Krishnakumari, Syamkrishnan, Sabari Krishnan and Saraswathi Amma v. Lee Kumar P. Parameswara Vilasom, Ajith Kumar, United India Insurance Co. Ltd., Viajan, Selvakumar S., National Insurance Company Ltd., Gopakumar C, Ajayakumar, The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 27TH DAY OF NOVEMBER 2012/6TH AGRAHAYANA 1934 MACA.No. 1638 of 2012 () -----------------------OPMV.1065/2004 of MACT ALAPPUZHA ## APPELLANT(S)/PETITIONERS : -------------------------------------- ## 1. KRISHNAKUMARI AGED 43 YEARS, W/O. DECEASED SASIDHARAN NAIR PUTHUKUNGARAVELI HOUSE, S.N. PURAM.P.O MARARIKULAM NORTH GRAMA PANCHAYATH, WARD-V CHERTALA TALUK, ALAPPUZHA DISTRICT. ## 2. SYAMKRISHNAN AGED 19 YEARS, S/O. DECEASED SASIDHARAN NAIR PUTHUKUNGARAVELI HOUSE, S.N. PURAM.P.O MARARIKULAM NORTH GRAMA PANCHAYATH, WARD-V CHERTALA TALUK, ALAPPUZHA DISTRICT. ## 3. SABARI KRISHNAN, AGED 19 YEARS, S/O. DECEASED SASIDHARAN NAIR PUTHUKUNGARAVELI HOUSE, S.N. PURAM.P.O MARARIKULAM NORTH GRAMA PANCHAYATH, WARD-V CHERTALA TALUK, ALAPPUZHA DISTRICT. 4. SARASWATHI AMMA, AGED 73 YEARS, - W/O. NARAYANAN NAIR, M/O. DECEASED SASIDHARAN NAIR PUTHUKUNGARAVELI HOUSE, S.N. PURAM.P.O MARARIKULAM NORTH GRAMA PANCHAYATH, WARD-V CHERTALA TALUK, ALAPPUZHA DISTRICT. BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENT(S)/RESPONDENTS: --------------------------------------------- 1. LEE KUMAR.P. PARAMESWARA VILASOM, KOONAYIL, NEDUMGOLAM.P.O PARAVOOR, KOLLAM DISTRICT - 691 301. 2. AJITH KUMAR, S/O. SURESH SURESH NIVAS, NEAR ANGAVILA JUNCTION VAKKOM PANCHAYATH, VAKKOM.P.O, KADACKAVOOR VILLAGE CHIRAYANKEEZHU TALUK, TRIVANDRUM - 695 306. 3. UNITED INDIA INSURANCE CO. LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE MULLACKAL, ALAPPUZHA - 688 001. 4. VIAJAYAN S/O.LEKSHMANAN, KOCHUMELATHIL HOUSE, KORANI.P.O EDACKAD VILAGE, KIZHULAM ATTINGAL TRIVANDRUM- 695 101. 5. SELVAKUMAR.S, S/O. SHANMUGHAN, CHARUVILA PUTHENVEEDU, KORANI.P.O EDACKAD VILAGE, ATTINGAL CHIRAYANKEEZHU TRIVANDRUM- 695 304. 6. NATIONAL INSURANCE COMPANY LIMITED REP. BY ITS BRANCH MANAGER, BRANCH OFFICE ALAPPUZHA - 688 001. 7. GOPAKUMAR.C, S/O.K.R. CHANDRAN NAIR VELUTHEDATHU CHIRAYIL HOUSE, S.L. PURAM.P.O MARARIKULAM NORTH PANCHAYATH WARD -9, CHERTHALA ALAPPUZHA - 688 523. 8. AJAYAKUMAR, S/O. SIVANKUTTY NAIR, VELUTHEDATHU CHIRAYIL HOUSE S.L. PURAM.P.O MARARAIKULAM NORTH PANCHAYATH WARD -9, CHERTHALA ALAPPUZHA - 688 543. 9. THE ORIENTAL INSURANCE COMPNAY LIMITED REP. BY ITS BRANCH MANAGER, CULLEN ROAD, MULLACKAL ALAPPUZHA - 688 001. R6 BY ADV. SRI.K.B.RAMANAND R9 BY ADV. SRI.VPK.PANICKER R3 BY ADV. SRI.P.V.JYOTHI PRASAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2012, THE COURT ON 27.11.2012 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.A.C.A. No.1638 of 2012 ----------------------------------------------Dated 27[th] November, 2012.** ## **J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the petitioners 1, 2, 3 and 5 in O.P.(MV) No.1065 of 2004 on the file of the Motor Accidents Claims Tribunal, Alappuzha. 2. The case of the petitioners in the O.P.(MV) is briefly as follows : On 30.5.2004 at about 9.15 a.m., deceased Sasidharan Nair was travelling as a pillion rider in the motorcycle bearing Registration No.KL-01/AC 1830, driven by the 8[th] respondent through Kollam - Thiruvananthapuram NH-47 and when they reached Seematti Mukku, Chathannoor, the motorcycle bearing Registration NO.KL-02/F-7646 ridden by the second respondent which was proceeding in front of the motorcycle in which the deceased was travelling, suddenly turned to the right side without showing any signal and hit the motorcycle by which the deceased was travelling. As a result, Sasidharan Nair fell down to the road. At that time, Car bearing No.KCV 2055 driven by the 5[th] respondent came through the road in a rash and negligent manner and it run over the body of 2 M.A.C.A. No.1638 of 2012 Sasidharan Nair. He sustained very severe injuries and he died on the spot due to the injuries sustained by him in the accident. The accident occurred due to the rash and negligent driving of the motorcycle by the second respondent and also due to the rash and negligent driving of the car by the 5[th] respondent. The first respondent was the owner and the third respondent was the insurer of the motorcycle. The 4[th] respondent was the owner and the 6[th] respondent was the insurer of the car. The motorcycle in which deceased Sasidharan Nair was travelling was driven by the 8[th] respondent. The 7[th] respondent was the owner and the 9[th] respondent was the insurer of the said motorcycle. They were impleaded as formal parties in the Original Petition. If it is found that there was negligence on the part of the 8[th] respondent, it is prayed that respondents 7 to 9 also may be made liable to pay compensation to the petitioners. The first petitioner is the wife, second and third petitioners are the children, 4[th] petitioner is the father and the 5[th] petitioner is the mother of the deceased. The petitioners claimed `10,00,000/- as compensation. 3 M.A.C.A. No.1638 of 2012 3. During the pendency of the Original Petition, the 4[th] petitioner died and petitioners 1 to 3 and 5 were recorded as the legal heirs of the deceased 4[th] petitioner. Respondents 1 and 2 filed written statement contending that the accident was not due to the negligence of the second respondent. The third respondent filed written statement admitting the policy of the motor cycle and contended that the accident was not due to the negligence of the second respondent. Respondents 4 and 5 filed written statement contending that the accident was not due to the negligence of the 5[th] respondent. The 6[th] respondent filed written statement admitting the policy of the car and contended that there was no negligence on the part of the 5[th] respondent. Respondents 7 and 8 remained ex parte. The 9[th] respondent filed written statement contending that the accident was not due to the negligence of the 8[th] respondent. 4. Before the Tribunal, no oral evidence was adduced from both sides. Exts.A1 to A18 and B1 were marked. The Tribunal, on considering the evidence on record, found that the accident was due to the rash and negligent driving of 4 M.A.C.A. No.1638 of 2012 respondents 2 and 5 and there was no negligence on the part of the 8[th] respondent and awarded a compensation of `3,30,000/to the petitioners together with interest at the rate of 7.5% per annum from 19.8.2004 from respondents 1 to 3 (50%) and from respondents 4 to 6 (50%). Respondents 3 and 6 were directed to produce cheques in proportion to their liability (50:50). Being dissatisfied with the quantum of compensation awarded, petitioners 1, 2, 3 and 5 filed this appeal. 5. Heard the learned counsel for the appellants and the learned counsel appearing for the Insurance Company. 6. The learned counsel for the appellants submitted that the compensation awarded is very low and that the appellants are entitled to get enhanced compensation under various heads. The learned counsel appearing for the Insurance Company supported the award. 7. The Tribunal awarded compensation under various heads as follows : M.A.C.A. No.1638 of 2012 5 ||**_Head of claim_**|**_Compensation awarded_**<br>**_(Rs)_**| |---|---|---| |1|Compensation for pecuniary loss caused to the<br>petitioners due to the death of Sasidharan Nair|300000| |2|Compensation for loss of love and affection|10000| |3|Compensation for loss of consortium to the first<br>petitioner|10000| |4|Compensation for pain and suffering|5000| |5|Ambulance charge|2000| |6|Funeral expenses|3000| ||Total|330000| 8. According to the petitioners, deceased Sasidharan Nair was a hotel and tea shop worker and was an expert cook and he was getting a monthly income of `5,250/-. Ext.A10 is the copy of the certificate dated 14.6.2004 issued by one Balakrishnan Nair, 'Balaji Tea Stall', Thuravoor, in which it is stated that deceased Sasidharan Nair was working with him for 15 years and he was paid `175/- per day. The petitioners have not examined the person who had issued Ext.A10. The Tribunal assessed the monthly income of the deceased as `2,500/which according to us is on the lower side and we fix the monthly income of the deceased as `4,000/-. The Tribunal deducted 1/3 towards the personal expenses of the deceased. 6 M.A.C.A. No.1638 of 2012 In the decision reported in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 SC] it was held that where the deceased is married, the deduction towards personal and living expenses of the deceased should be ¼, where the number of dependent family members is 4 to 6. In the present case, there were five dependent family members and therefore, only ¼ need be deducted towards personal and living expenses of the deceased. At the time of accident, the deceased was aged 43 years and the Tribunal took '15' as the suitable multiplier, which according to us is '14' in accordance with the principles laid down in Sarla Verma's case (supra). Calculating on that basis, the petitioners are entitled to get `5,04,000/- (`4,000 x 12 x 14 x 3/4) as compensation for loss of dependency in the place of `3,00,000/- awarded by the Tribunal. The compensation awarded under various other heads is reasonable. Thus, the petitioners are entitled to get `2,04,000/as additional compensation. Accordingly, this appeal is allowed in part and the appellants are allowed to realize `2,04,000/- as additional M.A.C.A. No.1638 of 2012 7 compensation together with interest at the rate of 7.5% per annum from 19.8.2004 till the date of realization from the respondents 1 to 3 (50%) and from respondents 4 to 6 (50%) and respondents 3 and 6 are directed to deposit the amount within three months from this date in accordance with their proportionate liability. The enhanced compensation shall be apportioned among the appellants equally. However, the appellants are not entitled to get interest on the additional compensation for 1318 days, which is the period of delay in filing the appeal. There is no order as to costs. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)