Abraham K.P. and Others v. Joy M.P., Suneer M.S and The Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945 ``` ## **`MACA NO. 382 OF 2013`** ## **`AGAINST THE AWARD DATED 06.08.2012 IN OP(MV) NO.1087/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA`** ## **`APPELLANT/PETITIONERS 1 TO 3:`** - `1 ABRAHAM K.P. S/O.PAULOSE, VALLIKKATTIL PUTHENPURA @ KURIALATHOTTATHIL HOUSE, PERUMMOOZHI, KUNNACKAL, VALAKOM VILLAGE` - `2 ALEYKUTTY W/O.ABRAHAM,VALLIKKATTIL PUTHENPURA @ KURIALATHOTTATHIL HOUSE, PERUMMOOZHI, KUNNACKAL, VALAKOM VILLAGE` - `3 BINCY ABRAHAM D/O.ABRAHAM,VALLIKKATTIL PUTHENPURA @ KURIALATHOTTATHIL HOUSE, PERUMMOOZHI, KUNNACKAL, VALAKOM VILLAGE` ``` BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 3:`** ``` 1JOY M.P. S/O.PEELIPOSE,MARUTHUMPARACKAL HOUSE, KALAYANTHANI PO, THODUPUZHA,PIN 685 584 ``` ``` 2SUNEER.M.S MALAPPARAMBIL HOUSE, CHILAVU, THODUPUZHA, PIN 685 584. ``` ``` 3THE ORIENTAL INSURANCE CO.LTD. JEWEL ARCADE, LAYAM RAOAD, PB.NO.1010, ERNAKULAM, COCHIN 682 011. ``` ``` 2 ``` ## **`MACA NO. 382 OF 2013`** ``` BY ADVS. SRI.DOMSON J.VATTAKUZHY RINNY STEPHEN CHAMAPARAMPIL SRI.MATHEW JOHN K K.S.SANTHI - Copy served SC - ADV. RINNY STEPHEN CHAMAPARAMPIL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 382 OF 2013 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.1087/2009 on the files of the Motor Accident Claims Tribunal, Muvattupuzha. The said claim petition was submitted by them seeking compensation for the death of one Monsy due to the injuries sustained in a motor accident that occurred on 11.11.2009. The deceased was the son of the 1[st] and 2[nd] appellants and the brother of the 3[rd] appellant. 2. According to the appellants, the deceased was working as a Peon in Federal Bank with a monthly income of Rs13,490/- and was aged 39 years at the time of the accident. He was unmarried as well. The accident occurred when the motorcycle ridden by the deceased was hit by a jeep bearing Registration No.KL 38 3863 driven by the 2[nd] respondent herein, owned by the 1[st] respondent and insured with the 3[rd] respondent. The claim petition was submitted seeking compensation of Rs.8,00,000/-. 3. The owner and driver remained ex-parte, and the ``` MACA NO. 382 OF 2013 ``` ``` 4 ``` insurance company submitted a written statement admitting the coverage of the insurance policy for the said vehicle, but the liability was disputed on various grounds. The negligence, as well as the quantum of compensation, were also disputed by them. 4. The evidence in this case consists of Exts.A1 to A10 from the side of the appellants, and no evidence was adduced from the side of the respondents. After appreciating the materials placed on records, the Tribunal arrived at a conclusion that the accident occurred due to the negligent driving of the jeep by the 2[nd] respondent and being the insurer of the vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.7,65,960/-. However, the Tribunal ordered that 7.5% of the said amount be deducted, as the deceased was riding the motorcycle without any insurance policy. The said amount after the deduction as above was directed to be deposited by the 3[rd] respondent insurance company with interest @ 8% per annum from the date of application till the date of deposit. Being ``` MACA NO. 382 OF 2013 ``` ``` 5 ``` dissatisfied with the quantum of compensation, this appeal is submitted by the appellants. 5. Heard Sri.T.K. Koshy, the learned counsel for the appellants and Adv.Rinny Stephen Chamaparampil learned counsel for the 3[rd] respondent Insurance Company. 6. One of the crucial contentions raised by the learned counsel for the appellants is that the amount awarded under the head of the ‘loss of dependency’ is on the lower side. It is pointed out that the Tribunal had not considered the future prospects of the deceased, which was mandatory as the principles laid down by the Hon’ble Supreme Court in **National Insurance Company Ltd. v.** **Pranay Sethi [** 2017(4) KLT 662] and since the deceased was a regular employee of the Federal Bank, 50% ought to have been added towards future prospects. In the light of the settled position of law in this regard, the said contention has to be accepted and therefore, the monthly income, which is already accepted by the Tribunal as Rs.13,490/-, is to be taken with an addition of 50% ``` MACA NO. 382 OF 2013 ``` ``` 6 ``` towards future prospects. Similarly, the learned counsel for the appellants further contends that the multiplier adopted by the Tribunal is only 9, which was applicable for the age of the 2[nd] appellant, as the deceased was a bachelor. However, going by the principles laid down in **Sarla Varma v. Delhi Transport Corporation** [2010(2)KLT 802 (SC)], the relevant multiplier to be taken, even in respect of a bachelor, depends on the age of the deceased and not that of the parents. Therefore, the multiplier has to be fixed considering the age of the deceased; therefore, the multiplier to be adopted in this case is 15. While re-working the compensation for ‘loss of dependency’ with the monthly income with an addition toward future prospects and the multiplier of 15, the said amount would come to Rs.18,21,150/- (13,490 + 50% x 12 x 15 x 1/2). After deducting Rs.7,28,460/- already granted by the Tribunal under this head, the additional amount would come to Rs.10,92,690/-. 7. In addition to the said amount, the appellants would be entitled to a further sum of Rs.10,000/- under the head of ‘funeral ``` MACA NO. 382 OF 2013 ``` ``` 7 ``` expense’ as the amount already awarded is only Rs.5,000/-. As regards the compensation under the head ‘loss of estate’, the appellants would be entitled to a further sum of Rs.12,500/- as the amount awarded is only Rs.2,500/-. The next aspect to be considered is under the head ‘loss of consortium’. It is contended by the learned counsel for the appellants that the deceased left behind three persons, the parents and the 3[rd] appellant, the sister, who was unmarried and physically challenged. Considering the aforesaid aspects of the case, ‘loss of consortium’ can be granted to the said appellants at the rate of Rs.40,000/- each but, at the same time, Rs.20,000/- already granted towards ‘loss of love and affection’ has to be deducted, in the light of the observations made by the Hon’ble Supreme Court in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760]. Therefore, the appellants would be entitled to an additional amount of Rs.1,00,000/- under the head of ‘loss of consortium’, which is the amount after adjusting Rs.20,000/- already granted ``` MACA NO. 382 OF 2013 ``` ``` 8 ``` towards ‘loss of love and affection’. Even though the learned counsel for the respondents contended that the amount of Rs.10,000/- granted towards ‘pain and suffering’ was not necessary, I am of the view that, as the amount is notional, no interference is required. The next aspect is with respect to the ‘transportation expenses’, which were claimed to be Rs.1,500/- the said amount appears to be reasonable and granted. 8. Another contention raised by the appellant is with regard to the deduction of 7.5% of the compensation made by the Tribunal for riding the motorcycle without insurance. In this regard, I find force in the contention of the leanred counsel for the appellants. The deduction in the compensation can be made only in the case of contributory negligence, i.e., only if the deceased contributed to the accident through his negligence in handling the vehicle. In this case, there is nothing to indicate such a contribution. As far as riding motorcycles is concerned, it is a violation of the law, but the same cannot be treated as a factor contributing to the ``` MACA NO. 382 OF 2013 ``` ``` 9 ``` accident in any manner. Therefore, I do not find any justification for reducing any amount from the compensation for not having insurance coverage for the motorcycle he was riding. Hence, the said finding of the tribunal is hereby set aside. 9. Thus, the total additional compensation receivable by the appellant would come to Rs.12,16,690/- (10,92,690 + 10,000 + 12,500 + 1,00,000 + 1500) ( Rupees twelve lakhs, sixteen thousand, six hundred and ninety only. The said amount, along with 7.5% of the amount deducted from the award passed by the Tribunal, shall be deposited by the Insurance Company, along with interest @ 8% per annum from the date of petition till realisation within a period of three months from the date of receipt of a copy of this judgment. 10. The learned counsel for the appellants pointed out that the award does not contain the manner in which the compensation is to be apportioned. It is seen from the records that the 3[rd] appellant is the sister of the deceased, and in this judgment, this Court has already granted an amount of Rs.40,000/- (Rupees forty thousand ``` MACA NO. 382 OF 2013 ``` ``` 10 ``` only) to her as loss of consortium in the peculiar facts of this case. Since appellants 1 and 2 are the parents, I deem it appropriate to set apart the amount of compensation except Rs.40,000/- referred to above to the said appellants, which shall be divided among them in equal proportions. This appeal is disposed of accordingly by modifying the impugned award. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs