Chinnamma @ Alykutty and others v. Joy Sebastian and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` MONDAY, THE 3 [ RD ] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ## `MACA NO. 526 OF 2014` ``` AGAINST THE ORDER/JUDGMENT DATED 21.08.2013 IN OPMV NO.945 OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA ``` ## `APPELLANTS/PETITIONERS:` - `1 CHINNAMMA @ ALYKUTTY AGED 72 YEARS W/O.LATE GEORGE, RESIDING AT MANNARAKATH HOUSE, BHARANANGANAM VILLAGE, EDAPPADY PO, KOTTAYAM DISTRICT` - `2 ELSAMMA TOMAS AGED 54 YEARS W/O.LATE THOMAS, RESIDING PULIKKUNNEL HOUSE, BHARANANGANAM VILLAGE, EDAPPADY PO, KOTTAYAM DISTRICT` - `3 KOCHU RANI GEORGE AGED 47 YEARS W/O.T.C.JOSEPH,RESIDING AT MANNARAKATH HOUSE, BHARANANGANAM VILLAGE, EDAPPADY PO, KOTTAYAM DISTRICT, NOW RESIDING AT THANNIPOTHIYIL HOUSE, BHARANANGANAM PO, KOTTAYAM DISTRICT` - `4 SHAJI.M.GEORGE AGED 45 YEARS RESIDING AT MANNARAKATH HOUSE, BHARANANGANAM VILLAGE, EDAPPADY PO, KOTTAYAM DISTRICT` - `5 SHINY M.GEORGE AGED 43 YEARS W/O.MATHEW ABRAHAM , RESIDING AT MANNARAKATH HOUSE, BHARANANGANAM VILLAGE, EDAPPADY PO, KOTTAYAM DISTRICT, NOW RESIDING AT VALIYAMTHADATHIL HOUSE, POOVARANY PO, KOTTAYAM DISTRICT` - `6 SHEEBA AGED 37 YEARS W/O.MANUKHAN,RESIDING AT MANNARAKATH HOUSE, BHARANANGANAM VILLAGE, EDAPPADY PO, KOTTAYAM DISTRICT BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD` ## `RESPONDENTS/RESPONDENTS:` ``` 1 JOY SEBASTIAN ``` ``` MACA NO. 526 OF 2014 ``` ``` 2 ``` ``` S/O.DEVASIA, RESIDING AT KAVALAKKATTU HOUSE, EZHACHERRY PO, RAMAPURAM PALAI, KOTTAYAM 686 651. ``` - `2 LIJU VARGHESE S/O.VARGHESE, RESIDING AT MOLEPPILLIL HOUSE, ONAKKOOR PO, PAMPAKUDA, MUVATTUPUZHA, KOTTAYAM 686 667` - `3 THE ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE NO.1, MATTETHARA BUILDINGS, M.C.ROAD, BAKER JUNCTION, KOTTAYAM 686 001.` ``` BY ADVS. SRI.R.AJITH KUMAR 12884 K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 526 OF 2014 ``` ``` 3 ``` ## **`J U D G M E N T`** ``` This appeal is at the instance of the claimants in OP(MV) No.945 of 2011 on the file of Motor Accidents Claims Tribunal, Pala impugning the award on the ground of inadequacy of compensation. ``` ``` 2. One Mr.Shibu.M.George who is the son of the 1 st appellant and brother of appellantS 2 to 6 met with a road traffic accident on ``` ``` 31/10/2010, while he was riding a motorcycle through Edayar- Piravam public road. KL-35/6636 stage carriage driven by the 2 nd respondent in a ``` ``` rash and negligent manner dashed against his motorcycle and himself and the pillion rider ``` ``` fell down on the road and both of them sustained fatal injuries and later succumbed to ``` ``` it. Deceased Shibu.M.George was a 35 year old ``` ``` MACA NO. 526 OF 2014 ``` ``` 4 ``` ``` tile worker earning monthly income of ``` ``` Rs.12,000/-. His mother and siblings approached the Tribunal claiming compensation of ``` ``` Rs.12,00,000/-, but the Tribunal awarded only Rs.7,88,500/-, and hence this appeal. ``` `3. The 3 rd respondent-insurer admitted the` ``` accident as well as the policy of the offending vehicle. Hence, notice to respondents 1 and 2 was dispensed with. ``` ``` 4. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court. ``` ``` 5. Heard learned counsel for the appellants and learned counsel for the 3rd respondent- insurer. ``` `6. Learned counsel for the appellants is` ``` MACA NO. 526 OF 2014 ``` ``` 5 ``` ``` disputing the quantum of compensation awarded by learned Tribunal as it is on the lower side. According to him, the deceased was a 35 year old tile worker, and instead of adopting multiplier of 16, learned Tribunal adopted multiplier of 5. Moreover, though the deceased was earning monthly income of Rs.12,000/-, the ``` ``` tribunal fixed notional income @ Rs.6,000/- only. The amount awarded under the head loss of estate as well as loss of love and affection are also on the lower side. ``` ``` 7. The fact that, deceased Shibu was a tile worker aged only 35 as on the date of accident is not under dispute. Learned Tribunal fixed his notional income @ Rs.6,000/-. Learned counsel for the appellants would rely on the decision Ramachandrappa v. Manager, Royal ``` ``` MACA NO. 526 OF 2014 ``` ``` 6 ``` ``` Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951] , to say that even a coolie worker was eligible to get his notional income fixed @ Rs.7,500/- per month in the year 2010. Here the deceased was a skilled worker and so according to the appellants, he was eligible to get his notional income fixed even higher than that. Based on Ramachandrappa’s decision cited ``` ``` above, this Court is inclined to fix the notional income of the deceased @ Rs.7,500/- per month. Since he was self employed and aged ``` ``` below 40, 40% addition can be given towards future prospects. So his income could have been taken as Rs.10,500/- (7500+40%). Since his mother alone was his dependent, 50% has to be deducted towards his personal expenses. So his monthly income could have been taken as Rs.5,250/-. Applying multiplier of 16, the ``` ``` MACA NO. 526 OF 2014 ``` ``` 7 ``` ``` compensation for loss of dependency could have been assessed as Rs.10,08,000/-. Learned Tribunal awarded only Rs.2,70,000/-. So the balance amount entitled under the head loss of dependency is Rs.7,38,000/-. ``` ``` 8. Towards funeral expenses, learned Tribunal awarded Rs.25,000/- as per the decision National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680], the appellants are entitled to get Rs.15,000/- alone. So Rs.10,000/- awarded in excess by the Tribunal is liable to be deducted. ``` ``` 9. Learned counsel for the appellants would ``` ``` submit that deceased Shibu was hospitalized for 161 days after the accident, but learned Tribunal awarded nothing towards bystander expenses. The accident was in the year 2010. So ``` ``` MACA NO. 526 OF 2014 ``` ``` 8 ``` ``` this Court is inclined to award bystander expenses @ Rs.250/- per day for 161 days, which will come to Rs.40,250/-. The appellants are entitled to get that amount towards bystander expenses. ``` `10. Towards loss of estate, learned Tribunal` ``` awarded only Rs.5,000/- as per Pranay Sethi’s case cited supra the appellants are entitled to get Rs.15,000/-. So they will get the balance amount of Rs.10,000/- as enhancement under the ``` ``` head loss of estate. ``` ``` 11. Towards loss of love and affection, learned Tribunal awarded only Rs.5,000/- relying on Pranay Sethi’s case cited supra, the 1 st appellant mother was entitled to get Rs.40,000/- under the head loss of consortium. After deducting Rs.5,000/- already awarded, the ``` ``` MACA NO. 526 OF 2014 ``` ``` 9 ``` ``` 1st appellant is entitled to get Rs.35,000/- as ``` ``` enhancement under the head loss of consortium. ``` ``` 12. The compensation awarded under all other ``` ``` heads seems to be reasonable, and hence it ``` ``` needs no modification. ``` `13. The enhanced compensation awarded in this` ``` appeal is stated in the table below:- ``` |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted<br>in appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|2,70,000/-|10,08,000/-|–|7,38,000/-| |Funeral expenses|25,000/-|15,000/-|10,000/-|| |Bystander<br>expenses|-|40,250/-<br>[250x161]|-|40,250/-| |Loss of estate|5,000/-|15,000/-|-|10,000/-| |Loss of consortium|5,000/-|40,000/-|-|35,000/-| |Total 10,000/- 8,23,250/-||||| ``` 14. So the 1 st appellant is entitled to get enhanced compensation of Rs.8,13,250/-. ``` ``` MACA NO. 526 OF 2014 ``` ``` 10 ``` ``` 15. The 3rd respondent/insurer is directed to deposit the enhanced compensation of Rs.8,13,250/- in the bank account of the 1st appellant with 7.5% interest per annum, from the date of petition till the date of deposit (excluding 47 days of delay in filing the appeal) before the Motor Accidents Claims Tribunal, Pala within a period of two months ``` ``` from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the 1 st appellant after deducting the ``` ``` liabilities, if any, towards Tax, balance court fee, legal benefit fund etc. ``` ``` The appeal is allowed to the extent as above, ``` ``` with proportionate cost. ``` ``` Sd/- ``` ``` SOPHY THOMAS, ``` ``` JUDGE ``` ``` ska ```