Chinnamma and others v. V.M. Jabar, Isaac, The Manager, National Insurance Co. Ltd., and The New India Assurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944 MACA NO. 510 OF 2008 ``` ``` AGAINST THE AWARD IN O.P(M.V) NO.585/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1SMT.CHINNAMMA, W/O.LATE STEPHEN, THARAPOTTAIL HOUSE, POOTHRIKKA P.O., PUTHENCRUZ. 2SHYNI, D/O.LATE STEPHEN, -DO- -DO-. 3SHYSON, S/O.LATE STEPHEN, -DO- -DO-. 4MISS SHIJA, D/O. LATE STEPHEN, -DO- -DO-. 5SHAN, S/O.LATE STEPHEN, -DO- -DO-. 6SHARON, S/O.LATE STEPHEN, -DO- -DO-. BY ADVS.SRI.PETER LAL SRI.K.P.POULOSE ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1V.M.JABAR, VELLOOPARAMBIL HOUSE, PUNNAMATTOM P.O., ENANALLOOR, MUVATTUPUZHA. 2ISSAC, S/O.ADAM, CHARUMUTTATHU HOUSE, MEKADAMPU KARA, VALAKOM VILLAGE, MUVATTUPUZHA. 3THE MANAGER, NATIONAL INSURANCE CO.LTD., PULIMUTTIL BUILDING, ARCADE, MUVATTUPUZHA ROAD, THODUPUZHA. 4THE NEW INDIA ASSURANCE CO. LTD. MUVATTUAPUZHA. BY ADVS. R2 BY SRI.M.V.PAULOSE R3 BY SRI.P.G.JAYASHANKAR SMT.P.K.RESHMA (KALARICKAL)(K/875/2014) SRI.S.RAJEEV (K/001711/2019)(K/001711/2019) SMT.SAJANA V.H(K/1174/2021) SMT.KAVYA DAS M.(Ms.4069/2018) SMT.VINITHA S.T.(K/704/2021) R4 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.510 of 2008 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 14[th] day of December, 2022** This appeal is filed challenging a common award dated 31.07.2007 passed by Motor Accidents Claims Tribunal, Muvattupuzha (for short ‘the Tribunal’) to the extent compensation stands awarded by it in favour of the petitioners in O.P(M.V) No.585/2003. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 4 in accordance with their status in the Original Petition. 3. The appellants herein are the petitioners in O.P(M.V) No.585/2003 on the files of the above Tribunal. They are the legal representatives of Mr.Stephen who died following injuries sustained in a motor accident occurred at about 10 a.m. on 17.01.2003 with the involvement of an autorickshaw bearing Registration No.KL-7U/1452. On the fateful day, Mr.Stephen was riding a Motorcycle bearing Registration No.KL-7B/262 through NH 49 and it was dashed ``` M.A.C.A.No.510 of 2008 ``` ``` 3 ``` by the autorickshaw referred above and thereby he sustained serious injuries. Since the injuries were fatal, he succumbed to the injuries while undergoing treatment at the hospital. The legal representatives of the deceased therefore filed the above Original Petition alleging that the motor accident was occurred due to the rash and negligent driving of the autorickshaw by its driver and raising a claim for Rs.6,00,000/- as compensation from respondents 1 to 3 jointly and severally. 4. The owner, the driver and the insurer of the autorickshaw were arrayed as respondents 1 to 3 and the insurer of the Motorcycle was arrayed as respondent No.4 in the above Original Petition. Respondent No.1 entered appearance on receipt of notice from the Tribunal but did not contest the Original Petition and therefore declared ex parte. The driver of the autorickshaw who is the 2[nd] respondent has filed written statement contending that the motor accident was occurred due to the negligence of Mr.Stephen who was riding the Motorcycle. It is further contended that the driver of the autorickshaw was not ``` M.A.C.A.No.510 of 2008 ``` ``` 4 ``` responsible for the accident. Admittedly the autorickshaw was having a valid permit and policy and the alleged driver was holding a valid driving licence. The 3[rd] respondent the insurer of the autorickshaw also claimed leave of the Tribunal to contest the Original Petition availing all statutory defences by filing an application under Section 170 of the Motor Vehicles Act, 1988 (for short ‘the M.V Act’). 5. Before the Tribunal evidence was adduced in common in the Original Petition on hand as well as the Original Petition filed by another injured in the same motor accident. Evidence consists of Exts.A1 to A17 and B1 and B2. The Tribunal found on the basis of the evidence on record that the alleged motor accident was occurred due to the rash and negligent driving of the autorickshaw bearing Registration No.KL-7U/1452 by its driver who was arrayed as the 2[nd] respondent in the Original Petition. The Tribunal also found that Mr.Stephen sustained fatal injuries in the motor accident and died on account of those during hospitalisation. The Tribunal has arrived at Rs.1,83,620/as the total compensation payable to the petitioners in the ``` M.A.C.A.No.510 of 2008 ``` ``` 5 ``` above Original Petition who are the legal representatives of deceased Stephen. Aggrieved by the quantum of compensation stands awarded by the Tribunal in favour of petitioners in the above Original Petition, they have approached this Court in the appeal on hand. 6. The main challenge raised against the impugned award was that the compensation arrived at by the Tribunal was on the basis of the meagre monthly income fixed notionally as Rs.2,500/-. According to the learned counsel the deceased was an Ex-service man, aged 56 years but well built. At the relevant time of the motor accident he was involved in several jobs to sustain his family consisting of six members. According to him, the deceased was the sole bread winner of his family and was striving hard to maintain them in a reasonable manner. According to the learned counsel he had undertaken various jobs as a Farmer, as an agent of recruitment for some educational institutions and also as a Security Guard. The monthly income claimed is Rs.10,000/-. The petitioners have also produced some documents to establish the involvement of the deceased in ``` M.A.C.A.No.510 of 2008 ``` ``` 6 ``` various jobs as above and got those marked in evidence as Exts.A13 to A15 series and Ext.A16. Ext.A13 is nothing but a Deposit receipt showing that the deceased had a fixed deposit of Rs.24,000/- with his banker. Ext.A14 is a passbook relating to the account maintained by the deceased which shows a credit of Rs.2,189/- as his pension from the Defence where he was working prior to the motor accident. Ext.A15 series are certain letters to establish that he had been conducting interviews for recruitment of students to certain educational institutions. Ext.A16 is an ID card which shows that he was a member of the Farmers’ Co-operative Society. According to the petitioners, a certificate to establish that the deceased was getting Rs.3,940/- from UNO Security Services was also produced. But, being a photocopy, the same was not accepted by the Tribunal in evidence. The contention of the learned counsel for the petitioner was that despite production of Ext.A13 to A16, the Tribunal failed to fix a reasonable sum as his monthly income. According to him, discarding those documents the Tribunal fixed the monthly income of the ``` M.A.C.A.No.510 of 2008 ``` ``` 7 ``` deceased as Rs.2,500/- on a notional basis and therefore is unjustified. The learned counsel canvasses for taking a higher sum as the monthly income, taking into account of the claim of the petitioners that the deceased was the sole bread winner of their family and maintaining six members in the family using the monthly income earned by him at the relevant time. 7. It is further contended by the learned counsel that though the petitioners are entitled to get compensation under the conventional heads as fixed by the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)]** , the Tribunal awarded only amounts lesser than those fixed. According to him modification of the compensation in tune with the direction issued by the Apex Court in **Pranay Sethi** supra is required in the case on hand. The learned counsel has also contended that since the consideration of the appeal being in the year 2022, the direction of the Apex Court in **Pranay Sethi** to grant 10% hike in the compensation fixed under the conventional heads also needs ``` M.A.C.A.No.510 of 2008 ``` ``` 8 ``` to be considered in the case on hand. According to the learned counsel, petitioners are entitled to get Rs.16,500/each under the head funeral expenses and loss of estate and Rs.44,000/- per person towards loss of consortium. The learned counsel has pointed out that the Tribunal has awarded only Rs.5,000/- each as compensation for loss of consortium to petitioners 4 to 6, Rs.15,000/- to the 1[st] petitioner, who is the wife of the deceased and declined to grant any sum as compensation towards loss of consortium to 2[nd] and 3[rd] petitioners, who are the children of the deceased. According to him each of them are entitled to get Rs.44,000/-. Therefore the 1[st] petitioner is entitled to get Rs.29,000/- and 2[nd] and 3[rd] petitioners are entitled to get Rs.39,000/- as additional compensation towards loss of consortium. 8. A contention was also raised by the learned counsel for the petitioners that the date of birth of the deceased was not proved before the Tribunal. According to him in the postmortem certificate, the age of the deceased was shown as 58 years. According to him, the original ``` M.A.C.A.No.510 of 2008 ``` ``` 9 ``` Electoral ID card is produced by him in the appeal on hand alongwith a petition filed as I.A.No.01/2022 seeking to receive the same in additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, 1908. According to him, if the Electoral ID card is received in evidence, the appropriate age of the deceased at the relevant time of his death would be revealed and that can be taken into consideration for the purpose of assessment of just and reasonable compensation payable to the petitioners. 9. The reasons stated in the Interlocutory Application for non production of the document earlier was that the wife of the deceased was an illiterate lady and was not aware of its relevancy in evidence for getting a just and reasonable compensation in the case on hand. 10. The learned counsel for the petitioners has also contended that interest has not been awarded by the Tribunal from the date of the Original Petition but only from the date of the award. According to him cogent reasons have not been stated in the award by the Tribunal for its failure to award interest from the date of the Original ``` M.A.C.A.No.510 of 2008 ``` ``` 10 ``` Petition. 11. Policy for the offending vehicle stands admitted by the 3[rd] respondent. The marking of the Electoral ID card is vehemently objected to by the learned counsel for the 3[rd] respondent for the reason that it was a document in the custody of the petitioners but they failed to produce it before the Tribunal and mark in evidence. According to him, sufficient reasons are also not stated in the application filed to receive it in additional evidence and therefore, the application is liable to be dismissed. The learned counsel has also pointed out that the motor accident was in the year 2003 and if a modification of the monthly income is required that can go to the extent of Rs.4,000/-. It is contended by the learned counsel that compensation has been awarded by the Tribunal under the head pain and suffering. According to him, Rs.15,000/- stands awarded under that head requires adjustment in the additional compensation, if any that would be arrived at by this Court. 12. The learned counsel for the 3[rd] respondent has also contended that once the Original Petition was dismissed ``` M.A.C.A.No.510 of 2008 ``` ``` 11 ``` for default and was restored only after 2299 days and therefore, the 3[rd] respondent needs cannot be made liable for paying interest for the said period. The learned counsel has also canvassed that interest at the rate of 9.5% per annum stands awarded by the Tribunal being exorbitant, requires reduction. 13. The learned counsel for the 4[th] respondent, who is the insurer of the Motorcycle in which the deceased was travelling at the relevant time has contended that they are in no way responsible for indemnifying the insured in any manner, since negligence was found by the Tribunal against the 2[nd] respondent who was driving the autorickshaw at the relevant time and it stands validly insured with the 3[rd] respondent. 14. This Court is not convinced of the reasons stated in the Interlocutary Application filed as I.A.No.01/2022. But for the reason that the document proposed to be marked in evidence being proof of age of the deceased, is very much relevant for arriving at a true decision and awarding a just and reasonable compensation to the petitioners in the case ``` M.A.C.A.No.510 of 2008 ``` ``` 12 ``` on hand, this Court has allowed the application filed as I.A.No.01/2022 and received the Electoral ID card produced alongwith, in additional evidence as Ext.A18. 14. The Tribunal has adopted the multiplier as 5 by taking the age of the deceased as 60 years without any basis. On the basis of Ext.A18, this Court is inclined to go by 56 years as the age of the deceased. Therefore 5 adopted by the Tribunal as the multiplier is substituted by 9, the multiplier appropriate for the age of 56 years. 15. The claim of monthly income by the petitioners was not established by cogent evidence. The petitioners have raised a claim that the deceased was the sole bread winner of the family consisting of six members including his wife and five children. They have raised a further claim that after getting retired from the defence, the deceased was attending several jobs to earn income and thereby to maintain his family. Documents were also produced and marked in evidence as Exts.A13 to A16. It is pertinent to note that none of those documents were proved by examining the signatories who were responsible for its ``` M.A.C.A.No.510 of 2008 ``` ``` 13 ``` issuance. Therefore, those were rightly discarded by the Tribunal. The deceased being the sole bread winner of his family, including five children who are below the age of 28 years, this Court finds it reasonable to consider Rs.8,000/as his monthly income at the relevant time he lost his life in the motor accident. 17. In view of the Constitution Bench decision of the Apex Court in **Pranay Sethi** supra, the deceased being 56 years, 10% addition to the monthly income can be taken in consideration of loss of future prospects. 1/3[rd] is found deducted by the Tribunal towards personal expenditure, the deceased was liable to meet, had he been alive after the motor accident. The deceased being established as survived by six members, 1/4[th] is substituted for 1/3[rd] stands considered by the Tribunal. 18. For the reason that the 2[nd] petitioner was aged 28 years at the relevant time of the motor accident, compensation was not granted towards loss of consortium in her favour. Compensation under that head was also declined to the 3[rd] petitioner, who was the son of the ``` M.A.C.A.No.510 of 2008 ``` ``` 14 ``` deceased for the reason of his death on 27.04.2005, when the Original Petition was pending consideration of the Tribunal. 19. As rightly pointed out by the learned counsel for the petitioners, Rs.16,500/- each is payable as compensation towards funeral expenses and loss of estate. Rs.5,000/- and Rs.2,500/- stand already awarded by the Tribunal when adjusted in the sum payable, the petitioners will get Rs.11,500/- and Rs.14,000/- respectively under the above heads. Rs.44,000/- is the sum payable as compensation per head towards loss of consortium. Rs.15,000/- was awarded by the Tribunal to the 1[st] petitioner and therefore she will get Rs.29,000/- as additional compensation. Rs.5,000/- stands awarded as ompensation to each of petitioners 4 to 6, when adjusted against the sum payable, each of them will get Rs.39,000/as additional compensation under that head. True that petitioner No.2 was aged 28 years, but there is no evidence on record to establish that she is not a dependent of the deceased. It is revealed from Ext.A12 that the 3[rd] ``` M.A.C.A.No.510 of 2008 ``` ``` 15 ``` petitioner, the son of deceased Stephen died on 27.04.2005, i.e. after two years of filing of the Original Petition. In the view of this Court the Tribunal is unjustified in the above context in declining compensation towards loss of consortium in favour of petitioners 2 and 3. Therefore, this Court awards Rs.44,000/- each as compensation in favour of petitioners 2 and 3. Thus the petitioners will get Rs.2,34,000/- [Rs.29,000/- + Rs.44,000/- + Rs.44,000/- + 1,17,000/- (Rs.39,000 x 3)] in total as additional compensation towards loss of consortium. 20. When compensation for loss of dependency is reassessed with the modified factors discussed above, Rs.7,12,800/- [Rs.8,800/-(Rs.8,000 + 10% of Rs.8,000/-) x 12 x 9 x 3/4[th] ] is arrived at. Rs.1,00,020/- stands awarded by the Tribunal when deducted from the above sum, the petitioners will get Rs.6,12,780/- as additional compensation under that head. 21. In the above manner of reassessment Rs.8,72,280/- is arrived at. The petitioners are not entitled to get Rs.15,000/- stands awarded by the Tribunal as ``` M.A.C.A.No.510 of 2008 ``` ``` 16 ``` compensation towards pain and suffering. When Rs.15,000/- is adjusted against the sum arrived at, the petitioners will get Rs.8,57,280/- (Rupees Eight lakhs fifty seven thousand two hundred and eighty only) (Rs.8,72,280/- - Rs.15,000/-) as total additional compensation. The said amount will carry interest at the rate of 7.5% per annum. 22. The M.A.C.A was once dismissed for default and the same was restored to the files of this Court after a period of 2299 days. Therefore the 3[rd] respondent shall deposit the total sum arrived at, with interest fixed on it as above from the date of filing of the Original Petition till the date of realisation excluding 2299 days being the delay occurred in getting the appeal restored. 23. Though it is canvassed by the learned counsel for the 3[rd] respondent to reduce the rate of interest stands awarded by the Tribunal, this Court is declined to do so, for the reason that an appeal challenging the same was not filed by the 3[rd] respondent and also that the rate of interest to be awarded is a matter of discretion for the Tribunal. The ``` 17 ``` ## **`M.A.C.A.No.510 of 2008`** 3[rd] respondent shall deposit the above sum with interest and in case the original sum stands awarded by the Tribunal is not deposited, that sum too, within a period of two months from the date of receipt of a certified copy of this judgment. MACA stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB ``` 18 ``` ``` M.A.C.A.No.510 of 2008 ``` ## **`APPENDIX OF MACA No.510/2008`** ``` PETITIONER’S ANNEXURES: ``` ``` ANNEXURE A1ELECTORAL ID CARD OF THE DECEASED T.C.STEPHEN DATED 20.05.1997 ANNEXURE A2PENSION CERTIFICATE OF DECEASED STEPHEN ANNEXURE A3DEATH CERTIFICATE OF THE 1ST APPELLANT DATED 02.11.2015. ``` ``` RESPONDENT’S ANNEXURES: NIL ``` ``` //TRUE COPY// P A TO JUDGE ```