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2024 DIGILAW 424 (KER)

Sijo Jose v. Rejender Kumar Saini

2024-04-02

ZIYAD RAHMAN A.A.

body2024
JUDGMENT : 1. The appellants were the petitioners in OP (MV) No. 2977 of 2001 on the files of the Motor Accident Claims Tribunal, Ernakulam. The said claim petition was filed by them seeking compensation for the death of one Saji Jose due to the injuries sustained in a motor accident, that occurred on 4.08.2001. 2. According to the appellants, the accident occurred when the deceased was driving a Maruti car along with his wife and parents, it collided with a mini lorry driven by the 3rd respondent. The 1st respondent was the owner of the said vehicle and it was insured with the 2nd respondent. Due to the accident, all the persons travelling in the car died. 3. The deceased Saji Jose, was aged 29 years at the time of the accident, and was working as an Executive in L&T Finance Ltd with a monthly income of Rs.11,360/-. The appellants/petitioners 1 to 3 are the siblings, the appellants/petitioners 3 and 4 are the father-in-law and mother-in-law of the deceased. The claim petition was filed in such circumstances. 4. The respondents 1 and 2 have filed written statements, disputing the negligence on the part of the 3rd respondent. In the written statement filed by the 2nd respondent, the insurer of the mini lorry, they admitted the coverage of the policy. However, they disputed the quantum of the compensation claimed. 5. The said claim petition was tried along with three other claim petitions which arose from the very same accident. The evidence in these cases consists of Exts. A1 to A20A from the side of the claimants. No evidence was adduced by the respondents. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the 3rd respondent and the deceased. The proportion of their liabilities was fixed as 2:1 between them respectively. Being the insurer of the vehicle, the 2nd respondent was held liable to pay the compensation in respect of the liability of the 3rd respondent. The quantum of compensation in the above claim petition was fixed as Rs.1,07,500/-. The Tribunal also found that the 3rd and 4th appellants, the in-laws of the deceased were not entitled to compensation and the amount awarded was for appellants 1 to 3 alone. The quantum of compensation in the above claim petition was fixed as Rs.1,07,500/-. The Tribunal also found that the 3rd and 4th appellants, the in-laws of the deceased were not entitled to compensation and the amount awarded was for appellants 1 to 3 alone. Accordingly, the appellants 1 to 3 were permitted to recover an amount of Rs.71,667/- from the 2nd respondent with interest at the rate of 7% from the date of petition till the date of the award and with interest at the rate of 8% from the date of the award till realization. This appeal is filed by the appellants challenging the finding of contributory negligence and also seeking enhancement of compensation. 6. The first question to be considered is with respect to contributory negligence. It is to be noted that, the police registered Ext. A1 FIR in connection with the accident, and after completing the investigation, submitted a charge sheet implicating the 3rd respondent, the driver of the mini lorry as the accused. The 2nd respondent did not adduce any contra evidence. In the light of the observations made by this Court in New India Assurance Company Limited v. Pazhaniammal, 2011 (3) KLT 648 , in the absence of any contra evidence, the conclusions arrived at by the Police in the final report submitted after the investigation in the crime registered in connection with the accident, can be taken as a prima facie proof of the negligence. It is to be noted that, the Tribunal found negligence on the part of the deceased by simply relying upon the spot of the accident revealed from the scene mahazer. In Jiju Kuruvila and others v. Kunjunjamma Mohan & others, 2013 (3) KLT 261 (SC) : (2013) 9 SCC 166 , it was held by the Honourable Supreme Court that, the question of negligence cannot be decided merely by relying upon the scene mahazer. It is to be noted that, the scene mahazer is prepared after the accident, based on the information furnished by the person who may or may not have witnessed the incident. Moreover, the other relevant and contributory factors for the accident, namely, the speed of the vehicles, traffic on the road, conditions of the road, climate conditions etc would not be reflected in the said mahazer. Moreover, the other relevant and contributory factors for the accident, namely, the speed of the vehicles, traffic on the road, conditions of the road, climate conditions etc would not be reflected in the said mahazer. Therefore, in the absence of any supporting evidence, a decision on the negligence cannot be taken, merely based on the scene mahazer. In such circumstances, in the absence of any contra evidence on the part of the respondents, it is held that the accident occurred due to the sole negligence of the 3rd respondent. Therefore, being the insurer, the liability to pay the entire compensation is upon the 2nd respondent/insurer. 7. The next contention raised by the learned counsel for the 2nd respondent is with respect to the right of the petitioners to claim compensation. The finding of the Tribunal is that the appellants were not dependent upon the income of the deceased and in the absence of such dependency, the claim petition should not have been entertained. The learned counsel for the 3rd respondent in this regard places reliance upon New India Assurance Co. Ltd. v. Anand Pal and Others, 2024 ACJ 6 and Unni v. Baby John, 2008 (2) KLT 78 . On the other hand, the learned counsel for the appellants would point out that as per Section 166 of the Motor Vehicles Act, any legal representative can file an application for compensation and in this case, the appellants 1 to 3 being the persons who have the right to inherit the estate of the deceased, they have the locus standi to maintain the application. The learned counsel also relies upon Manjuri Bera v. Oriental Insurance Company Ltd. and Another, 2008 (2) KLT 873 (SC) : (2007) 10 SCC 643 , National Insurance Company Limited v. Birender and Ors. 2020 (2) KLT 182 (SC), A. Manavalagan v. A. Krishnamurthy, ILR 2004 Kar. 3268, Joseph v. Giji Varghese, 2009 (4) KLT 199 , United India Insurance Co. Ltd. v. Shalumol and Others, 2021 (5) KLT 74 : 2021 (5) KHC 28 and Royal Sundaram Alliance Insurance Company Limited v. V.S. Sujatha, 2023 (6) KLT 347 : 2023 (6) KHC 89 . 8. The learned counsel for the appellants also raised a contention that, the 4th and 5th respondents were also entitled to compensation, but I do not find any scope for considering the said question. 8. The learned counsel for the appellants also raised a contention that, the 4th and 5th respondents were also entitled to compensation, but I do not find any scope for considering the said question. Evidently, they were not the legal heirs of the deceased and no evidence was also adduced to show their dependency upon the deceased. Therefore, I do not find any scope for interfering with the finding of the Tribunal holding that they are not entitled to compensation. Therefore this appeal has to be decided based on the right of the appellants 1 to 3 to claim compensation. 9. As far as the question of the right of the legal representatives to claim compensation is concerned, there cannot be any doubt, as the same is specifically contemplated under Section 166 of the Motor Vehicles Act. As per Section 166(1)(c) of the Motor Vehicles Act, where the death has resulted from an accident, a claim for compensation can be maintained by all or any of the legal representatives of the deceased. The expression “legal representative” has been defined in Rule 2(k) of the Kerala Motor Vehicles Rules, 1989. As per the same “Legal representative” means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased. In this case, the 3rd respondent does not have a contention that the appellants are not the siblings of the deceased and there is any other person who is entitled to inherit the estate. The contention of the 2nd respondent-Insurance Company is to the effect that, the appellants have their own employment and income, and therefore they were never dependent upon the deceased. It is true that, in the materials now available on record, there is absolutely nothing to indicate that the appellants were dependent upon the deceased. Therefore, the adjudication of the issue highlighted in this case has to be made by taking the view that the appellants were not dependent upon the deceased. 10. Thus, the question that arises is whether, in the absence of any dependency, can the appellants claim compensation for the death of the deceased in this case. Therefore, the adjudication of the issue highlighted in this case has to be made by taking the view that the appellants were not dependent upon the deceased. 10. Thus, the question that arises is whether, in the absence of any dependency, can the appellants claim compensation for the death of the deceased in this case. While examining the various judicial precedents in this regard, one of the most important decisions to be noted is in Madhya Pradesh State Road Transport Corporation v. Sudhakar & Ors. (1977) 3 SCC 64 : AIR 1977 SC 1189 wherein The Hon’ble Supreme Court held that a legal representative who was not dependent can maintain an application. In such cases, compensation has to be granted for loss of estate. The relevant observations made by the Hon’ble Supreme Court are as follows: “19. We may summarise the principles enunciated, thus: (i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the estate of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed (Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. But in the second category of cases, no such adjustments or alternation of shares is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased. (ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded towards loss of expectation of life, under the head of loss to estate. (iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased. A conventional sum for loss of expectation of life, is added. (iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.” 11. In Manjuri Bera’s case (supra), the Hon’ble Supreme Court considered the question as to the right of a married daughter of the deceased who was not dependent upon the deceased to claim compensation under section 140 of the Act. It was found that, since it is a statutory compensation, the same would form part of the estate of the deceased and his daughter being the legal representative, was entitled to inherit his estate, and she can claim compensation. It was found that, since it is a statutory compensation, the same would form part of the estate of the deceased and his daughter being the legal representative, was entitled to inherit his estate, and she can claim compensation. In Shalumol’s case (supra), this Court after elaborately considering various judicial precedents on the point, found that the dependency is only a criterion for legal representatives for claiming loss of dependency under Section 166 of the Act and is not the ‘be all end all” criteria to claim other pecuniary and non-pecuniary conventional heads of compensation. The right of the legal representative who was not dependent upon the deceased was also upheld in a Division Bench judgment of this Court in Joseph’s case (supra). Similarly, in Royal Sundaram Alliance’s case (supra) also, it was held that the major married son who was not dependent upon the deceased would be still covered by the legal representatives of the deceased. The said decision was rendered by this Court by placing reliance upon Manjuri Bera (SMT) and Birender’s case (supra). 12. Of course, it is true that a Division Bench of this Court in Unni v. Baby John’s case (supra) which was relied on by the learned counsel for the 2nd respondent, held that the brothers or other relatives of the deceased who are not legal heirs of the deceased or legal representatives cannot claim compensation even if, as a matter of fact, they were dependents on the deceased for financial assistance. However, the said decision was rendered in connection with a claim petition which was filed by the brother along with the father and mother of the deceased. As per the personal law of the parties, the brothers were found to be not the legal heirs of the deceased, as the father and mother of the deceased were alive. Therefore, the factual circumstances under which Unni’s case (supra) decided was different. Similarly, in Anand Pal’s case (supra) also, which is yet another decision relied on by the learned counsel for the 2nd respondent, the case considered by the Honourable Supreme Court was the right of the claimants 1, 7 and 11 in the said claim petition who were the brothers of the deceased. Therefore, in that case also, there were other claimants who would come under the definition of legal representatives. 13. Therefore, in that case also, there were other claimants who would come under the definition of legal representatives. 13. On the other hand, in this case, it is evident that there is no dispute with regard to the question that the appellants 1 to 3 were the persons who had the right to inherit the estate of the deceased and therefore they would fall under the definition of legal representatives, being legal heirs. Therefore, they can very well maintain the application for compensation for the death of the deceased in this case. 14. It is to be noted in this regard that the question regarding the right to apply for compensation and the entitlement to get compensation are different. Being the legal representatives, the appellants 1 to 3, would be entitled to maintain an application under Section 166 of the Motor Vehicles Act as the said provision specifically authorizes them to do so. However, even while accepting that they have the right to claim compensation under the said provision, the next question that has to be considered is under which heads they can claim compensation. Since the loss of dependency is one of the major heads on which the claim can be made in a case of death, in the absence of dependency, either financial or otherwise, the petitioners cannot be held to be entitled to the same. Then, the question that arises here is as to heads under which claim can be considered. In Sudhakar’s case (supra), the manner in which the compensation has to be assessed in a case where the claim was put forward by the legal representatives who are not dependents, was considered. The Hon’ble Supreme Court specifically observed that even in that case, the right of the claimants would be with respect to the loss of estate and while calculating the loss of estate, the same procedure for determination of the loss of dependency has to be adopted. The difference that arises here is because of the fact that, in the case of a dependent-legal representative, the loss of dependency has to be calculated based on the annual contribution to the family, whereas, in the case of legal representatives who are not dependent upon the deceased, the multiplicand has to be fixed based on the savings of the deceased, as the same form part of the estate of the deceased. In Joseph’s case (supra), a Division Bench of this Court specifically addressed this issue and laid down a clear method for assessing the compensation in such cases. In paragraph 5 of the said decision, it was observed as follows: “5. The learned counsel for the appellant further raised a contention that even though there is no loss of dependency, there is loss of estate to the claimants and respondents 4 to 8, they being legal heirs of the deceased. The contention is that the Tribunal ought to have granted compensation considering the loss of estate. It has come out in evidence that the deceased was an Agriculturist. Even though there is no proof regarding quantum of income derived by the deceased, it can be presumed that the deceased was earning some amount out of agricultural operations. If that be so, whatever surplus amount, which will remain after meeting personal expenses of the deceased, would have been his savings which ultimately could have devolved upon his sibling (legal heirs) as his estate. Taking view of the matter in this angle, we are of the opinion that the Tribunal ought to have granted compensation under the head of loss of estate. On our moderate estimate we arrive that the deceased was getting notional income of Rs.1500/- per month. Considering the fact that he had no wife and children 2/3rd of the amount can be deducted towards his personal expenses. Based on the age of the deceased the correct multiplier to be adopted is. Therefore 1/3rd of the earnings can be computed as loss of estate of the deceased. Thus the legal heirs of the deceased are entitled to get an amount of Rs.66,000/- towards loss of estate. We are inclined to award the said amount. Hence the total compensation need be refixed at Rs.92,500/- (Rs.66,000 - Rs.26,500).” 15. As per the above observations made in the decision of Joseph’s case (supra), the possible savings of an unmarried person who had no dependents can be reasonably reckoned as 1/3 of his income. This reasoning is sound and logical. In this case, the said method of assessment can be adopted. Of course, it is true that, in this case, the deceased was married and had other legal heirs. This reasoning is sound and logical. In this case, the said method of assessment can be adopted. Of course, it is true that, in this case, the deceased was married and had other legal heirs. However, all the other legal heirs including his wife, died along with him in the said accident, and the only remaining legal heirs are the appellants 1 to 3 herein. Therefore, the marital status of the deceased cannot have any impact as far as the adoption of the method of assessment contemplated in Joseph’s case (supra) is concerned. Therefore, I am of the view that, in this case, multiplicand for determining the compensation for loss of estate which is the major head for which the petitioners are entitled, can be assessed on the basis of the same. 16. Thus, the discussions made on the basis of the various decisions referred to above, would certainly lead to the conclusion that appellants 1 to 3, being the persons who have the right to inherit the estate of the deceased, are legal representatives within the meaning of Section 166 of the Motor Vehicles Act, 1988, r/w. Rule 2(k) of the Kerala Motor Vehicles Rules, 1989. As far as the amount of compensation is concerned, their right to claim has to be only in respect of compensation for loss of estate which has to be calculated on the basis of the multiplicand-multiplier method as held in Sudhakar’s case (supra). The multiplicand has to be determined on the basis of the principles laid down by the Division Bench in Joseph’s case (supra) i.e. 1/3rd of the income of the deceased. While considering the same, all the other parameters which are applicable for assessing the compensation for loss of dependency can be applied in the light of the principles laid down in Sudhakar’s case (supra). 17. Now the question to be considered is about the quantum of compensation. It is seen that for the purpose of assessing the compensation, the Tribunal fixed the annual income of the deceased as Rs.1,20,000/-. It is to be noted that, according to the appellants the deceased was working as an Executive in L & T Finance Ltd, with a monthly income of Rs.11,360/-. Exhibit P14 salary certificate was produced to substantiate the same. However, the said document was not proved by examining a competent person in this regard. It is to be noted that, according to the appellants the deceased was working as an Executive in L & T Finance Ltd, with a monthly income of Rs.11,360/-. Exhibit P14 salary certificate was produced to substantiate the same. However, the said document was not proved by examining a competent person in this regard. Therefore the monthly income claimed cannot be accepted as such. Therefore, I am inclined to accept the annual income of Rs.1,20,000/- adopted by the Tribunal. 18. In this case, even though the annual income was taken as above, the tribunal awarded only a lumpsum compensation of Rs.1,00,000/- for loss of dependency. However, in the light discussions made above, the compensation can be fixed by making a deduction of 2/3rd. When calculating the compensation for loss of estate, with the above criteria, it comes to Rs.6,80,000/- (1,20,000 x 17 x 1/3). The tribunal had already awarded Rs.1,00,000/- under the head of loss of dependency which has to be treated as compensation for loss of estate, and thus the additional compensation would come to Rs.5,80,000/-. 19. The amount awarded by the Tribunal for funeral expenses was Rs.5,000/- only, whereas the actual amount payable in the light of National Insurance Co. Ltd. v. Pranay Sethi and Others, 2017 (4) KLT 662 (SC) : (2017) 16 SCC 680 , the proper amount should have been Rs.15,000/-. Accordingly, a further sum of Rs.10,000/- is awarded. Thus, the total additional compensation is determined as Rs.5,90,000/-. Accordingly, the total compensation, receivable by the appellants 1 to 3 is re-assessed as Rs.6,97,500/- (5,90,000+1,07,500). 20. In the result, this appeal is allowed. The award dated 30.07.2008 passed by the Motor Accident Claims Tribunal, Ernakulam, is hereby modified with the following findings and orders: (i) The finding of the tribunal attributing contributory negligence on the part of the deceased is hereby set aside. It is held that the accident occurred due to the sole negligence of the 3rd respondent and consequently all the respondents are jointly and severally liable for the entire compensation. Since the coverage of the insurance policy is admitted, the 2nd respondent/insurer is liable to pay the entire compensation. It is held that the accident occurred due to the sole negligence of the 3rd respondent and consequently all the respondents are jointly and severally liable for the entire compensation. Since the coverage of the insurance policy is admitted, the 2nd respondent/insurer is liable to pay the entire compensation. (ii) The total compensation receivable by the appellants 1 to 3 is re-assessed as Rs.6,97,500/- (Rupees Six lakhs ninety seven thousand and five hundred only) and the said amount shall be deposited by the 2nd respondent with interest at the rate as ordered by the Tribunal, within a period of three months from the date of receipt of a copy of this judgment, after adjusting the amount, if any, already deposited.