D. Pushpakumari, P. Sukumaran and Radhika v. G. Suresh T.C., Mohanan Pillai (Deleted) and National Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 MACA NO. 1729 OF 2005 ``` ``` AGAINST THE AWARD DATED 03.09.2004 IN OP(MV) NO.29 OF 2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`APPELLANT/APPLICANTS:`** - **`1 D.PUSHPAKUMARI D/O DEVAKI, RESIDING AT SUKUMARA VILASOM, NEDUMBA, ATTUKAL, CHULLIMANNOR, NEDUMANGADU, THIRUVANANTHAPURAM.`** - **`2 P.SUKUMARAN S/O.PADMANABHAN, RESIDING AT SUKUMARA VILASOM, NEDUMBA, ATTUKAL, CHULLIMANNOR, NEDUMANGADU, THIRUVANANTHAPURAM.`** - **`3 RADHIKA D/O.PUSHPAKUMARI RESIDING AT SUKUMARA VILASOM, NEDUMBA, ATTUKAL, CHULLIMANNOOR, NEDUMANGADU, THIRUVANANTHAPURAM.`** ``` BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 G.SURESH T.C. 4/41602-3, 'GOVINDA', KESTEN ROAD, KOWDIAR P.O., THIRUVANANTHAPURAM.`** - **`*2 MOHANAN PILLAI (DELETED)* S/O.BALAKRISHNA PILLAI MANALIYIL HOUSE, KANAKODE, VATTAPPARA P.O., THIRUVANANTHAPURAM.`** - **`3 DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., BRANCH NO. I, SOUNDARYA BUILDING, M.G.ROAD, THIRUVANANTHAPURAM.`** ``` MACA NO. 1729 OF 2005 ``` ``` 2 ``` ``` *(RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY SUBJECT TO THE RISK OF THE APPELLANTS, AS PER THE ORDER DATED 27/02/2024 IN IA.NO.2/2015 (3551/2015) IN MACA 1729/2005 ) ``` ``` BY ADVS. SRI.A.ABDUL KHARIM SRI.JOE KALLIATH SRI.M.SREEKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1729 OF 2005 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants were the petitioners in O.P. (M.V.) No.29/2000 on the files of Motor Accidents Claims Tribunal, Thiruvananthapuram. The said claim petition was submitted by them seeking compensation for the death of one Sunilkumar, due to the injuries sustained in a motor accident that occurred on 25.07.1999. The deceased was the son of appellants 1 and 2 and the brother of the 3rd appellant. 2. The accident occurred, when the deceased was standing beside a tipper lorry, touching the rear side of the lorry and the 2nd respondent, the driver of the lorry, raised the tipper of the lorry for the purpose of unloading. During the said process, the top of the lorry came in contact with an 11 K.V. electric line and as a result of which, the deceased got electrocuted. Even though he was taken to Taluk Hospital, Neyyattinkara, he succumbed to the injuries. The 1st respondent was the owner of the said lorry and it was insured with the 3rd respondent. The deceased was a cleaner in the lorry with a monthly income of Rs.5,000/-. He was aged 26 years at the time of the accident. The claim petition was ``` MACA NO. 1729 OF 2005 ``` ``` 4 ``` submitted in such circumstances. 3. Respondents 1 and 2 filed a joint written statement disputing the negligence of the second respondent. The third respondent filed a written statement admitting the existence of a valid insurance policy for the lorry but disputed the liability on various grounds. They also disputed the quantum of compensation. 4. To substantiate the contentions the appellants produced and marked Ext.A1 to A11. No evidence was adduced by the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the 2nd respondent and being the insurer, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,12,400/- and the said amount was directed to be deposited by the 3rd respondent with interest @ 9% per annum from the date of petition till realization. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 5. Heard Sri. R.T. Pradeep, learned counsel appearing ``` MACA NO. 1729 OF 2005 ``` ``` 5 ``` for the appellants and Sri. Joe Kalliath, learned counsel appearing for the 3rd respondent. 6. The only question that arises for consideration is whether any enhancement of compensation, as claimed in the appeal, is warranted or not. On going through the amount awarded by the Tribunal and the method of assessment made, it can be seen that, there are several discrepancies in the award, as far as the quantum of compensation is concerned. The Tribunal took the monthly income as Rs.1,800/-, which appears to be on the lower side. In addition to the above, no addition towards future prospects were also made by the Tribunal. Even though the appellants claimed that the deceased was a cleaner, no evidence was adduced, and the monthly income of Rs.5,000/- was also not established by them. Even if that be so, the amount of Rs.1,800/is on the lower side. Considering the facts and circumstances of the case and the standards prevailed at the time of the accident, I deem it appropriate to fix it as Rs.2,500/-. 7. The next aspect relates to the future prospects. In the light of **National Insurance Co. Ltd v. Pranay Sethi [2017 (4)** ``` MACA NO. 1729 OF 2005 ``` ``` 6 ``` **KLT 662 (S.C.)]** an addition of 40% of the monthly income needs to be made, as the deceased was aged 26 years, at the time of the accident. Since the deceased died as a bachelor, 50% has to be deducted towards personal expenses. Another discrepancy in the award is that the Tribunal adopted the multiplier as 8, which was applicable to the age of the parents of the deceased. In the light of **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (S.C.)] and Pranay Sethi (supra),** the multiplier to be made applicable is with respect to the age of the deceased and not that of the dependents of the deceased, even in the case of bachelor. Therefore, the proper multiplier is 17, as the deceased was aged 26 years at the time of the accident. Thus, while reassessing the compensation with the above monthly income, the amount would come to Rs.3,57,000/- [(2500+40%)x12x17x1/2]. The amount already awarded by the Tribunal is Rs.86,400/- and thus, the additional compensation would come to Rs.2,70,600/-. 8. The other head which requires consideration is the funeral expenses. It is seen that the Tribunal awarded Rs.5,000/towards funeral expenses and transportation expenses combined ``` MACA NO. 1729 OF 2005 ``` ``` 7 ``` together. In the light of **Pranay Sethi (supra)** a further sum of Rs.10,000/- is awarded towards the funeral expenses. Since the entire amount of Rs.5,000/- is appropriated towards funeral expenses, a separate sum of Rs.1,000/- is awarded towards transportation expenses. 9. The Tribunal did not award any compensation towards the loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) K.L.T. Online 3095 (S.C.) and United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** the 1st and 2nd appellants, being the parents, are entitled to compensation under this head at the rate of Rs.40,000/- each. Thus, a further sum of Rs.80,000/- is awarded towards the loss of consortium. Thus, the total additional compensation would come to Rs.3,61,600/[270600+10000+1000+80000]. 10. At this juncture, the learned counsel for the 3rd respondent pointed out that the appeal was dismissed for default on 03.11.2015 and it was restored only on 13.02.2024. Therefore, it was pointed out that the 3rd respondent cannot be mulcted with ``` MACA NO. 1729 OF 2005 ``` ``` 8 ``` the liability to pay interest for the said period. However, on going through the records, it can be seen that, on 03.11.2015, the appeal was dismissed for default and on 06.11.2015, i.e., after three days of the dismissal, an application for restoration was filed. But, unfortunately, the application was kept pending and it was considered only on 13.02.2024. It is evident from the records that the said application never happened to be posted before 13.02.2024. Moreover, while allowing the M.J.C. on 13.02.2024, this Court did not impose any condition exonerating the insurer from payment of the interest pertaining to the said period. In such circumstances, as the appellant submitted the application for restoration immediately after its dismissal, I am not inclined to entertain the contention raised by the learned counsel for the 3rd respondent in this regard. In the result, this appeal is allowed. Award dated 03.09.2004 passed by the Motor Accidents Claims Tribunal, Thiruvananthapuram in O.P. (MV). No.29 of 2000 is hereby modified by granting an additional compensation of Rs.3,61,600/[Rupees three lakhs sixty-one thousand and six hundred only] and ``` MACA NO. 1729 OF 2005 ``` ``` 9 ``` the said amount shall be deposited by the 3rd respondent with interest at the rate of 8% per annum from the date of petition till realization. However, it is clarified that as there was a delay of 235 days in filing the appeal, the 3rd respondent shall be at liberty to exclude the said period while computing the interest for the additional compensation. It is further ordered that the claimants shall furnish the details of the P.A.N. Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs