Kerala High Court
Lalitha M vs S.Prasad on 17 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
MACA NO. 2157 OF 2012
AGAINST THE ORDER/JUDGMENT IN OPMV 66/2006 OF ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA
APPELLANT/S:
1 LALITHA M., AGED 53 YEARS
W/O.RAJENDRAN V.K., KARUNALAYM, MSP WARDNO.6,
PATHIRAPPALLY VILLAGE, KALAVOOR P.O., ALAPPUZHA.
2 JITHIN K.R., AGED 23 YEARS
S/O.RAJENDRAN V.K., KARUNALAYM, MSP WARDNO.6,
PATHIRAPPALLY VILLAGE, KALAVOOR P.O., ALAPPUZHA.
3 GOPU K.R., AGED 15 YEARS
S/O.RAJENDRAN V.K., KARUNALAYM, MSP WARDNO.6,
PATHIRAPPALLY VILLAGE, KALAVOOR P.O., ALAPPUZHA
4 KAMALAKSHY, AGED 75 YEARS
M/O.RAJENDRAN V.K., KARUNALAYM, MSP WARDNO.6,
PATHIRAPPALLY VILLAGE, KALAVOOR P.O., ALAPPUZHA
BY ADVS.
SRI.A.T.ANILKUMAR
SMT.V.SHYLAJA
RESPONDENT/S:
1 S.PRASAD
S/O.SANKARA PILLAI, PRIYANKA NIVAS, THOOKKUKULAM
BHAGOM, VADACKAL P.O., ALEPPY-688 005.
2 SASIDHARAN SASI
S/O.CHELLAPPAN ETTURATHIL HOUSE, EAST OF
KAKKAZHAM MOSQUE,ALAPPEY-688 005.
3 THE ORIENTAL INSSURANCE CO. LIMITED
MULLAKKAL, ALAPPUZHA BRANCH, REP. BY ITS
MANAGER. PIN-688 001.
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MACA No. 2157 of 2012
BY ADVS.
SMT.C.SEENA
SRI.A.R.GEORGE
SRI.P.P.THAJUDEEN
OTHER PRESENT:
SRI.P.P.THAJUDEEN FOR R1 & 2, SRI.A.R.GEORGE
FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR HEARING ON 17.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
-3-
MACA No. 2157 of 2012
P.V.KUNHIKRISHNAN, J.
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M.A.C.A. No.2157 of 2012
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Dated this the 17th day of March, 2022
JUDGMENT
This appeal is filed by the petitioners in O.P.(M.V.) No.
66/2006 on the file of the Motor Accidents Claims Tribunal,
Alappuzha. It is a claim petition filed under Sec.166 of the
Motor Vehicles Act. (Hereinafter the parties are mentioned in
accordance to their rank before the Tribunal).
2. The petitioners 1 to 3 are wife and children of
deceased Rajendran, who died in a motor vehicle accident. The
original 4th petitioner died pending the above appeal. On
8.11.2005 at about 11.45 am, while the deceased Rajendran was
riding a motor cycle bearing registration No.KL-04/H 8126
from west to east on Savakkottappalam-Bappuvaidyar junction
road, a tempo van bearing registration No. KL-02-F/3688
driven by the 2nd respondent in a rash and negligent manner
MACA No. 2157 of 2012
came from east to west and hit the left side of the motor cycle
causing injuries to the deceased. He was taken to the hospital
and he died on the way due to the injuries sustained in the
accident. The petitioners contended that the accident occurred
because of the rash and negligent driving of the 2nd respondent
and therefore, all the respondents are jointly and severally liable
to compensate the petitioners.
3. To substantiate the case, Exts. A1 to A16 were
marked on the side of the petitioners. After going through the
evidence and the documents, the Tribunal found that there is
contributory negligence on the part of the deceased also, which
resulted in the accident. Thereafter, the Tribunal fixed the
contributory negligence on the part of the deceased as 25%.
Aggrieved by the finding of the Tribunal about the contributory
negligence against the deceased and also challenging the
quantum of compensation, this appeal is filed.
MACA No. 2157 of 2012
4. Heard the counsel for the appellants and the counsel
for the 3rd respondent. I also heard the counsel for the 1st and 2nd
respondents.
5. The counsel for the appellants submitted that the
Tribunal erred in fixing the contributory negligence on the part
of the deceased. The main contention of the appellants is that
the police after investigation submitted a final report against R2
as evident by Ext.A7 and there is a presumption of negligence
on the part of the 2nd respondent in the light of the judgment of
this Court in New India Assurance Company Ltd.v.
Pazhaniammal [2011 (3) KLT 648]. I think there is some force
in the argument of the counsel for the appellants. Admittedly,
the 2nd respondent is the accused in the criminal case registered
in connection with this accident. Ext.A1 is the FIR in the
criminal case and Ext.A7 is the charge sheet. Therefore, there is
a presumption of negligence against the 2 nd respondent in this
MACA No. 2157 of 2012
case. No contra evidence is adduced by the respondents to
disprove the same. The Tribunal fixed the contributory
negligence on the part of the deceased based on the entries in
the scene mahazar. When the final report is filed by the Tribunal
based on the same scene mahazar, the Tribunal erred in relying
the entries in the scene mahazar to conclude the contributory
negligence on the part of the deceased. According to me, the
finding of the Tribunal attributing contributory negligence on
the part of the deceased is unsustainable and that is to be set
aside.
6. The next question to be decided is about the
quantum of compensation. The learned counsel for the
appellants submitted that, while fixing the monthly income, the
future prospectus is not considered by the Tribunal. According
to me, the Tribunal ought to have fixed the monthly income
after taking future prospects also. Admittedly, the deceased was
MACA No. 2157 of 2012
aged 46 years at the time of accident and therefore, 25% is to be
added towards the future prospects. Hence, in the light of the
decision in National Insurance Co. Ltd v. Pranay sethi
[2017(4) KLT 662], the monthly income can be re- fixed as
Rs.9,375/-. Moreover, while fixing the loss of dependency in
this case, the Tribunal need to reduce only ¼ towards the
personal expense of the deceased. In this case, 1/3 is reduced.
That is also to be corrected. Based on the same, the
compensation for dependency is to be re-calculated in the
following manner:
Rs.9,375 X 12 X 13 X 3/4= Rs.10,96,875/-
7. The amount already given by the tribunal is to be
deducted from the above amount. Then the balance amount is
entitled by the appellants will be:- Rs.10,96,875-7,80,000 =
Rs.3,16,875/-
MACA No. 2157 of 2012
8. The appellants are the wife and children of the
deceased. Deceased 4th appellant is his mother. In the light of
the decision of the Apex Court in Magma General Insurance
Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others. [(2018)
18 SCC 130] , they are entitled an enhanced consortium @ Rs.
40,000/- each. The deceased 4th appellant is also entitled the
same, and the said amount will go to appellant Nos.1 to 3. The
Tribunal awarded only Rs.15,000/- each in the head of loss of
consortium and love and affection. The appellants are entitled
another amount of Rs.1,30,000/- towards the loss of
consortium, after deducting the amount already awarded
towards the loss of consortium and love and affection. The
same can be summarised like this:
4 X 40,000 = 1,60,000-30,000 = Rs.1,30,000/-
9. Towards the funeral expenses, the Tribunal awarded
only Rs.3,000/-. The appellants are entitled another amount of
MACA No. 2157 of 2012
Rs.12,000/- in that head also. Therefore, the total enhanced
compensation entitled to the appellants can be summarised like
this:
Head Amount
Loss of dependency Rs.3,16,875/-
Loss of consortium Rs.1,30,000/-
Funeral Expense Rs.12,000/-
Total Rs. 4,58,875/-
10. The appellants are entitled interest at the rate of
7.5% from the date of application till realization.
Therefore, the appeal is allowed in the following manner;
1) The findings of the Tribunal is to the effect that,
there is contributory negligence on the part of the
deceased is set aside and the appellants are entitled
the entire compensation amount awarded by the
Tribunal.
MACA No. 2157 of 2012
2) The appellants are entitled an enhanced
compensation of Rs.4,58,875/- with interest at the
rate of 7.5% per annum from the date of
application till realization.
3) The compensation is to be distributed equally to
all the appellants.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
das
