K. P. Devaki and Others v. The National 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 TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939 MACA.No. 1855 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1715/2009 of M.A.C.T.,KOZHIKODE DATED 24-06-2010 APPELLANT(S):PETITIONERS ------------------------------- ## 1. K.P.DEVAKI AGED 55 YEARS, W/O.LATE PARANGODAN, ## 2. MANJUSHA MINOR AGED 14 YEARS, D.O.B. 4-9-1995, D/O.LATE PARANGODAN ## 3.MANEESHA, D/O.LATE PARANGODAN, MINOR AGED 13 YEARS, D.O.B.23-2-1997 MINORS ARE REPRESENTED BY THIER GRANDMOTHER AND LEGAL GUARDIAN K.P.DEVAKI (ALL RESIDING AT KOZHINIPARAMBU HOUSE, ANGADITHALACKAL PALLIYALI QUARTERS, HAJIYARIPADI P.O, ARIMBRA, MORAYOOR MALAPPURAM) BY ADVS.SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN SMT.PRINCY XAVIER RESPONDENT(S):RESPONDENTS ----------------------------------- - *1. IBRAHIMKUTTY AGE 36 YEARS, S/O.HUSSANKUTTY, PARAMBADAN HOUSE, KANMANAM P.O., TIRUR, MALAPPURAM-686002. (DELETED) ## 2. THE NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE-673006. *(R1 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 03/07/17 IN I.A.3864/16 IN MACA.1855/11). ## R2 BY ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.1855 OF 2011 ==========================** Dated this the 8[th] day of August, 2017 ## **JUDGMENT** _Anil K. Narendran, J._ This appeal arises out of the award passed by the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV).No.1715 of 2009, an application filed by the appellants/claimants under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Suresh, son of the first appellant and father of appellants 2 and 3, who died in a motor accident which occurred on 16.08.2009 while riding his motorcycle. At the place of accident, the motorcycle was hit by a car bearing Reg.No.KL-55/B9090, owned and driven by the first respondent and insured with the second respondent. As a result of the accident, the deceased sustained fatal injuries, who succumbed to the injuries on the same day, while **M.A.C.A.1855/2011** 2 undergoing treatment. Alleging that the accident occurred due to the rash and negligent driving of the car by the first respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.6,00,000/- under different heads. 2. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellants/claimants. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the car 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 Rs.4,22,000/- and directed second respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 7% per annum from the date of the petition till deposit, with a cost of Rs.2,250/-. The Tribunal has also ordered for apportionment of the amount of compensation in the ratio 1:2:2. **M.A.C.A.1855/2011** 3 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 appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2009 and at the time of the accident, the deceased was aged 44 years. The appellants claimed that at the time of the accident, the deceased was earning a monthly income of Rs.9,500/-, as a Goldsmith. However, no reliable materials were produced before the Tribunal in order to prove his monthly income. None of the appellants have chosen to mount the box. It was in such circumstances that the Tribunal took the monthly income of the deceased notionally at Rs.3,500/-, for the purpose of assessing compensation under different heads. 8. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Apex **M.A.C.A.1855/2011** 4 Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 as Rs.4,500/-. Considering the fact that in the instant case, the accident is of the year 2009 and at the time of accident, the deceased was an able bodied person aged 44 years, we deem it appropriate to re-fix his monthly income notionally at Rs.7,000/-, for the purpose of assessing compensation under different heads. 9. The compensation awarded by the Tribunal under different heads reads thus:- |**_Head of claim_**|**_Amount claimed_**|**_Amount_**<br>**_awarded_**| |---|---|---| |Transport|2000/-|1500/-| |Damage to clothing|2000/-|500/-| |Pain and sufferings of victims|40000/-|10000/-| |Funeral expenses|5000/-|3000/-| |Loss of love and affection|40000/-|10000/-| |Loss of estate|Nil|5000/-| |Loss of dependency|300000/-|392000/-| |Medical expenses|10000/-|| |Total||422000/-| 10. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2009, **M.A.C.A.1855/2011** 5 we deem it appropriate to re-fix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** . 11. Towards pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the fact that the deceased succumbed to the injuries on the date of accident itself, while undergoing treatment, the compensation awarded by the Tribunal represents just and reasonable compensation under the said head, which warrants no enhancement in this appeal. 12. Towards funeral expenses, the Tribunal awarded a sum of Rs.3,000/-. The accident is of the year 2009. In **Rajesh v. Rajbir Singh [2013 (3) KLT 89]** , the Apex Court granted a sum of Rs.25,000/- as compensation under the head funeral expenses. In such circumstances, we deem it appropriate to re-fix the compensation under this head as Rs.25,000/-, resulting an additional compensation of **Rs.22,000/-** . 13. Towards compensation for loss of love and affection, the Tribunal awarded a sum of Rs.10,000/-. In **Rajesh's case** (supra), the Apex Court granted a sum of Rs.1,00,000/- under this head. In the **M.A.C.A.1855/2011** 6 said case, the accident was of the year 2007 and the deceased who was aged 33 years was survived by three minor children. In the instant case, the deceased was aged 44 years. Since his wife predeceased him, on his death, he was survived by his mother aged 55 years and two minor children aged 14 and 13 years respectively. Considering the facts and circumstances of the case, we deem it appropriate to refix the compensation under this head as Rs.1,00,000/-, resulting an additional compensation of **Rs.90,000/-.** 14. Towards loss of dependency, the Tribunal awarded a sum of Rs.3,92,000/-, by taking the notional monthly income of the deceased as Rs.3,500/-, deducting ⅓ towards his personal and living expenses and applying the multiplier of '14' applicable to his age group. Since we have re-fixed the monthly income of the deceased notionally at Rs.7,000/-, the compensation payable under this head is re-worked as Rs.7,84,000/- (7000x12x14x⅔), resulting an additional compensation of **Rs.3,92,000/-** . 15. In the result, the appellants/claimants will be entitled for an additional compensation of **Rs.5,04,500/-** **M.A.C.A.1855/2011** 7 (500+22,000+90,000+3,92,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation, excluding the delay of 393 days in filing this appeal, which was condoned as order dated 19.11.2011 in per C.M.Appln.No.2790 of 2011. The appellants/claimants will be entitled for apportionment of the amount of compensation in the ratio 10:45:45. 16. Since the insurance coverage of the offending vehicle is not in dispute, the second respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. ## **Sd/C.T. RAVIKUMAR (JUDGE)** ## **Sd/-** ## **ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.1855/2011** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.1855/2011** 9 **JUDGMENT September, 2010**