Ajikumar V.H. and others v. N. Haridasan and United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 ``` ``` MACA NO. 503 OF 2013 ``` ``` AGAINST THE AWARD DATED 15.10.2012 IN O.P(M.V) NO.1787/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1AJIKUMAR.V.H., AGED 42 YEARS, SON OF N.HARIDASAN, 2GEETHA.V.H, AGED 40 YEARS, DAUGHTER OF N.HARIDASAN 3ISHA.E.H, AGED 37 YEARS, DAUGHTER OF N.HARIDASAN, (ALL APPELLANTS ARE RESIDING ATEDAMPADAM HOUSE, VALAMTHURUTHY ROAD, THEKKUMBHAGOM, TRIPUNITHURA.P.O, ERNAKULAM.) BY ADVS.SRI.ANIL S.RAJ SMT.ANILA PETER SMT.C.PRABITHA SMT.K.N.RAJANI SRI.J.VIVEK GEORGE ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1N.HARIDASAN, AGED 70 YEARS, S/O.NANU, EDAMPADAM HOUSE, VALAMTHURUTHY ROAD, THEKKUMBHAGOM, TRIPUNITHURA.P.O, ERNAKULAM, PIN-682301. 2THE UNITED INDIA INSURANCE COMPANY LTD 4TH FLOOR,JOS TRUST BUILDING, CHITTOOR ROAD,COCHIN 682035. 3NISHA, W/O.VINOD, AGE NOT KNOWN TO THE PETITIONER, PARATHIL HOUSE, ANANTHAPURAM.P.O, ALATHUR 680 323. BY ADVS. R2 BY SRI.P.V.JYOTHI PRASAD SRI.S.K.AJAY KUMAR R3 BY SRI.M.N.MANOJ SRI.V.C.VALSAN ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON`** ``` 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.503 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 06[th] day of March, 2023** This appeal is filed directed against an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 15.10.2012 in O.P(M.V) No.1787/2011. The appellants are the petitioners before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The petitioners have claimed a sum of ₹5,00,000/- as compensation for the death of their mother in a motor accident occurred at 7.30 pm on 17.08.2011. She was pillion riding on a Motorcycle bearing Registration No.KL 07 AX 5820 ridden by her husband through Tripunithura Market- Puthiyakavu road. When the Motorcycle reached Mekkara, due to the rash and negligent riding and applying of break all on a sudden by the rider, she was thrown from the rear seat of the motorcycle on the road ``` M.A.C.A.No.503 of 2013 ``` ``` 3 ``` and sustained serious injuries. She was taken to Medical Trust Hospital, Ernakulam for treatment. While undergoing treatment, she succumbed to the serious injuries sustained. The children of the deceased as her legal representatives have filed the Original Petition on hand seeking for compensation. 4. The rider, the insurer and the owner of the Motorcycle were arrayed as respondents 1 to 3 in the Original Petition. Though notice was served, respondents 1 and 3 did not turn up to contest the Original Petition and accordingly declared _ex parte_ . The 2[nd] respondent filed written statement admitting insurance coverage for the Motorcycle involved in the motor accident as on date. It was contended that the motor accident was occurred not due to negligence of the 1[st] respondent but due to negligence of the deceased. Contention was also raised that the petitioners are not dependents of the deceased. The sum claimed as compensation is also disputed for being exorbitant. The claim petition was sought to be dismissed by the 2[nd] respondent. ``` M.A.C.A.No.503 of 2013 ``` ``` 4 ``` 5. Before the Tribunal Exts.A1 to A4 were marked on the side of the petitioners. The respondents did not adduce any evidence. On the basis of the evidence adduced by the petitioners, the Tribunal arrived at ₹3,77,500/- as the compensation payable and directed the 2[nd] respondent, insurer, to deposit the same with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation, within 30 days from the date of the award. Proportionate cost was also ordered. Aggrieved by the quantum stands awarded as compensation, the petitioners approached this Court in the appeal on hand. 6. It is contended by Smt.Rajani K N, the learned counsel for the petitioners that though the petitioners raised a claim that the deceased was a tailor and also doing business in ready mades earning ₹7,500/- as monthly income, the Tribunal opted to fix the monthly income as ₹3,000/- on a notional basis. According to her, only on refixing the monthly income, compensation awarded for loss of dependency would be just and reasonable. The learned counsel has also pointed out that the Tribunal failed to award ``` M.A.C.A.No.503 of 2013 ``` ``` 5 ``` compensation as directed by the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]** towards loss of consortium, loss of estate and funeral expenses. The learned counsel canvassed for a refixation of the compensation under the conventional heads. The learned counsel also canvassed for an addition of 10% to the monthly income fixed in consideration of loss of future prospects. 7. The learned counsel for the 2[nd] respondent urged that the Tribunal while assessing compensation towards loss of dependency failed to deduct the personal expenditure of the deceased and therefore the calculation is wrong. 8. Petitioners failed to adduce evidence to establish the occupation and the monthly income of the deceased. Thus, the Tribunal fixed ₹3,000/- as the monthly income on a notional basis. Since the motor accident was occurred in the year 2011, this Court feels it appropriate to refix the monthly income as ₹7,000/-. 10% is added to that in consideration of loss of future prospects. Thus ₹7,700/- is ``` M.A.C.A.No.503 of 2013 ``` ``` 6 ``` arrived at. ‘9’ was adopted as the multiplier by the Tribunal and it being correct is maintained. Deceased was survived by three members and therefore 1/3[rd] of the monthly income is deducted in consideration of personal expenditure liable to be met with by the deceased, had she been alive after the motor accident. 9. When compensation for loss of dependency is re-assessed, ₹5,54,400/- is arrived at (₹7,700/- x 12 x 9 x 2/3). ₹3,24,000/- has already been awarded by the Tribunal and therefore the petitioner will get ₹2,30,400/- as additional compensation under that head. 10. As compensation towards loss of estate and funeral expenses, as directed by the Constitution Bench of the Apex Court in **Pranay Sethi** supra, the petitioners are entitled to get ₹16,500/- each. ₹5,000/- and ₹7,500/- are already awarded by the Tribunal and therefore, the petitioners will get ₹11,500/- and ₹9,000/- respectively as additional compensation under the above heads as additional compensation. ``` M.A.C.A.No.503 of 2013 ``` ``` 7 ``` 11. Petitioners being children of the deceased, are entitled to get ₹44,000/- per head as compensation for loss of consortium. Thus, ₹1,32,000/- is arrived at. ₹25,000/stands awarded by the Tribunal as compensation towards loss of love and affection when deducted therefrom, the petitioners will get ₹1,07,000/- as additional compensation. Petitioners are not entitled to get ₹15,000/- stands awarded by the Tribunal as compensation towards pain and suffering. 12. In the above reassessment, the petitioners will get ₹3,42,900/- (Rupees Three lakhs forty two thousand and nine hundred only) [(₹2,30,400/- + ₹11,500/- + ₹9,000/+ ₹1,07,000/-) - ₹15,000/-] as additional compensation and it will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 13. The husband of the deceased being the tortfeasor, the Tribunal found him disentitled to get any share from the compensation awarded. Accordingly, it directed the compensation to be apportioned among the three children of the deceased who are the petitioners before ``` M.A.C.A.No.503 of 2013 ``` ``` 8 ``` the Tribunal. The apportionment as above is maintained. The Tribunal deducted 55% of the compensation arrived at for the reason that the husband of the deceased himself was negligent and responsible for the motor accident to occur. The Tribunal is not justified in doing so and this Court reverses it. Therefore, each of the petitioners will get 1/3[rd] of the entire compensation stands originally awarded by the Tribunal and also of the additional compensation. The 2[nd] respondent shall pay the above sum with interest fixed thereon within a period of two months from the date on which a certified copy of this judgment is received in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. **MARY JOSEPH JUDGE** NAB