Allowed

Pankajakshi v. Shijesh

Kerala HC5 Apr 2022MACA/1526/2013

Case brief

AI extract

What is this about?

Appeal against Motor Accidents Claims Tribunal award where appellants challenging quantum of compensation for deceased sibling. Court quashed Tribunal's findings on admissibility of salary certificate, recalculated loss of dependency using correct multiplier and adjusted personal expenses, and awarded enhanced compensation.

What did the court decide?

Enhanced compensation of Rs.4,86,880/- awarded with interest at 7.5% per annum from date of petition till realization.

Pankajakshi Vs Shijesh — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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TUESDAY, THE 5^TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944

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MACA NO. 1526 OF 2013

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AGAINST THE AWARD IN OPMV 1153/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE

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APPELLANTS/APPLICANTS:

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1 PANKAJAKSHI

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AGED 68 YEARS D/O.ACHUTHAN, AYANA, PO MALAPARAMBA, KOZHIKODE. 2 MALLIKA AGED 64 YEARS

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D/O.ACHUTHAN, POOCHAKANDY PARAMBA, MANIVAS, PO KALLAI, KOZHIKODE.

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3 KOMALAM AGED 61 YEARS D/O.ACHUTHAN, 35/580, PRANAVAM, PO KARUVASSERY, KOZHIKODE.

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4 DHARMARAJ AGED 58 YEARS S/O.ACHUTHAN, KOLLOTH HOUSE, PO ERNAHIPALAM, KOZHIKODE.

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BY ADV SRI.P.M.HARRIS

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RESPONDENTS/RESPONDENTS:

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1 SHIJESH S/O.DINESHAN, 33/3964, PANDARAPARAMBA, PO MALAPARAMBA, KOZHIKODE.

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2 DINESAN AGED 62 YEARS S/O.CHOYI, 33/3964, PANDARAPARAMBA, PO MALAPARAMBA, KOZHIKODE.

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3 BRANCH MANAGER THE NEW INDIA ASSURANCE CO.LTD., FAIRMOUNT BUILDINGS, PPO ERANNHIPALAM, KOZHIKODE.

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M.A.C.A.No.1526/2013

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BY ADVS. SMT.M.MEENA JOHN SRI.VIJU THOMAS-R3

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING:

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M.A.C.A.No.1526/2013

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M.R.ANITHA, J ****************** M.A.C.A.No.1526 of 2013

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Dated this the 5^th day of April, 2022

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JUDGMENT

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This appeal has been filed against the award passed in O.P. (M.V.) No.1153/2011 on the file of the Motor Accidents Claims Tribunal, Kozhikode (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in short the Act).

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It is alleged that on 07.09.2010 at about 6.45 p.m, while the deceased was walking through Kozhikode-Wayanad road, a motorcycle bearing Reg.No.KL-11-T-8355 hit him from behind and he succumbed to death due to the injuries sustained. It is alleged that the accident happened due to the rash and negligent riding of the motor cycle by the second respondent.

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M.A.C.A.No.1526/2013

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First respondent is the owner of the vehicle and the third respondent is the insurer.

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Before the Tribunal, third respondent alone contested the matter by filing written statement admitting policy coverage with respect to the offending vehicle at the time of the accident. It is contended that the compensation claimed are highly excessive. Claimants were also put to strict proof regarding age, monthly income and occupation of the deceased. Negligence on the part of the second respondent/rider of the motorcycle is also denied.

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4^th claimant was examined as PW1. Exts.A1 to A6

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marked from the side of the claimants. Ext.B1 marked from the side of the third respondent.

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Tribunal, on evaluating the evidence and facts and circumstances, found that the accident happened due to the rash and negligent driving of the motorcycle by the second respondent and that the third respondent/insurer was held liable to pay compensation. A total compensation of Rs.1,96,000/- was

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M.A.C.A.No.1526/2013

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awarded by the Tribunal.

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Accident, death and liability of the third respondent is

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not in dispute and challenge is only with respect to the quantum of compensation awarded by the Tribunal.

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Notice against the first and the second respondents are dispensed with at the risk of the appellant. Adv.Meena John appeared on behalf of the third respondent/insurer. Lower court records were called for and perused. Heard learned counsel for the appellants/claimants (hereinafter be referred as 'the claimants') as well as the learned Standing Counsel for the third respondent/insurer.

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The claimants are the siblings of the deceased. Ext.A6 is the certificate issued on behalf of Assistant Engineer, PWD Road Section certifying that deceased Ajithkumar was working as Worker Grade-II and his pay and allowance as on 08.09.2010 in total was Rs.16,837/-. The Tribunal did not accept Ext.A6 stating that it is not proved by the claimants. But, it is to be noted that

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it is a document issued by a public servant in discharge of his

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official duties and it was marked without objection. It is relevant in this context to quote R.V.E.Venkatachala Gounder v.

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Arulmigu Viswesaraswami and V.P.Temple and another [(2003) 8 SCC 752 : AIR 2003 SC 4548] and Smt. Dayamathi Bai v. Sri.K.M.Shaffi [(2004) 7 SCC 107 : AIR

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2004 SC 4082] .

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In R.V.E.Venkatachala Gounder with respect to the

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objection as to admissibility of documents the Apex Court held as

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follows in paragraph 20:

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“20.The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because adocument has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before

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the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular

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mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to herein above, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”

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In Smt.Dayamathi Bai also the objection as to admissibility of document came up for consideration. The Apex Court reiterated that objection as to mode of proof falls within procedural law. Therefore, such objection could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record. In the said decision, the Apex Court quoted after approval, paragraph 20 of the decision in

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R.V.E.Venkatachala Gounder .

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In this case, the objection with regard to Ext.A6 is about the mode of proof of the same. So, the party who have

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got any objection in marking the document, ought to have raised it at the time of marking the same. So, without making any objection in marking the document at the right time, at the appellate stage, the admissibility of the same cannot be challenged. Moreover, the fact that the deceased was a worker in PWD Road Section is not in dispute. So, I am of the considered view that the Tribunal went wrong in not accepting Ext.A6 certificate issued by the Assistant Engineer, PWD Road Section, Kozhikode certifying the salary of the deceased at the time of the accident. So, the income of the deceased at the time of accident can very well be taken as Rs.16,837/- as borne out from Ext.A6.

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As stated earlier, claimants are the siblings of the deceased, who died as a bachelor. In Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802) the Apex Court laid down the principles to be followed in determining the quantum of compensation in a case of death out of Motor Vehicle accident. It is held that just compensation is adequate compensation which is fair and equitable on the facts and

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M.A.C.A.No.1526/2013

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circumstances of the case to make good the loss sustained by the victim of accident as far as money can do.

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In National Insurance Company Limited v. Pranay Sethi and Ors. (2017 (4) KLT 662) Constitution Bench of Apex Court held that Section 168 of the Act deals with the concept of “just compensation” and that has to be determined on the foundation of fairness, reasonableness and equitable on acceptable legal standard because such determination can never be with arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case.

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On the question of deduction towards personal expenses and living expenses, in Sarla Verma 's case, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependents and where the deceased is a bachelor it would be 'half' because it is assumed that a bachelor

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would tend to spend more on himself and where number of dependent family members is between 2 and 3, the deduction towards dependent family members is 1/3 and where number of dependent family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65] .

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In this case, the Tribunal deducted 1/3^rd towards the personal and living expenses of the deceased. But, according to the learned counsel for the third respondent/insurer, deceased died as a bachelor and since all the claimants are elder to him , half of the total income ought to have been deducted towards personal and living expenses. He would also contend that the Tribunal found that there is no financial dependency upon the deceased by any of the claimants since they are elder to the deceased. The Tribunal also found that PW1 is not a dependent of the deceased. After making such a finding, the Tribunal deducted 1/3^rd towards personal and living expenses of the

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deceased. That, according to the learned counsel for the insurer, is illegal and half of the income ought to have been deducted towards personal and living expenses of the deceased.

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Learned counsel for the claimants, on the other hand, contended that, PW1, the 4^th claimant had filed proof affidavit stating that he has got wife and 10 year old daughter and he is totally blind and got married late and because of his late marriage, the marriage of the deceased could not be conducted. It was also stated that the deceased was living with his family and that his wife was not earning and they were depending on the deceased. Claimants also produced Ext.A4 copy of the disability certificate certifying 100% disability to PW1. The evidence of PW1 coupled with Ext.A4 would prove that he is a totally disabled man who is none other than the brother of the deceased and all the other claimants are sisters. In Sarla

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Verma , it has been held by the Apex Court in paragraph No.31 that in the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will

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either be independent and earning, or married or be dependent on the father. Hence PW1, totally blind elder brother of the deceased, adduced evidence to the contrary that himself and family were totally depending on the deceased brother. So, PW1, the brother of the deceased can be taken as dependent of the deceased. However, the fact remains that the deceased died as a bachelor. As per Sarla Verma, 1/2 of the monthly income has to be deducted towards personal and living expenses. So, Tribunal went wrong in deducting 1/3^rd of the monthly income towards personal and living expenses.

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Next aspect is with regard to multiplicand to be applied. Admittedly, the deceased was 55 years old at the time

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of accident. It is also admitted that he would have retired on superannuation on completion of the age of 55 years. So, after the retirement he will not get the salary of Rs.16,837/-. Tribunal notionally fixed the amount as Rs.5,000/-. By applying the multiplier of 9 and giving a deduction of 1/3^rd towards personal and living expenses an amount of Rs.1,80,000/- was awarded

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M.A.C.A.No.1526/2013

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towards loss of dependency.

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Since the accident and death occurred at the time

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when he was in service at the age of 55, the proper multiplier as

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per Sarla Verma as approved by Pranay Sethi is 11. So,

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Tribunal went wrong in adopting 9 as the multiplier.

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In this case, it has come out that the deceased was a Worker Grade-II in P.W.D, Road Section. So, after the retirement, he could have done some other work and could have earned income. So adopting the notional income when the death was at the age of 55 years, will not be a just compensation. Hence, half

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of the salary can be taken after the period of retirement i.e. Rs.8,418/-. Adding 15% enhancement towards future prospects, the amount would come to Rs.9,681/- [8,418 + 15% of 8,418]. After deducting Rs.4,841/- [1/2 x Rs.9,681] towards personal and living expenses, monthly contribution would be Rs.4,840/[Rs.9,681 – Rs.4,841]. The amount towards loss of dependency would be Rs.4,840 x 12 x 11= Rs.6,38,880/-. After deducting the amount of Rs.1,80,000/- already awarded by the Tribunal,

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balance would be Rs.4,58,880/- [Rs.6,38,880 – Rs.1,80,000] towards loss of dependency.

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Next contention of the learned counsel for the claimants is with regard to the compensation awarded under conventional heads. In Pranay Sethi , Constitutional Bench has fixed the compensation under the conventional heads, as Rs.15,000/- each towards loss of estate and funeral expenses. The Apex Court in Rasmita Biswal & Others v. Divisional Manager, National Insurance Company Ltd., & Another (CDJ 2021 SC 1024 ) has awarded 10% increase to the conventional heads taking into account the directions in Pranay Sethi for 10% enhancement after every three years. Accordingly the claimants in that case were awarded 16,500/- each towards loss of estate and funeral expenses. In this case, towards funeral expenses and loss of estate, claimants are entitled to get Rs.16,500 + Rs.16,500 = Rs.33,000/-. From that, the amount of Rs.5,000/- already awarded by the Tribunal is to be deducted. Then the total amount claimants are entitled to get under

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M.A.C.A.No.1526/2013

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conventional heads would be Rs.28,000/-. Towards consortium, claimants are not entitled to get any amount since they are siblings of the deceased. Hence the amount of enhanced compensation claimants are entitled to get is Rs.4,86,880/- [Rs.4,58,880 + Rs.28,000].

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In the result, appeal allowed enhancing compensation to an amount of Rs.4,86,880/- which will carry interest @ 7.5% per annum from the date of petition till realization. The 3 rd respondent, the Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment.

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22. The disbursement of additional compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issues by this Court in Circular No.3 of 2019 dated 6.9.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 7.11.2019. The claimants shall provide the Bank account details (attested copy

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of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment.

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(sd/-) M.R.ANITHA, JUDGE

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jsr

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True Copy

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P.S. To Judge

Pankajakshi v. Shijesh

Case brief

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Pankajakshi v. Shijesh

Case brief

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