K.G. Udaya Kumar and Latha Udayakumar v. James T.J., K.I. Anwar Basha, National Insurance Co. Ltd., Paul P. Dickinson and Oriental Insurance Co. Ltd.

## **`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. 2345 OF 2014`** ``` OPMV 2077/2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1K.G.UDAYA KUMAR, AGED 53 YEARS, 'PUNARTHAM KOLLATT, EROOR SOUTH, THRIPUNITHURA, COCHIN-682 306. ``` ``` 2LATHA UDAYAKUMAR, AGED 48 YEARS, W/O.K.G.UDAYAKUMAR, 'PUNARTHAM KOLLATT, EROOR SOUTH, THRIPUNITHURA, COCHIN-682 306. ``` ## **`BY ADV SRI.V.P.PRASAD`** ## **`RESPONDENTS/RESPONDENTS 1 TO 5:`** - **`1 JAMES T.J., S/O.JACOB, THEKKEPURACKAL HOUSE, MALAKALLU P.O., RAJAPURAM KALLAR, KASARGOD, PIN-671532, (DRIVER OF BUS NO.KL-07/BN-2300).`** ``` 2K.I. ANWAR BASHA, KAKKAD HOUSE, KRWA 40, KUTHAPADY, 2ND STREET, THAMMANAM P.O, KOCHI-682 032, (RC OWNER OF BUS NO.KL-07/BN-2300). ``` ``` 3NATIONAL INSURANCE CO. LTD., STATUE JUNCTION, THRIPUNITHURA, PIN-682 301. ``` ``` 4PAUL P.DICKINSON, S/O.DICKINSON SOLAMON, PANAYINAZHIKOM HOUSE, PALLIPPURAM P.O, NEAR KANYAKA MATHA HIGHER SECONDARY SCHOOL (GIRLS), PALGHAT-678 006, (R/C OWNER AND RIDER OF MOTOR CYCLE). ``` ``` 5ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, P.B.NO.29, PALGHAT - 678 001. ``` ``` BY ADVS. T.S.SHYAM PRASANTH SRI.P.JACOB MATHEW T.K.SASINDRAN ``` ## **`R5 BY ADV.A.R.GEORGE`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARDON 12.08.2022, THE COURT ON 19.08.2022 DELIVERED THE FOLLOWING: ``` MACA 2345 OF 2014 2 ## **J U D G M E N T** This appeal has been preferred by the claimants in OP(MV) No.2077 of 2012 on the file of Motor Accidents Claims Tribunal, Ernakulam alleging inadequacy of compensation granted in the impugned award dated 31.07.2014. 2. The appellants are the parents of deceased Vaishnav, who was a 19 year old Engineering student at Rajagiri College of Engineering, Kakkanadu. On 05.05.2012, at 2.30 p.m., while he was pillion riding a motorcycle through - Palarivattom Kaloor public road, KL-07/BN-2300 stage carriage driven by the 1[st] respondent in a rash and negligent manner, hit on the handlebar of the motorcycle, which was ridden by the 4[th] respondent. Due to that impact, Sri.Vaishnav was thrown down on the road and the wheel of the bus ran over him, causing his instantaneous death. 3. The 1[st] respondent was the driver, the 2[nd] MACA 2345 OF 2014 3 respondent was the owner and the 3[rd] respondent was the Insurer of the offending bus. 4. The appellants approached the Tribunal claiming compensation of Rs.45,00,000/-. PW1 was examined and Exts.A1 to A13 were marked from the side of the appellants/claimants to substantiate their claim. Learned Tribunal on analysing the facts and evidence, awarded compensation of Rs.16,07,500/in total under various heads. 5. The appellants are assailing the impugned award on various grounds. The Tribunal fixed only a meager annual income of Rs.90,000/- to the deceased though he was a B.Tech student, who could have obtained a part time monthly salary of Rs.15,000/-. The Tribunal did not consider his future prospects. The tragic accident shattered the hopes and aspirations of the appellants and the Tribunal ought to have granted adequate compensation to make good the loss MACA 2345 OF 2014 4 suffered by them. The Tribunal ought to have found that the rider of the motorcycle, in which the deceased was pillion riding, was also negligent and the accident occurred due to the composite negligence of respondent Nos.1 and 4 and so, respondents 3 and 5 were liable to pay the compensation. 6. Let us have a reappraisal of the facts and evidence to find out whether any illegality or impropriety is there warranting interference of the impugned award. 7. There is no dispute with respect to the fact that Sri.Vaishnav, who was a 19 year old Engineering student, died in the road traffic accident occurred on 05.05.2012, at 2.30 p.m., while he was pillion riding a motorcycle ridden by the 4[th] respondent. Though the appellants have got a contention that the accident occured due to the composite negligence of respondent Nos. 1 and 4, Ext.A7 final report clearly shows that the accident occured due to the rash and MACA 2345 OF 2014 5 negligent driving of KL-07/BN-2300 bus by the 1[st] respondent. Before the Tribunal, the appellants had no case that there was negligence from the part of the 4[th] respondent, and according to them, the accident occurred solely due to the negligence of the 1[st] respondent. So, now they cannot turn round and say that the accident occured due to the composite negligence of the 4[th] respondent also, without any materials to support that contention. 8. The policy of the offending vehicle is not in dispute. 9. The Tribunal fixed annual income of the victim @ Rs.90,000/-, fixing his notional income at Rs.10,000/- and giving 50% addition for future prospects and on deducting half of the income towards his personal expenses. Admittedly, the victim was an Engineering student and he was not working or earning any income at that time. But it has come out in evidence that he was a brilliant student, good at sports and games, and no doubt, he had a bright MACA 2345 OF 2014 6 future ahead. 10. Learned counsel for the appellants relied on a decision **Sudhakaran K. and others v. New India Assurance Company Ltd** . [ILR 2016 (2) Kerala 38] in which a Division Bench of this Court was pleaded to fix notional income of an Engineering student in an accident that occurred in the year 2006 at Rs.12,000/- per month. According to them, deceased Vaishnav also is entitled to have his notional income fixed at the rate of Rs.12,000/- as he was a promising and smart Engineering student. This Court find no reason to reject that prayer. Moreover, as he was below 40, going by **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680]** **`,`** towards future prospects, he was eligible to get addition of 40%. So his monthly income could have been fixed as Rs.16,800/- (12,000 + 40%). 11. As he was a bachelor, 50% had to be deducted MACA 2345 OF 2014 7 towards his personal expenses. So, his monthly income could have been Rs.8,400/-. The Tribunal applied multiplier of 16, though the victim was aged below 20. The proper multiplier to be applied was 18. So loss of dependency could have been assessed as Rs.18,14,400/- (8,400 X 12 x 18). The appellants were already paid Rs.14,40,000/- towards loss of dependency. So they are eligible to get the balance Rs.3,74,400/- towards enhanced compensation under the head ‘loss of dependency’. 12. Towards funeral expenses, the appellants were given Rs.20,000/-. Going by **Pranay Sethi’s** case cited _(Supra),_ they are eligible to get only Rs.15,000/-. So, Rs.5,000/- has to be deducted from the total compensation. 13. Towards loss of estate, the learned Tribunal awarded only Rs.10,000/-. Going by **Pranay Sethi’s** case cited _(Supra),_ they were eligible to get Rs.15,000/-. So, they are entitled to an addition of Rs.5,000/- under that 8 MACA 2345 OF 2014 head. 12. Since the appellants are the legal heirs of the deceased, they are not eligible to be compensated for pain and suffering of the victim. So, Rs.30,000/- awarded under that head is liable to be deducted. 13. Towards loss of love and affection (parental consortium) the appellants are eligible to get Rs.88,000/(as per **Pranay Sethi’s** case cited _(Supra)_ . The Tribunal awarded Rs.1,00,000/- towards loss of love and affection. So, they have to refund Rs.12,000/- received in excess. In all other heads, the compensation awarded does not require any interference. |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.14,40,00/-|Rs.18,14,400/-||Rs.3,74,400 /-| MACA 2345 OF 2014 9 |Funeral<br>expenses|Rs.20,000/-|Rs.15,000/-|Rs.5,000/-|| |---|---|---|---|---| |Loss of estate|Rs.10,000/-|Rs.15,000/-||Rs.5,000/-| |Loss of love<br>and affection|Rs.1,00,000/-|Rs.88,000/-|Rs.12,000/-|| |Pain and<br>suffering|Rs.30,000/-||Rs.30,000/-|| |Total|||Rs.47,000/-|Rs.3,79,400/-| |Enhanced compensation (3,79,400 – 47,000)||||Rs.3,32,400/-| 14. In the result, the appellants are entitled to get - enhanced compensation of Rs.3,32,400/(3,79,400 47,000). 15. The 3[rd] respondent Insurer is directed to deposit the enhanced compensation in the Bank account of the appellants with interest at the rate of 8% per annum from the date of petition till the date of deposit in the proportion 50:50 within a period of two months from the receipt of a copy of this judgment. The deposit must be in terms of the MACA 2345 OF 2014 10 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