Haneefa vs C.T. Paul and Others

K. Sreedharan, J.—Though these appeals arise from decisions in different petitions disposed of by the Motor Accident Claims Tribunal, Ernakulam, we are disposing of these by this common judgment because all the claims arise out of the same motor accident. The question that arises for consideration in these appeals is one and the same namely who exactly was negligent in causing this accident.

M.F.A. 764/86 is at the instance of the petitioners in G.P. (M.V.) 691/92. They are wife, daughter and mother of late John who lost his life in the accident. M.F.A. No. 903/86 is by the petitioner in O.P. (M.V.) 686/92 namely, the mother of deceased Lalu, who lose his life in the accident. M.F.A. 906/82 is by the petitioners in O.P. (M.V.) 686/82. They are the wife and children of deceased George who succumbed to the injuries in the accident. M.F.A. No. 185/87 is at the instance of the petitioner in G.P. (M.V.) No. 107/83, petitioner Haneefa sustained injuries in the incident.

The three deceased and the injured were travelling in a jeep bearing registration No. KEE 3067. That vehicle was proceeding to Parur from Always. At about 12-25 during the night between 25.7.81 and 26.7.81 when it reached Thattampady, bus bearing Reg. No. KEE 3301 which was coming in the opposite direction collided against the jeep. As a result of the collision, the right side of the jeep was completely smashed. Persons who were seated on the right side of the jeep were involved in the accident and they breathed their last instantaneously. After the collision, the bus KEE 3301 proceeded further in the north easternly direction for about 44.08 metre than plunged into a paddy field. According to claimants before the Tribunal, the Accident was the outcome of the rash and negligent driving of the bus KEE 3301. This contention of the claimants was disputed by the owner and driver of the bus learned Tribunal came to the conclusion that the collision was a result of contributory negligence by the drivers of both vehicles. In this view of the matter, after finding the compensation payable to claimants in each of the petition, directed 50% of it to be paid and the 50% to be suffered by them since the owner of jeep KEE-3067 and its insurer were not impleaded in the proceedings. The correctness of this finding is the main issue to be dealt with in these appeals.

Immediately after the incident, police prepared a mahazer. Mahazer was marked in this case in O.P. (M.V.) 691/82 as Ext. A3, PW2, the Sub Inspector of Police, who prepared that mahazer proved the same. According to mahazar and the evidence of P.W. 2 the incident took place at a point 65 cms. to the south of middle line of the tarred portion of the road. The southern half of the road was the track for the vehicle proceeding from east to west. So the jeep KEE-3067 was proceeding along its track. After the collision, as seen from the evidence of P.W. 2 and the mahazer, the jeep KEE 3067 did not proceed forward to any noticeable distance. Therefore it is evident that the jeep was not driven at a high speed. If it was at a high speed, it could not have come to a halt immediately after the collision. The fact that the jeep could come to a halt immediately after the collision goes a long way to show that the jeep was being driven along its track at a controllable speed. The bus KEE-3301 which was proceeding from west to east should have kept to the northern half of the road. It should not have crossed the middle line and entered the southern track. Collision of the vehicle having taken place on the southern side of the road shows that bus was proceeding along the wrong side of that vehicle. After hitting the jeep it proceeded forward for about 44.08 metres on the north easternly direction and then fall into the paddy field. The forward movement of the vehicle for more than 44 metres establishes the rashness with which it was being driven at the time of the incident. From this we have no hesitation in holding that the collision was the result of the rash and negligent driving of stage carriage bearing Reg. No. KEE 3301. In this view of the matter, we are not in a position to support reasoning of the learned Tribunal that the collision happened as a result of an error of judgment on the part of the drivers of the vehicles. We are clear in our mind that in incident which happened as a result of error of judgment can never be treated as one arising out of negligence. Even though the Tribunal observed that the collision could have been the result of an error of judgment, claimants were awarded compensation on account of the loss of life of passengers. If actually the incident happened as a result of the error of judgment on the part of drivers, the Tribunal could not have legally saddled the owner of the bus and the Insurance Company with the liability to pay 50% of the compensation to the claimants. We reverse the finding arrived at by the Tribunal on the question of negligence and come to the conclusion that the incident was the result of the rash and negligent driving of stage carriage bearing Reg. No. KEE 3301 by its driver.

In O.P. (M.V.) 691/82 the claimants namely, the wife, child and mother of deceased John claimed compensation of Rs. 2,02,750/-. Their case was that deceased John aged 28 was getting an income of Rs. 750/- per month from the tea shop he was running. Tribunal took the view that deceased might have been spending a sum of Rs. 300/- per month to the members of his family. We feel that this assessment made by the Tribunal is correct. At that rate the annual dependency of the family can be fixed at Rs. 3,600/-. While computing the compensation the Tribunal adopted 20 as the multiple. In view of the decision of the Supreme Court in K.S.R.T.C. v. Susamma Thomes 1984 (1) KLT 67 the multiple can never be 20. On the facts and circumstances of this case, we feel that a multiple of 15 will be reasonable. Thus the compensation on account of the death of John has to be fixed at Rs. 54,000/-.

Tribunal awarded a sum of Rs. 1500/- towards the funeral expenses and transportation charges. We do not find any ground to interfere with the same. Towards the loss of consortium the Tribunal fixed a sum of Rs. 6,000/-. According to Supreme Court as per the above decision, amount for loss or consortium is to be in the conventional sum of Rs. 15,000/-. We feel that that amount has to be awarded to the claimants. It is also worthwhile to note that the Tribunal did not award any amount on the count of pain and suffering. On this count claimants must get a further sum of Rs. 15,000/-. Thus the claimants in O.P. (M.V.) 691/82 (appellants in M.F.A. 784/86) should get a total of Rs. 85,000/- as compensation. This amount will carry interest at the rate of 12% per annum from 4.9.82 till date of payment. Respondents 1 and 2 who are the owner and driver of KEE 3301 are jointly and severally liable for the said amount. But the third respondents the New India Assurance Co. Ltd. will pay a sum of Rs. 50,000/- out of the total amount of Rs. 85,000/- together with interest at the rate mentioned above to the appellants in M.F.A. 784/86.

M.F.A. 903/86 is at the instance of the petitioner in O.P. (M.V.) 685/82. She is the mother of deceased Lalu who died in the accident. Lalu was aged 28 years on the date of the incident. He was working as a junior electrician in Kerala Agro Machinery Corporation Ltd., Athani. He was having a monthly income of Rs. 728.80. Tribunal took the view that the mother''s dependency is at Rs. 250/-. The mother was aged 52 years. After capitalising the monthly dependency by 20 years the amount was worked out to Rs. 60,000/-. From that one third was deducted since lump sum payment was ordered. By adopting this method the Tribunal fixed compensation at Rs. 40,000/-. The compensation for loss of service to the petitioner was also found to be reasonable and a sum of Rs. 10,000/- was paid. A further sum of Rs. 1,000/- was awarded to meet the funeral expenses. Tribunal also granted Rs. 100/- for transporting the dead body from the place of accident. Thus the Tribunal fixed a total compensation of Rs. 51,100/-. We do not find any reason to interfere with the said quantum. We confirm the same. Respondents 1 and 2 the owner and driver of the vehicle KEE-3301 are jointly and severally liable to pay the said amount of Rs. 51,100/- together with interest at the rate of 12% per annum from 4.9.82 till date of payment. Put of this, sum of Rs. 50,000/- together with interest at the above rate from 4.9.82 will be paid by the Insurance Company namely, the New India Assurance Co. Ltd.

M.F.A. 908/86 is at the instance of petitioners in O.P.L. (M.V.) 686/82. They are the wife and children of deceased George. George was aged 40 years at the time of the accident. He was a Civil Contractor. His monthly income was fixed by the Tribunal at Rs. 750/-. We feel that this assessment of the monthly income made by the Tribunal is reasonable. On this basis tribunal fixed the total amount of compensation at Rs. 50,000/-. We do not find any reason to interfere with the same. Rupees 150/- was awarded towards transportation charges and a sum of Rs. 1,500/- for funeral expenses. They also do not call for any interference. For the loss of consortium wife was awarded Rs. 7,500/-. The mother was also paid Rs. 5,000 and to the children another sum of Rs. 5,000/-. Thus the total compensation awarded by the Tribunal comes to Rs. 1,09,150/-.

According to Counsel representing the claimants the Tribunal did not award any compensation on account of the pain and sufferings. Even though the death of George was instantaneous claimants are entitled to compensation on account of pain and sufferings. We fix a sum of Rs. 1,500/- on this account. Consequently the total amount payable to the claimants in O.P. (M.V.) 686/82 comes to Rs. 1,24,150/-. This amount will carry interest at the rate of 12% per annum from 4.9.82 till date of payment. Out of this amount, a sum of Rs. 50,000/- together with interest at the above mentioned rate will be paid by New India Assurance Company, the third respondent.

M.F.A. 185/87 is at the instance of the petitioner in O.P. (M.V.) 107/83. He was aged 32 at the time of the accident. He was working as a Welder in the Cochin Port Trust. He sustained injuries on his left eye. The injuries as noted in Ext. A6 wound certificate are:

A transverse lacerated wound 5 cms. x 1/2 cms. over the left cheek.

A lacerated wound 2 cms. x 1 cms. over the medial side of left eye-brow.

A lacerated wound 1/2 cms. diametre over the left side of the forehead.

A lacerated wound over the right elbow 1 cms. x � cms.

It is also noted therein that the injury on the medial side of the left eye brow has adversely affected the left orbital wall of the eye. The Doctor who examined the injured as per Ext. As certificate assessed the permanent disability at 25%. Taking into consideration these injuries and the permanent disability the Tribunal fixed compensation of Rs. 28,199/-. We do not final any ground to interfere with the said quantum of compensation. That amount of Rs. 28,100/- will carry interest at the rate of 12% per annum from 26.7.1988 till date of payment. Respondents 1 and 2, who are the owner and driver if the bus KEE-3301 are jointly and severally liable to pay the amount. Since the vehicle was covered a valid insurance policy, the third respondent, the New India Assurance Company will pay this amount of Rs. 28,100/- together with interest to the claimant/appellant.

All the appeals are disposed of as indicated above.