Kerala High Court
Annie Joy vs Ibrahim on 26 July, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 26TH DAY OF JULY 2023 / 4TH SRAVANA, 1945
MACA NO. 1146 OF 2009
OP(MV) 457/2005 OF MOTOR ACCIDENTs CLAIMS TRIBUNAL,
PERUMBAVOOR
APPELLANT/PETITIONER IN OP(MV)NO.457/2005:
*1 BABY.K.I., S/O.ITTOOP, AGED 35 YEARS, KAITHARATH
(H), VATHAKKAD, THURAVOOR P.O., ANGAMALY. [DIED]
** ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED:
ADDL ELSY ITTOOP, W/O.ITTOOP, KAITHARATH HOUSE,
A2: VATHAKKAD, THURAVUR P.O., ANGAMALY.
ADDL.
GIGI, S/O.ITTOOP, -DO- -DO-.
A3
ADDL.
JOY, S/O.ITTOOP, -DO- -DO-.
A4
** ADDITIONAL APPELLANTS 2 TO 4 ARE IMPLEADED AS LEGAL
HEIRS OF DECEASED 1ST APPELLANT AS PER ORDER DATED
05.07.2023 IN I.A.NO.2391 OF 2016 IN MACA
NO.1146/2009.
BY ADVS.
SRI.V.K.GOPALAKRISHNA PILLAI
SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENT NOS.1 & 2 IN OP(MV)457/2005:
1 THE MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION,
THIRUVANANTHAPURAM.
MACA Nos.1146 & 2534 of 2009 2
2 IBRAHIM, S/O.MEERANKUTTY,
ASARIPARAMBIL (H), PAREKAVALA,, UDAMPANNOOR VILLAGE,
IDUKKI DISTRICT.
BY ADVS.
SRI.P.C.CHACKO(B/O,NO MEMO),SC,KSRTC
SRI.BABU JOSEPH KURUVATHAZHA, SC, KSRTC
SRI.JOY GEORGE, SC, K.S.R.T.C.
SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT
CORPORATION
SRI.ALEX ANTONY SEBASTIAN P.A.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 05.07.2023, ALONG WITH MACA.2534/2009,
THE COURT ON 26.07.2023 DELIVERED THE FOLLOWING:
MACA Nos.1146 & 2534 of 2009 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 26TH DAY OF JULY 2023 / 4TH SRAVANA, 1945
MACA NO. 2534 OF 2009
OP(MV) 2123/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
PERUMBAVOOR
APPELLANT/PETITIONER IN OP(MV)2123/2004:
1 ANNIE JOY, W/O.LATE JOY,
PARACKA HOUSE, ANGAMALY.
2 ROBIN JOY, S/O.JOY,
REPRESENTED BY MOTHER AND NATURAL GUARDIAN, ANNIE JOY,
DO. DO. (MINOR).
3 JAINY JOY, D/O.JOY DO. DO. (MINOR).
4 ROSHMI JOY, D/O.JOY DO. DO. (MINOR).
BY ADV SMT.ANUPAMA JOHNY
RESPONDENTS/RESPONDENT NOS.1 &2 IN OP(MV)2123/2004:
1 IBRAHIM, S/O.MEERANKUTTY,
ASARIPARAMBIL (H), PAREKAVALA, UDAMPANNOOR VILLAGE,
IDUKKI DISTRICT.
2 THE MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION,
THIRUVANANTHAPURAM.
#3 BABY K.I., S/O.ITTOOP,
AGED 35 YEARS, KAITHARATH (H), VATHAKKAD,
THURAVOOR P.O., ANGAMALY. [DIED)
4 THE NEW INDIA ASSURANCE CO. LTD.
BR. OFFICE, ANGAMALY P.O.
MACA Nos.1146 & 2534 of 2009 4
## ADDITIONAL RESPONDENTS 5 TO 7 IMPLEADED:
ADDL. ELSY ITTOOP, W/O.ITTOOP, AGED 68 YEARS,
R5 KAITHARATH HOUSE, VATHAKKAD KARA, THURAVOOR
VILLAGE, ALUVA TALUK.
ADDL. GIGI, AGED 47 YEARS,
R6 S/O.ITTOOP, KAITHARATH HOUSE, VATHAKKAD KARA,
THURAVOOR VILLAGE, ALUVA TALUK.
ADDL. JOY, AGED 42 YEARS,
R7 S/O.ITTOOP, KAITHARATH HOUSE, VATHAKKAD KARA,
THURAVOOR VILLAGE, ALUVA TALUK.
## ADDITIONAL RESPONDENTS 5 TO 7 ARE IMPLEADED AS PER
ORDER DATED 05.07.2023 IN I.A.NO.3776/2016 IN MACA
2534 OF 2009.
BY ADVS.
SRI P.C.CHACKO SC, KSRTC
SRI.JOY JOSEPH (MANAYATHU)
SRI.A.N.SANTHOSH
SRI.P.JAYASANKAR
SRI.V.V.NANDAGOPAL NAMBIAR, SC, KSRTC
SRI.BABU JOSEPH KURUVATHAZHA, SC, KSRTC
SRI.JOY GEORGE, SC, K.S.R.T.C.
SRI.ALEX ANTONY SEBASTIAN P.A.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 05.07.2023, ALONG WITH MACA.1146/2009,
THE COURT ON 26.07.2023 DELIVERED THE FOLLOWING:
MACA Nos.1146 & 2534 of 2009 5
JUDGMENT
These appeals arise out of the common judgment in
OP(MV)Nos.2123 of 2004 and 457 of 2005 on the files of the
Motor Accidents Claims Tribunal, Perumbavoor.
2. On 10.10.2004, at about 7.00 p.m., while the claimant in
OP(MV)No.457 of 2005 was riding his motorcycle from Vathakad to
Angamaly carrying one Mr.Joy on its pillion seat, KL-15-4626
KSRTC bus dashed against their motorcycle near Angamaly
Junction, and both of them were thrown down on the road and
they sustained serious injuries. Sri.Joy, who was the pillion rider
succumbed to the injuries on the same day.
3. The rider of the motorcycle Sri.Baby K.I. filed
OP(MV)No.457 of 2005 claiming compensation for the injuries
suffered by him, and the legal heirs of deceased Joy filed
OP(MV)No.2123 of 2004 claiming compensation on his death.
Both cases were tried together and learned MACT allowed their
claim in part. Learned Tribunal found that the rider of the
motorcycle contributed towards the accident and his negligence
was found to be 20% and so, compensation was deducted by 20%
in OP(MV)No.457 of 2005 filed by the rider of the motorcycle. In
OP(MV)No.2123 of 2004, 20% of the compensation awarded was
directed to be realised from the rider of the motorcycle, and the
balance 80% only from KSRTC.
4. The claimants in OP(MV) No.2123 of 2004 filed MACA
No.2534 of 2009 assailing the impugned award on the ground of
inadequacy of compensation, as well as the direction to recover
20% of the compensation, from the rider of the motorcycle. The
claimants in OP(MV)No.457 of 2005 filed MACA No.1146 of 2009
challenging the finding of contributory negligence to the extent of
20%, as well as inadequacy of compensation.
5. Respondents 1 and 2 are the driver and owner of the
offending KSRTC bus. In MACA No.2534 of 2009, respondents 3
and 4, i.e., the owner and Insurer of the motorcycle are also
parties.
6. Pending appeal, the appellant in MACA No.1146 of 2009,
who is the 3rd respondent in MACA No.2534 of 2009, passed
away. His legal heirs were impleaded as additional claimants 2 to 4
in MACA No.1146 of 2009, and additional respondents 5 to 7 in
MACA No.2534 of 2009. Respondents 2 and 4 are two branches of
the very same Insurance Company and they filed written
statement, opposing the claim of the claimants. According to the
2nd respondent, the accident occurred due to the rash and
negligent driving of the motorcycle by the 3rd respondent, the
appellant in MACA No.1146 of 2009. But according to the 4th
respondent/Insurer of motorcycle, the accident occurred solely due
to the rash and negligent driving of the KSRTC bus by the 1st
respondent.
7. PWs 1 and 2 were examined and Exts.A1 to A14 and B1
were marked before the Tribunal. On analysing the facts and
evidence, learned Tribunal found that the rider of the motorcycle
tried to overtake the KSRTC bus, through the left side and then it
happened to hit on the left side of the bus and the accident
occurred. To support that contention, learned Tribunal relied on
Exts.A6 and A7 AMVI Reports. Exts.A6-the AMVI Report of the
motorcycle shows that the damages were on its right side, and the
damages found on the KSRTC bus was on its left side. But
Ext.A3-charge sheet says that the accident occurred when the
KSRTC bus was suddenly swerved towards left side, and the
motorcycle, which was going in the same direction was hit by the
bus. If the KSRTC bus tried to overtake the motorcycle and
suddenly swerved it towards left, there is every possibility of
hitting the left side of the bus on the right side of the motorcycle.
So, the finding of the learned Tribunal that the motorcycle tried to
overtake the bus through its left side may not be correct. Ext.A2
scene mahazar will show that the accident occurred 5.90 metres
west from the eastern road margin. Both the vehicles were
proceeding towards south. The scene mahazar shows that the
place where the accident occurred was the junction at Angamaly
town, from where the MC Road starts. The KSRTC bus was coming
from north, and it was proceeding towards Thodupuzha, and so, it
had to turn towards left to enter the MC Road. The charge sheet
will clearly show that, when the KSRTC bus turned towards left
abruptly, the bike which was proceeding towards south in the
same direction was hit by the bus. So learned Tribunal could not
be justified in finding that the rider of the motorcycle contributed
towards the accident, and there is no factual foundation to fix the
contributory negligence on the appellant to the extent of 20%.
8. Learned counsel for the appellants contended that when
there is a Final Report against the KSRTC bus driver, after a full
fledged investigation, the Tribunal could not be justified in entering
into another finding relying on the scene mahazar, or AMVI
Reports.
9. In New India Assurance Co. Ltd. v. Pazhaniammal
[2011 (3) KLT 648], this Court held that 'as a general rule it can
be accepted that production of charge sheet is prima facie
sufficient evidence of negligence for the purpose of a claim under
S.166. If any of the parties do not accept such charge sheet,
burden must be on such party to adduce evidence. If Court feels
that charge sheet is collusive, Tribunal can record that, charge
sheet cannot be accepted and call upon the parties, at any stage,
to adduce oral evidence of accident and alleged negligence. In
such case, issue of negligence must be decided on other evidence,
ignoring charge sheet'.
10. In the case on hand, PW1 the injured in OP(MV)No.457
of 2005 deposed before the Tribunal that while he was riding his
motorcycle carrying Mr.Joy in its pillion seat, the KSRTC bus
abruptly swerved towards left side and it hit against his
motorcycle. He further stated that the accident occurred at
Angamaly Junction from where the M.C.Road proceeds towards
Perumbavoor. The KSRTC bus was coming out from Angamaly bus
stand for proceeding towards Thodupuzha. The damages found on
the vehicles will probabilise the incident as stated in the charge
sheet. Ext.A6 AMVI Report of the motorcycle shows that the
damages were not only on the front right side, but also on the
luggage box on the right side back, rear mudguard, seat bracket
etc. One cannot infer that those damages could have been caused
only if the motorcycle overtook the bus through the left side. It
can happen even when the bus overtakes the motorcycle and on
swerving it towards left so as to hit on the motorcycle.
11. In Fazal Mahmood v. Rasheed [2015 (2) KLT 266],
this Court held that 'when final report is available as the
concluding material following the investigation by the police, the
Tribunal, without any further material, could not have relied on the
contents of the scene mahazar to contradict that final report of the
investigator to say that the accident occurred due to the
negligence of the rider of the motorcycle on which the deceased
was pillion riding.'
12. In Kolavan v. Salim [2018 (1) KLT 489], this Court
held that 'once the charge-sheet is filed, the Tribunal will not be
justified in finding negligence, contrary to the finding in the
charge-sheet merely relying on the scene mahazar prepared in the
case, in the absence of any evidence against the finding in the
charge-sheet.' The practice of attributing negligence to any
person merely relying on the recitals in the scene mahazar, in the
absence of any direct or corroborative evidence, must be
deprecated. Though the 2nd respondent/KSRTC contended that
the accident occurred due to the negligence of the rider of the
motorcycle, no evidence whatsoever was adduced by them to
controvert the Final Report filed by Police, after investigation.
When the 2nd respondent was alleging negligence on the part of
the rider of the motorcycle, they should have adduced evidence to
substantiate their contention. The testimony of PW 1 was also to
the effect that the accident occurred due to the rash and negligent
driving of the KSRTC bus by the 1st respondent. No evidence to
the contra was adduced by the respondents to arrive at a
conclusion, deviating from the Final Report submitted by Police.
So, the learned Tribunal could not be justified in finding that the
rider of the motorcycle contributed towards the accident and there
was no factual basis for fixing contributory negligence to the
extent of 20% on the part of the rider of the motorcycle.
13. Now coming to the compensation aspect, let us examine
each case separately.
14. In MACA No.1146 of 2009, the appellant is no more. His
legal heirs were impleaded as additional appellants 2 to 4.
According to them, the compensation awarded was inadequate
and the reduction of 20% on account of contributory negligence
was also not proper. We have already found that learned Tribunal
went wrong in finding contributory negligence from the part of the
rider of the motorcycle, in the absence of any evidence
controverting the charge sheet. Learned Tribunal assessed
compensation of Rs.1,07,840/-, but after deducting 20%, awarded
only Rs.86,280/-. The finding of contributory negligence is hereby
set aside, and hence the additional claimants are entitled to get
the entire compensation assessed, and so they will get back the
20% reduced by the Tribunal, which amounts to Rs.21,560/-.
15. Now coming to the other part of compensation,
according to the claimants, the original claimant Sri.Baby was an
Accountant in a private firm, earning monthly income of
Rs.3,500/-. But learned Tribunal fixed his notional income @
Rs.2,500/-, which is too low. They relied on the decision
Ramchandrappa vs. Manager, Royal Sundaram Alliance
Insurance Company Limited (AIR 2011 SC 2951), to say that
even a Coolie could have earned monthly income of Rs.4,500/- in
the year 2004. Since his claim for monthly income was only
Rs.3,500/-, this Court is inclined to fix his notional income @
Rs.3,500/-. He was admitted to hospital for 12 days. He sustained
injuries on his right elbow and forehead and suffered disability of
4%. Learned Tribunal assessed loss of income for four months
only. According to the appellants, Sri.Baby was not able to do any
job for six months. So his loss of earning could be assessed for
six months @ Rs.3,500/-, which will come to Rs.21,000/-. Since
he was already paid Rs.10,000/- by the Tribunal, he is entitled to
get the balance amount of Rs.11,000/-.
16. Towards extra nourishment and bystander expenses,
learned Tribunal awarded only Rs.1,000/- each. Since he was
hospitalised for 12 days, this Court is inclined to award Rs.1,000/-
more, each under the head 'extra nourishment' and 'attendant
charges'. As per Ext.A11 disability certificate, Sri.Baby had
suffered disability of 4%. PW2-Doctor was also examined to prove
that certificate. Learned Tribunal accepted 4% disability, but the
notional income taken was only @Rs.2,500/-. Since we have
fixed his notional income @ Rs.3,500/-, the compensation for 4%
disability has to be reworked. The multiplier applicable is 16 as he
was aged only 35 as on the date of accident. So, the
compensation for disability can be assessed as Rs.26,880/-
(3,500x12x16x4/100). He was already awarded Rs.19,200/- by
the Tribunal. So he is entitled to get the balance amount of
Rs.7,680/- under the head compensation for disability.
17. The compensation awarded under all other heads seems
to be reasonable and it needs no interference.
Amount awarde Amount award Difference to
Head of claim by the in appeal be drawn as
Tribunal enhanced
(3) compensation
(1) (2) (4)
Loss of earning Rs.10,000/- Rs.21,000/- Rs.11,000/-
Extra nourishment Rs.1,000/- Rs.2,000/- Rs.1,000/-
Bystander expenses/
Attendant charges Rs.1,000/- Rs.2,000/- Rs.1,000/-
Compensation for Rs19,200/- Rs.26,880/- Rs.7,680/-
disability
Total Rs20,680/-
Total amount awarded by the Tribunal Rs.1,07,840/-
Total amount awarded after 20% reduction Rs.86,280/-
contributory negligence
Difference to be drawn on setting aside the Rs.21,560/-
finding of contributory negligence
Enhanced compensation is Rs.42,240/- (20,680+21,560)
18. The additional appellants 2 to 4, who are the legal heirs
of deceased appellant, are entitled to get enhanced compensation
of Rs.42,240/- (20,680+21,560).
19. In MACA No. 2534 of 2009, the legal heirs of
deceased Joy would contend that Sri.Joy was a 44 year old Tailor
earning monthly income of Rs.6,000/-. But learned Tribunal fixed
his notional income @ Rs.2,000/-. They relied on
Ramchandrappa's case cited (Supra), to say that even a Coolie
worker could have earned monthly income of Rs.4,500/- in the
year 2004. So going by that decision, this Court is inclined to fix
his notional income @ Rs.4,500/-. He was a Tailor aged only 44
years and so, 25% enhancement could have been given towards
future prospects. So, his monthly income could have been
assessed as Rs.5,625/- (4,500 + 25%). He was having four
dependents. So ¼ has to be deducted towards his personal
expenses. So the balance income would have been Rs.4,219/-.
The multiplier applicable was 14 as he was aged 44. So, the loss
of dependency could have been assessed as Rs.7,08,792/- (4,219
x 12 x 14). Learned Tribunal awarded only Rs.2,40,300/- towards
loss of dependency. So the appellants are entitled to get the
balance amount of Rs.4,68,492/- towards loss of dependency.
20. Learned Tribunal awarded Rs.15,000/- towards loss of
love and affection and Rs.15,000/- towards loss of consortium.
The wife and children of the deceased are entitled to get
Rs.40,000/- each towards loss of consortium as per the decision
National Insurance Company Ltd. vs. Pranay Sethi and
Others [AIR 2017 SC 5157], So they are eligible to get
Rs.1,60,000/- (40,000 X 4) in total towards loss of consortium.
Since learned Tribunal awarded Rs.30,000/- in total under the
head loss of love and affection and loss of consortium, they are
eligible to get the balance amount of Rs.1,30,000/-
(1,60,000-30,000).
21. Towards funeral expenses and loss of estate, learned
Tribunal awarded only Rs.2,500/- each. Going by Pranay Sethi's
case cited (Supra), they are entitled to get Rs.15,000/- each
under those heads. So they are eligible to get the balance amount
of Rs.12,500/- each, under the head 'funeral expenses' and 'loss
of estate'.
22. Learned Tribunal awarded Rs.5,000/- under the head
pain and suffering. Since Sri.Joy died on the date of accident
itself, the legal heirs are not eligible to get any amount towards
pain and suffering of the deceased. So Rs.5,000/- awarded by the
Tribunal under the head pain and suffering is liable to be
deducted.
23. The compensation awarded under all other heads seems
to be reasonable and hence, it needs no interference.
Amount Amount Amount Difference
Head of claim awarded by awarded deducted to be drawn
the Tribunal in appeal in appeal as enhanced
compensation
Loss of Rs.2,40,300/- Rs.7,08,792/- - Rs.4,68,492/-
dependency
Loss of love and Rs.30,000/- Rs.1,60,000/- - Rs.1,30,000/-
affection & loss of (15,000 + 15,000)
consortium
Funeral expenses Rs.2,500/- Rs.15,000/- - Rs.12,500/-
Loss of estate Rs.2,500/- Rs.15,000/- - Rs.12,500/-
Pain and suffering Rs.5,000/- - Rs.5,000/- -
Total Rs.5,000/- Rs.6,23,492/-
Enhanced compensation is Rs.6,18,492/- (6,23,492 - 5,000)
24. In the result, the appellants are entitled to get enhanced
compensation of Rs.6,18,492/- [(4,68,492 + 1,30,000 + 12,500 +
12,500) - 5,000] as enhanced compensation.
25. We have already set aside the finding of the learned
Tribunal that the rider of the motorcycle contributed towards the
accident. In OP(MV)No.2123 of 2004, learned Tribunal had
directed the rider of the motorcycle to pay 20% of the
compensation awarded as if the Policy of the motorcycle was not
covering the pillion rider. But Ext.B1 Policy of the motorcycle
ridden by the 3rd respondent/Baby K.I. will show that it was
having a package Policy, covering the pillion rider also. Learned
Tribunal lost sight of that fact and directed the 3rd respondent to
make payment of 20% of the compensation. We have found that
the finding of contributory negligence on the rider of the
motorcycle was not correct, and the accident occurred solely due
to the rash and negligent driving of the KSRTC bus by the 1st
respondent. So, the liability to compensate the legal heirs of the
appellant in MACA No.1146 of 2009, and the appellants in MACA
No.2534 of 2009 is on the 2nd respondent/Managing Director,
KSRTC, as he is vicariously liable for the rash and negligent act of
the driver of the KSRTC bus.
26. In MACA No.1146 of 2009 additional appellants 2 to 4
are the mother and siblings of deceased Baby. The Managing
Director, Kerala State Road Transport Corporation,
Thiruvananthapurm is directed to deposit the enhanced
compensation of Rs.42,240/- (Rupees Forty Two Thousand Two
Hundred and Forty only) in the Bank Account of the additional
appellants 2 to 4 in the ratio 80:10:10 with interest @ 7% per
annum from the date of petition till the date of deposit, within a
period of two months from the date of receipt of a copy of this
judgment. The deposit must be in terms of the directives issued
by this Court in Circular No.3 of 2019 dated 06/09/2019 and
clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after
deducting the liabilities, if any, of the additional appellants 2 to 4
towards Tax, balance court fee and legal benefit fund.
27. In MACA No.2534 of 2009 the 2nd respondent/Managing
Director, Kerala State Road Transport Corporation, is directed to
deposit enhanced compensation of Rs.6,18,492/- (Rupees Six
Lakh Eighteen Thousand Four Hundred and Ninety Two only) in the
Bank Account of appellants 1 to 4 in equal proportion with interest
@ 7% per annum from the date of petition till the date of deposit
(except 231 days of delay in filing the appeal) within a period of
two months from the date of receipt of a copy of this judgment.
The deposit must be in terms of the directives issued by this Court
in Circular No.3 of 2019 dated 06/09/2019 and clarified in
O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the
liabilities, if any, of the appellants 1 to 4 towards Tax, balance
court fee and legal benefit fund.
Accordingly, the appeals are allowed to the extent as above,
and no order is made as to costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
