Johny and Others v. K.R. Sureshkumar, Shaji and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 MACA NO. 2733 OF 2012** **AGAINST THE JUDGMENT IN O.P.(MV)NO.1307/2007 DATED** **15.11.2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **IRINJALAKUDA** ## **APPELLANTS/PETITIONERS :** **1 JOHNY, S/O.KOCHAPPU, VADAKKAN HOUSE, TRAMWAY LANE, KIZHAKKE CHALAKKUDY VILLAGE, CHALAKKUDY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** - **2 THRESSIAMMA JOHNY, W/O.JOHNY, -DO- -DO-.** - **3 JINFI, D/O.JOHNY, -DO-, -DO-.** - **4 JIBY, D/O.JOHNY, -DO-, -DO-. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT/RESPONDENTS :** **1 K.R. SURESHKUMAR, S/O.LATE RAMAKRISHNAN, NO.14, HOSUR MAIN ROAD, MADIVALA, BANGALORE-68.** **2 SHAJI, S/O.SUBRAMANIAN, CHUNDAGAPARAMBIL HOUSE, KURUVILASSERY P.O., THRISSUR-680001.** MACA No.2733 of 2012 ..2.. **3 THE ORIENTAL INSURANCE CO.LTD., SOUTH JUNCTION, CHALAKKUDY-680307.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2733 of 2012 **==> picture [28 x 8] intentionally omitted <==** ## **MACA No.2733 of 2012 -------------------------------------------** ## **J U D G M E N T** The petitioners in O.P.(MV)No.1307 of 2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda are the appellants in this appeal filed under Section 173 of the Motor Vehicles Act. Respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellants and Adv.Sri.P.Mathew Jacob, the learned senior counsel appearing for the insurance company. 3. Brief facts of the case are as follows: In this case, one Jinso Johny, who is the son of appellants 1 and 2, died in consequence of a motor MACA No.2733 of 2012 ..4.. accident occurred on 25.09.2006 at about 9.30 p.m., while he was travelling in a Car bearing Registration No.KL-7-AV-2413, when a tourist bus bearing Registration No.KA-01-B-4871 driven by the second respondent came from the opposite direction, hit against the car. After the death of Jinso Johny, the appellants filed claim petition under Section 166 of the Motor Vehicles Act before the Tribunal claiming compensation to the tune of Rs.4,00,000/-. 4. R1 and R2 were set ex parte before the Tribunal. 5. R3 filed written statement disputing the accident and negligence, while admitting policy. Quantum also was disputed. 6. The Tribunal examined PW1 and marked Exts.A1 to A14 on the side of the appellants. Ext.B1 policy MACA No.2733 of 2012 ..5.. marked on the side of the respondents. 7. The Tribunal tried two cases together. The Tribunal tried this case along connected with O.P. (MV)No.992 of 2007 and as per common award dated 15.11.2011, the Tribunal granted Rs.5,05,300/- along with the interest at the rate of 7.5% per annum. 8. The learned counsel for the appellants would urge that the monthly income fixed by the Tribunal and the multiplier applied by the Tribunal are incorrect. He would submit that at the time of accident, Jinso Johny was employed as a salesman in Atlas Jewellery, Dubai, UAE and in order to prove the said contention in Ext.A8 certificate dated 12.02.2011 issued by Sri.M.M.Ramachandran, Chairman, Atlas Jewellery was produced before the Tribunal. Since Ext.A8 not proved by examining its author, the same cannot be given emphasis MACA No.2733 of 2012 **==> picture [28 x 8] intentionally omitted <==** as such. However, Ext.A7, the passport of the deceased would go to show that he had employment visa during the period covered by Ext.A8 for period of two years. In this case, the Tribunal fixed the monthly income at Rs.5,000/-. 9. The learned counsel for the insurance company disputed the job and income of the deceased. He would submit further that, if at all admitted, the job of Jinso Johny is not of a permanent nature. Therefore, the income shown as 3000 UAE Dirham cannot be accepted as the basis for fixing loss of disability. 10. In this case, admittedly, Jinso Johny was not a skilled worker and he admittedly working as a salesman. However, taking note of the fact that he had employment abroad at the time of accident, some amount more than what is permissible by the ratio of the decision MACA No.2733 of 2012 ..7.. in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** is to be taken into consideration. 40% addition thereon also shall be given following the ratio in [2017 16 SCC 650], **National Insurance Company Ltd. v. Pranay Sethi & Ors.** 11. Considering the fact that he was employed at abroad at the time of accident and he was aged 28 years at the time of death and he left behind the appellants, who are his father and mother along with two sisters, I am inclined to fix the monthly income for the purpose of assessing compensation at Rs.10,000/- in this particular case, taking deviation from the principles of **Ramachandrappa'** s case(supra). Accordingly, the loss of dependency income is as under; 10,000+40%=14,000/- MACA No.2733 of 2012 **==> picture [28 x 8] intentionally omitted <==** 14,000x12x17/2=14,28,000/- Out of which, Rs.3,90,000/- was granted by the Tribunal.Rs.14,28,000-Rs.3,90,000= **Rs.10,38,000/-** more is granted under the head loss of dependency income. 12. The learned counsel for the appellants canvassed increase under the traditional and conventional heads following the ratio in **Pranay Sethi'** s case(supra). The said claim is not opposed by the learned counsel for the insurance company, while submitting that Rs.10,000/granted under the head pain and sufferings, Rs.15,000/granted under the head loss of love and affection and Rs.10,000/- each granted under the heads loss of expectation and shock and anxiety are liable to be reduced following the ratio in [AIR 2020 SC 3076], **United India Insurance Co.Ltd. v. Satinder Kaur.** MACA No.2733 of 2012 **==> picture [28 x 8] intentionally omitted <==** Therefore, Rs.45,000/- stands disallowed. 13. On perusal of the award, it appears that Rs.5,000/- alone was granted by the Tribunal under the head funeral expenses. Therefore, **Rs.10,000/-** more is granted under this head following the ratio in **Pranay Sethi'** s case(supra). Coming to the head loss of estate, the Tribunal granted only Rs.5,000/-. Therefore, **Rs.10,000/-** more is granted under this head. Towards loss of consortium, the Tribunal granted only Rs.10,000/-. In fact, following the ratio in **Pranay Sethi'** s case(supra), his parents are entitled to get Rs.40,000/- each under the head loss of consortium. Therefore, **Rs.70,000/-** more is granted under the head loss of consortium after deducting Rs.10,000/- granted by the Tribunal. In the result, this appeal is allowed. It is ordered that the appellants are entitled to get enhanced MACA No.2733 of 2012 ..10.. compensation to the tune of **Rs.10,83,000/-** (Rupees Ten lakh Eighty Three Thousand only) at the rate of 7.5% interest granted by the Tribunal excluding the amount already granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellants in the ratio 30:40:10:10 within two months from today and on deposit, the appellants are at liberty to release the same. Sd/- **A.BADHARUDEEN, JUDGE** rkj