C. G. Varghese, Pennamma Varghese, Susamma Varghese and Sindhu Varghese v. P. K. Achuthan Nair and Santoshkumar S/o Goplakrishnan and The Manager Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **MONDAY, THE 17[TH] DAY OF MAY 2021 / 27TH VAISAKHA, 1943** ## **MACA NO. 92 OF 2016** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 1011/2006 OF ADDITIONAL DISTRICT COURT& MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,PATHANAMTHITTA, PATHANAMTHITTA** ## **APPELLANT/S:** - **1 C.G.VARGHESE,AGED 69 YEARS CHARIVUKALAYIL VEEDU, POLLOMBHGTHU, PUTHEN PEEDIKA, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT, PIN 689647** - **2 PENNAMMA VARGHESE, AGED 64 YEARS W/O.C.G.VARGHESE CHARIVUKALAYIL VEEDU, POLLOMBHGTHU, PUTHEN PEEDIKA, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT, PIN 689647** - **3 SUSAMMA VARGHESE, AGED 41 YEARS D/O.C.G.VARGHESE CHARIVUKALAYIL VEEDU, POLLOMBHGTHU, PUTHEN PEEDIKA, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT, PIN 689647** - **4 SINDHU VARGHESE, AGED 41 YEARS D/O.C.G.VARGHESE CHARIVUKALAYIL VEEDU, POLLOMBHGTHU, PUTHEN PEEDIKA, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT, PIN 689647** **BY ADVS.** **SRI.GEORGE ABRAHAM PACHAYIL SMT.JEBI MATHER HISHAM** ## **RESPONDENT/S:** **1 P K ACHUTHAN NAIR, KANNAMKERIL HOUSE, EDAYARAMULA, ARANMULA, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN 689532 2 SANTHOSHKUMAR S/O.GOPLAKRISHNAN, SATHOSH BHAVAN, NALKKALIKKAL, VALLANA, KIDANGANNUR VILLAGE, PATHANAMTHITTA DISTRICT, PIN 689514** **3 THE MANAGER ORIENTAL INSURANCE CO LTD, DIVISIONAL OFFICE, POST BOX NO 64, MARTHOMA BUILDING, THIRUVALLA PIN 689101** **BY ADVS. SHRI.M.V.S.NAMPOOTHIRY SRI.R.AJITH KUMAR 12884 SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX SHRI.MANU SANKAR P.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.05.2021, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.92 OF 2016** 2 ## **P.V.KUNHIKRISHNAN, J. =================== MACA No.92 OF 2016 =================== Dated this the 17[th] day of May 2021** ## **J U D G M E N T** Appellants are the claimants in O.P (MV) No.1011/2006 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. It was a claim petition filed by the appellants under Section 166 of the Motor Vehicles Act, 1988 (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). 2. The short facts are like this:- One Sunil Vargheese died in a motor accident. The petitioners are the legal representatives of deceased Sunil Vargheese. According to the petitioners, the accident occurred due to the negligent driving by the 2[nd] respondent. The offending vehicle was owned by 1[st] **MACA.No.92 OF 2016** 3 respondent and insured with 3[rd] respondent. According to the petitioners, the respondents are jointly and severally liable to compensate the petitioners. 3. To substantiate the case, Exts.A1 to A11 were marked on the side of the petitioners. One witness was also examined on the side of petitioners. After going through the evidence and documents, the Tribunal fixed an amount of Rs.6,88,000/- as compensation with interest @ 9% p.a. from the date of application till realisation. Aggrieved by the quantum of compensation, this appeal is filed by the petitioners. 4. Heard the learned counsel for the petitioners and the learned counsel for the third respondentinsurance company. I also heard the counsel for the respondent Nos.1 and 2. 5. The learned counsel for the petitioners submitted that, the monthly income of the deceased fixed by the tribunal is too low. According to the learned counsel, the tribunal fixed the income as Rs. 4,000/-. The accident occurred in 2006. The learned counsel relied the judgment **MACA.No.92 OF 2016** 4 of Apex Court in _**Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],**_ and submitted that the tribunal ought to have fixed the monthly income at least as Rs.5,500/-. The learned counsel also submitted that, the amount fixed for loss of consortium is also low, considering the decision in _**Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others.**_ _**[(2018) 18 SCC 130]**_ . The learned counsel submitted that, the compensation awarded for loss of estate is also on a lower side. 6. The learned counsel for the respondentinsurance company submitted that, the tribunal fixed the compensation for funeral expense as Rs. 25,000/-. The learned counsel relied the judgment of the Apex Court in _**National Insurance Co. Ltd v. Pranay sethi [2017(4) KLT 662]**_ and submitted that, the maximum amount that can be fixed for funeral expense is only Rs.15,000/-. The counsel also submitted that the compensation amount fixed by the tribunal is based on the available oral and documentary evidence and there is nothing to interfere **MACA.No.92 OF 2016** 5 ## with the award passed by the tribunal. 7. The deceased was aged 29 years at the time of accident. According to the petitioners, the deceased was working as an instrument technician. No evidence is produced by the petitioners to substantiate the case. But the facts remains that, the accident in this case occurred on 24.06.2006. In the light of the decision in _**Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],**_ even a coolie will get an amount of Rs.4,500/- in the year 2004. If that is taken as basis, this Court can fix the monthly income of the deceased as Rs.5,500/-. Future prospectus at the rate of 40% is to be added to the above amount. Then the monthly income of the deceased can be fixed as Rs.7,700/-. Based on the same, the compensation for dependency is to be re assessed in the following manner; Rs.7,700 X 12 X 17 X 1/2= Rs.7,85,400/- 8. An amount of Rs. 6,12,000/- is already given by the tribunal and that is to be deducted from the above amount. Then the enhanced amount entitled by the **MACA.No.92 OF 2016** 6 petitioners will be Rs.7,85,400–6,12,000= ## **Rs.1,73,400/-** . 9. In the light the decision of the Apex Court in _**Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others.[(2018) 18 SCC 130],**_ the petitioners are entitled a compensation amount of Rs.40,000 each towards consortium. That amount will be Rs. 1,60,000/-. The tribunal awarded only an amount of Rs. 30,000/-towards loss of love and affection. Then the balance amount entitled by the petitioners will be Rs.1,30,000/-. At this stage, it is to be noted that the tribunal awarded an amount of Rs.25,000/- towards the funeral expense. In the light of the decision of the Apex Court in _**National Insurance Co. Ltd v. Pranay sethi [2017(4) KLT 662],**_ the petitioners are entitled only an amount of Rs.15,000/- in this head. But towards loss of estate only an amount of Rs.10,000/- is awarded. The petitioners are entitled an additional amount of Rs. 5,000/- in this head. If the excess amount paid for funeral expense and the less amount awarded for loss of estate is **MACA.No.92 OF 2016** 7 compute together, I think, an amount of Rs.5,000/- can be deducted from the total amount. 10. Therefore the enhanced compensation entitled by the petitioners can be summarized like this: 1. Compensation for dependency - Rs.1,73,400/- 2. Loss of consortium - Rs.1,30,000/------------------ **Total Rs.3,03,400/-** == ======== 11. From the above amount Rs. 5,000/- can be deducted, which is the excess amount awarded towards funeral expenses by the tribunal. Then the balance amount will be Rs. 2,98,400/-. Hence the appellants are entitled an enhanced compensation of Rs. 2,98,400/- with interest @ 9% per annum from the date of application till realisation. Therefore, the appeal is allowed in part. The impugned award is modified to the effect that the appellants are entitled an enhanced compensation of Rs.2,98,400/- with interest @ 9% p.a from the date of application till realisation. The 3[rd] respondent is directed to **MACA.No.92 OF 2016** 8 pay the enhanced compensation with interest. (Sd/-) **P.V.KUNHIKRISHNAN JUDGE** LU