Devaki and Others v. Joe C. Wattasseril, Rajeshkumar and The New India Assurance Co. Ltd. (MACA No. 1622/2011)

MACA.No.1622/2011 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA,_ _1945_ ## _MACA NO. 1622 OF 2011_ _AGAINST THE ORDER/JUDGMENT OPMV 1562/2006 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA_ ## _APPELLANT:_ _1 DEVAKI, AGED 72 YEARS, W/O.NARAYANAN, BHAGAVATHI PARAMBU, WARD NO.17, AROOR VILLAGE, AROOR MURI, AROOR P.O., CHERTHALA TRALUK, ALAPPUZHA DISTRICT._ _2 ANANDAVALLI, AGED 52 YEARS, W/O.ARAVINDAKSHAN RESIDING IN BHAGAVATHI PARAMBU, WARD NO. 17, AROOR VILLAGE, AROOR MURI, AROOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-688 534._ _3 AKHIL ARAVIND, AGED 26 YEARS, S/O.ARAVINDAKSHAN RESIDING IN BHAGAVATHI PARAMBU, WARD NO. 17, AROOR VILLAGE, AROOR MURI, AROOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-688 534._ _4 ASHOKAN, AGED 52 YEARS, S/O.NARAYANAN RESIDING IN BHAGAVATHI PARAMBU, WARD NO. 17, AROOR VILLAGE, AROOR MURI, AROOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-688 534._ _5 AMBIKA, AGED 53 YEARS, KUDAKUTHUM PARAMBU, AROOR VILLAGE, AROOR P.O.,_ MACA.No.1622/2011 2 ## _CHERTHALA TALUK, ALAPPUZHA DISTRICT-688534 *_ _(ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED VIDE ORDER DATED 27/09/2023 IN IA 1/2019 IN MACA 1622/2011)_ _BY ADV V.N.SANKARJEE_ ## _RESPONDENTS:_ - _1 JOE C.WATTASSERIL, S/O.CHANDI, WATTACHERIL HOUSE, MANJADI P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN – 689 105._ - _2 RAJESHKUMAR, S/O.RAMACHANDRAN PILLAI, PADINJARE KALAYIL, NEAR POOVANTHURUTH, SREEKRISHNASWAMI TEMPLE, WARD NO.9, PANCHIKKADU PANCHAYAT, POOVANTHURUTH P.O., KOTTAYAM DISTRICT-686 012._ - _3 THE NEW INDIA ASSURANCE CO.LTD., MUNDUKOOTTACKAL CHAMBERS, KANJIKUZHI, KOTTAYAM686 004. (POLICY NO. 761500/31/06/01/00000761_ _BY ADV.PMM.NAJEEB KHAN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1622/2011 3 ## **JUDGMENT** This appeal arises from OP(MV) 1562/2006 on the files of the Motor Accident Claims Tribunal, Alappuzha. The claim petition was submitted by one Devaki, seeking compensation for the death of her son due to the injuries sustained in a motor accident that occurred on 15.07.2006. 2. The accident occurred when the deceased was hit by a Tata Indica car driven by the 2[nd] respondent, owned by the 1[st] respondent and insured by the 3[rd] respondent. The deceased was aged 36 years at the time of the accident and was working as a mason with a monthly income of Rs.6,000/-. The claim petition was submitted in such circumstances seeking compensation. 3. The 3[rd] respondent alone contested the matter by filing a written statement, wherein they admitted the coverage of the policy. However, they disputed the quantum of compensation claimed by the claimant. 4. The evidence in this case consists of Exts.A1 to A11 from the side of the claimants. No evidence was adduced by the respondents. After the trial, the Tribunal arrived at the conclusion that the accident occurred due to the negligence on MACA.No.1622/2011 4 the part of the 2[nd] respondent in driving the vehicle and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,05,637/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 7% per annum from the date of petition till realization with proportionate costs. This appeal was submitted by said Devaki in such circumstances seeking enhancement of compensation. During the pendency of this appeal, said Devaki died and consequently, appellants 2 to 5, being the legal heirs, were impleaded. 5. Heard Sri.V.N.Sankarjee, learned counsel for the appellants and Sri.PMM Najeeb Khan, learned counsel for the 3[rd] respondent Insurance Company. 6. The only dispute is relating to the quantum of compensation. The learned counsel for the appellant points out that the Tribunal went wrong in taking the monthly income as Rs.3,000/- and in adopting the multiplier applicable to the age of the claimant, instead of the age of the deceased. After considering the materials placed on record, I find force in the said contention. As regards the monthly income, Rs.3,000/appears to be on the lower side. Evidently, the accident MACA.No.1622/2011 5 occurred in the year 2006. Of course, it is true that no evidence was adduced by the claimant before the Tribunal to substantiate the monthly income of the deceased. However, while adopting the method of computation evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd.[2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2)** **SCC 735],** the monthly income of an ordinary worker, even though without any evidence, can be fixed as Rs.5,500/- in respect of an accident in the year 2006. Therefore, I deem it appropriate to fix the monthly income as Rs.5,500/- in this case. Moreover, as rightly pointed out by the learned counsel for the appellant, the proper multiplier ought to have been 15, which is applicable to the age group of 35 to 40, and the deceased was aged 36 years. Since it is categorically held in **Sarla Verma v. Delhi Transport Corportaion [2010 (2) KLT 802 (SC)]** that the multiplier that has to be applied should be with reference to the age of the victim, the said multiplier is accepted. 7. The next aspect relates to the addition to be made towards future prospects. The deceased falls within the age MACA.No.1622/2011 6 group of persons below 40 years, and hence 40% has to be added. Similarly, since he died as a bachelor, 50% has to be deducted towards personal expenses. Thus, when re-assessing the compensation with the revised monthly income with future prospects and multiplier as 15, the amount would come to Rs.6,93,000/- [(5500+40%) x 12 x 15 x 1/2]. The amount awarded by the Tribunal under this head is Rs.1,62,000/- and thus, the additional compensation under this head would come to Rs.5,31,000/-. 8. It is seen that the funeral expenses awarded by the Tribunal were only Rs.2,000/- and therefore, a further sum or Rs.13,000/- is granted under this head as per **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)].** However, the Tribunal calculated the compensation for loss of estate and loss of dependency as Rs.1,62,000/-. I have already re-assessed the amount of Rs.1,62,000/- awarded towards the loss of dependency and granted enhancement under that head. While making such re-assessment, the entire amount of Rs 1,62,000/- was appropriated under the head of loss of dependency and thereby determined additional MACA.No.1622/2011 7 compensation under that head. Therefore, a separate amount of Rs.15,000/- is granted towards loss of estate. 9. The next aspect to be noted is the compensation for loss of consortium and the original claimant, being the mother of the deceased was entitled to compensation for loss of consortium at the rate of Rs.40,000/- as held in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others [2018 (3) KLT Online 3095 (SC)]** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760].** However, it is pointed out by the learned counsel for the Insurance Company that the Tribunal has already awarded Rs.10,000/- towards love and affection, which was not warranted in the light of **Satinder Kaur (supra).** The said contention has to be accepted as it was categorically held in **Satinder Kaur (supra)** that, when loss of consortium is awarded, no separate amount needs to be awarded towards loss of love and affection. Therefore, the said amount is adjusted towards loss of consortium and thus, the additional amount under the head loss of consortium would come to Rs.30,000/-. Accordingly, the total additional compensation would come to Rs.5,89,000/[531000+13000+15000+30000]. MACA.No.1622/2011 8 In the light of the aforesaid observations and findings, this appeal is allowed. The award passed by the Motor Accidents Claims Tribunal, Alappuzha in O.P.(MV).No.1562 of 2006 is hereby modified by granting an additional amount of Rs.5,89,000/- [Rupees five lakhs eighty nine thousand only] and the 3[rd] respondent is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/19.12.23