Devaki Antherjanam, Kesavan Nampoothiri, N. Parameswaran Nampoothiri, N. Narayanan Nampoothiri, G. Govindan Nampoothiri v. Rajesh Kumar and The Manager, Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939 MACA.No. 468 of 2016 () -----------------------AGAINST THE AWARD IN OP(M.V)NO.280/2007 of MACT, MAVELIKKARA DATED 30-10-2015 ## APPELLANTS/PETITIONERS IN OPMV.NO.280/07: ----------------------------------------------------- ## 1. DEVAKI ANTHERJANAM W/O.NARAYANAN NAMPOOTHIRI, PERUMBA II ILLATH VEEDU (PERUMBA MADOM), VELLAMKULANGARA MURI, VEEYAPURAM VILLAGE. ## 2. KESAVAN NAMPOOTHIRI - S/O.NARAYANAN NAMPOOTHIRI, PERUMBA II ILLATH VEEDU (PERUMBA MADOM), VELLAMKULANGARA MURI, VEEYAPURAM VILLAGE. ## 3. N. PARAMESWARAN NAMPOOTHIRI S/O.NARAYANAN NAMPOOTHIRI, PERUMBA II ILLATH VEEDU (PERUMBA MADOM), VELLAMKULANGARA MURI, VEEYAPURAM VILLAGE. 4. N.NARAYANAN NAMPOOTHIRI - S/O.NARAYANAN NAMPOOTHIRI, PERUMBA II ILLATH VEEDU (PERUMBA MADOM), VELLAMKULANGARA MURI, VEEYAPURAM VILLAGE. 5. G.GOVINDAN NAMPOOTHIRI - S/O.NARAYANAN NAMPOOTHIRI, PERUMBA II, ILLATH VEEDU (PERUMBA MADOM), VELLAMKULANGARA MURI, VEEYAPURAM VILLAGE. BY ADVS.SMT.R.RANJINI SRI.M.ASHOK KINI ## RESPONDENTS/RESPONDENTS IN OP.MV.NO.280/07: ---------------------------------------------------------- 1. RAJESH KUMAR S/O.GOPALAKRISHNA PILLAI, KALAMPALLIL VEEDU, VELAMKULANGARA MURI, VEEYAPURAM VILLAGE-689590. MACA.No. 468 of 2016 2 ## 2. THE MANAGER, ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, KAYAMKULAM 690502. R2 BY ADV. SRI.PMM.NAJEEB KHAN R2 BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- M.A.C.A.No.468 of 2016 -------------------------------Dated 22[nd] June, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award dated 30.10.2015 passed by the Motor Accidents Claims Tribunal, Mavelikkara in O.P.(M.V)No.280 of 2007, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Narayanan Namboothiri, who died in a motor accident occurred on 7.1.2007 involving a motor vehicle bearing Reg.No.KL-04/M-8284 owned and driven by the first respondent and insured with the second respondent. While the deceased was walking on the side of a public road the offending vehicle driven by the first respondent came in a rash and negligent manner and hit him. He sustained serious injuries, who later succumbed to the injuries. Claim petition was filed before the Tribunal by the appellants namely, the widow and children of the deceased, claiming a total compensation of 5,00,000/- under different heads. ₹ 2. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellants/claimants. On the side of the respondents Exts.B1 and B2 were marked. The third petitioner was examined as PW1. The M.A.C.A.No.468 of 2016 2 respondents have not adduced any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the offending vehicle by the first respondent driver. Since the said vehicle was covered by a valid insurance policy, the second respondent insurer was held liable to indemnify the first respondent owner cum driver. Under different heads, the Tribunal awarded a total compensation of 1,40,000/- and directed the second respondent₹ insurer to deposit the said amount with 9% interest from the date of petition, i.e., 15.3.2007 till realisation together with a cost of 5,000/-.₹ 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants are before this Court in this appeal. ## 5. Heard arguments. 6. The sole issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under different heads represents just and reasonable compensation or whether it requires enhancement. 7. As we have already noticed, the accident occurred on 7.1.2007 while the deceased was walking through the side of a public road. The compensation awarded by the Tribunal under different heads M.A.C.A.No.468 of 2016 3 ## reads thus:- |hus:-||| |---|---|---| |**_Head of Claim_**|**_Amount_**<br>**_Claimed_**<br>**_(in rupees)_**|**_Amount_**<br>**_Awarded_**<br>**_(in rupe_**es)| |Transportation charge including<br>ambulance charge|4000|---| |Treatment and other expenditure<br>incurred to the hospital|70000|---| |Damage to clothing and other things|1000|---| |Funeral expenses and other religions<br>rites|20000|25000| |Compensation for Pain and Sufferings|25000|10000| |Pecuniary loss sustained by the estate<br>income of the deceased|40000|| |Compensation for loss of consortium|25000|25000| |Compensation for pain and mental<br>agony to the petitioners|25000|| |Dependency||80000| |Total|5,00,000|**1,40,000**| 8. According to the appellants/claimants, the deceased was a Poojari in a temple, who was aged 83 years, earning a monthly income of 7,000/-. However, other than the oral testimony of the third₹ petitioner as PW1, there was no reliable materials before the Tribunal to prove the monthly income of the deceased at the time of accident. Ext.B1 inquest report relied on by the second respondent insurer would show that the deceased was having no avocation at the time of the accident. Relying on the said document the learned counsel for the second respondent insurer would contend that the assessment made by the Tribunal as to the monthly income of the deceased at 2,000/-₹ M.A.C.A.No.468 of 2016 4 warrants no interference. 9. The fact that, at the time of accident the deceased was aged 83 years is not in dispute. The evidence of PW1 would indicate that the deceased was eking his livelihood as Poojari in a temple. Considering the fact that the accident is of the year 2007 and at the time of the accident the deceased was aged 83 years, who was maintaining a family consisting of his wife and four children, we deem it appropriate to re-fix his monthly income notionally at 3,500/- for assessing₹ compensation under different heads. 10. Since the deceased was aged 83 years, the proper multiplier applicable is `5'. Since his family consisted of his wife and four children, 1/4[th] of the notional monthly income has to be deducted towards his personal and living expenses and the remaining ¾[th] alone can be taken for the purpose of assessing dependency compensation. Taking the monthly income as 2,000/-, applying the multiplier of `5'₹ and deducting 1/3[rd] towards personal and living expenses of the deceased, the Tribunal awarded a sum of ₹80,000/towards dependency compensation. Based on the notional monthly income refixed in this appeal as 3,500/-, adopting the multiplier of `5' and₹ deducting ¼[th] towards the personal and living expenses of the deceased, the compensation payable under the head loss of M.A.C.A.No.468 of 2016 5 dependency is re-worked as ₹1,57,500/-(3500x12x5x3/4). After deducting 80,000/- awarded by the Tribunal, the appellants are₹ entitled for an additional compensation of **₹ 77,500/-** under this head. 11. Towards funeral expenses, the Tribunal awarded a sum of ₹25,000/-, which is in tune with the compensation granted by the Apex Court under this head in the decision in **Rajesh v. Rajbir Singh (2013 (3) KLT 89),** which represents a just and reasonable compensation under this head. 12. Towards compensation for pain and suffering, the Tribunal awarded a sum of ₹10,000/-, which also represents a just and reasonable compensation under the said head. 13. Towards loss of consortium, the Tribunal awarded a sum of ₹25,000/-. In **Rajesh's case** (supra) the Apex Court awarded a sum of ₹1,00,000/- under the head loss of consortium. That was a case in which the deceased was aged 33 years and his wife was still younger. 14. In **Valsamma** v. **Binu Jose (2014 (1) KLT 10)** a Division Bench of this Court, after referring to the judgment of the Apex Court in **Rajesh's case** (supra), held that the age of the widow and age of the deceased are relevant factors while considering the question of compensation to be awarded for the loss of consortium. M.A.C.A.No.468 of 2016 6 15. In the instant case, at the time of accident, the deceased was aged 83 years and the first appellant, his wife was aged 75 years. In such circumstances, we deem it appropriate to re-fix the compensation under the head loss of consortium at 50,000/-, resulting an additional₹ compensation of **₹ 25,000/-** payable to the first appellant. 16. Towards loss of love and affection no amount has been awarded by the Tribunal. In **Rajesh's case** (supra), the Apex Court has awarded a compensation of 1,00,000/- under this head. In the₹ said case, the children of the deceased were minors. In the instant case, all the four children of the deceased were majors at the time of the accident. In such circumstances, we deem it appropriate to grant a sum of **₹ 50,000/-** under the head loss of love and affection, payable to appellants 2 to 5. 17. Towards loss of estate no amount has been awarded by the Tribunal. We deem it appropriate to grant a sum of **₹ 5,000/-** under this head. 18. In the result, the appellants will be entitled for an additional compensation of **₹ 1,57,500/-** (77500+25000+50,000+5000). The additional compensation awarded in this appeal will carry interest at the rate of 8% per annum from the date of petition till realisation. M.A.C.A.No.468 of 2016 7 19. Since the insurance coverage of the vehicle is not in dispute the second respondent insurer shall deposit the additional compensation awarded in this appeal, within a period of two months from the date of receipt of a certified copy of this judgment. No order as to costs. The appeal is disposed of as above. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS