Celine Mathew and Others v. Vijayan V.P and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V. FRIDAY, THE 13TH DAY OF JANUARY 2017/23RD POUSHA, 1938 MACA.No. 2171 of 2010 -------------------------- AGAINST THE AWARD IN OPMV 100/2007 of MACT,KALPETTA DATED 22-06-2010 APPELLANTS/petitioners:: ------------ 1. CELINE MATHEW W/O. LATE MATHEW K.T. @ TONY, AGED 42 YERAS, KOCHUDUDIYIL HOUSE, KUNNUMANGALAM POST, MANATHAVADY, WAYANADU DISTRICT, PIN 2. ANU MATHEW, D/O. LATE MATHEW K.T. @ TONY, AGED 18 YEARS,KOCHUDUDIYIL HOUSE,KUNNUMANGALAM POST, MANATHAVADY, WAYANADU DISTRICT. 3. ALWIN MATHEW, S/O.LATE MATHEW K.T. @ TONY, AGED 16 YEARS, KOCHUDUDIYIL HOUSE,KUNNUMANGALAM POST, MANATHAVADY, WAYANADU DISTRICT. 4. THOMAS K.M, S/O.LATE MATHAI, AGED 62 YEARS, KOCHUDUDIYIL HOUSE,KUNNUMANGALAM POST, MANATHAVADY, WAYANADU DISTRICT. 5. ELY THOMAS, W/O.THOMAS K.M,AGED 59 YEARS KOCHUDUDIYIL HOUSE,KUNNUMANGALAM POST, MANATHAVADY, WAYANADU DISTRICT. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) ## RESPONDENTS/RESPONDENTS: - -------------- 1. VIJAYAN V.P, S/O.KANARAN,AGE NOT KNOWN THAYYIL HOUSE, VATTOLLI PO,VADAKARA. 2. RAVEENDRAN K,AGED AND FATHERS NAME NOT KNOWN, KAVARAMMAL, MOTTOLATHARA PO, KAVILAMPARA.673 513. 3. ORIENTAL INSURANCE COMPANY LTD REP BY ITS DIVISIONAL MANAGER, P.B.NO.27,, NARAYAN NAGAR, VADAKARA, POLICY NUMBER NOT KNOWN.VADAKARA P.O. 673 110. R,R3 BY ADV. SRI.P.JACOB MATHEW R,R1&2 BY ADV. SRI.KRISHNA PRASAD. S R,R3 BY ADV. SRI.MATHEWS JACOB (SR.) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 1301-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** **==============================** ## **M.A.C.A. No. 2171 of 2010** **============================== Dated this the 13[th] day of January, 2017** ## **JUDGMENT** ## **Shircy V., J.** The claimants in O.P.(MV)No. 100/2007 on the files of the Motor Accidents Claims Tribunal, Kalpetta, dissatisfied with the quantum of compensation awarded to them as the legal representatives of deceased Mathew @ Tony who died on account of the injuries sustained in a motor accident which occurred on 21.7.2006 have filed this appeal. 2. The facts of the case in brief are as follows: On 21.7.2006, the deceased while riding a motor cycle bearing Reg. No. KL 12/C 955 was knocked down by a lorry bearing Reg.No. KL 5D /4677 driven by the first respondent in a MACA 2171/2010 2 rash and negligent manner which came from the opposite side. Due to the accident, he sustained very serious injuries and though he was rushed to hospital he succumbed to the injuries. The deceased was aged 41 years at the time of his death and he was an agriculturist. According to the learned counsel for the appellants, the amount awarded by the learned Tribunal is too meager and insufficient. 3. The accident as well as the policy are admitted by the third respondent insurance company. There is also no dispute regarding the liability of the insurance company to pay compensation to the appellants 4. Deceased Mathew's widow , his two minor children and parents filed the claim petition for Rs.8,51,000/-.The learned tribunal awarded an amount of Rs.3,35,500/-by taking notionally his monthly income as Rs.2500/-. It is to be noted that the appellants have contended that he was earning an amount of Rs.6000/- per month, and in order to MACA 2171/2010 3 substantiate the same they relies on Ext.A6 certificate issued by the Village Officer to the effect that family income of the deceased per year was 58,850/-. Ext.A6 would only mention about the family income. There is no reliable evidence other than Ext.A6 to consider this amount as the monthly income of the deceased. However, we feel that the notional income fixed by the learned Tribunal is on the lower side and so it has to be enhanced. So we fix the notional income of the deceased as 4000/- per moth. The learned Tribunal has deducted 1/3[rd] as the personal expenses of the deceased. The deceased was only 41 years at the time of his death. So the multiplier is 14, but the Tribunal had taken the multiplier as 15. Here, appellants 2 and 3 are the children and the 1[st] appellant is the wife of the deceased. Claimants 4 and 5 are the parents of the deceased. Applying the principle laid down in **Sarla Verma** v. **Delhi Transport Corporation (2010 (2) KLT 802(SC),** the compensation to be awarded is reworked as follows. The MACA 2171/2010 4 compensation towards loss of dependency is assessed and re-fixed as Rs.5,04,000/-(4000x 12x 3/4x14). The Tribunal had awarded only Rs.3,00,000/- as the compensation for loss of dependency. Hence, the appellants are entitled to get a further amount of Rs.2,04,000/- under that head . Considering the entire facts involved, we feel that it is also just and proper to enhance the amount awarded by the Tribunal under various counts as it was fixed on the lower side . For pain and suffering, as the Tribunal has awarded only Rs.5,000/-.the amount is enhanced to Rs.15,000/- as the death of the deceased was not instantaneous. Hence, the appellants are entitled to get a further amount of Rs.10,000/- under that head. As loss of consortium only an amount of Rs.10,000/- has been granted and that has also enhanced to Rs.1,00,000/-. So, the appellants are entitled to get an enhanced amount of Rs.90,000/- under that count. As loss of love and affection, the learned Tribunal has awarded only Rs.10,000/-. Appellants 2 and 3 are the MACA 2171/2010 5 minor children of the deceased .They were aged only 15 and 13 years at the time of the death of the deceased. So we feel that under the head of loss of love and affection, the amount awarded as Rs.10,000/- is too meager and that has to be enhanced as Rs.1,00,000/-. Therefore, the appellants are entitled to get a further amount of Rs.90,000/- on that count. As compensation for funeral expenses, only an amount of Rs.5,000/-has been granted and that has to be enhanced by giving an additional amount of Rs.5,000/-. Apart from this an additional amount of 20,000/- is granted towards loss of expectation of life. Thus in total the appellants are entitled to get Rs. 4,19,000/- (Rupees four lakh thousand only) as compensation over and above the amount already awarded by the Tribunal .The said amount of Rs.4,19,000/- shall carry an interest at the rate of 7.5% per annum from the date of filing of the petition till realisation. The third respondent Insurance Company shall deposit the amount within three months from today . MACA 2171/2010 6 Accordingly the impugned award is modified and the compensation is enhanced, as indicated above and the appeal is disposed of. **Sd/-** **C.K. ABDUL REHIM JUDGE** **Sd/-** **SHIRCY V. JUDGE** **ks.** True copy P.S. (Hr.Gr.)To Judge MACA 2171/2010 7 MACA 2171/2010 8