Aliyamma Varghese and Roshin Varghese v Subin K.V. (Soni) and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939 MACA.No. 2655 of 2012 ------------------------AGAINST THE AWARD IN OPMV 502/2008 of MACT, MUVATTUPUZHA, DATED 06-06-2012 APPELLANT(S)/PETITIONERS:- - 1 ALIYAMMA VARGHESE - W/O.LATE VARGHESE, AGED 46 YEARS, KANIYAMPURTH HOUSE, ONAKKOOR, PIRAMADAM P.O., MUVATTUPUZHA. ## 2 ROSHIN VARGHESE, - S/O.LATE VARGHESE, AGED 24 YEARS, KANIYAMPURTH HOUSE, ONAKKOOR, PIRAMADAM P.O., MUVATTUPUZHA. BY ADV.SRI.SOORAJ T.ELENJICKAL RESPONDENT(S):RESPONDENTS 1. SUBIN K.V. @ SONI - S/O.LATE VARGHESE, KANIYAMPURTH HOUSE, ONAKKOOR, PIRAMADAM P.O., MUVATTUPUZHA - 686 667. 2. SAMEER MOIDEEN, S/O.MOIDEEN, PARAMBATTIL HOUSE, KANJAR P.O., THODUPUZHA - 685 590. 3. THE NEW INDIA ASSURANCE CO.LTD., MADAPARAMBIL CHAMBERS, M.C.ROAD, MUVATTUPUZHA - 686 661. 4. BIJU V.ALIAS, S/O.ALIAS, VATHYAPPILLIL HOUSE, SOUTH MARADY P.O., MUVATTUPUZHA - 685 620. 5. JIBY ISSAC, S/O.ISSAC, NEDUMPURATHU HOUSE, S.MARADY P.O., MUVATTUPUZHA - 685 620. 6. THE NEW INDIA ASSURANCE CO.LTD., MADAPARAMBIL CHAMBERS, M.C.ROAD, MUVATTUPUZHA - 686 661. R6 BY ADV. SRI.LAL K.JOSEPH R3 BY ADV. SRI.A.A.ZIYAD RAHMAN R6 BY ADV. SRI.A.K.MOHAMED ALI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2018 **,** THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.2655 OF 2012 ==========================** Dated this the 20[th] day of February, 2018 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the award dated 6.6.2012 in O.P. (MV) No.502 of 2008 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha. In a collision between an autorickshaw bearing Reg.No.KL-7BB-3724 and a Swaraj Mazda lorry bearing Reg.No.KL-8A-7882, the passenger in the autorickshaw sustained injuries and later succumbed to them. The appellants/petitioners, are the wife and son of the said victim viz., late Sri.Varghese @ Vakkachan. The accident had occurred when the first respondent who is also the son of the deceased was driving the autorickshaw through Piravom-Muvattupuzha public road. The first respondent drove the autorickshaw rashly and negligently and hit on the rear side of the lorry stationed at the northern side of the road. Varghese succumbed **M.A.C.A.2655/2012** 2 to the injuries on the same day itself. In the claim petition, it was averred that Varghese was then aged 50 years and he was a casual worker earning monthly an amount of Rs.4,500/-. The claim petition was filed limiting the compensation to Rs.2,00,000/-. The Tribunal, as per the impugned award, granted a total compensation of Rs.2,58,500/-. The appellants seek for enhancement of the said quantum of compensation in this appeal. 2. We have heard the learned counsel for the appellants and also the learned counsel for respondent No.3. Though notice was issued to respondents 1 and 2, they did not enter appearance to contest the appeal. It is to be noted that both the vehicles involved in the accident were insured with the same insurance company, viz., the New India Assurance Company Ltd. Issuance of notice to respondents 4 to 6 was withheld as per order dated 12.12.12. 3. Apparently, there is mistake in the appendix. It seems that the appendix of another claim petition was wrongly incorporated as appendix in this case. Hence, we called for the records pertaining to O.P.(MV) No.502 of 2008. **M.A.C.A.2655/2012** 3 4. The appellants who are the legal heirs of deceased Varghese seek for enhancement of the quantum of compensation awarded by the Tribunal raising various grounds. It is the contention that disregarding the averment that the deceased was a casual worker aged 50 years and was earning Rs.4,500/- as the monthly income, the Tribunal had fixed the monthly income notionally so meagrely for calculation purpose as Rs.3,000/-. The learned counsel further submitted that the Tribunal went wrong in identifying the multiplier. It is also the contention that the compensation granted under the heads loss of consortium, loss of love and affection and funeral expenses is also on the lower side. 5. The learned counsel for the insurance company submitted that though the appellants limited the claim to Rs.2,00,000/-, the Tribunal has granted compensation in excess of the same and therefore, the appellants cannot be said to be aggrieved by the impugned award. It is further submitted that the first respondent was not having a badge or even a valid driving licence to drive an autorickshaw. It is also the contention that the autorickshaw was not **M.A.C.A.2655/2012** 4 having valid permit. The Tribunal had considered the question whether the first respondent who was driving the autorickshaw was having a valid driving licence and badge. In fact, respondents 1 and 2 remained ex parte before the Tribunal. However, pursuant to an order passed by the Tribunal in I.A.No.795/2011 to produce the permit and driving licence of the first respondent, the driving licence was produced. On verification, it was found that it was not valid at the time of the accident. Evidently, the Tribunal, in such circumstances, held that the third respondent insurer of the autorickshaw is entitled to recover the amount awarded. Despite such findings, neither the first respondent nor the second respondent preferred any appeal against the award in O.P.(MV) No.502/2008. As noticed hereinbefore, even after receipt of notice in this proceedings, they did not enter appearance to contest the appeal. 6. In support of the claim for enhancement of the compensation, the appellants have raised various contentions. As noticed hereinbefore, the main grievance of the appellants is that the Tribunal erroneously fixed the monthly income as Rs.3,000/- as against a claim **M.A.C.A.2655/2012** 5 of Rs.4,500/-. However, it is a fact that the appellants had not adduced any evidence to establish the claim regarding income of the deceased. True that there can be no question of producing any cogent evidence regarding income when one claims to be a casual worker. But that cannot be a reason for not considering the grievance relating fixation of the monthly income. 7. The accident had occurred on 7.10.2007. The averments in the claim petition is to the effect that the deceased was a casual worker. In this context, the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** can act as guidance. In that case, in respect of a coolie who met with an accident in the year 2004, the Apex Court fixed the monthly income notionally as Rs.4,500/-. Taking into account the fact that the accident had occurred in the year 2007 and he was then aged 50 years and that the appellants had claimed only an amount of Rs.4,500/- as monthly income of the deceased, we are of the considered view that there is no reason to disbelieve the said claim. In other words, the monthly income of the **M.A.C.A.2655/2012** 6 deceased as claimed by the appellants is only to be accepted and fixed as his monthly income for calculation purpose. We do so. With respect to the grievance of the appellants regarding the identification of the multiplier, there is no substance in the contention. True that in the claim petition it was averred that the deceased was aged 50 years at the time of the accident. However, the post mortem certificate would go to show that he was aged 55 years. The appellants had not adduced any evidence to prove the correct date of birth of the deceased. In such circumstances, the Tribunal was right in adopting the multiplier as '9' which is applicable to the age group 51-55 years. The Tribunal had rightly deducted 1/3 of the income towards the personal and living expenses of the deceased taking into account the number of surviving dependants. In short, a re-assessment of the compensation for loss of dependency is to be made only by substituting the re-fixed monthly income. On such re-assessment, the amount payable thereunder is Rs.3,24,000/- (4500x12x9x2/3). The Tribunal had already awarded a sum of Rs.2,16,000/- thereunder. Hence, the appellants are entitled to get an additional compensation of **M.A.C.A.2655/2012** 7 Rs.1,08,000/- under the said head. 8. We will now proceed to consider whether the compensation granted under other heads requires an upward modification. Towards loss of consortium, the Tribunal had awarded a sum of Rs.15,000/-. Taking into account the fact that the accident had occurred on 7.10.2007 and that the first appellant, the widow of the deceased Varghese was then aged 42 years, we are of the view that she is entitled to get the benefit of the decision of the Hon'ble Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54].** Going by the same, she is entitled to get an amount of Rs.1,00,000/towards loss of consortium. After deducting the amount already awarded by the Tribunal, the first appellant is entitled to get an additional compensation of Rs.85,000/- under this head. Towards loss of love and affection, the Tribunal had awarded a sum of Rs.15,000/to the second appellant who is one of the sons of the deceased. The first respondent is also a son of the deceased. Being the tort feasor, he is not entitled to get compensation under any head. The second appellant was aged 20 years at the time of accidental death of his **M.A.C.A.2655/2012** 8 father. Hence, we are inclined to grant Rs.15,000/- more to the second appellant towards loss of love and affection. No amount was awarded by the Tribunal towards transportation expenses and also damage to clothing. Evidently, after the accident, Varghese was taken to hospital and he breathed his last from the hospital. Evidently, after the post mortem, the body was brought back home. In such circumstances, we are inclined to grant Rs.1,000/- towards transportation expenses and also an amount of Rs.1,000/- towards damage to clothing. Towards funeral expenses, the Tribunal awarded case a sum of Rs.5,000/-. In the light of the decision in **Rajesh's** (supra), the appellants are entitled to get an additional sum of Rs.20,000/- under the said head. Towards loss of estate, the Tribunal awarded only a sum of Rs.2,500/- as against a claim of Rs.5,000/-. We are inclined to grant a sum of Rs.2,500/- additionally under the said head. In the light of the discussions as above, the appellants are entitled to get an additional compensation of Rs.2,32,500/-. The insurance company is directed to deposit the said amount before the Tribunal to satisfy the award along with interest at the rate of 8% from **M.A.C.A.2655/2012** 9 the date of the petition till realisation within a period of two months from the date of receipt of a copy of this judgment. We maintain the liberty granted to the third respondent to recover the same from the second respondent, the insured owner of the autorickshaw. Appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/** # **M.A.C.A.2655/2012** 10 # **M.A.C.A.2655/2012** 11