Kanaka Velayudhan and others v. A Jaffer Shatick and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944`** ## **`MACA NO. 2217 OF 2009`** ## **`OPMV 2613/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM APPELLANTS/PETITIONERS:`** - **`1 KANAKA VELAYUDHAN, AGED 49 YEARS, W/O.LATE N.K.VELAYUDHAN,, NEDIYACHIRAYIL HOUSE, TRICHATTUKULAM P.O., ALAPUZHA DISTRICT.`** - **`2 K.VIDYA, AGED 27 YEARS, D/O.LATE N.K.VELAYUDHAN,, NEDIYACHIRAYIL HOUSE, TRICHATTUKULAM P.O., ALAPUZHA DISTRICT.`** - **`3 N.V.VINEESH, AGED 18 YEARS, S/O.LATE N.K.VELAYUDHAN, NEDIYACHIRAYIL HOUSE, TRICHATTUKULAM P.O., ALAPUZHA DISTRICT.`** ## **`BY ADV SRI.K.V.RAJAN`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 A.JAFFER SHATICK, S/O.ABOOBACKER, 578, M.S.ROAD, KRISHNAN COIL, NAGAR COIL, KANYAKUMARI DISTRICT.`** - **`2 NATIONAL INSURANCE CO.LTD., 135-1, ROSE BUILDING, MAIN ROAD, KOVILPATTI-620501, TAMIL NADU.`** - **`3 SUNIL, S/O.SAJIMON, ILLIPARAMPIL HOUSE, PANAVALLY P.O., CHERTHALA, ALAPUZHA DISTRICT.`** - **`4 V.P.ANTONY, S/O.PATHROSE, VALIYAVEETTIL HOUSE, PALLIPURAM, ERNAKULAM DISTRICT.`** - **`5 NATIONAL INSURANCE CO.LTD., TRIPUNITHURA BRANCH.`** - **`6 SUDALAIMADAN, S/O.M.SUNDARAM, 1/81, ATTANIMARKULAM, NALLOOR P.O., SUCHINDRAM VIA, KANYAKUMARI DISTRICT.`** ``` R2 & R5 BY ADV SRI.JOE KALLIATH R6 BY ADV. MOHAN K. ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARDON 12.08.2022, THE COURT ON 19.08.2022 DELIVERED THE FOLLOWING: ``` MACA 2217 OF 2009 2 ## **J U D G M E N T** The claimants in OP(MV) No.2613 of 2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam are the appellants herein. They are challenging the impugned award dated 03.01.2009 on the ground of inadequacy of the compensation. 2. On 06.07.2004, at 7.55 p.m. while Sri.Vinod, a 24 year old construction labourer was pillion riding a motorcycle, TCT-6489 lorry driven by the 6[th] respondent in a rash and negligent manner collided with the motorcycle and Sri.Vinod was thrown down and he sustained fatal injuries. Though he was rushed to a private hospital in Kochi, he succumbed to the injuries on the same day. 3. The 6[th] respondent was the driver, 1[st] respondent was the owner and the 2[nd] respondent was the Insurer of the offending lorry. Respondents 3 to 5 are the owner, rider and Insurer of the motorcycle involved in the accident. 4. The appellants, who are the legal heirs of deceased MACA 2217 OF 2009 3 Vinod, approached the Tribunal claiming compensation of Rs.4,00,000/-. No oral evidence was adduced from either side. Ext.A1 to A7 were marked from the side of appellants/claimants. The Tribunal, on alanysing the facts and evidence, found that the accident occured due to the rash and negligent driving of the offending lorry by the 6[th] respondent and that vehicle was validly insured with the 2[nd] respondent as on the date of accident. A total amount of Rs.2,64,000/was awarded under various heads. Dissatisfied with the amount awarded, this appeal has been preferred. 5. The main challenge is with respect to the compensation awarded for loss of dependency. According to the appellants, the deceased was aged only 24 at the time of his death and so, the proper multiplier ought to have been 18 instead of 13 applied by the Tribunal. The transportation expenses as well as the rate of interest awarded also are not proper. MACA 2217 OF 2009 4 6. Let us have a re-appraisal of the facts and evidence to find out whether there is any illegality or impropriety warranting interference by this Court. 7. Learned counsel for the appellants contended that since the accident was in the year 2004 and the deceased was aged only 24, going by **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , his notional income should have been fixed at Rs.4,500/-. But the case of the appellants even before the Tribunal was that the deceased Vinod was getting monthly income of Rs.3,000/only. When there is clear admission from the part of the appellants regarding the monthly income of the deceased, the Tribunal need not have fixed his notional income exceeding that claim. So his monthly income can be taken as Rs.3,000/as stated by the appellants. Going by **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680]** **`,`** since he was aged only 24, MACA 2217 OF 2009 5 and self employed, 40% addition could have been given towards future prospects. So his monthly income could have been fixed @ Rs.4,200/-. Since he was a bachelor, 50% was liable to be deducted towards his personal expenses, as he was having three dependents. The multiplier applicable is 18 as he was aged only 24. So the compensation for loss of dependency could have been assessed as Rs.4,53,600/(2100 X 12 X 18). The appellants were already given Rs.2,34,000/-. So, they are entitled to get the balance amount of Rs.2,19,000/- towards enhanced compensation under the head ‘loss of dependency’. Going by **Pranay Sethi’s case** cited _(Supra),_ towards funeral expenses and loss of estate the claimants are entitled to get Rs.15,000/each and toward loss of consortium Rs.40,000 with 10% increase after a lapse of every three years. Moreover, the legal heirs of the deceased are not entitled for compensation under the head ‘pain and suffering.’ So, the amount awarded under that head is liable to the deducted. MACA 2217 OF 2009 6 8. Towards funeral expenses, learned Tribunal awarded Rs.3,000/- only and so, the claimants are entitled to get the balance Rs.12,000/- under the head ‘funeral expenses’. 9. Towards loss of estate the Tribunal awarded Rs.5,000/- only and so the appellants are entitled to receive the balance Rs.10,000/- under that head. 10. Towards love and affection, the parents were awarded compensation of Rs.5,000/- each. Now father is no more and the appellants are the mother and siblings of deceased Vinod. They are entitled to get compensation for loss of consortium both parental and filial, at the rate of Rs.44,000/- each, which will come to Rs.1,32,000/-. So, under the head loss of consortium, the appellants are entitled to get the balance Rs.1,22,000/- after deducting Rs.10,000/- already awarded by the Tribunal. 11. Rs.10,000/- awarded by the Tribunal, towards pain and suffering is liable to be deducted. Under all other heads, the compensation awarded seems to be reasonable MACA 2217 OF 2009 7 ## and it requires no modification. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|Rs.2,34,000/-|Rs.4,53,600/-||Rs.2,19,000 /-| |Funeral<br>expenses|Rs.3,000/-|Rs.15,000/-||Rs.12,000/-| |Loss of estate|Rs.5,000/-|Rs.15,000/-||Rs.10,000/-| |Love and<br>affection/<br>Loss of<br>consortium|Rs.10,000/-|Rs.1,32,000/-||Rs.1,22,000/-| |Pain and<br>suffering|Rs.10,000/-||Rs.10,000/-|| |Total|||Rs.10,000/-|Rs.3,63,000/-| |Enhanced compensation (3,63,000 – 10,000)||||Rs.3,53,000/-| 12. In the result, the appellants are entitled to get the enhanced compensation of Rs.3,53,000/[(2,19,000 + - 12,000+ 10,000+1,22,000) 10000] (Rupees Three Lakh Fifty Three Thousand only). 13. The 2[nd] respondent Insurer is directed to deposit 8 MACA 2217 OF 2009 the enhanced compensation in the Bank account of the appellants with interest at the rate of 8% from the date of petition till the date of deposit (excluding 53 days of delay in filing the appeal) in the proportion 70:15:15, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS, JUDGE** DSV/17.08.2022