Beena, Ouseph and Mary v. Prasad, Davis and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943** ## **MACA.No.1586 OF 2011** **AGAINST THE AWARD IN OPMV 1152/2004 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR** ## **APPELLANTS:** |**1**|||**BEENA**| |---|---|---|---| ||||**W/O LATE THOMAS**| ||||**PORATHOOR HOUSE,,**| ||||**ADAT.P.O,**| ||||**THRISSUR DISTRICT.**| |**2**|||**OUSEPH**| ||||**S/O. PORINCHU**| ||||**PORATHOOR HOUSE,,**| ||||**ADAT.P.O,**| ||||**THRISSUR DISTRICT.**| |**3**|||**MARY**| ||||**W/O. OUSEPH**| ||||**PORATHOOR HOUSE,,**| ||||**ADAT.P.O,**| ||||**THRISSUR DISTRICT.**| ||||**BY ADV. SRI.T.C.SURESH MENON**| |**ENTS**|||| ||||| |**1**|||**PRASAD**| ||||**KARUMANPARAMBIL HOUSE,,**| ||||**PUZHAKKAL.P.O,**| ||||**MUTHUVARA, THRISSUR.**| |**2**|||**DAVIS**| ||||**S/O. PYLOTH**| ||||**NEELAMKAVIL HOUSE,**| ||||**KUTTOOR.P.O,, VIYYUR,**| ||||**THRISSUR DISTRICT.**| |**3**|||**THE NEW INDIA ASSURANCE CO. LTD.**| ||||**EAST COST CHAMBERS,**| ||||**IST FLOOR,, G.N. CHETTY ROAD,,**| ||||**T. NAGAR, CHENNAI.**| ## **RESPONDENTS:** MACA.No.1586 OF 2011 2 **R3 BY ADV. SRI.LAL K.JOSEPH R1 BY ADV. SRI.KKM.SHERIF R1 BY ADV. SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1586 OF 2011 3 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- ``` ``` M.A.C.A. No. 1586 of 2011 ------------------------------------------ Dated this the 29[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellants are the legal heirs of deceased 'Thomas', who died in a motor vehicle accident. They filed O.P(M.V). No. 1152/2004 before the Motor Accidents Claims Tribunal, Thrissur, claiming compensation under Section 166 of the Motor Vehicles Act. O.P(M.V). No. 2513/2004 was tried along with O.P(M.V). No. 1152/2004 by the Tribunal. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). ``` ``` 2. The short facts are like this:- On 04.03.2004 at about 02.30 p.m., one 'Jose Antony' and deceased 'Thomas' were travelling in a motor cycle bearing Registration No. KL-10/F-4522. At that time, it was hit by a Bus bearing Registration No. KL-08/D-9000 at ``` MACA.No.1586 OF 2011 4 ``` Muthuvara junction and caused serious injuries to 'Jose Antony' and 'Thomas'. While undergoing treatment, both of them succumbed to the injuries at West Fort Hospital, Poomkunnam, Thrissur. According to the petitioners, the accident occurred due to the rash and negligent driving of the bus driven by the 2[nd] respondent. First respondent was the owner and the second 3[rd] respondent was the insurer. Hence, the claim petition was filed claiming compensation from the respondents. ``` ``` 3. To substantiate the case, Exhibits A1 to A17 were marked on the side of the petitioners. PW1 was examined on the side of the petitioner. Exhibit B1 is the copy of the Policy. After going through the evidence and documents, the Tribunal found that the petitioners are entitled an amount of Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand Only) as compensation with interest at the rate of 8% p.a. ``` MACA.No.1586 OF 2011 5 ``` Aggrieved by the quantum of compensation, this appeal is filed. ``` `4. Heard the learned counsel for the appellants` `and the learned counsel for the 3[rd] respondent.` ``` 5. The learned counsel for the appellants submitted that the deceased was a heavy motor vehicle driver and he was getting Rs.5,500/- per month as salary with Rs.100/- per day as bata. The learned counsel submitted that the monthly income fixed by the Tribunal is Rs.3,000/- and it is too low. ``` `6. There is some force in the arguments of the` `learned counsel for the appellants. In` ``` Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],the Apex Court held that even a coolie will get an amount of Rs.4,500/- per month in the year 2004. The accident in this case also happened in the year 2004. Taking the principle laid down in Ramachandrappa's case ``` MACA.No.1586 OF 2011 6 ``` (Supra), I think that the monthly income of the deceased can be safely fixed as Rs.4,500/-. Moreover, towards future prospects, 40% of the monthly income is to be added in the light of the decision of Apex Court inNational Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT 662]. Based on the above, the monthly income will come to Rs.6300/-. The learned counsel for the respondent submitted that the deceased was aged 34 years at the time of accident, because his Date of Birth is 24-10-1970. If that is the case, the multiplier will be '16'. The Tribunal used '17' as the multiplier. Therefore, the loss of dependency is to be recalculated like this:- ``` ``` 6300x12x16x2/3=Rs.8,06,400/- ``` ``` The Tribunal awarded an amount of Rs. 4,08,000/- and that is to be deducted. Therefore the appellants are entitled an additional amount of Rs.3,98,400/- (Rupees Three Lakhs Ninety Eight ``` MACA.No.1586 OF 2011 7 ``` Thousand and Four Hundred Only) towards loss of dependency. ``` ``` 7. The Tribunal awarded an amount of Rs.10,000/- towards consortium and an amount of Rs. 10,000/- towards love and affection. Claimants are the wife and parents of the deceased. They are entitled more amount towards consortium in the light of the dictum laid down inMagma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130],. The wife is entitled Rs.40,000/- towards spousal consortium and the parents are entitled Rs.40,000/- each towards flal consortium. ``` ``` Spousal Consortium: Rs.40,000/- Filial Consortium: Rs.80,000/- (40,000x2) ------------------------ Rs.1,20,000/- ========== ``` ``` The Tribunal already awarded an amount of ``` MACA.No.1586 OF 2011 8 ``` Rs.20,000/- towards consortium and loss of love and affection and that is to be deducted from the above amount. Therefore, the appellants are entitled an additional amount of Rs. 1,00,000/- (Rupees One Lakh Only) towards loss of consortium. ``` ``` 8. As far as loss of estate is concerned, an amount of Rs. 10,000/- is allowed by the Tribunal. In the light of the decision of the Apex Court inNational Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT 662],the appellants are entitled Rs.5,000/- (Rupees Five Thousand Only) more towards loss of estate. ``` ``` 9. For funeral expenses, an amount of Rs. 5,000/- is allowed by the Tribunal. In the light of the decision of the Apex Court inNational Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT 662],the appellants are entitled Rs.10,000/- (Rupees Ten Thousand Only) more towards funeral expenses. ``` `10. For transport to hospital, no amount is` MACA.No.1586 OF 2011 9 ``` allowed by the Tribunal. The appellants are entitled an amount of Rs. 1,000/- (Rupees One Thousand Only) towards transport to hospital. ``` ``` 11. Towards damages to clothing, no amount is awarded by the Tribunal. Therefore, an amount of Rs.500/- (Rupees Five Hundred Only) is allowed for damages to clothing. ``` `12. The enhanced compensation entitled by the` `appellant can be summarized like this:-` ``` HeadAmount Loss of dependency Rs. 3,98,400/- Funeral Expenses Rs. 10,000/- Loss of Consortium Rs. 1,00,000/- Transport to hospital Rs. 1,000/- Loss of estate Rs. 5,000/- Damage to Clothing Rs. 500/- ``` **==> picture [185 x 15] intentionally omitted <==** **----- Start of picture text -----**<br> Total Rs.5,14,900/-<br>**----- End of picture text -----**<br> MACA.No.1586 OF 2011 10 ``` Therefore, this appeal is allowed in part. The impugned award is modified and the appellants are entitled an enhanced compensation of Rs.5,14,900/- (Rupees Five Lakhs Fourteen Thousand and Nine Hundred Only) with interest at the rate of 8% p.a, from the date of petition till realisation. Respondent No.3 is directed to pay the enhanced compensation with interest. ``` ``` Sd/- ``` ``` P.V.KUNHIKRISHNAN JUDGE ``` ``` avs ```