Learned counsel for the claimants, on the other hand,

contended that, PW1, the 4th claimant had filed proof affidavit

stating that he has got wife and 10 year old daughter and he is

totally blind and got married late and because of his late

marriage, the marriage of the deceased could not be conducted.

It was also stated that the deceased was living with his family

and that his wife was not earning and they were depending on

the deceased. Claimants also produced Ext.A4 copy of the

disability certificate certifying 100% disability to PW1. The

evidence of PW1 coupled with Ext.A4 would prove that he is a

totally disabled man who is none other than the brother of the

deceased and all the other claimants are sisters. In Sarla

Verma, it has been held by the Apex Court in paragraph No.31

that in the absence of evidence to the contrary, brothers and

sisters will not be considered as dependents, because they will M.A.C.A.No.1526/2013

either be independent and earning, or married or be dependent

on the father. Hence PW1, totally blind elder brother of the

deceased, adduced evidence to the contrary that himself and

family were totally depending on the deceased brother. So, PW1,

the brother of the deceased can be taken as dependent of the

deceased. However, the fact remains that the deceased died as

a bachelor. As per Sarla Verma, 1/2 of the monthly income has

to be deducted towards personal and living expenses. So,

Tribunal went wrong in deducting 1/3 rd of the monthly income

towards personal and living expenses.

17. Next aspect is with regard to multiplicand to be

applied. Admittedly, the deceased was 55 years old at the time

of accident. It is also admitted that he would have retired on

superannuation on completion of the age of 55 years. So, after

the retirement he will not get the salary of Rs.16,837/-. Tribunal

notionally fixed the amount as Rs.5,000/-. By applying the

multiplier of 9 and giving a deduction of 1/3 rd towards personal

and living expenses an amount of Rs.1,80,000/- was awarded M.A.C.A.No.1526/2013

towards loss of dependency.

18. Since the accident and death occurred at the time

when he was in service at the age of 55, the proper multiplier as

per Sarla Verma as approved by Pranay Sethi is 11. So,

Tribunal went wrong in adopting 9 as the multiplier.

19. In this case, it has come out that the deceased was a

Worker Grade-II in P.W.D, Road Section. So, after the retirement,

he could have done some other work and could have earned

income. So adopting the notional income when the death was at

the age of 55 years, will not be a just compensation. Hence, half

of the salary can be taken after the period of retirement i.e.

Rs.8,418/-. Adding 15% enhancement towards future prospects,

the amount would come to Rs.9,681/- [8,418 + 15% of 8,418].

After deducting Rs.4,841/- [1/2 x Rs.9,681] towards personal

and living expenses, monthly contribution would be Rs.4,840/-

[Rs.9,681 - Rs.4,841]. The amount towards loss of dependency

would be Rs.4,840 x 12 x 11= Rs.6,38,880/-. After deducting

the amount of Rs.1,80,000/- already awarded by the Tribunal, M.A.C.A.No.1526/2013

balance would be Rs.4,58,880/- [Rs.6,38,880 - Rs.1,80,000]

towards loss of dependency.

20. Next contention of the learned counsel for the

claimants is with regard to the compensation awarded under

conventional heads. In Pranay Sethi, Constitutional Bench has

fixed the compensation under the conventional heads, as

Rs.15,000/- each towards loss of estate and funeral expenses.

The Apex Court in Rasmita Biswal & Others v. Divisional

Manager, National Insurance Company Ltd., & Another

(CDJ 2021 SC 1024) has awarded 10% increase to the

conventional heads taking into account the directions in Pranay

Sethi for 10% enhancement after every three years. Accordingly

the claimants in that case were awarded 16,500/- each towards

loss of estate and funeral expenses. In this case, towards

funeral expenses and loss of estate, claimants are entitled to get

Rs.16,500 + Rs.16,500 = Rs.33,000/-. From that, the amount of

Rs.5,000/- already awarded by the Tribunal is to be deducted.

Then the total amount claimants are entitled to get under M.A.C.A.No.1526/2013

conventional heads would be Rs.28,000/-. Towards consortium,

claimants are not entitled to get any amount since they are

siblings of the deceased. Hence the amount of enhanced

compensation claimants are entitled to get is Rs.4,86,880/-

[Rs.4,58,880 + Rs.28,000].

21. In the result, appeal allowed enhancing compensation

to an amount of Rs.4,86,880/- which will carry interest @ 7.5%

per annum from the date of petition till realization. The 3 rd

respondent, the Insurance Company, shall satisfy additional

compensation granted in this appeal together with interest within

a period of two months from the date of receipt of certified copy

of this judgment.

22. The disbursement of additional compensation to the

appellants/claimants shall be made taking note of the law on the

point and in terms of the directives issues by this Court in

Circular No.3 of 2019 dated 6.9.2019 and clarified further in

Official Memorandum No.D1-62475/2016 dated 7.11.2019. The

claimants shall provide the Bank account details (attested copy M.A.C.A.No.1526/2013

of relevant page of bank pass book, Bank Account number and

IFSC code of the branch) before the Tribunal with a copy to the

learned Standing Counsel for the insurer, within one month from

the date of receipt of certified copy of this judgment.

                              (sd/-)        M.R.ANITHA, JUDGE

jsr



                  True Copy

                                       P.S. To Judge