K.B. Brooni & Jessy Brooni v. Fathima & The National Insurance Company Ltd. (MACA No. 1444 of 2015)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 21 [ ST ] DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ``` ## `MACA NO. 1444 OF 2015` ``` AGAINST THE ORDER/JUDGMENT DATED 14.05.2014 IN OPMV NO.1222 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANTS/PETITIONERS:` - `1 K.B.BROONI AGED 50 YEARS S/O. BONIFUS` - `2 JESSY BROONI AGED 43 YEARS W/O. K.B BROONI, BOTH THE APPELLANTS ARE RESIDING AT 23/1448, KARIMANCHERY, MOOLAMKUZHI, COCHIN -2. BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM` ## `RESPONDENTS/RESPONDENTS:` - `1 FATHIMA 5/305 VALIYA PEEDIAKKAL HOUSE, THRIKKAKKARA P.O., COCHIN - 682 030.` - `2 THE NATIONAL INSURNCE COMPANY LTD ERNAKULAM - 682 011.` - `3 THE NATIONAL INSURANCE COMPANY LTD(DELETED) KOLKATTA - 700 071.` - `4 VYAAYALAKSHMI M(DELETED) W/O. MARI B, 26, VYAYANILAYAM, ST.THOMAS CHURCH ROAD, OOTY, NEELAGIRI, TAMILNADU - 625 001.` - `5 ASHOKAN S(DELETED) S/O. SUBBAIAH, AKAMATCHIPURAM ATHANGARAIPATTI, PERIYUR TALUK, MADURAI, TAMILNADU - 625 001.` ``` BY ADV.SRI.A.A.MOHAMMED NAZIR-R2 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 ``` MACA NO.1444 OF 2015 ``` ## **`J U D G M E N T`** ``` The claimants in OP(MV) No.1222 of 2009 on ``` ``` the file of the Motor Accidents Claims Tribunal, Ernakulam are the appellants herein impugning the award on the ground of inadequacy of compensation. ``` ``` 2. Son of the appellants, by name Bonifes ``` ``` Antony @ Gibson died in a road traffic accident occurred on 15/2/2009 at 2.30 am, while he was travelling in KL-07/BH 2297 car through ``` ``` Coimbatore-Mettupalayam road. The car dashed against a lorry which was parked on the left side of the road due to the rash and negligent driving of the car by its driver. As a result of the hit, Sri.Bonifes Antony and four others ``` 3 ``` MACA NO.1444 OF 2015 ``` ``` including the driver of the car succumbed to the injuries. The deceased was a 20 year old boy pursuing his degree course, and doing some part time job also earning monthly income of Rs.4,500/-. His parents approached the Tribunal claiming compensation of Rs.5 Lakh, but learned Tribunal awarded only Rs.4,29,000/-, and hence this appeal. ``` `3. The 1st respondent was the owner of the` ``` offending car and the 2nd respondent was its insurer. ``` ``` 4. The 2 nd respondent insurance company entered appearance, and admitted the policy. ``` `5. Now this Court is called upon to answer` ``` whether there is any irregularity, illegality ``` 4 ``` MACA NO.1444 OF 2015 ``` ``` or impropriety in the impugned award warranting ``` ``` interference by this Court. ``` ``` 6. Heard learned counsel for the appellants and learned counsel for the 2 nd respondent Insurance company. ``` `7. Learned counsel for the appellants would` ``` submit that the deceased was a 20 year old ``` ``` student doing some part time job also. His monthly earning as per the claim petition was Rs.4,500/-. Relying on the decision Ramachandrappa v. Manager, Royal Sundaram ``` ``` Alliance Insurance Company Limited, [AIR 2011 ``` ``` SC 2951] , learned counsel for the appellants ``` ``` would submit that he was eligible to get his monthly income fixed @ Rs.7,000/-, and apart ``` 5 ``` MACA NO.1444 OF 2015 ``` ``` from that, he was eligible for 40% addition towards future prospects. Learned counsel for the 2nd respondent-Insurer would submit that since the income claimed in the claim petition was only Rs.4,500/-, learned Tribunal ought not have gone beyond that. Learned counsel for the appellants relying on the decision V. Mekala v. M Malathi and Another [(2014) 11 SCC 178] and ``` ``` Minu Rout and Another v. Satya Pradyumna Mohapatra and Others [2013 KHC 4701] would ``` ``` submit that for awarding just and reasonable compensation, there is no bar in fixing monthly income exceeding the claim in the claim petition. Moreover, in V.Mekala’s case cited supra, notional income of a student aged 16 years, was fixed by the Apex Court @ ``` 6 ``` MACA NO.1444 OF 2015 ``` ``` Rs.10,000/-. On going through that decision, it could be seen that a brilliant girl aged 16 years suffered 70% permanent disability. In the ``` ``` case on hand, there is nothing to show the academic brilliance of the deceased, and his legal heirs were claiming monthly income of ``` ``` Rs.4,500/- for him. The accident was in the year 2009 and the total compensation claimed by the appellants was Rs.5,00,000/- and the ``` ``` Tribunal awarded Rs.4,29,000 with 8% interest from the date of petition. As held by the Apex ``` ``` Court, in the celebrated decision Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT ``` ``` 802 (SC)] , ‘Just Compensation’ is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to ``` 7 ``` MACA NO.1444 OF 2015 ``` ``` make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. In the case on hand the notional income fixed by the Tribunal @ Rs.3,000/- is at the lower side. In the appeal memorandum also, their case is that though the deceased was earning monthly income of Rs.4,500/-, the tribunal arbitrarily fixed the notional income @ Rs.3,000/-. So this Court is inclined to take his monthly income as Rs.4,500/- as claimed by the appellants. He was eligible to get 40% addition also towards future prospects, since he was aged below 40. If so, his monthly income could have been taken ``` 8 ``` MACA NO.1444 OF 2015 ``` ``` as Rs.6,300/-. Since he was a bachelor, 50% was ``` ``` liable to be deducted, towards his personal expenses. So the balance income would be ``` ``` Rs.3,150/-. The multiplier applicable is 18 as he was aged only 20. So, the compensation for ``` ``` loss of dependency could have been assessed as ``` ``` Rs.6,80,400/-. Learned Tribunal awarded only Rs.3,24,000/-, under the head loss of ``` ``` dependency. So the appellants are eligible to get the balance amount of Rs.3,56,400/- as enhancement under the head loss of dependency. ``` ``` 8. Towards loss of love and affection, learned Tribunal awarded only Rs.75,000/-. As per the decision National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC ``` 9 ``` MACA NO.1444 OF 2015 ``` ``` 680], the appellants are eligible to get ``` ``` Rs.40,000/- each amounting to Rs.80,000/- in ``` ``` total. So they are eligible to get the balance amount of Rs.5,000/- as enhanced compensation. under the head loss of consortium. ``` `9. Towards loss of estate, no amount was` ``` awarded by the Tribunal. Going by Pranay Sethi’s case (cited supra), the appellants are entitled to get Rs.15,000/-, under the head loss of estate. ``` `10. The compensation awarded under all other` ``` heads seems to be reasonable and hence it needs no modification. ``` `11. The enhanced compensation awarded in this` `appeal is stated in the table below:-` 10 ``` MACA NO.1444 OF 2015 ``` |Head of claim|Amount<br>awarded by the<br>Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |---|---|---|---| |Loss of<br>dependency|3,24,000/-|6,80,400/-<br>(3150x12x18)|3,56,400/-| |Love of<br>consortium|75,000/-|80,000/-<br> (40,000 each)|5,000/-| |Loss of estate|—-|15,000/-|15,000/-| |TOTAL 3,76,400/-|||| ``` 12. So the appellants are entitled to get enhanced compensation of Rs.3,76,400/- with 8% interest per annum. ``` ``` 13. The 2 nd respondent/insurer is directed to deposit the enhanced compensation of ``` ``` Rs.3,76,400/- with 8% interest per annum, from ``` ``` the date of petition till the date of deposit, ``` ``` before the Motor Accidents Claim Tribunal, Ernakulam, within a period of two months from the date of receipt of a copy of this ``` 11 ``` MACA NO.1444 OF 2015 ``` ``` judgment. Learned Tribunal shall disburse that ``` ``` amount to the appellants in equal share after ``` ``` deducting their liabilities, if any, towards Tax, balance court fee, legal benefit fund etc. ``` ``` The appeal is allowed to the extent as above, and no order is made as to costs. ``` **==> picture [46 x 14] intentionally omitted <==** ## **`SOPHY THOMAS,`** ``` JUDGE ``` ``` ska ```