Appu s/o Krishnan and others v. Shaji L.T and others (MACA No.2392 of 2012)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939 MACA.No. 2392 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 522/2007 of MACT, MUVATTUPUZHA DATED 19.3.2012 APPELLANT(S)/PETITIONERS: -------------------------------- 1. APPU,S/O.KRISHNAN, AGED 70 YEARS, CHALAKUDY HOUSE, AVOLICHAL KARA, NERIAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. 2. MINIMOL, W/O. DAS, CHALAKUDY HOUSE, KATTIKUNNU KARA, CHEMPU P.O., VAIKOM, KOTTAYAM DISTRICT. 3. JITHIN DAS, S/O. DAS, CHALAKUDY HOUSE, KATTIKUNNU KARA, CHEMPU P.O., VAIKOM, DATE OF BIRTH 27-9-1996 (MINOR) WHO IS REPRESENTED BY HIS NEXT FRIEND AND MOTHER MINIMOL, W/O.DAS, CHALAKUDY HOUSE, KATTIKUNNU KARA, CHEMPU P.O. VAIKOM, 4. MITHIN DAS, S/O. DAS,CHALAKUDY HOUSE, KATTIKUNNU KARA, CHEMPU P.O.,VAIKOM, DATE OF BIRTH 19-5-1994 (MINOR) WHO IS REPRESENTED BY HIS NEXT FRIEND AND MOTHER MINIMOL, W/O.DAS, CHALAKUDY HOUSE, KATTIKUNNU KARA, CHEMPU P.O. VAIKOM. ## BY ADV. SMT.MARIAMMA MERCY KANJANAPILLY RESPONDENT(S)/RESPONDENTS: -------------------------- 1. SHAJI L.T, S/O.THAMPI, LENINTHURUTHU HOUSE, KATTIKUNNU KARA, CHEMBU VILLAGE, VAIKOM TALUK. PIN. 686 141. 2. PONNAPPAN, PARAPPIL HOUSE, KATTIKUNNU KARA, CHEMBU VILLAGE, VAIKOM, PIN. 686 141. 3. THE ORIENTAL INSURANCE CO. LTD., DEEPTHI BUILDINGS, PALLIMUKKU, OPP.COCHIN HOSPITAL,M.G.ROAD, ERNAKULAM. 682 016 4. JOHN K.C., S/O.CHACKO,KURIYAPARAMBIL HOUSE, KURUPUMTHARA BHAGAM,MANJOOR KARA, MANJOOR VILLAGE, VAIKOM TALUK, PIN. 686 141 5. MANAGING DIRECTOR,K.S.R.T.C., THIRUVANANTHAPURAM, PIN.695001 R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) R5 BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.2392 OF 2012 ==========================** Dated this the 17[th] day of July, 2017 ## **JUDGMENT** ## _Anil K. Narendran, J._ This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Muvattupuzha dated 19.3.2012 in O.P. (MV).No.522 of 2007, an application filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Das, son of the first appellant, husband of the second appellant and father of appellants 3 and 4, who died in a motor accident occurred on 18.12.2006 while he was walking through the side of Vaikom-Ernakulam PWD Road. At the place of accident, he was hit by a tipper lorry bearing Reg.No.KL-10/R-1733, driven and owned by respondents 1 and 2 and insured with the third respondent. **M.A.C.A.2392/2012** 2 The said tipper lorry was also hit by a KSRTC bus bearing Reg.No.KL-1/4607, driven by the fourth respondent and owned by the fifth respondent. As a result of the accident, the deceased sustained fatal injuries, who succumbed to the injuries on the very same day itself. Alleging that the accident occurred due to the rash and negligent driving of the tipper lorry by the first respondent driver and the KSRTC bus by the fourth respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.16,10,000/- under different heads. 2. Before the Tribunal, Exts.A1 to A9 were marked and PW1 was examined on the side of the appellants/claimants. Copy of the insurance policy of the tipper lorry was marked as Ext.B1. The respondents have not chosen to adduce any oral evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the tipper lorry by the first respondent driver and the KSRTC bus by the fourth respondent driver. The **M.A.C.A.2392/2012** 3 Tribunal fixed negligence between the driver of the tipper lorry and the driver of the KSRTC bus in the ratio 50:50. Since the tipper lorry was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the owner of the said vehicle for payment of 50% of the amount of compensation awarded. Since the KSRTC bus was not having any insurance coverage, the fifth respondent owner, the Managing Director of the KSRTC, was held liable to pay the remaining 50% of the compensation awarded. Under different heads, the Tribunal awarded a total compensation of Rs.4,89,932/-, which was rounded to Rs.4,89,950/-, together with interest at the rate of 8% per annum from the date of the petition till deposit and the respondents 3 and 5 were directed to deposit 50% each of the award amount before the Tribunal. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants are before this Court in this appeal. 5. Heard the learned counsel for the third respondent insurer. **M.A.C.A.2392/2012** 4 6. The sole issue that arises for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7 **.** The accident is of the year 2006 and at the time of the accident, the deceased was aged 40 years. The appellants/claimants claimed that at the time of accident, the deceased was a Salesman in Toddy shop No.32 at Poothotta and was earning a monthly income of Rs.8,000/-. In order to substantiate the said claim, Ext.A7 income certificate issued by the Welfare Fund Inspector, Kottayam was marked through PW1. After considering the materials and evidence on record, the Tribunal fixed the monthly income of the deceased at Rs.3,861/- for the purpose of assessing compensation under different heads. 8. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Apex Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 as Rs.4,500/-. Taking into **M.A.C.A.2392/2012** 5 consideration the said decision of the Apex Court and also Ext.A7 income certificate, we deem it appropriate to re-fix the monthly income of the deceased notionally at Rs.5,000/-. Taking into account the nature of the employment, as disclosed from Ext.A7 certificate, we deem it appropriate to add 30% of the notional income towards future prospects. Accordingly, the multiplicand for the purpose of assessing compensation under the head dependency comes to 6,500. ## 9. The compensation awarded by the Tribunal under different heads reads thus:- |**_Head_**|**_Amount claimed_**|**_Amount_**<br>**_awarded_**| |---|---|---| |Funeral expenses|`10,000/-|`5,000/-| |Loss of estate|`3,00,000/-|`5,000/-| |Pain and suffering|`2,00,000/-|`5,000/-| |Consortium to the 2ndpetitioner|`2,00,000/-|`10,000/-| |Loss of love and affection to the<br>3rdand 4thpetitioner`15,000/-<br>each|`2,00,000/-|`30,000/-| |Compensation for loss of old<br>age care and affection to the 1st<br>petitioner||`5,000/-| |Compensation for loss of<br>dependency 2574x12x14|`7,00,000/-|`4,32,432/-| |Total|`16,10,000/-|`4,89,932/-| **M.A.C.A.2392/2012** 6 10. Towards funeral expenses, the Tribunal awarded a sum of Rs.5,000/-. In **Rajesh v. Rajbir Singh [2013 (3) KLT 89]** , the Apex Court awarded a sum of Rs.25,000/- as compensation under this head. In the said case, the accident was of the year 2007. In the instant case, the accident is of the year 2006. Therefore, we deem it appropriate to re-fix the compensation under this head as Rs.20,000/-, resulting an additional compensation of **Rs.15,000/-** . 11. Towards loss of estate, the Tribunal awarded a sum of Rs.2,500/-. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as Rs.10,000/-, resulting an additional compensation of **Rs.7,500/-** . 12. Towards pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. Though the deceased succumbed to the injuries on the date of the accident itself, following the law laid down by a Division Bench of this Court in **Jyni and others v. Raphel P.T and others [ILR 2016 (2) Kerala 54]** , we deem it appropriate to re-fix the compensation under this head as Rs.10,000/-, resulting an additional **M.A.C.A.2392/2012** 7 compensation of **Rs.5,000/-** . 13. Towards loss of consortium, the Tribunal awarded only a sum of Rs.10,000/-. In **Rajesh's case (supra),** the Apex Court awarded a sum of Rs.1,00,000/- as compensation towards loss of consortium. In that case, the accident was of the year 2007 and the deceased was aged 33 years and his wife was still younger. In the instant case, the accident is of the year 2006. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as Rs.80,000/-, resulting an additional compensation of **Rs.70,000/-** , payable to the second appellant, the widow of the deceased. 14. Towards loss of love and affection, the Tribunal awarded a sum of Rs.30,000/- to appellants 3 and 4, namely, the minor children of the deceased and a further sum of Rs.5,000/- was awarded to the first appellant father towards loss of old age care and affection. In **Rajesh's case (supra),** the Tribunal awarded a sum of Rs.1,00,000/under the head loss of love and affection. In that case, the accident **M.A.C.A.2392/2012** 8 was of the year 2007. In the instant case, the accident is of the year 2006 and the deceased was survived by two minor children and his father aged 70 years. In such circumstances, we re-fix the compensation under the head loss of love and affection as Rs.80,000/-, resulting an additional compensation of **Rs.50,000/-** payable to appellants 3 and 4. The first appellant, father of the deceased, will be entitled for a further sum of **Rs.5,000/-** under the head loss of old age care and affection. 15. Towards loss of dependency, the Tribunal awarded a sum of Rs.4,32,432/-, applying the multiplier of '14' applicable to the age group of the deceased and deducting ⅓ towards his personal and living expenses. Since we have already re-fixed the monthly income of the deceased as Rs.6,500/-, the compensation payable under this head is re-worked as Rs.7,28,000/- (6500x12x14x⅔) resulting an additional compensation of **Rs.2,95,568/-** . 16. In the result, the appellants/claimants will be entitled for an additional compensation of **Rs.4,48,068/-** **M.A.C.A.2392/2012** 9 (15,000+7,500+5,000+70,000+50,000+5,000+2,95,568) which will carry interest at the rate of 8% per annum from the date of the petition till realisation. Out of the said amount, 50% of the additional compensation with interest shall be deposited by the third respondentinsurer and the balance amount shall be deposited by the fifth respondent, namely, the Managing Director of the KSRTC, before the Tribunal, within two months from the date of receipt of a certified copy of this judgment. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.2392/2012** 10 **C.T. RAVIKUMAR, J.** **M.A.C.A.2392/2012** 11 **JUDGMENT September, 2010** **M.A.C.A.2392/2012** 12