Kerala High Court

Babu L.O vs Parameswaran on 15 February, 2022

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
  TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
                       MACA NO. 2 OF 2012
AGAINST THE AWARD DATED 20.10.2010 IN OPMV 176/2007 OF MOTOR
              ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANTS/PETITIONER:

    1     BABU L.O.,
          F/O.LIJO L. BABU, LAHA PARAMBIL, CHEERANCHIRA
          P.O., KOONANTHANAM.
    2     LISSYAMMA BABU,
          M/O. LIJO L.BABU, DO. DO.
    3     LINCY L. BABU,
          D/O. BABU L.O., OF DO. DO.
    4     LEEN L.BABU,
          D/O. BABU L.O., OF DO. DO.
          BY ADVS.
          SRI.P.V.BABY
          SRI.A.N.SANTHOSH


RESPONDENTS/RESPONDENTS:

    1     PARAMESWARAN
          DEEPA SADANAM, CHEMBANODA P.O., CALICUT.
    2     DIPU D.P.,
          DEEPA SADANAM OF DO. DO.
    3     THE NEW INDIA ASSURANCE CO. LTD.,
          KOTTAYAM.
          BY ADV SRI.RAJIT
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2 OF 2012            2

                         JUDGMENT

Dated this the 15th day of February, 2022

The appellants were the petitioners in O.P (MV)

No.176/2007 on the file of the Motor Accidents Claims

Tribunal, Kottayam. 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 Lijo L.Babu

(deceased) - the son of appellants 1 and 2 and the

brother of the appellants 3 and 4. It was their case that,

on 26.08.2006, while the deceased was travelling pillion

on a motorcycle bearing registration No. KL-05 T 8752

through the Changanassery - Vazhoor road, another

motorcycle bearing registration No.KL-/18B

2720(offending motorcycle), ridden by the second

respondent in a negligent manner, hit the motorcycle on

which the deceased was travelling. The deceased

sustained fatal injuries and was treated for a period of

four days at the Pushpagiri Medical College Hospital,

Thiruvalla, but, unfortunately, he lost his life on

30.08.2006. The offending motorcycle was owned by the

first respondent and insured with the third respondent

The deceased was an Air Conditioner Mechanic and was

earning a monthly income of Rs.6000/-. The appellants

were the dependents of the deceased. Hence, they

claimed a compensation of Rs.12,17,000/- from the

respondents, which claim was limited to Rs.12,00,000/-.

3. The respondents 1 and 2 did not contest the

proceedings and were set exparte.

4. The third respondent had filed a written

statement admitting that the offending motorcycle had a

valid insurance coverage, but, it was stated that the

rider of the offending motorcycle did not had a valid

driving license. It was also stated that the accident was

caused due to the negligence of the rider of the

motorcycle on which the deceased was travelling. The

third respondent also disputed the age, income and

occupation of the deceased. Hence, the third

respondent prayed that the claim petition be dismissed.

5. The appellants had produced and marked

Exhibits A1 to A8 in evidence. The third respondent had

produced Exhibits B1 to B4 in evidence.

6. The Tribunal, after analyzing the pleadings and

materials on record, arrived at the conclusion that the

accident occurred due to the negligence of the riders of

both the motorcycles. Hence, the Tribunal fixed 50%

composite negligence on the deceased. Accordingly,

though the Tribunal held that the appellants were

entitled to an amount of Rs.3,89,330/-, deducted 50% of

the amount and permitted the appellants to recover from

the third respondent only an amount of Rs.1,94,665/-.

Further, the Tribunal on the finding that the rider of the

offending motorcycle - second respondent - did not hold

a valid driving license, permitted the third respondent to

pay the compensation amount and recover it from the

respondents 1 and 2.

7. Aggrieved by the fixation of composite negligence

on the deceased and dissatisfied with the quantum of

compensation awarded by the Tribunal, the petitioners

are in appeal.

8. Heard; Sri. A.N.Santhosh, the learned counsel

appearing for the appellants/petitioners and

Sri.Rajagopalan, the learned counsel appearing for the

third respondent /insurer.

9. The points that arise for consideration in this

appeal are (i) whether the finding of composite

negligence is sustainable in law? (ii) whether the

quantum of compensation awarded by the Tribunal is

reasonable and just.

Question No.(i)

10. Admittedly, the deceased was travelling as a

pillion rider on the motorcycle bearing registration No.

KL 5 T/8752.

11. This Court in Sajad Saheer v. K.Rajeev &

others [2017 (3) KHC 294] has categorically held that

composite negligence cannot be attributed on the pillion

rider of a motorcycle. Moreover, as per Exhibit A3

charge sheet filed by the Changanassery Police in Crime

No.734/2006, it is proved that the accident occurred due

to the negligence of the second respondent - the rider of

the offending motorcycle.

12. In New India Assurance Co.Ltd. v.

Pazhaniammal [2011 (3) KLT 648], the Division Bench

of this Court has succinctly held that in a claim under

Section 166 of the Motor Vehicles Act, 1988, as the

general rule, the charge sheet can be accepted as a

prima facie evidence. If any party disputes the charge

sheet, then the burden is on such party is to adduce

evidence and discredit the charge sheet.

13. In the instant case, the respondents have not let

in any evidence to discredit Exhibit A3 charge sheet.

Therefore, in view of Exhibit A3 charge sheet and the

fact that the deceased was a pillion rider, I set aside the

finding of composite negligence fixed on the deceased.

Accordingly, I hold that the appellants are entitled to the

entire amount that was awarded by the Tribunal i.e.

Rs.3,89,330/-. I answer question No.(i) accordingly.

Question No.(ii)

14. The appellants had claimed that the deceased

was an Air Conditioner Mechanic and earning a monthly

income of Rs.6000/-. For the want of material, the

Tribunal fixed the notional monthly income of the

deceased at Rs.3500/-.

15. In Ramachandrappa vs. Manager, Royal

Sundaram Alliance Insruance Company Ltd. :

(2011) 13 SCC 236, the Honourable Supreme Court

has fixed the notional monthly income of a coolie

worker in the year 2004 at Rs.4,500/-.

16. Following the yardstick in the afore-cited

decision and considering the fact that the accident

occurred in the year 2006, I re-fix the notional

monthly income of the deceased at Rs.5500/-.

Multiplier

17. The deceased was aged 18 years at the time of

accident. In the light of the law laid down in Sarala

Verma v Delhi Transport Corporation [2010(2) KLT

802 (SC)], the relevant multiplier is '18'.

Personal living expenses of the deceased

18. The deceased was a bachelor. In the light of the

law laid down in Sarala Verma (Supra) and National

Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662

(SC)], one half of the compensation has to be deducted

towards the personal living expenses of the deceased.

Future prospects.

19. Following the principles laid down in Sarala

Verma and Pranay Sethi (Supra) and considering the

fact that the deceased was aged 18 years at the time of

the accident, I award the appellants' future prospects at

40%

Loss due to dependency

20. Taking into account the above mentioned factors,

namely, the monthly income of the deceased at

Rs.5500/-, the multiplier at '18', future prospects at 40%

and after deducting one half of the compensation

towards personal living expense of the deceased, I re-fix

the compensation for 'loss of dependency' at

Rs.8,31,600/- instead of Rs.3,50,000/- awarded by the

Tribunal.

Conventional/Traditional heads of compensation

21. In paragraph 59.8 of Pranay Sethi (supra) it is

held that the dependents of the deceased are entitled for

compensation under the conventional heads viz., 'funeral

expenses', 'loss of estate' and 'loss of consortium' at

Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent,

respectively. It is further held that the above amounts

have to be enhanced by 10% every three years.

22. In N.Jayasree vs. Cholamandalam M.S,

General Insurance Co Ltd. [2021 SCC Online SC

967] and Rasmita Biswal and others vs. The

Divisional Manager, National Insurance Co., Ltd

and another [2021 SCC Online SC 1193], the Hon'ble

Supreme Court, for the accidents that happened in the

years 2011 and 2013, respectively, has granted 10%

escalation on the conventional heads, irrespective of the

dates of the accident. Thus, it is to be construed and

inferred that the 10 % escalation is to be granted every

three years from the date of pronouncement of the

judgment in Pranay Sethi (supra), which was rendered

on 31.10.2017, and not for accidents that occur every

three years after 31.10.2017. Thus, the dependents of

the deceased are, after 31.10.2020, entitled to amounts

of Rs.16,500/- each under the heads 'funeral expenses'

and 'loss of estate', and Rs.44,000/- under the head 'loss

of consortium'.

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

amount of Rs.3,000/- under the head 'funeral expenses',

and Rs.5000/- under the head 'loss of estate'. Therefore,

I enhance the 'funeral expenses' by a further amount of

Rs.13,500/- and 'loss of estate' by a further amount of

Rs.11,500/-

24. The Tribunal has not awarded any amount under

the head 'loss of consortium'. Taking into account the

fact that the appellants 1 and 2 were the parents of the

deceased, I award them an amount of Rs.44,000/- each

towards 'loss of consortium' i.e. an amount of

Rs.88,000/-.

Loss of love and affection

25.The Tribunal has awarded an amount of

Rs.15,000/- under the head loss of love and affection.

26. In New India Assurance Co. v. Somwati and

others [(2020) 9 SCC 644] the Honourable Supreme

Court has held that once compensation is awarded under

the head 'loss of consortium', no amount shall be

awarded under the head 'loss of love and affection', as it

would amount to duplication of compensation.

Therefore, I set aside the amount of Rs.15,000/- awarded

under the head 'loss of love and affection'.

27. With respect to the other heads of

compensation, I find the same to be reasonable and just.

28. On a comprehensive re-appreciation of the

pleadings, materials on record and the law referred to in

the afore-cited precedents, I hold that the

appellants/petitioners are entitled for enhancement of

compensation as modified and re-calculated above, and

given in the table below for easy reference.

 Sl No.    Head of Claim         Amount          Amounts
                              awarded by       modified and
                              the Tribunal     recalculated
                               (in rupees)     by this Court

    1     Transportation           1000            1000
          expenses


    3     Funeral expenses         3000           16500

    4     Pain and                 15000          15000
          sufferings

    5     Loss of love and         15000            ---
          affection

    6     Loss of estate           5000           16500

    7     Loss of                    0            88,000
          consortium

    8     Loss of                 3,15,000       8,31,600
          dependency

    9     Medical                 34,830          34,830
          expenses

          Total              3,89,330-50%       10,03,930
                                towards
                              contributory
                             negligence =
                               1,94,665 /-

In the result, the appeal is allowed by enhancing the

compensation by an amount of Rs.6,14,600 and also

awarding the appellants/petitioners an amount of

Rs.1,94,665 (i.e. the 50% of the amount that was

deducted towards composite negligence of the deceased)

totalling to an amount of Rs.8,09,265/-. The third

respondent is ordered to deposit Rs.8,09,265/- with

interest at the rate of 7% per annum from the date of

petition till the date of deposit and proportionate cost

before the Tribunal within sixty days from the date of

receipt of a certified copy of the judgment. Immediately

on the compensation amount being deposited, the same