Ammini v. Vinod @ Ravi and Others

`MACA NO. 1679 OF 2014` 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ## **`MACA NO. 1679 OF 2014`** ``` AGAINST THE AWARD DATED 13.02.2014 IN OP(MV)NO.150/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA ``` ## **`APPELLANT/1ST PETITIONER:`** ``` AMMINI METHARAYIL VEEDU, KARUVATTA P.O, KARUVATTA. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SEBASTIAN SRI.A.R.DILEEP ``` ## **`RESPONDENTS / RESPONDENTS & PETITIONERS 2 TO 4:`** ``` 1VINOD @ RAVI, THIKKAPUZHAVEEDU, THIKKAPUZHA JUNCTION, PARUMALA KADAPRA- 689 630. 2PRADEEPKUMAR, AMPAKKATTUPARAMBU, THIKKAPUZHA JUNCTION, PARUMALA KADAPRA- 689 630. 3THE ORIENTAL INSURANCE CO. LTD.REP.BY ITS BRANCH MANAGER, BRANCH OFFICE KAYAMKULAM-690 502. 4RAJAMMA, MULASSERIL KIZHAKKATHIL, KARUVATTA PO, KARUVATTA - 690517. 5MAHESWARI, MULASSERIL KIZHAKKATHIL, KARUVATTA PO, KARUVATTA - 690517. 6MANIYAMMA, METHARAYIL VEEDU, KARUVATTA PO, KARUVATTA - 690517. 7MURALI, METHARAYIL VEEDU, KARUVATTA PO, KARUVATTA - 690517. 8SAKUNTHALA, METHARAYIL VEEDU, KARUVATTA PO, KARUVATTA - 690517. BY ADVS. SMT.A.SREEKALA SMT.PARVATHY NAIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `MACA NO. 1679 OF 2014` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 1679 of 2014 th Dated this the 10 day of November, 2023 ## JUDGMENT The appellant is the first petitioner in OP(MV)No.150/2006 on the files of the Motor Accidents Claims Tribunal, Mavelikkara. 2. The said claim petition was submitted by her along with respondents 6, 7 and 8 in this appeal, seeking compensation for the death of one Sukumaran due to the injuries sustained in a motorcycle that occurred on 17.11.2005. The appellant herein is the 1[st] wife, the respondents 4 and 5 herein, who were the additional 4[th] and 5[th] respondents in the claim petition, are the 2nd wife and the daughter of the deceased Sukumaran. 3. The accident occurred when the said Sukumaran was hit by a motorcycle bearing registration No.TR-9606/05A ridden by the first respondent in a rash and negligent manner. Immediately thereafter, he was taken to the Government Hospital, Haripad and later to the Medical College Hospital, Alappuzha. While undergoing treatment, he succumbed to the injuries on the next day. According to the claimants, the deceased, was aged 64 years at the time of the accident and was earning a monthly income of Rs.4000/- from his avocation as a coolie. The claim petition was submitted in such `MACA NO. 1679 OF 2014` 3 circumstances. 4. The third respondent/Insurance Company alone contested the matter. They admitted the coverage of the policy in respect of the vehicle. But they disputed the liability on various grounds. They also disputed the quantum of compensation. 5. The evidence in this case consists of oral testimony of PW1 and Ext.A1 to A7, which were marked from the side of the appellant. From the side of the respondents, DW1 was examined, and Exts.B1 to B3 were marked. 6. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the rider of the motorcycle and being the insurer of the said vehicle, the third respondent/Insurance Company was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,20,000/-, and the third respondent was directed to deposit the said amount along with interest @ 7.5% per annum from the date of petition till realisation with a proportionate cost of Rs.2500/-. This appeal is submitted in such circumstances seeking enhancement of compensation. 7. Heard Adv.Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing for the appellant and Adv.Smt.A.Sreekala, the learned counsel appearing for the third respondent-Insurance Company. `MACA NO. 1679 OF 2014` 4 8. The specific contention put forward by the learned counsel for the appellant is with regard to the inadequacy of the compensation awarded by the tribunal under various heads. It was pointed out that the monthly income taken by the tribunal was grossly inadequate as it was only Rs.3000/-. Considering that the accident occurred in 2005, the same appears to be on the lower side, as rightly contended by the learned counsel for the appellant. Of course, it is true that the monthly income claimed was only Rs.4000/-. As per the method of computation normally adopted by this court based on the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] and Syed Sadik V. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735],** even for an ordinary worker the monthly income can be fixed as Rs.4500/- in respect of an accident occurred in the year 2004, even without any evidence in this regard. In this case, the accident occurred in the year 2005 and therefore, Rs.5000/- could be a reasonable monthly income that can be adopted. Since it is pointed out that the deceased was a person working as a coolie, the monthly income cannot be a definite figure, and it would vary from month to month, depending on the work he gets. Therefore, while assessing the monthly income, the amount claimed in the petition need not be given `MACA NO. 1679 OF 2014` 5 much importance. This is particularly because, since the claim is made by the dependents, they may not be aware of the exact income of the deceased. Moreover, in **Minu Rout and another V.** - **Satya Pradyumna Mahopatra and Other [(2013) 10 SCC 695,** the Hon’ble Supreme Court has taken the income higher than what was claimed in the claim petition. Therefore, when the facts and circumstances of the case justify the taking of a higher monthly income than claimed in the claim petition, nothing would preclude this court from adopting such higher income as the sole purpose is to ensure “just compensation” to the victim. Therefore, I am of the view that Rs.5000/- can be accepted as monthly income in this case. 9. The next aspect is about the multiplier adopted. The Tribunal has taken the multiplier as “5” by including the deceased within the age group above 65 years. Apparently, the Tribunal arrived at the said conclusion based on the evidence of PW1, who stated that the deceased was 69 years old. However, all the other documents which were produced before the court, including the medical records, would indicate that the deceased was 65 years old at the time of the accident. Moreover, the appellant herein, while she was examined as PW1, also stated that the age of the deceased was 64 years. When all these documents and evidence indicate the age of the victim is 64 or 65, the tribunal ought not to `MACA NO. 1679 OF 2014` 6 have included the appellant in the category of above 65 years of age by merely placing reliance upon the evidence of DW1. Therefore, I deem it appropriate to include the deceased within the age group of 60 to 65, to which the multiplier applicable is “7”. 10. Another aspect highlighted by the learned counsel for the appellant relates to the deduction to be made towards future prospectus. Evidently, the deceased left behind six persons, who are two wives and four children. The Tribunal has accepted all the said persons as legal representatives/dependents and awarded compensation to all of them, in the proportion as specified in the award. Therefore, since it is evident that there were six dependents, the deduction should be made towards future prospects is ¼ and, whereas the tribunal has erroneously deducted 1/3 of the monthly income. 11. While reassessing the compensation with the above revised parameters, the amount of compensation under the head of loss of dependency would come to Rs.3,15,000/- (5000 X 12 x 7 X ¾). The amount already awarded by the Tribunal is Rs.1,20,000/and thus, the additional compensation receivable under the head would come to Rs.1,95,000/- 12. When moving on to the other heads, it can be seen that the tribunal has awarded only an amount of Rs.3000/- under the head of loss of estate, whereas the proper amount as per loss of `MACA NO. 1679 OF 2014` 7 estate is Rs.15,000/-. Therefore, a further sum of Rs.12,000/- is granted under the said head. Similarly, the compensation awarded for the loss of consortium is only Rs.30,000/- in the light of the observations made by the Hon’ble Supreme Court in **Magma General Insurance Co. Ltd., v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130] and United India Insurance Co Ltd., Vs. Satinder Kaur @ Satwinder Kaur and Other [2020 (3) KHC** **760],** all the claimants 1 to 4 and respondents 4 and 5 in the claim petition, being the wives and children, are entitled to compensation @ Rs.40,000/- each. Thus, the total amount under this head would come to Rs.2,40,000/-. However, it is to be noted in this regard that in addition to Rs.30,000/- awarded by the Tribunal under the head of loss of consortium, a further sum of Rs.30,000/- was granted for loss of love and affection. In the light of the principles laid down in **United India Insurance Co Ltd., Vs. Satinder Kaur @ Satwinder Kaur and Other [2020 (3) KHC 760],** and **New India Assurance Co. Ltd v. Soumwati and Others [2020 (9)** **SCC 644],** when compensation was awarded for loss of consortium, and no separate compensation is to be granted for loss of love and affection. Therefore, Rs.30,000/- already granted under the head of loss of love and affection can be adjusted towards the compensation which is determined in this appeal for the loss of consortium. Thus, the additional amount under the head of loss of `MACA NO. 1679 OF 2014` 8 consortium would come to Rs.1,80,000/-. The amounts under the other heads appear to be reasonable. Thus, the total additional compensation receivable by claimants 1 to 4 and respondents 4 and 5 in the claim petition is determined as Rs.3,87,000/-(195000 + 12000 + 180000) . In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 13.02.2014 in OP(MV)No.150/2006 passed by the Motor Accidents Claims Tribunal, Mavelikara is hereby modified by granting an additional compensation of Rs.3,87,000/- (Rupees three lakhs and eighty seven thousand only). The third respondent is directed to deposit the said amount along with interest at the rate, as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. Upon such deposit, the said amount shall be apportioned among claimants 1 to 4 and respondents 4 and 5 in the ratio specified in the award. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV