Ambika C.R. and Others v. Balakrishnan and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 ``` ``` MACA NO. 2230 OF 2012 ``` ``` AGAINST THE AWARD IN O.P(M.V) NO.825/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY. ``` ## **`APPELLANTS/1ST, 2ND & 4TH PETITIONERS:`** ``` 1AMBIKA C.R, AGED 39 YEARS, W/O.LATE KIRAN,"ARCHANA",VELLAD AMSOM,KANIYANCHAL,PO:VELLAD,VIA ALAKKOD,KANNUR DISTRICT. 2AKSHAY KIRAN, AGED 15 YEARS S/O.LATE KIRAN,MINOR THROUGH NEXT FRIEND MOTHER AMBIKA.C.R, ARCHANA VELLAD AMSOM,KANIYANCHAL.P.O:VALLAD,VIA.ALAKKODE,KANNUR DISTRICT. 3SAROJINI.P.D AGED 64 YEARS W/O.P.V.RAMACHANDRAN,ARCHANA,VELLAD AMSOM,P.O.VELLAD,KANIYANCHAL,VIA ALAKKODE. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1A. BALAKRISHNAN, PODIPALLAM HOUSE,(FATHER'S NAME NOT KNOWN)PO:PANYAL,VIA,BAKKAL,KASARAGOD DISTRICT, PIN-671315.(OWNER OF CAR.KL-41C.4148) 2THIRUVAMKOLLI SHAHANAS, S/O.MUHAMMED KUNHI,NELLIYADUKKAM,PANAYAL.P.O,KASARAGOD DISTRICT,PIN-671315(DRIVER OF CAR.KL.41C.4148) 3M/S.UNITED INDIA INSURANCE CO.LTD, PB.NO.29,SECOND FLOOR,NITHIANANDA BUILDING,KOTTACHERI,KASARAGOD.PIN-671315,POLICY NO.100804/31/04/00478. BY ADVS. SRI.P.A.FIROZKHAN SRI.N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2230/2012 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 14[th] day of March, 2023.** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Thalassery (for short, ‘the Tribunal’) on 27.12.2011 in O.P.(M.V) No.825 of 2005. The appellants are petitioners before the Tribunal. The challenge was against the meagre sums stood awarded by the Tribunal as compensation under different heads. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 4 and respondents 1 to 3 in accordance with their status in the Original Petition. 3. According to the petitioners, a motor accident was occurred at about 7.15 am on 17.04.2005 at Keecheri in Kannur-Karuvanchal road. One Mr.Kiran was driving a Maruthi Car bearing Registration No.KL 7AN/688 from Kannur to Karuvanchal and another car bearing Registration No.KL ``` MACA NO. 2230/2012 ``` ``` 3 ``` 14C/4148 dashed against the same and thereby, he sustained serious injuries. He died at the spot of accident itself. Alleging that the driver of the Car bearing Registration No. KL 14C/4148 has caused the motor accident by his rash and negligent driving and claiming for a total sum of `1,60,000/-, as compensation the Original Petition on hand was filed before the Tribunal. 4. The owner, the driver and the insurer of the Car referred to above were arrayed as respondents 1 to 3 in the Original Petition. All of them were served with notice. Respondents 1 and 2 filed a written statement jointly contending that the 2[nd] respondent was driving the Car carefully and therefore, was not responsible for causing the accident and that the claims of the petitioners about the age, occupation and the monthly income of the deceased are subject to proof. Issuance of a policy for the car and coverage of the risk of the petitioner under it were admitted. ``` MACA NO. 2230/2012 ``` ``` 4 ``` 5. The 3[rd] respondent has also filed written statement. Negligence and responsibility for the motor accident were alleged against the 2[nd] respondent and the claims of the petitioners about the age, occupation and monthly income were disputed. Issuance of a policy for the vehicle is admitted. 6. Petitioners adduced evidence and it consists of the oral evidence tendered by the wife of the deceased as PW1 and Exts.A1 to A8. 7. On the basis of the evidence on record, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Car bearing Registration No. KL 14C/4148 by the 2[nd] respondent. The Tribunal also found that the victim died due to the injuries sustained in the motor accident and therefore, the petitioners as his legal representatives are entitled to get compensation from the respondents. `14,80,000/- was arrived at as the compensation payable and the 3[rd] respondent was directed to deposit the same ``` MACA NO. 2230/2012 ``` ``` 5 ``` with interest at the rate of 7.5% per annum from the date on which the Original Petition was filed, till the date on which the amount with proportionate cost was realised. 8. According to the learned counsel, a certificate was marked in evidence as Ext.A8, where occupation of the deceased was certified as a Sub Inspector in Kunnathunadu Police Station in Ernakulam District and earning as `10,770/monthly. According to him, the Tribunal relied on the certificate, but deducted 30% from the income in consideration of the income tax payable. The Tribunal is alleged as unjustified in doing so. According to him, the Tribunal ought to have taken `10,770/- itself as the salary for calculation of compensation for loss of dependency. According to him, the Tribunal failed also to award reasonable compensation towards funeral expenses and loss of estate. It is found that against a claim of `10,000/- towards funeral expenses, the Tribunal has awarded `5,000/- and `5,000/- towards loss of estate. The ``` MACA NO. 2230/2012 ``` ``` 6 ``` learned counsel canvassed for awarding `10,000/- itself as compensation towards funeral expenses. 9. The learned counsel further contended that against a claim of `50,000/-, `5,000/- stood awarded by the Tribunal as compensation towards pain and suffering. According to him, `50,000/- ought to have been awarded by the Tribunal as compensation under that head. It is also pointed out that as compensation towards loss of love and affection also, the Tribunal has awarded `5,000/- against a claim of `50,000/-. The learned counsel canvassed for grant of `50,000/- itself. As compensation towards loss of consortium, the learned counsel canvassed for grant of `50,000/- as compensation. 10. The Tribunal has adopted a correct and proper method while fixing the monthly income and there is no scope for any interference. 16 was adopted as the multiplier and that being the correct one applicable for the age of 31 years is maintained. Calculation of compensation for dependency does ``` MACA NO. 2230/2012 ``` ``` 7 ``` not deserve any interference in the context and therefore, is maintained. As per the direction of the Constitution Bench of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]** , petitioners are entitled to get `16,500/- each towards funeral expenses and loss of estate. `5,000/- stood awarded by the Tribunal under each of the heads when adjusted, petitioners will also get `11,500/- each additionally. The wife, the minor child and the mother being the surviving members of the family of the victim, as directed in **Pranay Sethi** supra, each of them are entitled to get `44,000/- as compensation towards loss of consortium and thus `1,32,000/- (`44,000/- x 3) is arrived at. `10,000/- stood awarded by the Tribunal under that head when adjusted against the above sum, petitioners will get `1,22,000/as additional compensation towards loss of consortium. Thus the total additional compensation payable is `1,45,000/-. 11. It is settled that the legal representatives of a victim, who died in a motor accident are not entitled to get any ``` MACA NO. 2230/2012 ``` ``` 8 ``` compensation towards loss of love and affection and pain and sufferings. Therefore, `10,000/- (`5,000/- each) stood awarded by the Tribunal under the above heads, needs to be deducted from total additional compensation now arrived at and therefore, the petitioners will get `1,35,000/- (Rupees One Lakh Thirty Five Thousand only) [(`11,500/- + `11,500/- + `1,22,000/-) - (`5,000/- + `5,000/-)] with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding the period from 17.12.2021 till 14.10.2022 for which the Original Petition stood dismissed for default and 186 days, being the period for which the filing of the appeal on hand was delayed. 12. The liability of the 3[rd] respondent to indemnify the insured was not under challenge. Therefore, the 3[rd] respondent shall pay the additional compensation with interest at the rate fixed as above within a period of two months from the date on which a certified copy of this judgment is received, in ``` MACA NO. 2230/2012 ``` ``` 9 ``` accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. **`Sd`** /- **MARY JOSEPH** **JUDGE** JJ