IN THE HIGH COURT OF KERALA AT ERNAKULAM

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ``` MACA NO. 2029 OF 2013 ``` ``` AWARD DATED 26.12.2012 IN OPMV NO.394 OF 2012 OF PRINCIPAL MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE`** ## **`APPELLANTS/PETITIONERS IN OPMV:`** - **`1 M.PARAMESHWARI W/O. LATE MARIYAPPAN, AGED 46 YEARS, W/O. OF THE DECEASED)`** - **`2 AMUTHESWARI W/O. MANIKANTAN, AGED 31 YEARS (D/O. THE DECEASED).`** - **`3 MATHESWARI @ MAGESWARI D/O. LATE MARIYAPPAN, AGED 22 YEARS (D/O. THE DECEASED)`** ``` IST AND 3RD APPELLANTS ARE RESIDING AT HOUSE NO.8/182, POOKKKODI COMPOUND, AVINASHI KOUNDARPALAYAM, P.O. ANGERIPALAYAM, VIA ANUPARPALAYAM, TIRUPUR DISTRICT, TAMILNADU. ``` ``` 2ND APPELANT IS RESIDING AT HOUSE NO. 3/450E, P.O. AYYANKALIPALAYAM, KUPPAYAMMKADU WARD NO.3, CHETTIPALAYAM PANCHAYATH, TIRUPUR, TAMILNADU. ``` ``` BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## **`RESPONDENTS/RESPONDENTS IN OPMV:`** - **`1 SUNNY VARGHESE S/O. VARGHESE, AGED 52 YEARS, KIZHAKEDATH HOUSE, MEENMUTTY P.O, KONDENCHERRY, CALICUT - 673 580.`** - **`2 NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, NOOOR COMPLEX, NEAR ARAYIDATHUPALAYAM, MAVOOR ROAD, CALICUT - 673 002.`** ``` MACA NO. 2029 OF 2013 ``` ``` 2 ``` ``` BY ADV SMT.DEEPA GEORGE FOR R2 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2029 OF 2013 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants were the petitioners in O.P.(M.V.) No.394/2012 on the files of the Principal Motor Accident Claims Tribunal, Kozhikode. The said claim petition was submitted by them seeking compensation for the death of one Mariyappan due to the injuries sustained in a motor accident that occurred on 24.04.2011. The deceased was the husband of the 1st appellant and the father of appellants 2 and 3. According to the appellants, the accident occurred when the deceased was walking through the road, he was knocked down by a motorcycle owned and ridden by the 1st respondent. The said motorcycle was insured with the 2nd respondent. The appellant was a coolie aged 50 years with a monthly income of Rs.10,000/-. The claim petition was submitted in such circumstances. 2. The 2nd respondent filed a written statement admitting the coverage of the policy for the motorcycle. However, they denied the negligence on the part of the 1st respondent. The quantum of compensation was also disputed by them. 3. To substantiate the contentions, the appellants ``` MACA NO. 2029 OF 2013 ``` ``` 4 ``` produced Exts.A1 to A4 and no evidence was adduced by the respondents. The Tribunal, after considering the materials placed on record, found that the accident occurred due to the negligence of the 1st respondent and both the respondents were jointly and severally held liable to pay the compensation. Since the coverage of the policy was admitted by the 2nd respondent, a direction was issued to the 2nd respondent to deposit the compensation which was determined as Rs.4,76,000/- along with interest @ 7% per annum from the date of petition till deposit with proportionate cost. This appeal is submitted by the appellants in such circumstances, being dissatisfied with the quantum of compensation. 4. Heard Sri.K.M.Jamaludheen K.M., learned counsel appearing for the appellants and Smt.Deepa George, learned counsel appearing for the 2nd respondent. 5. The only question that arises for consideration is regarding the quantum of compensation. On careful scrutiny of the records, it is seen that the amount awarded by the Tribunal under various heads were not adequate. The first aspect to be considered is with respect to the compensation for loss of ``` MACA NO. 2029 OF 2013 ``` ``` 5 ``` dependency and for determining the same, the Tribunal took the monthly income of the deceased as Rs.4,000/-, which appears to be on the lower side. It is to be noted that the accident occurred in the year 2011. Of course, it is true that even though Rs.10,000/was claimed as the monthly income, which the deceased was earning from his avocation as a coolie, no evidence was adduced to substantiate the same. However, even in the absence of any evidence, the monthly income of Rs.4,000/- is on the lower side. It is to be noted that, if the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** is adopted, the monthly income for the year 2011 can be reasonably fixed as Rs.8,000/- (by fixing the basic monthly income as Rs.4,500/- for the year 2004 and making an addition of Rs.500/- each per year for determining the monthly income for the subsequent years). Therefore, the said amount is fixed as the monthly income. The deceased was claimed to be aged 50 years. ``` MACA NO. 2029 OF 2013 ``` ``` 6 ``` However, absolutely no documents are produced to show the exact date of birth and therefore he has to be treated as a person coming within the category of age group of 50 to 60 for the purpose of future prospects. As far as the multiplier is concerned, the Tribunal has already taken it as 13 and I do not find any reason to deviate from the same. Since he was treated as a person coming within the age group of 50 to 60, an addition of 10% has to be made towards future prospects. Thus, while reassessing the compensation for loss of dependency with the above revised criteria, the amount would come to Rs.9,15,200/(8,000 + 10%) x 12 x 13 x 2/3). The amount already awarded by the Tribunal is Rs.4,16,000/- and thus the additional compensation comes to Rs.4,99,200/-. 6. The amount already awarded by the Tribunal towards funeral expenses was only Rs.5,000/-, whereas the actual amount payable in the light of **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** was Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is awarded. For the same reason, a further sum of Rs.5,000/- is awarded towards loss of estate, as ``` MACA NO. 2029 OF 2013 ``` ``` 7 ``` the amount awarded by the Tribunal under this head was Rs.10,000/-. The Tribunal awarded an amount of Rs.10,000/under the head of pain and suffering. It is discernible from the records that the appellant died after four days of the accident while undergoing treatment. Considering that aspect and also taking note of the year of the accident I deem it appropriate to grant a further sum of Rs.5,000/- under that head. No amount was granted towards damage to clothing and therefore a sum of Rs.500/- is awarded under the said head. 7. The next aspect relates to the compensation for loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130] and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760],** appellants 1 to 3 are entitled to compensation, being the wife and children, @ Rs.40,000/- each, thereby making out a total sum of Rs.1,20,000/-. The Tribunal has already awarded Rs.10,000/- under this head and a sum of Rs.25,000/- under the head loss of love and affection. Since it is held in **Satinder Kaur (supra)** that, when compensation is ``` MACA NO. 2029 OF 2013 ``` ``` 8 ``` awarded for loss of consortium, no separate compensation is to be granted for loss of love and affection, Rs.25,000/- awarded by the Tribunal under the head of of loss of love and affection, is to be adjusted against the compensation now fixed for loss of consortium. Thus, the additional compensation for the loss of consortium would come to Rs.85,000/-. It is seen that no amount is granted towards transportation expenses. Considering the place of the accident and the place where the deceased availed treatment, I deem it appropriate to grant a sum of Rs.1,000/under the said head. Thus, the total additional compensation is determined as Rs.6,05,700/- (4,99,200 + 10,000 + 5,000 + 5,000 + 500 + 85,000 + 1,000) In the result, this appeal is allowed. The award dated 26.12.2012 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P.(M.V.) No.394/2012 is hereby modified by granting an additional compensation of Rs.6,05,700/- ( Rupees six lakh five thousand and seven hundred only) and the 2[nd] respondent is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and with ``` MACA NO. 2029 OF 2013 ``` ``` 9 ``` proportionate cost, within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that as the delay of 53 days in filing this appeal was condoned by this Court subject to the condition that, if any additional compensation is granted, the appellants shall not be entitled for interest for the said period, the 2[nd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further clarified that the claimants shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of 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 same amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs