1. MACA Nos.203 of 2014 and 1776 of 2014 arise from the very same award dated 31.05.2013 in O.P.(MV) No.1789 of 2006 on the files of the Motor Accidents Claims Tribunal, Thrissur, a petition filed for claiming compensation for the death of the deceased. MACA No.1789 of 2014 arise from O.P(MV) No.2446 of 2006 dated 31.05.2013, a petition filed for the damages caused on the motorcycle. Since these appeals arise from the same cause of action, they are heard together and are disposed of by this judgment.

2. M.A.C.A.Nos.1776 & 1789 of 2014 are filed by the 3rd respondent/insurance company challenging the quantum of compensation awarded for the injuries as well as the compensation for the damages sustained to the motorcycle, where as MACA No.203 of 2014 is filed by the claimants, who are the legal heirs of the deceased, seeking enhancement of compensation.

3. The facts of the case are as follows:

On 17.06.2006 at about 11.00 am, while the deceased was riding a motorcycle bearing reg. No. KL-11/T 5394, a lorry bearing reg. No. KL-9/N 949, driven by the 2nd respondent in a rash and negligent manner hit against the motorcycle. As a result of the accident, the deceased had sustained serious injuries and succumbed to the injuries on the same day. The claimants, who are the legal heirs of the deceased, approached the tribunal in OP(MV) 1789 of 2006, claiming a total compensation of Rs.3,78,000/- rounded to Rs.3,70,000/- for the death of the deceased whereas the claimants in OP(MV) 2446 of 2006, approached the tribunal claiming compensation for the damages caused to the motorcycle.

4. The first and second respondents, the owner and driver of the offending vehicle remained ex-parte before the tribunal. The 3rd respondent insurer filed a written statement admitting the policy but disputing the quantum of compensation claimed and denying negligence. Before the tribunal RW1 was examined and Exts.A1 to A10, Exts.X1(a) to X1(c) and Ext.B1 to B4 were marked. The tribunal, after analysing the pleadings and materials on record, in OP(MV) 1789/2006, awarded a sum of Rs.2,70,000/- as compensation under different heads with interest @8% per annum from the date of petition till realization with proportionate costs and in OP(MV) 2446/2006, awarded a sum of Rs.12,000/- as compensation for damages caused to the bike with interest @8% per annum from the date of petition till realization with proportionate costs against the third respondent being the insurer.

5. Heard the learned counsel for the claimants and the learned standing counsel appearing for the insurance company.

6. The insurance company mainly filed the appeal challenging the finding of negligence on the part of the driver of the lorry alone. According to the learned standing counsel appearing for the insurance company there was contributory negligence on the part of the rider of the motorcycle/deceased in causing the accident. The deceased, Philip, while entering the National Highway, proceeded from south to east without exercising due care or caution. According to the learned Standing Counsel, the lorry was proceeding in its proper direction from west to east, keeping its northern side on the road, which is its correct side. The two-wheeler ridden by the deceased took a tangential turn and entered the National Highway without noticing the lorry moving on the northern side. The two-wheeler collided with the lateral front portion of the lorry, as a result of which the deceased was thrown towards the rear portion of the lorry and the rear wheel ran over his body. Owing to the injuries sustained in the accident, he succumbed to the same. The learned Standing Counsel further submitted that the lorry did not hit the two- wheeler from the rear; on the contrary, it was the two-wheeler that collided with the lateral front portion of the lorry.

7. The other contention raised by the learned Standing Counsel is that two FIRs were registered in the present case. Initially, the first FIR was registered attributing negligence on the deceased, whereas the second FIR was registered alleging negligence on the part of the driver of the lorry. According to him, there ought not to have been two FIRs; even assuming that two FIRs were registered, the Investigating Officer should have filed the charge sheet against both the rider of the two-wheeler and the driver of the lorry. However, Ext.A6 charge sheet was filed against the driver of the lorry alone, which, according to the learned Standing Counsel, is incorrect. The learned Standing Counsel for the insurance company relied on the evidence of RW1- the Investigating Officer, Ext.A3 scene mahazar, Ext.A4 AMVI report and Ext.B2 scene mahazar. It is further submitted that in the FIS given by the eyewitness, Thomas, it was stated that the accident occurred due to the negligence of both the rider of the motorcycle and the driver of the lorry. Hence, the learned counsel argued that the Tribunal ought to have found contributory negligence on the part of the rider of the two-wheeler as well.

8. On the other hand, the learned counsel for the claimants submitted that the Tribunal had considered the issue in detail and found that there was no evidence to attribute any contributory negligence to the deceased. It was further submitted that although two FIRs were registered, after investigation the final charge sheet was laid against the driver of the lorry. It was also submitted that neither the owner nor the driver of the lorry had contested the charge sheet drawn against them. Moreover, though the evidence of RW1 was adduced, nothing could be brought out in support of the contention raised by the insurance company. According to the learned counsel, the accident occurred due to the sole negligence of the driver of the lorry, who drove the vehicle at a high speed without noticing the two-wheeler coming from the south, which had already covered nearly two-thirds of the road on the northern side. The learned counsel relied on Ext.A3 scene mahazar and Ext.A6 charge sheet and submitted that both the scene mahazar and the charge sheet were drawn in favour of the deceased and there is no reason to find any contributory negligence on the part of the deceased.

9. In the award passed by the Tribunal, the issue has been dealt with at length. Admittedly, the deceased was entering the highway from south to north and the lorry, which was proceeding from west to east, hit the two-wheeler and thereby the accident occurred. Ext.A1 FIR was produced by the claimants and Ext.B1 FIR was produced by the insurance company. In Ext.A1 FIR, negligence was attributed against the driver of the lorry, whereas in Ext.B1 FIR, negligence was attributed to the rider of the two- wheeler. Since two FIRs were registered, the tribunal called for Ext.X1 case diary in respect of the incident. Ext.X1 case diary contained a sketch to show the place of occurrence. Both the FIRs were registered on the basis of the FI statement given by the same person. However, the insurance company failed to examine Thomas, who had given the FIS. The learned Standing Counsel appearing for the insurance company submitted that they had filed a petition seeking permission to examine the witnesses. However, the tribunal did not allow the said petition. On a perusal of the award, it is seen that the tribunal has given valid reasons for not permitting the insurance company to adduce further evidence. It is stated in the award that sufficient time was granted to the insurance company. However, after completion of the evidence, they again sought time. Even then the insurance company was permitted to reopen the evidence and adduce further evidence however, no application was filed. Subsequently, after the evidence was finally closed, another IA was filed seeking to reopen the evidence, which was not allowed. The tribunal has stated satisfactory reasons for not allowing the subsequent IA filed by the insurance company and therefore, I do not find any fault on the part of the tribunal.

10. Since contributory negligence was alleged by the insurance company, burden was on the part of the insurance company to challenge Ext.A6 charge sheet. For that purpose, though the investigating officer was examined as RW1, nothing was brought out by the insurance company to contradict the charge sheet. RW1 also stated that though two FIRs were registered, he had not signed both FIRs and that only Ext.A1 FIR was signed by him. He further deposed that, after proper investigation, the charge sheet was drawn against the driver of the lorry.

11. The lorry, which was coming from behind, could very well have seen the two-wheeler entering the highway and the two wheeler having almost crossed 2/3rd of the highway towards the north, had the lorry been driven at a normal speed, the accident could have been avoided. In New India Assurance Co. Ltd. v. Pazhaniammal and Others [2012 ACJ 1370], it was held that when a charge sheet is filed against the accused by the police after due investigation, the tribunal is entitled to accept the same. If the Tribunal finds the charge sheet to be suspicious or collusive, or if any of the parties do not accept it, appropriate procedures for the production of evidence may be adopted. Here Ext.A6 is the charge sheet. Though the Investigating Officer was examined as RW1, the insurance company failed to bring out any positive evidence in the cross-examination to substantiate their contentions. The tribunal has considered the aforesaid issue in detail and found that the negligence was on the part of the driver of the lorry. I do not find any reason to interfere with the said finding. Accordingly, MACA Nos.1789 & 1776 of 2014, the appeals filed by the insurance company are liable to be dismissed.

12. The learned counsel for the claimants in MACA No.203 of 2014 is mainly claiming enhancement of the award under the following heads :-

                  Notional income :- The learned counsel for the appellants/claimants sub mitted that though an amount of Rs.6,000/- was claimed, the tribunal had taken only an amount of Rs.3,500/- as the monthly income of the deceased who was a Pastor. The learned counsel for the appellants further submitted that, as per the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the income of a coolie for an accident in the year 2006 is fixed at Rs.5,500/- per month and sought for enhancement of fixation of monthly income. Following the judgment in Ramachandrappa (supra), in order to award a just compensation, I find it is appropriate to refix the monthly income as Rs.5,500/-.

                  Compensation for loss of dependency :- Since the monthly income is fixed at Rs.5,500/, the compensation payable under the said head is recalculated as thus: Rs.3,08,000/- (5500x12x7x2/3). The tribunal has already paid an amount of Rs.1,96,000/- under the said head. Thus, there will be an additional amount of Rs.1,12,000/- under the head loss of dependency.

                  Compensation for funeral expenses and estate:- The learned counsel for the appellants submits that the tribunal has awarded only an amount of Rs.5,000/- each towards loss of estate and funeral expenses. Following the judgment in National Insurance Co. Ltd. v. Pranay Sethi & Ors [2017 (4) KLT 662 (SC)], the compensation under the conventional heads ought to have been fixed at Rs.15,000/- each and further, 10% enhancement has to be given in every three years after 2017. Thus, following the judgment in Pranay Sethi (supra), I deem it appropriate to award the appellants a total compensation of Rs.18,150/- each under the head funeral expenses. Accordingly, there shall be an additional amount of Rs.13,150/- each under the head loss of estate and funeral expenses. Compensation for loss of consortium/Loss of love and affection :- The learned counsel appearing for the appellants submitted that towards loss of consortium, the tribunal has awarded Rs.25,000/-. I find that following the judgment in Pranay Sethi (supra), the appellants are entitled for an amount of Rs.40,000/- each and further enhancement of 10% in a span of three years. Accordingly, the compensation payable under the head loss of consortium is Rs.1,45,200/- (48,400x3). Therefore, the appellants are entitled to get an additional amount of Rs.1,20,200/-.

                  The learned standing counsel appearing for the insurance submitted that the tribunal has awarded an amount of Rs.25,000/- towards loss of love and affection, which is against the principle laid down in the judgment in New India Assurance Company v. Somwati and others [2020 (5) KLT OnLine 1198 (SC)], wherein it has been held that once compensation is awarded under the head loss of consortium, no amount shall be awarded under the head loss of love and affection, as it would amount to duplication of      compensation. Hence I am inclined to delete Rs.25,000/- awarded under the said head.

13. On a perusal of the award and records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable. Since the appeal is of the year 2014, I find it appropriate to fix the interest @7% per annum on the enhanced amount.

14. Thus, the impugned award of the tribunal is modified as follows:

                  IMAGE

                  IMAGE

                  Accordingly,

                  1) MACA Nos.1776 of 2014 & 1789 of 2014, filed by the insurance company stands dismissed.

                  2) MACA No.203 of 2014 filed by the claimants is allowed in part and the claimants are awarded an additional amount of Rs.2,33,500/- (Rupees Two lakhs thirty three thousand five hundred only) as compensation over and above the compensation awarded by the tribunal with interest @7% per annum from the date of petition till realization and proportionate costs from the 3rd respondent/insurer. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimants shall furnish copies of the PAN Card, ADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the respondent insurer to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the respondent insurer to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the claimants at the earliest in accordance with law.

                  3) The ratio adopted by the tribunal regarding the apportionment of the compensation amount shall be followed in respect of the enhanced compensation as well.