Devasia Xavier @ K.S. Jose and Soni Jose v. Manager, Marymatha Public School, Benny Varghese and United India Insurance Co. Ltd. (MACA No. 1061 of 2012)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 ``` ## **`MACA NO. 1061 OF 2012`** ``` AGAINST THE AWARD DATED 16.02.2012 IN O.P(M.V) NO. 1589/2008 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL, KOTTAYAM`** ## **`APPELLANTS/PETITIONERS IN O.P(M.V):`** ``` *1DECEASED DEVASIA XAVIER @ K.S.JOSE KOODATHETTU HOUSE, MUTHIRAMAL, VETTIKKAVUMKAL, KARUKACHAL P.O., KOTTAYAM DISTRICT. *2SONI JOSE, S/O. DEVASIA XAVIER @ K.S.JOSE, KOODATHETTU HOUSE, MUTHIRAMALA VETTIKKAVUMKAL, KARUKACHAL P.O., KOTTAYAM DISTRICT. ``` ``` *THE SECOND APPELLANT IS RECORDED AS THE SOLE LEGAL REPRESENTATIVE OF THE DECEASED FIRST APPELLANT, AS PER ORDER DATED 18.11.2021 IN I.A NO.01/2021. ``` ``` BY ADVS. SRI.KOSHY GEORGE SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## **`RESPONDENTS/RESPONDENTS IN O.P(M.V):`** ``` 1THE MANAGER, MARYMATHA PUBLIC SCHOOL. AZHOOR ROAD, KONNI P.O., PATHANAMTHITTA-689 691. 2BENNY VARGHESE OTTAPLAVUNILKKUNNATHIL HOUSE, MANNARAMALA, P.O. OMALLUR, PATHANAMTHITTA-689 647. ``` ``` 3THE UNITED INDIA INSURANCE CO. LTD. KIZHAKKEDATHU BUILDING, P.B.NO.34, MAIN ROAD, PATHANAMTHITTA DISTRICT-689 645. ``` ``` BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1061 OF 2012 ``` ``` 2 ``` ## JUDGMENT Dated this the 13[th] day of March, 2023. This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Kottayam (For short, ‘the Tribunal’) on 16.02.2012 in O.P (M.V) No.1589 of 2008. The appellants are the father and the brother of one Mr. Jose Sebastian @ Saji Jose, who died due to the fatal injuries sustained by him in a motor accident occurred at about 4.20 p.m on 14.02.2008. He was driving his motorcycle bearing Registration No. KL 5/T 8445 through Konni-Pathanamthitta road and when reached in front of Konni Marketing Society, a Bus bearing Registration No.KL 3/P-0958 driven by its driver in a rash and negligent manner hit him and thus the injuries were caused. Though he was rushed to a Hospital, he succumbed to the injuries sustained. 2. Original Petition above was filed seeking for a compensation of `8,58,000/-. The accident was allegedly ``` MACA NO. 1061 OF 2012 ``` ``` 3 ``` occurred due to the rash and negligent driving of the Bus by its driver and he was arrayed in the Original Petition as the 2[nd] respondent. The registered owner and the insurer of the Bus were as allegedly offending respectively arrayed respondents 1 and 3 in the Original Petition. Notice was served on them from the Tribunal. 2[nd] respondent remained ex parte and the 1[st] respondent responded by his appearance and contested the Original Petition. 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 and 2 and respondents 1 to 3 in accordance with their status in the Original Petition. 4. Written Statement was filed by the 1[st] respondent alleging negligence on the rider of the motorcycle and denying that on the 2[nd] respondent. Admittedly the Bus was validly insured with the 3[rd] respondent and a valid driving licence was possessed by the 2[nd] respondent as on the date of accident. The ``` MACA NO. 1061 OF 2012 ``` ``` 4 ``` age, occupation, the monthly income of the victim at the relevant time of the motor accident, the injuries sustained in the motor accident and consequent death were also disputed. 5. The 3[rd] respondent in the written statement filed admitted to have issued a policy for the Bus bearing Registration No.KL 3/P-0958 covering the date of accident. Contentions were also raised that negligent riding of the motorcycle by its rider caused the motor accident and that the 2[nd] respondent was driving the bus at the relevant time with utmost care. Claims about the age, occupation and the monthly income of the victim were also disputed. 6. On the side of the petitioners, 1[st] petitioner and the employer of the deceased tendered oral evidence as PWs 1 and 2. Exts.A1 to A14 were also marked. Respondents did not adduce any evidence. 7. Based on the evidence adduced as above, the Tribunal arrived at a finding that the 2[nd] respondent as driver of ``` MACA NO. 1061 OF 2012 ``` ``` 5 ``` the Bus bearing Registration No.KL 3/P-0958 was responsible for causing the motor accident by his rash and negligent driving. The Tribunal also found that the rider of the Motorcycle had sustained fatal injuries in the motor accident and succumbed to those during treatment and therefore, petitioners being his legal representatives are entitled to get compensation. The Tribunal also arrived at `3,62,900/- as the compensation payable infavour of the petitioners and directed the 3[rd] respondent, the insurer of the offending Bus to deposit the above sum with interest at the rate of 7.5% per annum from the date on which the Original Petition was filed till the date of realisation, alongwith proportionate cost. 8. Sri.Jamaludheen K.M, the learned counsel for the petitioners mainly raised two arguments in the appeal on hand. According to him, the brother and the father of the deceased as his legal representatives have moved this Original Petition. According to him, the 1[st] petitioner who is the father of the ``` MACA NO. 1061 OF 2012 ``` ``` 6 ``` deceased also died and a memo was filed to the effect that the 2[nd] petitioner, brother of the deceased alone was the legal representative of the deceased. According to the learned counsel, the Tribunal applied a wrong multiplier while assessing compensation based on the age of the father, instead of the age of the victim. The challenge secondly raised was against the fixation of `7,500/- as the monthly income and assessment of compensation on its basis. According to him, the Tribunal failed to consider loss of future prospects of the victim due to his untimely death in the motor accident. The learned counsel also urged for an addition of 40% to the monthly income fixed in consideration of loss of future prospects to arrive at just and reasonable compensation and also to adopt 17 as the multiplier. 9. The learned counsel for the 3[rd] respondent contended on the contrary that the compensation stood awarded by the Tribunal being just and reasonable, interference ``` MACA NO. 1061 OF 2012 ``` ``` 7 ``` with the calculation is totally unwarranted. The learned counsel also pointed out that the Tribunal has erroneously awarded compensation for loss of love and affection and pain and suffering and therefore, `35,000/- stood awarded under those heads is liable to be deducted from the additional compensation arrived at. 10. It is noticed that the monthly income as per the claim of the petitioners was considered by the Tribunal, but, loss of future prospects was not. The victim died at the age of 28 years and therefore, it is reasonable to add 40% to the monthly income in consideration of loss of future prospects. 17 being the multiplier applicable to the age of the victim, is also considered. Victim was unmarried at the relevant time of his death and therefore, half of the monthly income is deducted in consideration of the personal expenditure he would have to meet, if his death was not occurred in the motor accident in question. ``` MACA NO. 1061 OF 2012 ``` ``` 8 ``` 11. Compensation for loss of dependency when reassessed on the basis of the above modified factors, `10,71,000/- (`10,500/- ( `7,500/- + 40% of `7,500/-) x 12 x 17 x ½) is arrived at. `3,15,000/- stood awarded by the Tribunal towards loss of dependency when adjusted against, petitioners will get `7,56,000/- as additional compensation. 12. `5,000/- and `6,000/- respectively were awarded by the Tribunal towards loss of estate and funeral expenses against the petitioners’ entitlement for `16,500/- each as per National Insurance Company Ltd. v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]. Therefore, petitioners will get `11,500/- and `10,500/- respectively as additional compensation under those heads. `35,000/- being the excess sum stood awarded by the Tribunal, is also to be deducted from the above sum to arrive at the actual sum payable as additional compensation. 13. In the above manner of re-assessment, the ``` MACA NO. 1061 OF 2012 ``` ``` 9 ``` petitioners will get `7,43,000/- (Rupees Seven Lakhs Forty Three Thousand only) [(`7,56,000/- + `11,500/- + `10,500/-) - `35,000/-] as additional compensation. The said amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent shall disburse the above sum with interest in favour of petitioners within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.3/2019 dated 06.09.2019. 14. Since the total compensation awarded in favour of the petitioners exceeds their claim, the Tribunal shall see that proportionate court fee shall also be paid by them. M.A.C.A stands allowed, accordingly. ## MARY JOSEPH JUDGE JJ