Kalyani and others v Abdul Aziz and others

MACA.No.1750/12 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945_ ## _MACA NO. 1750 OF 2012_ _AGAINST THE ORDER/JUDGMENT DATED 17.02.2012 IN OPMV NO.556 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM_ ## _APPELLANT/SPPL.3RD RESPONDENT:_ - _1 KALYANI, POTTOKKARAN HOUSE, P.O. MINALOOR, THRISSUR DISTRICT (MOTHER OF DECEASED)_ - _2 SUJATHA, W/O.CHANDRASEKHARAN, POTTOKKARAN HOUSE, -DO- W/O. OF DECEASED_ - _3 SRUTHI MINOR, D/O.CHANDRASEKHARAN, -DO- REP. BY MOTHER SUJATHA,_ - _4 SARATH MINOR, S/O.CHANDRASEKHARAN, -DO- REP. BY MOTHER SUJATHA._ _BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN_ ## _RESPONDENT/APPLICANT:_ - _1 ABDUL AZIZ, POTTAKKUNNU HOUSE, PATHIRIPPALA, OTTAPALAM(DRIVER OF KL 8 AF 9140 MOTOR CYCLE)_ - _2 SANEESH BABU SO.BABU PULLANAKUZHIYIL HOUSE, POOMALA, ATHANI, THRISSUR (OWNER OF KL 8 AF 9140 MOTOR CYCLE)._ MACA.No.1750/12 2 _3 UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, AYYAPPA COMPLEX, WADAKKANCHERRY (POLICY NO.100681/31/08/01/00001992 VALID FROM 12.9.2008 TO 11.9.2009)_ _BY ADVS. SRI.RAJAN P.KALIYATH_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1750/12 3 ## **JUDGMENT** The appellants are the petitioners in O.P.(MV). No.556 of 2009 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The said claim petition was submitted by them seeking compensation for the death of one Chandrasekharan, who died due the injuries in a motor accident that occurred on 30.04.2009. The deceased was the son of the 1[st] appellant, husband of the 2nd appellant and the father of the appellants 3 and 4. 2. The accident occurred, while he was walking through the road, a motorcycle ridden by the 1[st] respondent knocked him down, thereby causing serious injuries. Even though he was taken to hospital, he succumbed to the injuries on the same day. The 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the said vehicle. The deceased was a mason aged 42 years with a monthly income of Rs.6,000/-. The claim petition was submitted in such circumstances. 3. The 2[nd] respondent, the registered owner of the vehicle filed a written statement, denying the negligence on the part of MACA.No.1750/12 4 the 1[st] respondent. The quantum of compensation was also disputed by them. The 3[rd] respondent filed a written statement denying the negligence on the part of the rider of the motorcycle. They also raised a contention that the 1[st] respondent was riding the motorcycle without a valid driving licence. However, they admitted the coverage of the policy for the said vehicle. The quantum of compensation was disputed by them. To substantiate the contentions the appellant examined PW1 and Exts.A1 to A6 were marked from their side. 4. After examining the materials placed on record, the Tribunal arrived at the conclusion that the accident occurred due to the negligence of the 1[st] respondent. It was also found that the 1[st] respondent was not having a valid driving licence to ride the motorcycle and therefore, violation of the policy conditions was found. Therefore, even though the 3[rd] respondent was primarily held liable to pay the compensation, they were permitted to recover the said amount from the 1[st] and 2[nd] respondents. The quantum of compensation was determined as Rs.3,73,000/-, which was to be deposited by the 3[rd] respondent with interest at the rate of 7% per annum from the date of petition till realization and MACA.No.1750/12 5 proportionate costs, subject to the right of the recovery granted to them. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 5. Heard Sri.Sheji P.Abraham, learned counsel for the appellants and Sri.Rajan P. Kaliyath, learned counsel for the 3[rd] respondent. 6. The only question that arises for consideration is whether any enhancement of compensation is to be awarded or not. The deceased was claimed to be a mason aged 42 years with a monthly income of Rs.6,000/-. To substantiate the monthly income, the only evidence available is the deposition of PW1, the mother of the deceased, and she asserted that he was getting an amount of Rs.6,000/- as monthly income. However, the Tribunal took the monthly income as Rs.3,000/-, which appears to be on the lower side, considering the fact that the accident occurred in the year 2009. It is to be noted in this regard that in the light of the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.[2011 (13) SCC 236] and Syed Sadiq v.** MACA.No.1750/12 6 ## **Divisional Manager, United India Insurance Co.[2014 (2)** **SCC 735],** under no circumstances the monthly income of Rs.6,000/- can be treated as unreasonable amount. Therefore, I do not find any reason to discard the claim of the appellants in this regard. 7. As the deceased was aged 42 years at the time of the accident, future prospects have to be taken into account and therefore, an addition of 25% of the monthly income has to be made in the light of **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)].** As the deceased left behind four dependents, who are mother, wife and two minor children, the deduction to be made towards personal expenses should be ¼th. Thus, while re-assessing the compensation with the aboverevised criteria, the compensation for loss of dependency would come to Rs.9,45,000/- [(6000+ 25%) x 12 x 14 x ¾]. The amount already awarded by the Tribunal is Rs.3,36,000/- and thus the additional compensation would come to Rs.6,09,000/-. 8. In addition to the above, a further sum of Rs.5,000/- is to be awarded under the head of loss of estate, as the amount awarded by the Tribunal was only Rs.10,000/-, in the light of MACA.No.1750/12 7 **Pranay Sethi (supra)** . Similarly, a further sum of 10,000/- is awarded under the head of funeral expenses as the amount awarded by the Tribunal under the head was only Rs.5,000/-. The amount awarded by the Tribunal towards the loss of consortium was only Rs.10,000/-. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others, 2018 (3) KLT Online 3095 (SC) and United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** ,all the appellants, being the mother, wife and children, were entitled to compensation for loss of consortium at the rate of Rs.40,000/- each, thereby making out a total sum of Rs.1,60,000/-. However, it is seen that, in addition to Rs.10,000/- granted towards loss of consortium and a further sum of Rs.10,000/- is awarded for loss of love and affection. In **Satinder Kaur (supra)** , it was categorically observed by the Honourable Supreme Court that, when compensation is awarded for loss of consortium, no separate amount needs to be awarded for loss of love and affection. Therefore, such an amount of Rs.10,000/- can be adjusted against the compensation fixed by this Court under the head of loss of consortium, which would result in an additional amount of Rs.1,40,000/- under the head of MACA.No.1750/12 8 loss of consortium. No amount is seen awarded under the head of loss of clothing and hence, a sum of Rs.5,00/- is awarded under the said head. Thus, the total additional compensation would come to Rs.7,64,500/- [6,09,000+5000+10000+500+140000]. In the result, this appeal is allowed. Award dated 17.02.2012 in O.P.(MV). No.556 of 2009 passed by the Motor Accidents Claims Tribunal, Ottappalam is hereby modified by granting an additional compensation of Rs.7,64,500/- [Rupees seven lakhs sixty-four thousand and five hundred only] and the said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that as this court did not interfere with the finding of the Tribunal regarding the right of recovery granted to the 3[rd] respondent, they shall be at liberty to recover the additional compensation from the 1[st] and 2[nd] respondents after satisfaction of the judgment. It is further ordered 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 a period MACA.No.1750/12 9 of one month 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 said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/16.3.24