IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 MACA.No. 84 of 2007() --------------------- OPMV.2101/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S)/PETITIONERS: ------------------------------------- 1. E.A. KHADERPILLAI, ELAVEN VEETTIL HOUSE, MAMBRA DESOM, KALLUR THEKKUMURI VILLAGE, MUKUNDAPURAM TALUK, TRICHUR DISTRICT. 2. BEEVATHUMMA, W/O.E.A.KHADERPILLAI, DO. DO. 3. LAILA, D/O.E.A. KHADERPILLAI, DO. DO. 4. RASHEED, S/O.E.A. KHADERPILLAI, DO. DO. 5. SHAJITHA, D/O.E.A. KHADERPILLAI, DO. DO. BY ADV. SRI.C.K.ABDUL RAHIM RESPONDENT(S)/RESPONDENTS: --------------- 1. C. RAMU, S/O.CHINNATHAMBI, SRI.GAJALAKSHMI SAGO FACTORY, M-9, VEERANGANUR ROAD, AUDUPET P.O., ATUR TALUK. 2. GUNASEKHARAN, S/O.MARUTHAKATHUPILLAI DOOR NO.139, GANGAVILLY, MAIN ROAD, KAITHEMILLATH NAGAR, THAMMAMPETTI VILLAGE, ATTUR TALUK, SALEM DISTRICT. 3. NATIONAL INSURANCE CO.LTD., GUDALORE, MAIN ROAD, ATTUR. MACA No.84/2007 2 4. MRS.SAFIA RAHMAN, W/O.ABDUL REHMAN MANJALLY VALAPPIL HOUSE, M.S.K. MANZIL, ANAMALAI RAOD, CHALAKUDY. 5. UNITED INDIA INSURANCE CO.LTD., SREEKUMAR BUILDING, CHALAKUDY. ADV. SMT.NARAYANIKUTTY CHETTUR FOR R5 ADV. SRI.P.V.JYOTHI PRASAD FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2008, ALONG WITH MACA NO. 840 OF 2005 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.Nos.840 of 2005, 875 of 2005, 892 of 2005, 915 of 2005, 920 of 2005, 921 of 2005, 922 of 2005 & 84 of 2007 -------------------------------------- Dated this the 15th day of December, 2008. JUDGMENT Thomas P.Joseph, J. These appeals arise from the common award passed by the Motor Accidents Claims Tribunal (for short, ‘the Tribunal’) in O.P.(MV) Nos.2279 of 1996, 2280 of 1996, 2401 of 1996, 4003 of 1996 and 2101 of 1998. In a collision between a tourist taxi car (for short, ‘the car’) and tanker lorry (for short, ‘the lorry’) on 22.4.1996 at about 2.45 p.m., the driver and two of the passengers in the car succumbed to the injuries and two other passengers in the car sustained serious injuries. Legal representatives of the driver of the car filed O.P.(MV) No.2101 of 1998. Legal representatives of the deceased passengers filed O.P.(MV) Nos.2279 of 1996 and 2280 of 1996. Injured passengers in the car filed O.P.(MV) Nos.2401 of 1996 and 4003 of 1996. They impleaded the driver of the lorry and owner and insurer of both the vehicles as respondents. Petitioners mainly contended that the accident occurred due to the rashness and negligence of the second respondent (third respondent in O.P. (MV) No.4003 of 1996), driver of the lorry (he died pending proceedings). Insurer of the lorry contended that accident was due to the rash and negligent driving of the car. Tribunal found that accident was caused by the negligence MACA Nos.840/2005 & connected cases 2 of both the drivers and apportioned the negligence between them at 50:50. Accordingly, insurers of both the vehicles were directed to pay the compensation awarded. Petitioners as well as the insurer of the lorry are aggrieved and preferred these appeals. M.A.C.A.Nos.915 of 2005 and 84 of 2007 arise from the award in O.P.(MV) No.2101 of 1998. M.A.C.A.Nos.875 of 2005 and 920 of 2005 arise from the award in O.P.(MV) No.2279 of 1996. M.A.C.A.Nos.892 of 2005 and 840 of 2005 arise from the award in O.P.(MV) No.2280 of 1996. The award in O.P.(MV) Nos.2401 of 1996 and 4003 of 1996 are challenged by the insurer of the lorry in M.A.C.A.Nos.922 of 2005 and 921 of 2005, respectively. For the sake of convenience parties are referred as petitioners and respondents as before the Tribunal. 2. Heard both sides. 3. Following points arise for consideration:- I. What was the cause of the accident? II. Whether compensation awarded is just and fair? 4. Perused records. 5. Point No.I. Facts which are not in dispute are that at the relevant time, the car was going from north to south while, the lorry was coming from south to north. The lorry was being driven by the deceased, second respondent and it carried a full load of LPG cylinders . The vehicles collided at the place of occurrence. PWs 3 MACA Nos.840/2005 & connected cases 3 and 4 are the petitioners in O.P.(MV) No.2401 of 1996 and 4003 of 1996, passengers in the car and who sustained injuries in the accident. PWs 6 and 8 claimed to be the witness to the accident. According to PWs 3 and 4, the car was coming at a neck brake speed from north to south, attempted to overtake a lorry going ahead and in that process, hit the lorry which was going from south to north. PWs 3 and 4 attributed negligence on the part of the driver of the car. PWs 6 and 8 claimed that the car was going along the eastern side of the road and that the lorry went over to its wrong side and hit the car. PWs 6 claimed that he had pointed out the eastern side of the road as the place of occurrence to the investigating officer. 6. Exts.A6 and A7 are the copies of the FIR and charge sheet against the deceased, second respondent, driver of the lorry. Ext.A10 is the mahazar for scene of occurrence. In Ext.A10, lie of the road is shown as north to south at the accident spot. Width of the tarred portion of the road is 9.90 metres. Accident spot is shown as 2.36 metres east of the western tar end. Learned counsel for the insurer of the lorry contended that going by Ext.A10, accident occurred towards the western extremity of the tar road which is the proper side of the lorry and the extreme wrong side of the car. He also relied on the evidence of PWs 3 and 4, passengers in the car that the car was going at excessive speed, overtook a lorry going ahead and hit the lorry that came from south to north. Learned counsel placed reliance on Exts.A11 and A12, the reports MACA Nos.840/2005 & connected cases 4 prepared by the Assistant Motor Vehicle Inspector who inspected the lorry and car. As per Ext.A12, the car had damage on its front right side and as per Ext.A11, the lorry had damage on its front right side. In Exts. A11, it is stated that the diesel tank of the lorry on the right rear side was damaged. Learned counsel for petitioners would say that Ext.A10 cannot be relied on since even according to the investigating officer, it was PW6 who had pointed out the place of occurrence but PW6 gave evidence that the accident occurred towards the eastern side of the road, he had pointed out only the eastern side of the road as the accident spot and not the western portion. PW8 claimed that he had witnessed the incident and that it occurred towards the eastern side of the road. PW7 is an attestor in Ext.A10. He would say that he had not seen the police preparing mahazar and denied attesting it. He does not know what the police had recorded in Ext.A10. 7. Tribunal found that version of PW6 that accident occurred on the eastern side of the road is not acceptable and disbelieved PW8 since he did not figure as a witness in the police charge sheet (Ext.A7). Tribunal also found that driver of the car was negligent and the accident occurred while he was overtaking a lorry going ahead. However, Tribunal found that driver of the lorry was also negligent for the reason that though he was coming along the proper side, it was at high speed and did not control his vehicle and stop it before hitting the car. It is accordingly that neglect was fixed at 50:50 which is now assailed MACA Nos.840/2005 & connected cases 5 by the insurer of the lorry. Version of PW8 regarding the accident cannot be accepted since as rightly pointed out by the Tribunal he did not figure as a witness in Ext.A7 charge sheet. We stated that as per Ext.!0, accident occurred towards the western side of the road. Question is whether Ext.A10 is acceptable or not? True, PW6 who is shown to have pointed out the place of occurrence to the investigating officer claimed that accident was on the eastern side of the road and he pointed out eastern side as the accident spot. But, according to PW6, there was dry blood stains, black oil and broken glass pieces at the accident spot. Ext.A10 shows that broken glass pieces, dry blood stains and black oil were seen towards the western side of the road. We stated from Exts.A10 and A11 that the diesel tank of the lorry was damaged in the accident. It is therefrom that black oil fell on the road. Thus, presence of black oil, dry blood stains and broken glass pieces is a definite indication about the place of occurrence. Petitioners produced Ext.A10 and relied on it. They did not take steps to examine the investigating officer if they have a case that the mahazar is not properly prepared. Mere denial by PW7 who is an attestor is not sufficient. In Philipose Cherian & another v. T.A.Edward Lobo(1990 (1) KLJ 726) a Division Bench of this Court observed that when an entry is made in the mahazar as to what the author of the mahazar has seen at the accident spot, that is evidence when the mahazar is marked in evidence without objection. That decision concerned use of scene mahazars in applications for compensation MACA Nos.840/2005 & connected cases 6 before the Tribunal. We find no reason to differ from the view taken by the Division Bench in that case. In Ext.A10, its author has reported what he saw at the scene of occurrence dry blood stains, black oil and broken glass pieces which is admitted by PW6 also. In the circumstances, Ext.A10 has to be accepted. We therefore, are in agreement with the finding of the Tribunal that the accident occurred towards the western side of the road which is the proper side of the lorry and wrong side of the car. 8. Then the next question is whether it could be said that there was negligence on the part of the deceased, second respondent, driver of the lorry. Learned counsel for the insurer of the lorry contended that there is no evidence to show that lorry was coming at excessive speed and that there was any act or omission on the part of its driver which could be described as rash or negligent. 9. “Negligence” is that conduct which a reasonable and prudent man would avoid on the ground that it involved risk of harm to the life and property of others. “Rashness” is the act of doing something recklessly, unmindful of its consequence. It is not disputed that the lorry was carrying full load of LPG cylinders. Exts.A10 to A12 show that both the vehicles suffered heavy damage on its front side. That is an indication that both the vehicles came at excessive speed. Accident occurred on the National Highway which carries heavy traffic. It is not as if the deceased, second respondent was free to drive the lorry along the western half of the road in the way he wished, unmindful of the vehicles that MACA Nos.840/2005 & connected cases 7 came from the opposite side. There was no restriction at the accident spot, atleast there is no such case for any of the contesting parties, for overtaking vehicles going ahead. Deceased second respondent, driver of the lorry therefore should have, as a reasonable and prudent man anticipated the possibility of vehicles coming from opposite side overtaking the vehicles which went ahead and controlled his vehicle accordingly so that, in a contingency as in this case he could control his vehicle and stop it within reasonable distance and thereby avoid collision. That, the deceased second respondent did not do and, it was unmindful of any such possibility that he drove the lorry and that too, with full load of LPG cylinders. There is no indication in Ext.A10 that the deceased, second respondent had attempted to stop the lorry on seeing the car trying to overtake the lorry going ahead of it. On the other hand, the lorry hit the right, front side of the car. Hitting on the diesel tank of the lorry cannot be taken as a ground indicating negligence on the part of the driver of the car alone since by the initial hit itself, the driver of the car must have lost control and the car hit the diesel tank of the lorry. One thing is sure that on hitting the front right side, driver of the lorry tried to swerve the lorry towards left side and that resulted in the car hitting the diesel tank of the lorry. Thus, evidence revealed that it was unmindful of the vehicles coming from opposite side that deceased second respondent drove the lorry. To that extent, there was rashness and negligence on the part of the deceased, second respondent. Therefore, Tribunal is justified MACA Nos.840/2005 & connected cases 8 in holding that there was negligence on the part of the deceased second respondent, driver of the lorry also. 10. Then the next question is what is the degree of negligence on the part of the driver of the car and lorry. We found from the evidence that the car was going at neck brake speed and that too, trying to overtake the lorry going ahead and that in that process, hit the front side of the lorry. Major share of negligence was on the part of the driver of the car. Considering all relevant aspects and circumstances discussed above, we apportion the negligence between the deceased driver of the car and deceased second respondent, driver of the lorry as 70:30. Finding of the Tribunal to that extent is modified. 11. Point No.II. (i) O.P.(MV) No.2279 of 1996. – (a) This application concerned the death of the 44 year old husband of the second petitioner and father of petitioners 3 and 4. First petitioner is the mother of the deceased. She was aged 91 years at the time of accident. Second petitioner was aged 43 years and petitioners 3 and 4 were minors at the time of accident. Tribunal awarded a total sum of Rs.15,92,000/- as compensation. According to the petitioners, compensation awarded is insufficient. Petitioners filed M.A.C.A.No.875 of 2005. Insurer of the lorry contends that compensation awarded is excessive and filed M.A.C.A.No.920 of 2005. MACA Nos.840/2005 & connected cases 9 (b) Before going into the question, we have to understand what is “just compensation” and “reasonable compensation”. “Just compensation” is one which is contemplated by the statute, taking into account the nature of injuries and such other matters in the case of claim for compensation for personal injury and the dependency and such other matters when the application concerned death of the accident victim. “Reasonable compensation” means compensation which the claimant would think to be reasonable, according to him. Function of the Tribunal is to award just and fair compensation. Appellate court is to consider whether Tribunal made a wholly erroneous estimate. When the award falls above or below the bracket within which the awards of the appropriate standard are contained, the appellate court has to interfere. According to the petitioners, deceased was working in Switzerland as accountant in a private company. Petitioners claimed that deceased was earning Rs.7,000/- swiz francs per month (equivalent to Rs.2,03,000/- per month in Indian currency) and that salary was being paid for 13 months. Petitioners produced Exts.A2 to A5 in proof of that. Exts.A2 to A5 are letters from the company which allegedly employed the deceased. Ex.B13 is a letter of that company to the insurer of the lorry in reply to their enquiry concerning the occupation of the deceased in that company. In Ext.B13, the employment of the deceased in the said company is confirmed. Tribunal accepted the case of the petitioners regarding the employment of the deceased. MACA Nos.840/2005 & connected cases 10 We find no reason to interfere with that. (c ) For the purpose of assessment of loss of contribution and dependency, Tribunal fixed the multiplicant at Rs.12,000/- and taking 10 as the multiplier (since according to the Tribunal a higher multiplicant has been taken) and on the premise that deceased was getting salary for 13 months in a year, Rs.15,60,000/- was awarded for loss of dependency and contribution (Rs.12,000x10x13) which according to the petitioners is low while according to the insurer, it is high. Counsel for petitioners contended that for the purpose of assessment of loss of contribution and dependency, the monthly earnings of the deceased as such should have been taken into account. (d) Second petitioner gave evidence as PW1. She admitted that herself and the children are settled in Switzerland and that they are getting 80% of the salary of the deceased from the company which employed him. Of the said 80%, share of the second petitioner is 40% and she will get that share until the deceased, had he lived, attained the age of 65 years. 20% each went to petitioners 3 and 4, the minor children. They will get that amount until they attained the age of 25. It has also came out that deceased was paying 17% of his earnings by way of tax. Tribunal took these aspects into consideration and found that the actual loss is only 3%. That came to Rs.6,090/- per month. But the Tribunal fixed the multiplicant as Rs.12,000/- per month. According to learned counsel for petitioners, payment to the petitioners from the company is MACA Nos.840/2005 & connected cases 11 by way of social security scheme and the provident fund which is not liable to be deducted in considering the loss of dependency and contribution. But it is pertinent to note that petitioners have not produced any document to show that what they are getting from the company is by way of social security scheme. There is no evidence to show that there was any contribution from the salary of the deceased to the provident fund. As such, contention that the payment to the petitioners should not have been taken into account, cannot be accepted. We also find from the award that Tribunal has taken these aspects into consideration and found that the multiplicant is Rs.12,000/- per month. While awarding compensation, the Tribunal has to bear in mind that a calamity cannot be converted into a windfall and that the accident cannot become a bonanza. We note that the deceased was working in a private company and therefore, permanency of the job was not assured. Taking these aspects into account we are inclined to accept the finding of the Tribunal that the multiplicant to be adopted is Rs.12,000/- per month. Tribunal observed that considering the high multiplicant adopted, only 10 is to be taken as the multiplier which is permissible under law. As such, no interference is required regarding the compensation awarded for loss of contribution and dependency. (e) Tribunal has awarded Rs.4,000/- for transportation charges, Rs.3,000/- for funeral expenses, Rs.10,000/- as compensation for loss of consortium to the second petitioner, Rs.10,000/- to petitioners 3 and 4 for loss of MACA Nos.840/2005 & connected cases 12 love and affection and Rs.5,000/- for pain and suffering undergone by the deceased. Thus, the total amount awarded came to Rs.15,92,000/-. On a consideration of all the relevant factors and after hearing both sides, we are satisfied that compensation awarded is just and fair and no interference is required as contended by either side. (ii) O.P.(MV) No.2280 of 1996.- (a) This application concerned the death of a 39 year old bank employee. He was working as a clerk in State Bank of Travancore. Petitioners are the parents, wife and daughter of the deceased. Parents were aged 73 and 63 years, respectively and the widow and daughter were aged 29 and 8 years, respectively at the time of accident. Tribunal awarded Rs.3,97,000/- as compensation which according to the petitioners is low. Petitioners have filed M.A.C.A.No.840 of 2005. Insurer of the lorry challenges the quantum of compensation as excessive in M.A.C.A.No.892 of 2005. (b) Ext.A13 is the salary certificate produced by the petitioners which revealed that deceased, as a clerk in the State Bank of Travancore was earning Rs.6,111.14 ps. per month. Tribunal found that after deducting allowances, the amount payable per month is Rs.5,030/-. However, for the MACA Nos.840/2005 & connected cases 13 purpose of awarding compensation, monthly income was fixed at Rs.3,000/- and again deducting one third for personal expenses, contribution was fixed at Rs.2,000/- per month. Counsel for petitioners contended that there is no justification in reducing the monthly income twice for the purpose of fixing contribution. (c ) Ext.A13 is not under challenge. That has to be taken into account. As per that, monthly income was Rs.6,111.14 ps.. Taking Ext.A13 into account, the monthly income of the deceased should have been fixed as Rs.6,000/- and deducting one third for personal expenses, contribution to the family per month is Rs.4,000/-. Tribunal has taken '15' as the multiplier which needs no interference. Thus, compensation payable for loss of contribution and dependency comes to Rs.7,20,000/- (Rs.4,000x12x15) and less the sum of Rs.3,60,000/- awarded by the Tribunal on that count, additional compensation payable for loss of contribution and dependency is Rs.3,60,000/-. (d) Tribunal has also awarded Rs.4,000/- for transportation charges, Rs.3,000/- for funeral expenses, Rs.10,000/- for pain and suffering undergone by the deceased, Rs.10,000/- for loss of consortium to the third petitioner and Rs.10,000/- for loss of love and affection to the fourth petitioner. Though it is contended by counsel that compensation awarded on those counts MACA Nos.840/2005 & connected cases 14 are meagre, on considering all relevant factors we are not inclined to accept that contention. Additional compensation payable to the petitioners is Rs.3,60,000/-. Award in O.P.(MV) No.2280 of 1996 is modified accordingly. (iii ) O.P.(MV) No.2101 of 1998. - (a) This application concerned the death of the driver of the car. He was aged 24 years at the time of accident. Claim is made by the parents, sisters and brother of the deceased. They claimed that deceased was getting salary of Rs.2,000/- per month and batta, as driver. They produced Ext.A23, salary certificate to that effect. Tribunal fixed the monthly income of the deceased at Rs.2,250/- and deducting one third for personal expenses, fixed the monthly contribution at Rs.1,500/-. '15' was taken as the multiplier. However, on the premises that deceased, a bachelor would have got married soon had he been alive, compensation for loss of contribution was awarded at the rate of Rs.1,500/- per month for a period of three years which came to Rs.54,000/- and then for the next 12 years at the rate of Rs.1,000/- per month which came to Rs.1,44,000/-. Thus, compensation for loss of contribution and dependency was assessed to be Rs.1,98,000/-. Counsel for petitioners contended that procedure adopted by the Tribunal is wrong in that once dependency is fixed and proper MACA Nos.840/2005 & connected cases 15 multiplier is adopted, there was no reason to split up the multiplier and award compensation taking different multiplicant. Petitioners have preferred M.A.C.A.No.84 of 2007. Insurer of the lorry filed M.A.C.A.No.915 of 2005. (b) In the facts and circumstances of the case, we are inclined to accept that contention. Tribunal having found the contribution to the petitioners at Rs.1,500/- per month, should have awarded compensation on that basis taking '15' as the ,multiplier. Compensation payable in that way (Rs.1,500x12x15) comes to Rs.2,70,000/- as against Rs.1,98,000/- awarded by the Tribunal. (c) Tribunal also awarded Rs.4,000/- for transportation charges, Rs.3,000/- for funeral expenses, Rs.5,000/- for pain and suffering undergone by the deceased and Rs.10,000/- for loss of love and affection. We find no reason to interfere with that award. Thus, total compensation payable to the petitioners is Rs.2,92,000/- (Rs.2,70,000 + 22,000). Tribunal, holding that the deceased, driver of the car was negligent to the extent of 50% reduced compensation payable by 50%. We have found that negligence on the part of the deceased, car driver as