A.S. Sheeba; Jithu P. Ajith (minor) v. T.H. Santhosh; Kabeer; Bajaj Allianz Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ``` MACA NO. 58 OF 2012 ``` ``` AGAINST THE AWARD IN OPMV 1345/2004 OF SPECIAL C SPE/CBI-I & 3 ADDITIONAL DISTRICT COURT/I ADDITIONAL MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL, ERNAKULAM`** ## **`APPELLANTS/PETITIONERS:`** - **`1 A.S.SHEEBA AGED 39, W/O.LATE SRI.AJITH KUMAR, PUTHUPARAMBATH HOUSE, AROOR, CHERTHALA TALUK.`** - **`2 JITHU.P.AJITH (MINOR) AGED 16, S/O.LATE SRI.AJITH KUMAR, PUTHUPARAMBATH HOUSE, AROOR, CHERTHALA TALUK, (REPRESENTED BY HIS NEXT FRIEND AND MOTHER IST CLAIMANT MRS.SHEEBA AJITH). BY ADV SRI.T.K.RADHAKRISHNAN`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 T.H.SANTHOSH S/O.HARIKRISHNAN, THOPPIL HOUSE, THRIKKAKARA POST, ERNAKULAM, PIN-682 028.`** - **`2 MR.KABEER S/O.ABDUL.M.A, MANGATTU HOUSE, MANJALI, KUNNUMPURAM, NEAR L.P.SCHOOL, KARUMALLUR VILLAGE, PIN-683 511.`** - **`3 THE BAJAJ ALLIANZ INSURANCE CO.LTD. M.G.ROAD, ERNAKULAM, KOCHI-682 016. BY ADV SRI.P.S.RAMU`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.58 OF 2012 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 17[th] day of June, 2022 Petitioners in O.P.(MV) No.1345/04 on the files of the Motor Accidents Claims Tribunal, Ernakulam, who are wife and son of deceased Ajith Kumar, have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’), challenging award dated 20.01.2011 in the above case. Respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellants and the learned Standing Counsel for 3[rd] respondent-Insurance Company. 3. Brief facts of the case are as follows:- Consequent on the death of one Ajith Kumar in a motor accident occurred on 27.03.2004, the legal heirs of the deceased put up claim petition under Section 166 of the MV Act on the ground that the accident and the ``` MACA NO.58 OF 2012 ``` ``` 3 ``` consequential death of the said Ajith Kumar was the outcome of negligence on the part of the second respondent, who had driven car bearing registration No. KL-4G 765. The appellants claimed compensation to the tune of Rs.12,20,500/-. 4. The first and second respondents were declared ex parte by the Tribunal. 5. The third respondent Insurance Company filed written statement by denying accident and negligence. The quantum of compensation challenged, while admitting policy. 6. The Tribunal ventured the matter. PW1 examined and Exts.A1 to A16 marked on the side of the appellants. No evidence let in by the respondents. 7. On evaluation of the evidence, the Tribunal granted Rs.5,41,249/- along with interest at the rate of 7.5% per annum. ``` MACA NO.58 OF 2012 ``` ``` 4 ``` 8. It is submitted by the learned counsel for the appellants that the monthly income fixed by the Tribunal is on lower side, in a case, where the appellants claimed the monthly income of the deceased as Rs.7,000/- per month, being an accountant in Saroj Steels. Though Ext.A12 salary certificate showing the said income was produced before the Tribunal and the author of Ext.A12 also was examined, the Tribunal fixed the same at Rs.4,000/-. 9. The learned counsel for the Insurance Company would submit that the evidence adduced by PW1 and Ext.A12 is quite insufficient to accept the income as claimed since PW1 could not justify Rs.7,000/- as the income of the said Ajith Kumar when he was subjected to cross-examination. 10. I have gone through Ext.A12. Ext.A12 would suggest that a person under the title ‘partner’ had signed in Ext.A12 with title Saroj Steels. No details regarding registration under any of the Act or Rules could be ``` MACA NO.58 OF 2012 ``` ``` 5 ``` gathered therefrom. While examining PW1 - the author, though he admitted the authenticity of Ext.A12 as his own, his evidence during cross-examination to the effect that he did not know when Ajith Kumar joined this institution and there was no deduction towards PF and the certificate did not suggest the basic pay, DA, batta etc. in particular. Therefore, Ext.A12 cannot be accepted as such. The Tribunal rightly rejected the same and I endorse the said finding. However, following the ration in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** the monthly of Ajith Kumar is liable to be fixed at Rs.4,500/- as against Rs.4,000/- fixed by the Tribunal. The Tribunal applied ‘15’ as the multiplier. No dispute raised as regards to the multiplier applied by the Tribunal. Similarly, since the deceased is in the age group between 40 – 50 years, 25% addition also is entitled, following the ratio in **National Insurance Company Limited v.** ``` MACA NO.58 OF 2012 ``` ``` 6 ``` **Pranay Sethi and Ors (2017 (4) KLT 662).** Thus, ‘loss of dependency income’ requires re-calculation on that basis (4500 + 4500 x 25% = 5625). Accordingly, loss of ‘dependency income’ is re-calculated as under:- 5625 x 12 x 15 x 2/3 = 6,75,000/- Out of which, Rs.4,80,000/- was granted by the Tribunal. Thus, **Rs.1,95,000/-** (6,75,000 – 4,80,000) is granted as enhanced compensation under the head ‘loss of dependency’. 11. Apart from that, the appellants, who are wife and son, are entitled to get compensation under conventional and traditional heads following the ratio in **Pranay Sethi’** case (supra). Thus, the appellants together are entitled to get ‘loss of consortium’ to the tune of Rs.80,000/- (Rs.40,000 x 2). Out of which, the Tribunal granted Rs.15,000/-. Deducting the same, **Rs.65,000/-** more is granted under the head ‘loss of consortium’. Towards ‘loss of estate’, the Tribunal granted only 5,000/-. ``` MACA NO.58 OF 2012 ``` ``` 7 ``` Hence, **Rs.10,000/-** more is granted following the ration in **Pranay Sethi’** case (supra). 12. Similarly, towards ‘funeral expense’, the Tribunal granted Rs.3,000/- only. Therefore, the same is increased by **Rs.12,000/-** more. 13. It is pointed out by the learned Standing Counsel for the third respondent/Insurance Company that Rs.10,000/- granted under the head ‘loss of love and affection’ is liable to be reduced as per the ratio in **United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others [2020(3) KHC 760].** Thus, **Rs.10,000/-** is reduced under the said head. In the result, this appeal stands allowed. It is held that the appellants are entitled to get Rs.8,13,349/- as compensation out of which Rs.5,41,349/- was granted by the Tribunal and the balance amount of **Rs.2,72,000/-** (Rupees two lakh seventy two thousand only) is granted as enhanced compensation with the same rate of interest ``` MACA NO.58 OF 2012 ``` ``` 8 ``` awarded by the Tribunal, excluding interest for a period of 25 days specifically excluded by this Court while allowing the delay petition – C.M.Application No.1 of 2012 as per order dated 19.11.2021, payable by the Insurance Company, from the date of petition till the date of deposit or realisation. The Insurance Company is directed to deposit the amount in equal proportion in the name of the appellants within two months from today. On deposit, the appellants can release the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr