Baby C.P. and Others v. Nizar, Abdul Rahiman (Deleted) and United India Insurance Company Limited

MACA.No.383/13 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945_ ## _MACA NO. 383 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 2045/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR_ ## _APPELLANTS/PETITIONERS:_ - _1 BABY C.P., AGED 74 YEARS, S/O.CHAKKU,CHERUVATHUR HOUSE, AGATHIYUR VILLAGE AND DESOM, AKKIKKAVU POST, THALAPPILLY TALUK, THRISSUR DISTRICT._ - _2 BEENA, AGED 68 YEARS,_ - _W/O.BABY.C.P,CHERUVATHUR HOUSE, AGATHIYUR VILLAGE AND DESOM, AKKIKKAVU POST, THALAPPILLY TALUK._ - _3 DEEPA C.BABY, W/O.SOJAN P.MATHEW,PALLIIYAMPURAM HOUSE, KATTILAPOOVAM POST, THRISSUR DISTRICT._ - _4 NISHA C.BABY, W/O.K.P.JOY,KOOTTUR HOUSE, CHELAKKARA POST, THRISSUR DISTRICT._ - _BY ADV.SRI.R.SREEHARI_ ## _RESPONDENTS/RESPONDENTS:_ - _1 NIZAR, PUTHENPARAMBU, PUNNAPRA POST, ALAPPUZHA DISTRICT, PIN 688 004._ - _2 ABDUL RAHIMAN (DELETED)* S/O.MOIDEEN KOYA, GURUSIKAVIL HOUSE,(THAYYIL),_ MACA.No.383/13 2 _PANANGAD VILAGE AND DESOM VATTOLI BAZAR, POST BALLISSERY, KOZHIKODE DISTRICT ,PIN 673 612._ _(*R2 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DTD 4/1/21 IN IA 1/2020)_ - _3 UNITED INDIA INSURANCE COMPANY LIMITED, JOS TRUST BUILDING, CHITTOOR ROAD, COCHIN 682 011, ERNAKULAM DISTRICT._ _BY ADV.SRI.A.R.GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.383/13 3 ## **JUDGMENT** The appellants in this appeal were the petitioners in O.P. (MV).No.2045 of 2004 on the files of the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was submitted by them seeking compensation for the death of one Dileep due to the injuries sustained in an accident that occurred on 18.01.2004. The 1[st] and 2[nd] appellants were the parents of the deceased and appellants 3 and 4 were the siblings. 2. The accident occurred when the autorickshaw driven by the deceased was hit by a mini lorry bearing registration No.KL-4/L 2169, driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner of the said vehicle and it was insured with the 3[rd] respondent. The deceased was aged 21 years at the time of the accident and he was a driver by profession with a monthly income of Rs.6,000/-. The claim petition was submitted in such circumstances seeking compensation. 3. The 3[rd] respondent, the insurer of the mini lorry alone, contested the matter by filing a written statement wherein they admitted the coverage of the policy. However, they denied the MACA.No.383/13 4 negligence on the part of the 2[nd] respondent and also challenged the quantum of compensation claimed in the claim petition. 4. The evidence in this case consists of Exts.A1 to A10 from the side of the appellants and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent in driving the mini lorry and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,23,000/-, which was directed to be deposited with interest at the rate of 8% per annum from the date of petition till realization. This appeal is submitted by the appellants seeking enhancement of compensation. During the pendency of the appeal, the 1[st] appellant died and the other appellants were recorded as his legal heirs. 5. Head Sri.R.Sreehari, learned counsel for the appellants and Sri.A.R.George, learned counsel for the 3[rd] respondent Insurance Company. 6. The only question to be determined is whether the amount awarded by the Tribunal is reasonable or not. On going through the records, it is discernible that, the Tribunal committed MACA.No.383/13 5 certain errors while taking the monthly income, in considering the future prospects of the deceased and also in taking the multiplier. As regards the monthly income, it is to be noted that even though an amount of Rs.6,000/- was claimed, the Tribunal took only Rs.3,000/-, which appears to be very meagre. It is to be noted in this regard that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd .[2011 (13) SCC** **236],** the Honourable Supreme Court was pleased to take the monthly income of an ordinary worker without any skills as Rs.4,500/- in respect of an accident that occurred in the year 2004. In this case, there is some evidence that the appellant was a driver by profession. The fact that the appellant was driving the autorickshaw at the time of the accident itself indicates the same. Therefore, I am of the view that a slightly higher income than usually taken in respect of an ordinary worker without any skills can be taken as the monthly income. Therefore, I am of the view that Rs.5,000/- can be taken as monthly income in this case. 7. In the light of the observations made by the honourable Supreme Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)],** since the deceased was aged 21 years, an addition of 40% of the monthly MACA.No.383/13 6 income has to be made towards future prospects. As he died as a bachelor, the deduction to be made towards personal expenses should be one half of the amount. 8. The next aspect to be considered is the multiplier applicable. The Tribunal applied the multiplier of 5, considering the age of the parents and not that of the deceased. The said position of law is already settled by the honourable Supreme Court in **Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** as well as **Pranay Sethi** (supra) wherein it was held that the multiplier to be applied is the one that relates to the age of the deceased and not that of the claimants. Therefore, a multiplier of 18 is to be made applicable as he was only 21 years old at the time of the accident. Thus, by reassessing the compensation with the above criteria, the amount of compensation for loss of dependency would come to Rs.7,56,000/- (5,000+40%) x 12 x 18 x ½. The amount already awarded by the tribunal is Rs.90,000/- and thus, the additional compensation under the said head would come to Rs.6,66,000/-. 9. The next head to be considered relates to the compensation for funeral expenses. The amount awarded by the MACA.No.383/13 7 tribunal was only Rs.5,000/- whereas the actual amount that should have been paid was Rs.15,000/- in the light of **Pranay Sethi (supra)** . Therefore, a further sum of Rs.10,000/- is awarded. Towards loss of estate, the amount awarded is Rs.10,000/- whereas the actual amount was Rs.15,000/-. Accordingly, a further sum of Rs.5,000/- is awarded under the said head. 10. The 1[st] and 2[nd] appellants, being the parents of the deceased, were entitled to compensation for loss of consortium at the rate of Rs.40,000/- each in the light of the observations made by the honourable Supreme Court in **Magma General Insurance Company Limited v. Nanu Ram Alias Chuhru Ram and others [(2018) 18 SCC 130]** and **United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur and others [2020 (3) KHC 760].** Therefore, an amount of Rs.80,000/- is awarded and after deducting Rs.10,000/- already awarded by the tribunal towards loss of love and affection, by following the observations in **Satwinder Kaur (surpa)** , the additional amount under this head is determined as Rs.70,000/-. MACA.No.383/13 8 Thus, the total additional compensation is determined as Rs.7,51,000/- (6,66,000+10,000+5,000+70,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated, 28.02.2011 passed by the Motor Accidents Claims Tribunal, Thrissur in OP(MV) No.2045/2004 is hereby modified by granting an additional compensation of Rs.7,51,000/- (Rupees seven lakhs fifty one thousand only), which shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, as the delay of 560 days in filing the appeal was condoned by this court subject to the condition that, the appellants shall not be entitled to interest for the additional amount pertaining to the period of delay, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** DG/sms/2.2.24