Anirudhan and Others v. Balakrishnan and United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944 MACA NO. 2379 OF 2014 ``` ``` AGAINST THE AWARD DATED 07.03.2014 IN O.P(M.V) NO.1216/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1ANIRUDHAN, S/O. RAGHAVAN VAIDYAR, AGED 46 YEARS 2BIJU R.K, S/O. RAGHAVAN VAIDYAR, AGED 36 YEARS 3ARUN KUMAR S/O. SURESH BABU, AGED 22 YEARS 4AMRUTHA D/O.SURESH BABU, AGED 22 YEARS ALL ARE RESIDING AT CHIRUTHEDATH HOUSE, AVITANALLUR P.O., NADUVANNUR (VIA), KOYLANDI TALUK, KOZHIKODE DISTRICT. BY ADVS.SRI.A.V.M.SALAHUDDEEN SMT.EMIL STANLEY ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` 1BALAKRISHNAN S/O. KELAPPAN, AGED 48 YEARS, RESIDING AT PUTHOO, KUNNUMMAL HOUSE, MOOLAD P.O., NADUVANNUR, KOYLANDI TALUK, KOZHIKODE DISTRICT - 673 614. ``` ``` 2UNITED INDIA INSURANCE CO.LTD GROUND FLOOR, KDC BANK BUILDING, MAIN ROAD, KUNNAMANGALAM - 673 571. ``` ``` R2 BY ADV SMT.DEEPA GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2379 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 13[th] day of December, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Vatakara (for short ‘the Tribunal’) on 07.03.2014 in O.P(M.V) No.1216/2010. 2. The appellants herein are the petitioners before the Tribunal. Compensation was sought by the petitioners for the death of mother of appellants 1 and 2 who are petitioners 1 and 2 before the Tribunal and appellants 3 and 4 who are grandchildren of the deceased and petitioners 3 and 4 before the Tribunal. 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 and 2 in accordance with their status in the Original Petition. 4. According to the petitioners, Mrs.Nandini was knocked down by a Motorcycle bearing Registration No.KL56A-5215 while walking through the margin of a public ``` M.A.C.A.No.2379 of 2014 ``` ``` 3 ``` road. The accident was allegedly occurred due to the rash and negligent riding of the Motorcycle by its rider. On account of the fatal injuries sustained, Mrs.Nandini succumbed to death on 23.02.2010. Raising a claim for Rs.3,00,000/- as compensation, Original Petition above was filed by the legal heirs and dependents of the deceased. 5. Despite service of notice, the 1[st] respondent failed to contest the Original Petition and therefore, he was declared ex parte. The insurance coverage of the offending vehicle as on date of accident was admitted by the 2[nd] respondent in the written statement filed. It was contended that the accident was occurred due to crossing of the road all on a sudden by Mrs.Nandini, without taking note of the vehicle proceeding through the road. The age, occupation and monthly income of Mrs.Nandini as stated in the Original Petition were disputed. The compensation claimed is also disputed for its exorbitant nature. The 2[nd] respondent obtained permission under Section 170 of the Motor Vehicles Act, 1988 (for short ‘the M.V Act’) to contest the claim petition by availing all statutory defences. ``` M.A.C.A.No.2379 of 2014 ``` ``` 4 ``` 6. Before the Tribunal Exts.A1 to A3 were marked on the side of the petitioners. The evidence available was appreciated by the Tribunal and arrived at a finding that the rider by his rash and negligent riding of the Motorcycle bearing Registration No.KL-56A-5215 has caused the accident. The Tribunal also found that Mrs.Nandini succumbed to the injuries sustained in the motor accident while undergoing treatment. Rs.81,000/- was also arrived at as the compensation payable and directed the 2[nd] respondent to deposit the same 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 proportionate costs. 7. The main contention raised by the petitioners before this Court was that the Tribunal failed to award just and reasonable compensation under various heads. According to the learned counsel, Rs.50,000/- in lumpsum was awarded by the Tribunal as compensation for loss of dependency and therefore is unjustified. According to the learned counsel, under the heads loss of estate and loss of ``` M.A.C.A.No.2379 of 2014 ``` ``` 5 ``` consortium also, the Tribunal failed to award just compensation though the petitioners have entitlement to receive Rs.16,500/- and Rs.44,000/- receptively in view of the direction of the Apex Court in National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)]. 8. The learned counsel for the 2[nd] respondent has contended on the contrary that petitioners 1 and 2 being the major sons of the deceased and petitioners 3 and 4 being the daughters of the deceased daughter of deceased Nandini, are not dependents of her. According to the learned counsel, there is want of materials on record to establish that the petitioners were depending the deceased for their sustenance during the life time of Mrs.Nandini. According to her, there is absolutely no evidence to show that the petitioners were residing with the deceased as on date of her death. The learned counsel contended that despite their non-entitlement for compensation for loss of dependency, for not being dependents of deceased, Rs.50,000/- was awarded by the Tribunal in lumpsum as compensation under that head. The learned counsel ``` M.A.C.A.No.2379 of 2014 ``` ``` 6 ``` canvassed for adjustment of the above sum in the additional compensation that would be arrived at. The learned counsel has also relied on Joseph v. Giji Varghese [2009 (4) KLT 199], wherein a Division Bench of this Court has held that where claimants are not dependents, compensation cannot be awarded taking note of multiplier based on age of deceased or claimant as provided under structured formula in Second Schedule under Section 163 A of M V Act. 9. It was conceded by the learned counsel for the 2[nd] respondent that the Tribunal failed to award any sum as compensation towards loss of consortium and loss of estate. Under the conventional head, funeral expenses, the petitioners are only entitled to get Rs.16,500/- as compensation in view of Pranay Sethi supra, but, the Tribunal awarded Rs.25,000/- which is Rs.8,500/- in excess of the sum due to them. 10. Rs.50,000/- was found awarded as compensation under the head loss of dependency on a lumpsum basis. Petitioners 1 and 2, who are sons of deceased Nandini, were aged 42 years and 32 years respectively at the relevant ``` M.A.C.A.No.2379 of 2014 ``` ``` 7 ``` time of her death. There is absolutely no evidence indicative of their residence together. Petitioners 3 and 4 are major daughters of the deceased daughter of Mrs.Nandini evidenced as staying away from her. They are the grandchildren of Mrs.Nandini and there is no evidence to show that their father predeceased them. Therefore, as laid down by the Division Bench in Joseph supra petitioners not being dependents of the deceased are not entitled to get any compensation under the head loss of dependency. This Court is declined to interfere with grant of Rs.50,000/- in view of their entitlement for compensation under Section 140 MV Act. Therefore Rs.50,000/- stands granted under the head loss of dependency is treated as compensation awarded under no-fault liability and is maintained. 11. It is noticed that under the head loss of estate, petitioners are entitled to get Rs.16,500/- as compensation in view of Pranay Sethi supra and that is awarded. Petitioners 1 and 2 being the sons of the deceased, each of them are entitled to get Rs.44,000/-. Thus, Rs.88,000/- is the sum payable as compensation under the head loss of ``` M.A.C.A.No.2379 of 2014 ``` ``` 8 ``` consortium. Under the head funeral expenses, as rightly pointed out by the learned counsel for the 2[nd] respondent Rs.25,000/- stands awarded, which is Rs.8,500/- above Rs.16,500/- payable and that is adjusted in the total additional compensation payable. 12. In the above manner of reassessment, the petitioners will get Rs.96,000/- [Rupees Ninety six thousand only] 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. The 2[nd] respondent insurer shall deposit the above sum with interest fixed as above within a period of two months from the date on which a certified copy of this judgment is received. Sd/- **MARY JOSEPH JUDGE** NAB