Kunjan S/o Velayudhan and Cheeramma v. Binu Varghese, Aisha Beevi and Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 ``` ``` MACA NO. 365 OF 2011 ``` ``` AGAINST THE AWARD IN OPMV 539/2005 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL, PERUMBAVOOR`** ## **`APPELLANTS/PETITIONER:`** - **`1 KUNJAN S/O VELAYUDHAN, AGED 60 YEARS, KANNAMBILLYKUDY HOUSE,VENGOLA P.O., ARACKAPADY VILLAGE.`** - **`2 CHEERAMMA AGED 57 YEARS W/O.KUNJAN AGED 57 YEARS, KANNAMBILLYKUDY HOUSE, VENGOLA P.O., ARACKAPADY VILLAGE.`** - **`BY ADV SRI.V.K.GOPALAKRISHNA PILLAI`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 BINU VARGHESE S/O VARGHESE, MARANCHERY HOUSE, MANOOR KARA, KANNAPPILLY MUGHAL BHAGAM IRAPURAM VILLAGE, 683 101.`** - **`2 AISHA BEEVI W/O.MUHAMMAD 1/832, MANAYIL HOUSE, CHUNAMGAMVELI P.O.,, ALUVA-683 101.`** - **`3 ORIENTAL INSURANCE CO.LTD. ALUVA BRANCH, PATTAMANA BUILDING, R.S.ROAD, PUMB JUNCTION, ALUVA-683 101. BY ADV SRI.A.R.GEORGE`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 365 OF 2011 ``` ``` 2 ``` ## **JUDGMENT** Petitioners in O.P.(MV) No.539/2005 on the files of the Motor Accidents Claims Tribunal, Perumbavoor, who are parents of deceased Aji, have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’), challenging award dated 13.09.2010 in the above case. Respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellants and the learned Standing Counsel for 3[rd] respondent-Insurance Company. 3. Brief facts of the case are as follows:- One Aji K K died in consequence of motor accident occurred on 16.01.2005 while he was travelling as a pillion rider on a motor cycle bearing registration No. KCF-7101. The appellant lodged claim under Section 166 of the MV Act alleging that the accident is the contribution of negligence on the part of passenger bus bearing ``` MACA NO. 365 OF 2011 ``` ``` 3 ``` bearing registration No.KL-9/C-1510, which hit against the motor cycle where the above said Aji K K was a pillion. The appellants claimed Rs.4,00,000/- as compensation from respondent Nos.1 to 3, the driver of the bus, owner of the bus as well as insurer of the bus. 4. The third respondent filed written statement disputing accident as well as negligence. Specific contention raised to the effect that the accident is the contribution of negligence on the part of the motor cycle rider. That apart, compensation under various heads also opposed while admitting policy to the bus involved in the accident. 5. The Tribunal examined PW1 and Exts.A1 to A9 series while considering this original petition along with connected original petition No.1065/2005, where the rider of the motor cycle also sustained injuries. 6. Thereafter, the Tribunal granted Rs.1,09,950/- as compensation after finding 60% contributory negligence ``` MACA NO. 365 OF 2011 ``` ``` 4 ``` on the part of the first respondent and 40% on the part of the motor cycle rider. 7. The learned counsel for the appellants would urge that the Tribunal found 40% negligence on the part of the motorcycle rider ignoring Ext.A6 police charge, attributing negligence against the first respondent and also ignoring the evidence of PW1, the motorcycle rider, who asserted negligence on the part of the lorry driver. 8. The learned counsel for the Insurance Company though argued based on the principles of composite negligence, he also could not establish negligence on the motorcycle rider on the basis of the evidence available. 9. In this matter, as per Ext.A8, the police laid charge against the first respondent alleging negligence against him. PW1, the rider of the motorcycle also filed chief affidavit and subjected himself for cross-examination attributing negligence against the first respondent. In view of the matter, the evidence available in no way suggest ``` MACA NO. 365 OF 2011 ``` ``` 5 ``` negligence on the part of the motorcycle. Therefore, the Tribunal went wrong in finding 40% negligence on the part of the motorcycle rider. Therefore, the said finding stands set aside. 10. Coming to compensation, the same requires recalculation based on the principle in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662) and** by applying multiplier in **Sarla Verma (Smt) & Ors v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)].** In this matter, in the postmortem certificate produced as Ext.A8, it is stated that the deceased was aged 30 years at the time of accident. Therefore, the multiplier is ‘17’ applicable to the age group 26 to 30, following the ratio in **Sarla Verma’s** case. 11. Rs.5000/- is the income claimed by the appellants before the Tribunal on the allegation that Aji K K was a black smith getting the said income. Since the ``` MACA NO. 365 OF 2011 ``` ``` 6 ``` accident is of the year 2005, following the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** also, Rs.5,000/- to be fixed as the monthly income along with 40% addition towards future prospects following the ratio in **Pranay Sethi’s** case (supra). Thus, the amount would come to Rs.7,000/- (Rs.5,000+40%). Deduction shall be one half, since the deceased was a bachelor. Therefore, the ‘loss of dependency income’ is recalculated as under;. 7000 x 12 x 17 x ½ = 7,14,000/- 12. Considering the case, Rs.500/- is granted under the head ’damage to cloths’. Similarly, the appellants are entitled to get consortium at the rate of 40,000/- each. Therefore, **Rs.80,000/** - granted under the head ‘loss of consortium.’ Similarly, towards loss of estate and funeral expenses, the appellants are entitled to get **Rs.30,000/-** (Rs.15,000 x 2), following the ratio in **Pranay Sethi’s** ``` MACA NO. 365 OF 2011 ``` ``` 7 ``` case. Thus, the total compensation comes to Rs.8,25,500/- (1000 (Transportation to hospital) + 7,14,000 + 80,000 + 30,000 + 500 (damages to cloths)) 13. In this matter, Rs.5,000/- granted under the head ‘pain and sufferings’ and Rs.10,000/- granted towards ‘loss of love and affection’. The same are liable to be reduced as per the ratio in **United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others [2020(3) KHC 760].** Hence, the said amount cannot be granted. In the result, this appeal stands allowed. It is ordered that the appellants are entitled to get total compensation of Rs.8,25,500/- (Rupees eight lakh twenty five thousand and five hundred only) at the rate of 8% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 68 days wherein, grant of interest was specifically excluded as per order in C.M.Application No.594 of 2011 dated 04.12.2019. ``` MACA NO. 365 OF 2011 ``` ``` 8 ``` The insurance company is liable to deposit the same in the name of the appellants in equal proportion. It is noticed that court fee for Rs.4,00,000/- alone was valued by the appellants and they are liable to pay court fee for the compensation to the tune of Rs.4,25,500/-. Therefore, the insurance company is directed to deposit Rs.4,255/- in addition to the court fee already ordered by the Tribunal by separate cheque in the name of M.A.C.T. The insurer shall deposit the balance amount in the name of the appellants in equal proportion within two months, after adjusting amount, if any, already deposited. On deposit, the appellants can release the same. ## **Sd/-** ## **A. BADHARUDEEN** **JUDGE** nkr