Ajitha and others v. S.M. Nazeer and Remesan and The Oriental Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 ``` ## **`MACA NO. 874 OF 2013`** ``` AGAINST THE AWARD DATED 23.03.2012 IN O.P(M.V) NO.621/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANTS/PETITIONERS:`** 1 `AJITHA, LATE REMESH KUMAR, PATHINETTIL CHIRA, KAKKAZHAM, KOMANA, AMBALAPPUZHA.` 2 `KARTHIKEYAN (MINOR AGED 9 YEARS) S/O.REMESH KUAMAR, -DO- -DO-` 3 `VAISAKH (MINOR AGED 7 YEARS), S/O REMESH KUMAR, -DO- -DO-` 4 `JAGADAMMA, W/O.R.DAMODARAN, -DO- -DO-` 5 `R.DAMODARAN, -DO- -DO(THE MINOR APPELLANTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER AND NEXT FRIEND, THE 1ST APPELLANT) BY ADV. SRI.R.AZAD BABU` ## **`RESPONDENTS/RESPONDENTS:`** 1 `S.M.NAZEER, S/O.MUHAMMED, PARAMBIL (H), ALISSERY, ALAPPUZHA – 688 01.` 2 `REMESAN, S/O.DIVAKARAN, THAYYIL (H), SANATHANPURAM P.O, KALARCODE, ALAPPUZHA- 688 003.` 3 `THE ORIENTAL INSURANCE CO.LTD, REP: BY ITS BRANCH MANAGER, ALAPPUZHA – 688 010. BY ADVS. R3 BY SMT.A.SREEKALA SRI.GEORGE CHERIAN, SC` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HERD ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.874 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 13[th ] day of February, 2023** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Alappuzha (for short ‘the Tribunal’) on 23.03.2012 in O.P(M.V) No.621/2007. 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. Appellants are the petitioners before the Tribunal and they are the legal representatives of one Ramesh Kumar, who died in a motor accident occurred at about 2.15 am on 29.04.2006. He was riding a Motorcycle through AlapuzhaErnakulam NH-47 and when reached at Kuravanthodu Junction, was knocked down by an Ambassador Car bearing Registration No.KL 4D 9691 driven by its driver in a rash and negligent manner and thereby sustained injuries. The car was overtaking a Lorry carelessly and thereby hit against the ``` M.A.C.A.No.874 of 2013 ``` ``` 3 ``` Motorcycle ridden by Ramesh Kumar. He was survived by his wife, two minor children and parents. Alleging that the motor accident was occurred due to the rash and negligent driving of the Ambassador Car by its driver and raising a claim for ₹13,00,000/- as compensation, the above Original Petition was filed by the petitioners before the Tribunal. 4. The driver, owner and insurer of the Ambassador Car numbered as above were arrayed as respondents 1 to 3 in the Original Petition. Steps were not taken to serve notice on the 1[st] respondent and therefore, the claim against the 1[st] respondent was disallowed. The 2[nd] respondent was served with notice but did not turn up to contest the Original Petition and therefore declared ex parte. The 3[rd] respondent had filed written statement admitting insurance coverage for the offending Ambassador Car as on date of accident. 5. It was contended that the motor accident was occurred due to the careless and negligent riding of the Motorcycle by the deceased. The age, occupation and the monthly income of the deceased were disputed. Compensation claimed is also disputed for its exorbitant nature. The 3[rd] ``` M.A.C.A.No.874 of 2013 ``` ``` 4 ``` respondent had also obtained permission to contest the Original Petition availing all statutory defences. 6. Before the Tribunal, the petitioners examined the wife of the deceased as PW1 and his employer as PW2. Exts.A1 to A7 were also marked. On the side of the respondent, evidence was not adduced. On appreciation of the evidence on record the Tribunal found that the driver of the Ambassador Car by his rash and negligent driving has caused the motor accident. It was also found that on account of the death of Ramesh Kumar in the motor accident, the petitioners are entitled to get compensation. ₹5,09,000/- was arrived at as the quantum of compensation payable. The 3[rd] respondent being the insurer was directed to deposit the compensation arrived at with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation alongwith ₹5,090/- as cost. 7. According to Sri.Azad Babu, the learned counsel for the petitioners, though the petitioners had taken a specific plea in the Original Petition that the deceased has ₹7,000/- as monthly income, examined the employer as PW2 and the wife ``` M.A.C.A.No.874 of 2013 ``` ``` 5 ``` of the deceased as PW1, the Tribunal fixed only ₹3,000/- as the monthly income on a notional basis and compensation was also assessed on its basis. According to him, the monthly income fixed is too low and a re-fixation of it is necessary in the interest of justice. It is further pointed out by the learned counsel that under the conventional heads viz, loss of estate, funeral expenses and loss of consortium also the Tribunal failed to award the exact sum for which the petitioners are entitled to as per the fixation of those by the Constitution Bench of Apex Court in National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]. 8. The learned counsel has also pointed out that the deceased being a driver by profession, 40% is required to be added to his monthly income in consideration of loss of future prospects. The learned counsel canvassed for a modification of the compensation stands awarded by the Tribunal duly considering all aspects now drawn by him to the attention of this Court. 9. The learned counsel for the 3[rd] respondent has contended that the amount stands awarded as compensation ``` M.A.C.A.No.874 of 2013 ``` ``` 6 ``` under various heads being just and reasonable, interference is unwarranted. According to him, the Tribunal is justified in fixing the monthly income notionally as ₹3,000/- since the petitioners failed to prove it by cogent and convincing evidence. 10. The accident was occurred in the year 2006. According to the petitioners the deceased was a driver by profession earning ₹7,000/- monthly from one Mr.Yunuz, his employer. He was examined before the Tribunal as PW2. PW2 gave a version that the deceased was employed as a driver by him for a monthly salary of ₹7,000/-. 11. But, during cross examination he was not in a position to say what was the exact sum paid respectively as salary and other allowances. He has also gone to the extent of stating that a document evidencing the appointment of the deceased as a driver is not available with him. He has further stated that materials evidencing the payment of salary are not available with him. He also denied to have any idea about the membership of the deceased in Motor Transport Worker’s Welfare Fund and payment by him of any contribution to the ``` M.A.C.A.No.874 of 2013 ``` ``` 7 ``` fund for the benefit of the deceased as his employer. Therefore, the Tribunal discarded the oral evidence tendered by PW2 and has opted to fix his monthly income as ₹3,000/notionally. 12. The accident being occurred in the year 2006, this Court finds it reasonable to fix ₹6,000/- as the monthly income of the deceased. The Apex Court in Pranay Sethi supra has directed addition of a sum to the monthly income based on the age of the deceased in consideration of loss of future prospects in the case of self employed persons and those permanently employed with a fixed salary. Evidence is not forthcoming in the case on hand to establish the nature of employment of the petitioner. His specific claim was also that he was working under another man. Therefore, the direction in Pranay Sethi supra to add a sum to the monthly income of the deceased in consideration of future prospects cannot be applied in the case on hand. When compensation for loss of dependency is calculated on the basis of ₹6,000/- taken as the modified monthly income, maintaining 17 as the multiplier and deduction of 1/4[th] in consideration of personal expenditure ``` M.A.C.A.No.874 of 2013 ``` ``` 8 ``` that would be met with by the deceased, had he been alive, ₹9,18,000/- [(₹6,000/- x 12 x 17) x ¾ ]is found payable. ₹4,59,000/- stands awarded by the Tribunal when adjusted against, the petitioner will get ₹4,59,000/- as additional compensation. 13. It is noted from the impugned award that the Tribunal failed to award any compensation under the head loss of estate. The petitioners are entitled to get ₹16,500/and therefore, this Court awards so. Towards funeral expenses, the Tribunal has awarded ₹5,000/- whereas the petitioners are entitled to get ₹16,500/-. When the amount stands awarded is adjusted against, petitioners will get ₹11,500/- as additional compensation. Under the head loss of consortium, each of the five surviving members are entitled to get ₹44,000/- and therefore, ₹2,20,000/- (₹44,000/- x 5) is arrived at. The Tribunal has awarded ₹10,000/- and when that amount is adjusted against, the petitioners will get ₹2,10,000/- (₹2,20,000/- - ₹10,000/-) as total additional compensation for loss of consortium. ``` M.A.C.A.No.874 of 2013 ``` ``` 9 ``` 14. When calculated in the above manner, ₹6,97,000/(Rupees Six lakhs ninety seven thousand only) is arrived at. The petitioners are not entitled to get ₹30,000/- and ₹5,000/respectively stand awarded as compensation towards loss of love and affection and pain and suffering and those amounts are liable to be deducted from the sum arrived at as above. Therefore, the petitioners will get only ₹6,62,000/- (Rupees Six lakhs sixty two thousand only) (₹6,97,000/- - ₹35,000/-) as additional compensation. The said amount 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 excluding 130 days of delay occurred in filing the appeal. The 3[rd] respondent shall pay the additional compensation with interest fixed on it, to the petitioners within a period of two months from the date on which a certified copy of this judgment is received in accordance with the direction issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB