Ammini Aravindakshan and others v. The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 20[TH] DAY OF OCTOBER 2021 / 28TH ASWINA,** **1943** **MACA NO. 2424 OF 2012** **AGAINST THE AWARD IN OP(MV)NO.506/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM DATED 23.5.2012** ## **APPELLANTS/PETITIONERS :** **1 AMMINI ARAVINDAKSHAN, ITTIYARATHIL HOUSE, THALAYOLAPARAMBU P.O., KOTTAYAM.** **2 AKHILAMOL A., D/O.ARAVINDAKSHAN, ITTIYARATHIL HOUSE, THALAYOLAPARAMBU P.O., KOTTAYAM.** - **3 ARUNKUMAR A.,** **S/O.ARAVINDAKSHAN, ITTIYARATHIL HOUSE, THALAYOLAPARAMBU P.O., KOTTAYAM.** **BY ADVS.** **SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE** MACA No.2424 of 2012 ..2.. ## **RESPONDENTS/RESPONDENTS:** **1 SAJITH, THEKKINKATTUMALAYIL, CHIRAPPURAM BHAGOM, ENADI P.O., CHEMBU-686608. 2 SREEKANTH, SREEVASAM, ENADI P.O., VAIKOM-686608. 3 THE NEW INDIA ASSURANCE CO. LTD., KOTTAYAM-696001 BY ADVS. SRI.GEORGE CHERIAN SR. SRI.JEEMON P.ABRAHAM SMT.LATHA SUSAN CHERIAN SMT.T.J.MARIA GORETTI SRI.RAJAN P.KALIYATH SRI.N.C.SAJITH SRI.P.M.SAJITHA SMT.K.S.SANTHI, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2424 of 2012 ..3.. ## **M.A.C.A.No.2424 of 2012** ## **-------------------------------------------------------** ## **J U D G M E N T** The legal heirs of late Sri.Aravindakshan, who died in a motor accident occurred on 02.02.2008 at about 7.30 p.m. while walking through the road, who was hit down by the motorcycle bearing registration No.KL 36/6588 ridden by the first respondent in a rash and negligent manner, are the appellants herein. 2. Heard the learned counsel on both sides. 3. The petitioners claimed Rs.10 lakh as compensation. The second respondent was set ex-parte by the Tribunal. 4. The third respondent, the New India Assurance Company filed a written statement admitting the policy and disputing the liability. The amount claimed under various heads also were disputed. MACA No.2424 of 2012 ..4.. 5. The first respondent filed a written statement highlighting the policy of the third respondent and disputing the accident as well as the negligence. The Tribunal did not adduce any oral evidence. Exts.A1 to A17 marked on the side of the petitioners and Ext.B1 was marked on the side of the insurance company. After having considered the claim on the basis of the available evidence, the Tribunal granted Rs.4,56,055/- as against the claim of Rs.10 lakh. 6. It is submitted by the learned counsel for the appellants that the multiplier fixed by the Tribunal, taking note of the age of the dependants, was too low and actually the deceased was in age group between 51-55 and hence the multiplier required to be fixed as '11'(eleven) applicable to the age group between 51-55. 7. The said aspect is not disputed by the learned counsel for the insurance company taking note of the settled legal position in **Sarla Verma v. Delhi Transport Corporation** MACA No.2424 of 2012 ..5.. [2010 (2) KLT 802]. 8. On a perusal of Ext.A15, copy of the first page of the SSLC book of Sri. Aravindakshan would show that he was born on 26.09.1952 and as on the date of accident, he had completed 55 years. In view of the matter, '11' (eleven) is the proper multiplier to be applied in this case. 9. It is argued by the learned counsel for the appellants further that the monthly income fixed by the Tribunal is also on the lower side. According to the learned counsel, the appellants claimed Rs.7,500/- as the monthly income being a mason. But the Tribunal fixed a monthly income at the rate of Rs.4,500/-. 10. Law is no more _res integrae_ in the matter of monthly income in the case of persons who do not have documents to prove the monthly income being coolie workers. The Honourable Supreme Court held in **Ramachandrappa v.** ## **Manager, Royal Sundaram Alliance Insurance Company** MACA No.2424 of 2012 ..6.. **Ltd.** [(2011) 13 SCC 236] that the monthly income of a coolie worker during 2004 can be at Rs.4,000/- per month. Similarly, in the decision reported in **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735], the Honourable Supreme Court held that during 2008, a vegetable vendor would fetch Rs.6,500/- per month. If the ratio of the rulings applied to the facts of this case, definitely the monthly income of the deceased who was a mason to be fixed at Rs.6,500/-. Thus, the loss of dependency income calculated by the Tribunal required to be interfered. It is not in dispute that, following the ratio in **National Insurance Company Ltd. v. Pranay Sethi & Ors.** [2017 16 SCC 650] that the income of the deceased herein required to be increased by 10% more being future prospects. Thus, the loss of dependency income is recalculated as follows; 6,500+10% additional =7,150 7,150x12x11x2/3 = Rs.6,29,200/- MACA No.2424 of 2012 ..7.. Rs.6,29,200–3,24,000 = **Rs.3,05,200/-** more is entitled to the appellants. 11. Coming to the other heads, the Tribunal granted Rs.25,000/- under the head pain and sufferings and Rs.20,000/under the head loss of love and affection. The said amount cannot be granted in view of the ratio of the decision in **United India Insurance Co.Ltd. v. Satinder Kaur** [AIR 2020 SC 3076] So, the said amount is liable to be reduced. At the same time, loss of consortium granted by the Tribunal is only Rs.15,000/- and in fact, the appellants are entitled to get loss of consortium at the rate of Rs.40,000/- each. Thus, **Rs.1,05,000/-** more also granted under the head loss of consortium. Apart from that, the appellants are entitled to get **Rs.9,000/-** more under the head funeral expenses, since the Tribunal granted only Rs.6,000/under the said head. The Tribunal granted only Rs.10,000/-under the head loss of estate though the appellants are entitled to get Rs.15,000/-. Thus, **Rs.5,000/-** more under this head also is MACA No.2424 of 2012 ..8.. granted following the principle in **Satinder Kaur'** s case ( _supra_ ). Thus, the amount entitled by the appellants is recalculated as Rs.3,05,200+1,05,000+9,000+5,000–45,000=Rs.3,79,200/-. In the result, this appeal is allowed in part. The appellants are found entitled to a further amount of Rs.3,79,200/(Rupees Three lakh Seventy Nine Thousand Two Hundred only) in addition to the amount already awarded by the Tribunal under the impugned award. The entire amount of compensation shall carry interest at the rate of 7.5% granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellants in equal proportion within two months from today. Sd/ **A.BADHARUDEEN, JUDGE** rkj