IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA,1930 MACA.No. 936 of 2004() ---------------------- OPMV.822/1999 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S)/PETITIONERS: ------------------------------------ 1. SHIBI W/O.SAJI,AGED 33, KUZHIVELIKUDIYIL HOUSE, PUNNOPPADY KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK. 2. PRINCE ALIAS ISSAC S/O. SAJI (MINOR), AGED 7, REP.BY HIS MOTHER (GUARDIAN) SHIBI, KUZHUVELIKUDIYIL HOUSE, PUNNOPPADYKARA, MULAVOOR VILLAGE, MUVATTUPUZHA,(THE 1ST APPELLANT) 3. K.E.ISSAC, AGED 61, S/O. ITTOOP, KUZHIVELIKUDIYIL HOUSE, PUNNOPPADYKARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK. 4. ALEYAMMA W/O. K.E.ISSAC, AGED 57, KUZHUVELIKUDIYIL HOUSE, PUNNOPPADYKARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK. 5. ELIZABETH D/O. ISSAC, AGED 27, KUZHUVELIKUDIYIL HOUSE, PUNNOPPADYKARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.M.V.SABU RESPONDENT(S): RESPONDENTS -------------------------- 1. VINOD S/O. VISWAMBHARAN, VELIKKAKATHU HOUSE, CHERTHALA TALUK, PALLIPPURAM VILLAGE, THIRUNALLOOR. 2. RAJAN, KOTHAMANGALATH HOUSE, 283, CMC., CHERTHALA, ALAPPUZHA DISTRICT(STRUCK OFF) 3. THE MANAGER, UNITED INDIA INSURANCE CO.LTD., CHERTHALA BRANCH. (THE NAME OF THE 2ND RESPONDENT IS STRUCK OFF FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 1.11.2004 ON I.A. NO. 3309/2004). ADVS. SMT.P.K.SANTHAMMA FOR R3 SRI.SHAJI THANKAPPAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO. 936 OF 2004 --------------------------------------------------------- Dated this the 18th day of March, 2009 JUDGMENT Basant, J. The claimants before the Tribunal are the appellants before us. They claimed compensation for the loss suffered by them in respect of the death of the deceased who suffered injuries in the accident which occurred on 26.2.1999. The claimants are the wife aged 28 years, minor child aged 2 ½ years, parents aged 56 years and 52 years and the dependent unmarried sister of the deceased aged 22 years. The claim for compensation was limited to Rs.6,00,000/- though the loss suffered allegedly exceeded that amount. The deceased, it is claimed, was a heavy vehicle driver earning an income of Rs.4,000/- per mensem employed under PW.1. 2. The claimants alleged that the accident occurred on account of the rashness and negligence of the first respondent. The deceased was riding a motor cycle along the public road from north towards south and the first respondent was driving a tempo van from south towards north. There was a collision between these two vehicles coming in the opposite M.A.C.A. NO.936/2004 2 directions. Police investigation revealed that the first respondent was rash and negligent and that was the cause of the accident. Ext.A2 charge sheet was filed after completion of investigation. 3. Before the Tribunal, PWs.1 and 2 were examined and Exts.A1 to A6 and Ext.B1 were marked. Respondents 1 and 2, the driver and owner of the tempo van remained ex parte. The third respondent, Insurance Company, contested the claim with the defence that the accident took place not on account of any negligence on the part of the first respondent. The quantum of compensation was also disputed. Ext.A1 is the F.I.R. and Ext.A1(a) is the First Information Statement given by a stranger who happened to witness the accident. That stranger/informant was examined as PW.2 by the claimants in support of their contentions. Ext.A3 scene mahazar, Ext.A4 wound certificate as also Ext.A5 post mortem certificate were marked. Ext.A6 is the salary certificate showing that the deceased was earning an income of Rs.4,000/- per mensem. The Insurance Company produced Ext.B1 to confirm the valid insurance coverage at the time of the accident. 4. The Tribunal, on an anxious consideration of all the relevant M.A.C.A. NO.936/2004 3 inputs, came to the conclusion that the accident occurred solely on account of the negligence of the deceased. The Tribunal then proceeded to hold that the claim under Section 166 of the Motor Vehicles Act (hereinafter referred to as “the M.V. Act”) is not maintainable as respondent No.1 is not shown to be negligent at all. However, the Tribunal found that the claim can be considered under Section 163 A of the M.V. Act and accordingly proceeded to award an amount of Rs.1,79,500/- as compensation along with interest at the rate of 9% per annum. The amount was calculated as follows: i. Compensation for dependency 10,000x17 :Rs.1,70,000/- ii. Funeral expenses :Rs. 2,000/- iii Loss of consortium :Rs. 5,000/- iv. Loss of estate :Rs. 2,500/- ------------------ Total :Rs.1,79,000/- ------------------ 5. The appellants claim to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellants want to mount against the impugned award, learned counsel for the appellants, first of all, contends that the finding on the question of negligence is perverse and incorrect. The Tribunal ought to have taken the M.A.C.A. NO.936/2004 4 view that the accident occurred only on account of the negligence of the first respondent, contends counsel. The claim should have been reckoned to be one under Section 166 of the M.V. Act itself and appropriate amounts under the admissible heads must have been awarded. Counsel further contends that even when the claim was considered as one under Section 163 A of the M.V. Act, the amounts awarded under the various heads are grossly inadequate. Going by the Second Schedule to the M.V. Act, a person under the age group of 25 to 30 years getting an annual income of Rs.18,000/- (as accepted by the Tribunal) is entitled for a total amount of Rs.2,04,000/- (3,06,000x2/3). At any rate, the Tribunal erred in awarding only Rs.1,70,000/- as compensation payable for loss of dependency under Section 163 A of the M.V. Act. 6. Counsel for the Insurance Company has also been heard. We have been taken through Exts.A1 to A6 as also the oral evidence of PWs.1 and 2. Following the dictum laid down in the decision reported in Deepal Girishbhai Soni v. United India Insurance Co. Ltd., 2004(2) K.L.T. 395 (SC), the claim under Section 163A does not appear to be maintainable in as much as the annual income of the deceased exceeds Rs.40,000/-. Therefore, we feel, and the learned counsel for the Insurance M.A.C.A. NO.936/2004 5 Company has also agreed in her submission, that the claim should not have been considered under Section 163 A at any rate. 7. That takes us to the crucial and vital challenge against the finding on the question on negligence. On this aspect, we have the oral evidence of PW.2. He is a stranger who happened to be present at the scene of occurrence. As a good samaritan, he carried the deceased from the scene of the accident to the hospital. In his earlier statement Ext.A1 (a), he has undoubtedly asserted that the accident occurred on account of the negligence of the driver of the tempo van (first respondent). The police conducted investigation into the crime registered on the basis of Ext.A1(a). They also came to the same conclusion and filed Ext.A2 charge sheet raising allegations of rashness and negligence against the first respondent. By abundant caution in this case, we find that PW.2 has been examined on oath also. Inspite of all this, the Tribunal took the view that the deceased was solely negligent and exonerated the first respondent wholly on the sole reason that the scene of accident located in the scene mahazar is at a spot 1.46 metres to the east of the western road kerb. The Tribunal noted that the width of the tarred road is 6.20 metres and the imaginary mid line (there was no indication to show that there was M.A.C.A. NO.936/2004 6 actually any mid line marked) runs at a distance of 3.13 metres from either kerb. In as much as the spot of the accident was located at a distance of l.46 metres east of the western kerb, the Tribunal felt that the deceased was grossly negligent in having gone over to the right (wrong) side of the road to an extent of 1.67 metres from the imaginary mid line. The deceased was on the wrong side of the road and hence the first respondent cannot be held to be negligent in causing the accident, held the Tribunal. 8. Learned counsel for the appellant then contends that the approach made by the Tribunal is wholly incorrect and wrong. The Tribunal must have given due regard to the oral evidence of PW.2 which is eminently supported by his contemporaneous statement about the alleged cause of the accident in Ext.A1(a), contends counsel. The Tribunal should also have noted that the police, a wing of the State, after proper investigation had come to the conclusion that negligence was on the part of the first respondent in causing the accident. The Tribunal ought to have noted that there was no significant difference between the version of PW.2 in Ext.A1(a) and the allegations in Ext.A5. Counsel contends that the Tribunal grossly erred in placing crucial reliance on the spot of the accident located in Ext.A3 scene mahazar. M.A.C.A. NO.936/2004 7 9. That takes us to the question as to how the Investigating Officer had located the spot where the accident occurred. The Investigating Officer assumed that the spot of impact was where blood marks were found. Other than the blood marks, there is nothing to indicate that the accident occurred at the spot located in Ext.A3. Learned counsel for the appellant alternatively points out that even from Ext.A1(a), it can be seen that on account of the impact, the deceased was thrown away to a distance from the spot of the impact. Blood marks can be expected at the place where the deceased, who was thrown away, fell and not at the spot of the impact. The Tribunal thus erred grossly, seriously and grievously in assuming that the spot where the blood marks were found must have been the spot of the accident, contends counsel. 10. We agree with the learned counsel for the appellant. We are satisfied that the blind acceptance of the spot where the blood marks were found as the spot of the impact is not justified at all. Other than Ext.A3, there is no semblance of material to persuade us not to accept the direct evidence of PW.2, a disinterested person who was available at the scene of the accident. We do, in these circumstances, accept the contention of the M.A.C.A. NO.936/2004 8 learned counsel for the appellant and agree that it is safe, in the facts and circumstances of the case, to conclude that the accident occurred on account of the rashness and negligence of the driver of the tempo van. 11. Learned counsel for the Insurance Company points out that there was gradient upwards towards north and the tempo van was going up the gradient whereas the motor cycle was coming down. We have gone through Ext.A3 and we find that there is nothing in Ext.A3(except the alleged location of the spot of impact) to reject the version of PW.2 about the manner in which the accident took place. We do, in these circumstances, agree with the learned counsel for the appellants that the claim must have been considered and allowed under Section 166 of the M.V. Act. 12. We shall now proceed to calculate the quantum of compensation payable to the appellants. The available materials indicate that the accident took place on 26.2.1999. The deceased was carried from the scene of occurrence to the Medical Mission Hospital, Kolencherry and then referred to another hospital where he underwent treatment and succumbed to the injuries two days thereafter. Though no documents have M.A.C.A. NO.936/2004 9 been produced to prove medical expenses, bystander expenses, extra nourishment etc., it cannot be assumed that no expenses were incurred for the above. Pain and suffering were endured by the deceased from the time of the accident to the time when be breathed his last. Ext.A5 post mortem certificate indicates the probable pain and suffering which the deceased must have endured. The deceased was aged 30 years and his wife was aged 28 years. Certainly, she is entitled to compensation for loss of consortium. The wife, parents and the minor child of the deceased have suffered loss of love and affection. Reasonable amounts deserve to be awarded under these heads. For funeral expenses and loss of estate, proper amounts deserve to be awarded as compensation. Coming to the quantum of compensation to be awarded for loss of dependency, it is seen that the deceased was in the age group of 30 to 35 and 17 can safely be reckoned as the multiplier. One-third of the amount can be reduced towards personal expenses of the deceased. Now, we come to the multiplicand. The deceased was a heavy vehicle driver. The oral evidence of PW.1 and Ext.A6 are relied on by the counsel in this regard. Significantly, not even the driving licence/badge of the deceased was produced to prove that he was having such an employment. We do not attach much significance to that omission. Considering the fact that the deceased was maintaining a M.A.C.A. NO.936/2004 10 family consisting of his wife, minor child, parents and sister, we are persuaded to agree that the monthly income of the deceased can be safely reckoned at Rs.2,000/-, even in the absence of better evidence. We bear in mind that it is for the claimants to adduce the best evidence regarding the age and income of the deceased, in the absence of which only reasonable inferences about irreducible minimum can be drawn by the Tribunal. We are satisfied that Rs.2,000/- can be reckoned as the irreducible minimum amount per mensem earned by the appellant at the time of his death. 13. The above discussions lead us to the conclusion that the appellants are entitled to a total compensation of Rs.3,27,500/- as per the details shown below: i. Pain and suffering :Rs. 10,000/- ii. Medical and miscellaneous expenses (including expenses for medicines, transportation charges, bystander expenses) :Rs. 4,000/- iii. Loss of consortium :Rs. 25,000/- iv. Loss of love and affection :Rs. 10,000/- v. Loss of dependency (2000x12x2/3x17) :Rs.2,72,000/- M.A.C.A. NO.936/2004 11 vi. Funeral expenses (Post mortem expenses) :Rs. 3,500/- vii. Damage to clothing :Rs. 500/- viii. Loss of estate :Rs. 2,500/- ------------------- Total :Rs.3,27,500/- ------------------- The total compensation of Rs.3,27,500/- shall carry interest at the rate of 7.5% per annum from the date of the petition. Appropriate direction regarding apportionment of the amount among the claimants and release/deposit shall be issued by the Tribunal. 14. The appeal is allowed in part to the above extent. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO.936/2004 12 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.936/2004 JUDGMENT 18th March, 2009 M.A.C.A. NO.936/2004 13