Dr. E.J. Samuel & Others v. K.M. Shakeela Madavankudiyil & Others (MACA No. 4380 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946** ## **MACA NO. 4380 OF 2019** **[AGAINST THE ORDER/JUDGMENT DATED 02.08.2019 IN OPMV NO.651 OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA]** **APPELLANTS:** - **1 DR.E.J.SAMUEL AGED 64 YEARS EDAYAPURACKAL HOUSE SAMVILLA, KUMARANALLOOR P.O. KOTTAYAM 686 016 (BROTHER OF THE DECEASED).** - **2 E.J. CHACKO, AGED 80 YEARS EDAYAPURACKAL HOUSE, 4TH BLOCK, KADAVOOR P.O. ERNKULAM DISTRICT 686 671, (BROTHER OF THE DECEASED).** - **3 SMT. MARY JOSEPH , AGED 70 YEARS** - **W/O. OF LATE JOSEPH, MULACKATHOTTIYIL HOUSE, ELLUMPURAM P.O. IDUKKI DISTRICT 685 587, (SISTER OF THE DECEASED).** - **4 SMT. SARAMMA JOHN, AGED 65 YEARS W/O. V.S. JOHN, VASHIPPURACKAL HOUSE, ARAKULAM P.O. MOOLAMATTAM, IDUKKI DISTRICT 685 591. (SISTER OF THE DECEASED).** - **5 E.J. JOSEPH, AGED 53 YEARS** **EDAYAPURACKAL HOUSE, POTHANICADU P.O. ERNAKULAM DISTRICT 686 671, (BROTHER OF THE DECEASED), NOW RESIDING AT MULACKATTHOTTIL HOUSE, ELLUMPURAM P.O. IDUKKI DISTRICT 685 587.** **BY ADVS. GEORGE ABRAHAM SHRI.JOBY D JOSEPH** MACA NO.4380 OF 2019 :-2-: ## **RESPONDENTS:** - **1 SMT.K.M.SHAKEELA MADAVANAKUDIYIL HOUSE, PALLARIMANGALAM P.O. ADIVAD, KOTHAMANGALAM 686 671.** - **2 MR. AZHAR.M. HANEEFA, AGED 19 YEARS** - **S/O. MUHAMMED HANEEFA, MADAVANAKUDIYIL HOUSE, PALLARIMANGALAM P.O. ADIVAD, KOTHAMANGALAM 686 671.** - **3 M/S. ORIENTEL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, MUVATTUPUZHA, T.H. TOWER, 1ST FLOOR, STADIUM ROAD, MARKETE P.O. MUVATTUPUZHA 686 673. REPRESENTED BY DIVISIONAL MANAGER.** ## **BY ADV SRI.RINNY STEPHEN CHAMAPARAMPIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.06.2024, THE COURT ON 02.08.2024 DELIVERED THE FOLLOWING:** MACA NO.4380 OF 2019 :-3-: ## **SHOBA ANNAMMA EAPEN, J.** --------------------------------------------M.A.C.A. No. 4380 of 2019 -------------------------------------------Dated this the 2[nd] day of August, 2024 ## **JUDGMENT** The appellants herein are the petitioners in O.P(MV) No.651/2017 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha. The said claim petition was filed seeking compensation for the death of Ms.Alice, sister of the appellants herein due to the injury sustained in a motor accident that occurred on 03/02/2017. 2. The brief facts of the case are as follows:- On 03.02.2017 at 4.50 pm, at Beverage junction, Pothanicadu while the victim - deceased Alice was about to cross the road, Kaliyar, Kakkadassery road, she was hit down by a motorcycle bearing Reg.No.KL44/D 51 ridden by the second respondent and sustained serious injuries. Even though immediately after the accident, she was taken to one hospital and later taken to another, she succumbed to the injuries. The appellants approached the tribunal claiming a total compensation of ₹29,50,000/-, which was subsequently limited to ₹9,00,000./-. 3. The respondent-insurer filed a written statement, admitting the insurance policy, but disputing the quantum of compensation claimed. Before the tribunal, PW1 was examined and Exts. A1 to A15 were MACA NO.4380 OF 2019 :-4-: marked on the side of the appellants. The tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹66,001/(rounded off to ₹66,100/-) as compensation under different heads with interest @7% per annum from the date of petition till realization, against the respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimants have come up in appeal. 4. Heard the learned counsel for the appellants and the learned Standing Counsel for the third respondent insurer. 5. Learned counsel for the appellants claims enhancement mainly under the following heads:- **- Loss of dependency** Learned counsel for the appellants submits that appellants herein, being the brothers and sisters of late Alice, are entitled for compensation due to the death that occurred to the victim in the road accident. The finding of the tribunal is that the appellants, being the brothers and sisters of the deceased Alice, cannot be treated as dependents on the deceased. The tribunal found that the first petitioner is a 64-year-old doctor, the second MACA NO.4380 OF 2019 **==> picture [21 x 9] intentionally omitted <==** petitioner is 80 years old, the third petitioner is 70 years old, the fourth petitioner is 66 years old, and the fifth petitioner is 53 years old. It was found that none of the appellants can be treated as dependents of the deceased, who was unmarried. When PW1 was examined, he deposed that the fifth petitioner was unmarried and he was solely depending upon the deceased and it was further submitted that the deceased and the fifth petitioner were residing together in the tharavadu house. But, the tribunal found that there was nothing to show that the appellants had been depending upon the deceased and the compensation for loss of dependency was rejected. I do not find any reason to interfere with the finding of the tribunal that no compensation is payable under the head ‘loss of dependency’. **Notional Income-** The monthly income of the deceased was calculated by the tribunal as ₹7000/-. Though the appellants claimed the monthly income of the deceased as ₹8000/-, there was no evidence adduced to prove her income. Hence, the monthly notional income fixed by the tribunal appears to be reasonable. MACA NO.4380 OF 2019 :-6-: **Loss of estate** - Learned counsel for the appellants submitted that the appellants, being the brothers and sisters of the deceased, are entitled for compensation under the head ‘loss of estate’, relying on the judgment in **Sijo Jose** v. **Rejender Kumar Saini** [2024 KHC Online 1169]. In the above case, this Court held that since the loss of dependency is one of the major heads on which the claim can be made in a case of death, in the absence of dependency, either financial or otherwise, the petitioners cannot be held to be entitled to the same and right of the claimants would be with respect to the loss of estate and while calculating the loss of estate, the same procedure for determination of the loss of dependency has to be calculated. In the decision in **Madhya Pradesh State Road Transport Corporation** v. **Sudhakar and Others** [(1977) 3 SCC 64], the Honourable Apex Court considered the manner in which the compensation has to be assessed in a case where the claim was put forward by the legal representatives, who are not dependents. It was held by the Honourable Apex Court in **Sudhakar** (supra) that the right of the claimants would be with respect to the loss of estate and MACA NO.4380 OF 2019 :-7-: while calculating the loss of estate, the same procedure for determination of the loss of dependency has to be adopted. It was further held that in the case of a dependent-legal representative, the loss of dependency has to be calculated based on the annual contribution to the family whereas in the case of legal representatives, who are not dependent upon the deceased, the multiplicand has to be fixed based on the savings of the deceased as the same form part of the estate of the deceased. As far as the amount of compensation is concerned, their right to claim has to be only in respect of compensation for loss of estate, which has to be calculated on the basis of the multiplicandmultiplier method as held in **Sudhakar** (supra). The multiplicand has to be determined on the basis of the principles laid down by a Division Bench of this Court in **Joseph** v. **Giji Varghese** [2009(4) KLT 199], that is, one-third of the income of the deceased. While considering the same, all the other parameters, which are applicable for assessing the compensation for loss of dependency, can be applied in the light of the principles laid down in **Sudhakar** (supra). Since the deceased was aged 60 years at the time of death, the MACA NO.4380 OF 2019 :-8-: multiplicand to be applied is 9. Hence, the total quantum of compensation payable under the head ‘loss of estate’ is ₹2,52,000 /- (₹7000 x 12 x 9 x1/3). The tribunal had already awarded an amount of ₹15,000/- towards the head ‘loss of estate’ and after adjusting the said amount, the additional amount granted under the said head is **₹2,37,000/-** . Accordingly, the appeal is allowed in part and the appellants/claimants are awarded an additional compensation of **₹2,37,000/-** (Rupees Two Lakh Thirty Seven Thousand only) over and above the compensation awarded by the tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimants shall furnish copies of the PAN Card, ADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the MACA NO.4380 OF 2019 :-9-: said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellants at the earliest in accordance with law. Sd/- SHOBA ANNAMMA EAPEN JUDGE MBS/