Devaki and others v. Mani s/o Kunjan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945** ## **MACA NO. 2479 OF 2012** **AGAINST THE ORDER/JUDGMENT DATED 27.09.2011 IN OPMV NO.1461 OF** **2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA** ## **APPELLANTS/PETITIONERS:** - **1 DEVAKI** - **AGED 75 YEARS, D/O.VELAYUDHAN, THATTAMPARAMBIL,KAPPIL MEKKU MURI, KRISHNAPURAM P.O. 690 533.** - **2 KOCHU PILLAI * [DECEASED] AGED 70 YEARS SO.VELAYUDHAN, PUTHENTHARATHEKKETHIL, KAPPIL MEKKU MURI, KRISHNAPURAM P.O. 690 533.** - **3 KAMALAKSHI AGED 60 YEARS DO.VELAYUDHAN ASHA BHAVAN NAKKANAL MURI, KRISHNAPURAM P.O. 690 533.** - **4 JANAMMA ** [DECEASED] AGED 58 YEARS DO.VELAYUDHAN VADAKEYATTATHU, VADAKKATHIL, KAPPIL MEKKU MURI, KRISHNAPURAM P.O690 533.** - **5 AMBUJAKSHI AGED 55 YEARS DO.VELAYUDHAN KIZHAKKEKOYIKKAL VIYAPURAM P.O., 690 514.** - **6 RAJAMMA AGED 53 YEARS DO.VELAYUDHAN PUTHENTHARATHEKKETHIL, KAPPIL MEKKU MURI,KRISHNAPURAM P.O. 690 533.** - **7 DEVARAJAN AGED 50 YEARS SO.VELAYUDHAN CHITHANYA KAPPIL MEKKU MURI, KRISHNAPURAM P.O. 690 533.** - **8 SHIBU * AGED 34 YEARS, S/O. KOCHU PILLAI, PUTHENPURA THEKKETHIL, KAPPIL MEKKU, KRISHNAPURAM P.O., KAYAMKULAM** - **9 CHELLAMMA * AGED 62 YEARS, W/O. KOCHU PILLAI, PUTHENPURA THEKKETHIL, KAPPIL MEKKU, KRISHNAPURAM P.O., KAYAMKULAM *[ADDITIONAL APPELLANTS NO.8 AND 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO. 2, AS PER ORDER DATED 20/10/2021 IN IA-4/2016(2394/2016) IN MACA2479/2012)** - **10 HARIDAS ** AGED 45 YEARS, S/O. JANAMMA, VADAKKEDATHU, KRISHNAPURAM P.O., KAYAMKULAM **[ADDITIONAL APPELLANT NO.10 IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF DECEASED APPELLANT NO. 4, AS PER ORDER DATED 20/10/2021 IN IA6/2016(2396/2016) IN MACA-2479/2012]** - **BY ADV SRI.NIRMAL V NAIR** 2 M.A.C.A No. 2479 of 2012 ## **RESPONDENT/S:** **1 MANI S/O.KUNJAN, VALAVANATHURUTHIL, MARAVANTHURUTHYPANCHAYATH, KULASEKHARAMANGALAM VILLAGE, KOTTAYAM(DISTRICT) 686 608. 2 THE MANAGING DIRECTOR K.S.R.T.C. BHAVAN THIRUVANANTHAPURAM P.O 695 001. 3 THE NATIONAL INSURANCE COMPANY LTD REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, THIRUVANANTHAPURAM P.O. 695 001. BY ADVS. SRI.LAL GEORGE SRI.P.C.CHACKO(PARATHANAM) ALEX ANTONY SEBASTIAN P.A. RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 M.A.C.A No. 2479 of 2012 ## **JUDGMENT** The appellants are the petitioners in O.P(M.V) No. 1641/2002 on the files of the Motor Accidents Claims Tribunal, Mavelikara. The said claim petition was submitted by them seeking compensation for the death of one 'Sivrajan', who died due to the injuries sustained in a motor accident that occurred on 15.03.2002. The appellants are the siblings of the deceased who was unmarried. He was aged 35 years at the time of the accident and he was a coolie with a monthly income of Rs.2,500/-. 2. According to the appellants, the accident occurred when the bicycle ridden by the deceased was knocked down by a KSRTC bus bearing registration number KL-15/4479, driven by the 1[st] respondent. The 2[nd] respondent is the Managing Director of KSRTC and the said vehicle was insured with the 3[rd] respondent insurance company. The claim petition was submitted seeking a total compensation of Rs.3,13,000/-. 3. The 2[nd] respondent filed a written statement disputing the negligence on the part of the 1[st] respondent in driving the bus. It was contended that, the vehicle was insured with the 3[rd] respondent and if at all there is any liability, that has to be 4 M.A.C.A No. 2479 of 2012 indemnified by the 3[rd] respondent. The 3[rd] respondent filed a written statement admitting the coverage of policy for the said vehicle. However, it was contended that the appellants were not dependents upon the deceased and therefore they are not eligible for compensation. 4. The evidence in this case consists of oral testimony of PW1, the 2[nd] claimant. As the documentary evidence, Exts. A1 to A6 were marked. After considering the materials, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,06,000 and the 3[rd] respondent was directed to deposit the said amount with interest at the rate of 7.5% per annum from the date of petition till realization with a cost of Rs.1,000/-. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 5. During the pendency of the appeal, the 2[nd] appellant passed away and the supplementary appellants 8 and 9 were impleaded as his legal heirs. The 4[th] appellant also died and as 5 M.A.C.A No. 2479 of 2012 her legal representative supplementary 10[th] appellant was impleaded. 6. Heard, Sri.Nirmal V. Nair, the learned counsel appearing for the appellants, Sri. Alex Antony Sebastian P.A, the learned counsel appearing for the 2[nd] respondent and Smt. Raji T Bhasker, the learned counsel appearing for the 3[rd] respondent. 7. The only question that arises for consideration is whether the amount awarded by the Tribunal is reasonable or not. When the learned counsel for the appellants contends that the amounts awarded by the tribunal under various heads are on the lower side, the learned counsel appearing for the respondents would contend that the claimants, being the siblings of the deceased who died as a bachelor, were not dependents upon the deceased and therefore no compensation could have been granted to them. 8. After carefully going through the materials placed on record, I find some force in the contention put forward by the learned counsel for the respondents. As regards the question of dependency is concerned, it is discernible from the records that, all the claimants were siblings and were married. Only the 6 M.A.C.A No. 2479 of 2012 deceased remained unmarried. Of course it is true that, while being examined as PW1, the 2[nd] claimant has stated that he was a dependent upon the deceased. However, he was a person aged 69 years of old who was having his own family with elder children. Therefore, the said contention as such cannot be accepted. As far as the other claimants are concerned, they also have their own families and were living separately. Therefore, under no circumstances, the appellants could be treated as persons who were dependent upon the deceased. However, it is a well settled position of law that the right to claim compensation is not confined to persons who were depending upon the deceased. The aforesaid question was specifically considered by this Court, **in United India Insurance Co.Ltd v Shalumol [2021 (5) KLT** **74]** wherein it was held that, the dependency is not confined to the financial dependency and it can be on other kinds of dependency as well. Moreover, as per the provisions of the Motor Vehicles Act, any legal representative can maintain an application for compensation for the death of a person. As per the definition of the legal representative in Rule 2(k) of the of Kerala Rules,1989 7 M.A.C.A No. 2479 of 2012 the expression legal representative would include legal heirs as well. 9. In such circumstances, even though there was no financial dependency upon the deceased, the right of the appellant to claim compensation cannot be denied. However, while ascertaining the compensation, in the absence of any financial dependency upon the deceased, they may not be entitled to get compensation for loss of dependency. In **Joseph v. Giji Varghese [2009 (4) KLT 199]** this Court has specifically considered the manner in which the compensation has to be calculated in such cases. After elaborately considering all the relevant aspects and decisions on the point, it was held by this court in the manner as follows. “5. The learned counsel for the appellant further raised a contention that eventhough there is no loss of dependency, there is loss of estate to the claimants and respondents 4 to 8, they being legal heirs of the deceased. The contention is that the Tribunal ought to have granted compensation considering the loss of estate. It has come out in evidence that the deceased was an Agriculturist. Eventhough there is no proof regarding quantum of income derived by the deceased, it can 8 M.A.C.A No. 2479 of 2012 be presumed that the deceased was earning some amount out of agricultural operations. If that be so, whatever surplus amount, which will remain after meeting personal expenses of the deceased, would have been his savings which ultimately could have devolved upon his sibling (legal heirs) as his estate. Taking view of the matter in this angle, we are of the opinion that the Tribunal ought to have granted compensation under the head of loss of estate. On our moderate estimate we arrive that the deceased was getting notional income of Rs. 1500/per month. Considering the fact that he had no wife and children ⅔rd of the amount can be deducted towards his personal expenses. Based on the age of the deceased the correct multiplier to be adopted is 11. Therefore ⅓rd of the earnings can be computed as loss of estate of the deceased. Thus the legal heirs of the deceased are entitled to get an amount of Rs. 66,000/- towards loss of estate. We are inclined to award the said amount.” While following the principles laid down by a Division Bench of this court in the decision referred to above, the appellants in this case can be granted compensation for loss of estate, which is to be calculated by deducting 2/3 of the income.. This is particularly because, 1/3 of his total income is supposed to have formed part 9 M.A.C.A No. 2479 of 2012 of his estate and the legal heirs of the deceased will have a right to inherit the estate upon his demise. Therefore, instead of granting compensation for loss of dependency, the claimants in this case can be granted compensation for loss of estate, which is calculated by applying the multiplier method and by making a deduction of 2/3 of the monthly income by assuming that 1/3 of his total income would have formed part of his estate. 10. For doing the said exercise, the first element to be determined is the monthly income. In this case, the claim of the appellants as the monthly income for the deceased was Rs.2,500/- which was accepted by the Tribunal as well. Considering the fact that the accident in this case has occurred in the year 2002, the said amount appears to be reasonable. Since the deceased was aged 35 years as evidenced by the postmortem report, an addition of 40% has to be made towards future prospects. Considering the age of the deceased, the multiplier has to be fixed as 15. Thus, while reassessing the compensation with the above revised criteria, the compensation for loss of estate would come to Rs.2,10,000/- [(2,500 + 40%) x 12 x 15 x 1/3)]. 10 M.A.C.A No. 2479 of 2012 11. Since I have already held that none of the appellants were financially dependent upon the deceased and the compensation entitled to the claimants was for loss of estate, which is calculated in the manner mentioned above, the amount of Rs.1,00,000/- awarded by the Tribunal towards loss of dependency, can be adjusted against the amount reassessed for loss of estate. Therefore, the additional compensation would come to Rs.1,10,000/-. 12. In addition to that, the claimants would also be entitled to get a further sum of Rs.10,000/- under the head of funeral expenses as the amount awarded by the tribunal is only Rs.5,000/-. Since the death of the deceased was while undergoing treatment in the accident, a notional amount has to be granted towards the pain and suffering of the deceased. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.10,000/-. Accordingly, the appellants would be entitled for a total additional compensation of Rs.1,30,000/(1,10,000 + 10,000 + 10,000). In the result, this appeal is allowed. The award dated 27.09.2011 passed by the Motor Accidents Claims Tribunal, 11 M.A.C.A No. 2479 of 2012 Mavelikara, in O.P.(MV) No.1641/2002 is hereby modified by granting an additional compensation of Rs.1,30,000 (Rupees one lakh thirty thousand only) and the said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal and proportionate costs within a period of 3 months from the date of receipt of a copy of this judgment. It is further ordered that, the claimants shall furnish the details of PAN card Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the 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** rpk