Kunjumol and others v. Harikum ar and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 ``` ``` MACA NO. 2604 OF 2012 ``` ## **`OPMV 783/2000 OF IST ADDITIONAL MOTOR ACCIDENT CLAIMS`** ## **`TRIBUNAL , MAVELIKKARA`** ## **`APPELLANT/S:`** - `1 KUNJUMOL, MYTHUNAMKUNNU VEEDU,CHENNITHALA THEKKUM MURI,CHENNITHALA THEKKU.P.O.` - `2 KAVITHA MINOR, MYTHUNAMKUNNU VEEDU,CHENNITHALA THEKKUM MURI,CHENNITHALA THEKKU.P.O.` - `3 CHIPPYMINOR, MYTHUNAMKUNNU VEEDU,CHENNITHALA THEKKUM MURI,CHENNITHALA THEKKU.P.O.` - `BY ADVS.` - `SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP` - `SRI.MANU SEBASTIAN` ## **`RESPONDENT/S:`** - `1 HARIKUMAR, MADAVANAYIL,THULAMPARAMBU VADAKKUM MURI,HARIPPAD-690514.` - `2 BABU KURIAKOSE, EDATHALA HOUSE,KAKKOOR.P.O,PIN673619. (DELETED)*` - `R2 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 11.08.2017 IN IA 2735/2017 IN MACA 2604/2012.` - `3 THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD,KAYAMKULAM-690502.` - `4 THANKACHAN, MYTHUNAMKUNNU VEEDU,CHENNITHALA THEKKUM MURI,CHENNITHALA THEKKU.P.O,PIN-690105.` - `5 THANKAMMA, MYTHUNAMKUNNU VEEDU,CHENNITHALA THEKKUM MURI,CHENNITHALA THEKKU.P.O,PIN-690105.` - `ADDL 6 SANTHAKUMARI, AGED 46 YEARS D/O THANKACHAN, PULIMEL HOUSE, PATTOR PO, NOORANAD, ALAPPUZHA 690529` - `ADDL 7 PRASANNAN, S/O THANKACHAN, SURJITH BHAVANAM,CHENNITHALA SOUTH, MAVELIKKARA, ALAPPUZHA690105` - `ADDITIONAL R6 AND R7 ARE IMPLEADED AS ADDITIONAL RESPONDENTS VIDE ORDER DATED 16.03.2021 IN IA 2/2020 IN MACA 2604/2012.` M.A.C.A. No.26042012 : 2 : ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.MANU SRINATH SRI.P.JAYASANKAR SRI.RAJAN G. GEORGE SMT.LATHA SUSAN CHERIAN SRI.GEORGE A.CHERIAN SMT.S.L.SYLAJA SRI.ALEXY AUGUSTINE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.26042012 : 3 : ## JUDGMENT The appellants are the petitioners 1 to 3 in OP(MV) No.783/2000 on the files of the Motor Accident Claims Tribunal, Mavelikkara. 2. The aforesaid claim petition was submitted by the appellants along with respondents 4 and 5 herein seeking compensation for the death of one Jayaprakash due to the injuries sustained in a motor accident that occurred on 01.03.2000. The accident occurred when a lorry bearing registration No.KL-7 X-2518, driven by the 1[st] respondent in the claim petition, moved the vehicle forward abruptly, while the deceased was getting down from the said lorry. Consequent to the injuries sustained, he died on the next day. According to the appellants, the deceased was aged 27 years and was working as a manual labourer with a monthly income of Rs.4,000/-. The 1[st] appellant is the wife, appellant M.A.C.A. No.26042012 : 4 : Nos.2 and 3 are the children and respondents 4 and 5 herein are the parents of the deceased. The claim petition was submitted by them seeking a total compensation of Rs.5,42,500/-. 3. The 3[rd] respondent alone contested the matter by filing a written statement. They admitted the coverage of policy in respect of the said vehicle but disputed the liability on various grounds. It was also contended that the deceased was a gratuitous passenger and he was not a person accompanying the goods which were being transported to the lorry. They contended that the incident occurred as the deceased, while travelling in the lorry, jumped out of the said vehicle when the 1[st] respondent applied the break to facilitate the deceased to getting down from the vehicle. Therefore, they sought dismissal of the application. 4. The evidence in this case consists of the oral testimonies of PWs 1 and 2 and the documentary evidence in M.A.C.A. No.26042012 : 5 : the form of Exts.A1 to A10 from the side of the appellants. No evidence was adduced from the side of the respondents. 5. After the trial, the tribunal found that the accident occurred due to the negligence on the part of the lorry driver. The contention raised by the insurance company to the effect that the petitioner was a gratuitous passenger in a goods vehicle was also rejected, and the insurance company was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,50,000/-. The 3[rd] respondent insurance company was directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. The other claimants are impleaded as respondents 4 and 5. During the pendency of this appeal, 4[th] and 5[th] respondents died, and as the legal heirs, additional respondents 6 and 7 were impleaded. 6. Heard Sri. George Varghese Perumpallikuttiyil, the M.A.C.A. No.26042012 : 6 : learned counsel appearing for the appellants and Sri. George A. Cherian, the learned counsel appearing for the 3[rd] respondent insurance company. 7. The learned counsel for the appellants mainly contended that the amounts awarded by the tribunal under various heads are grossly inadequate. It was pointed out that, even though the monthly income of Rs.4,000/- was claimed, the tribunal took the same as only Rs.2,400/-, which was not proper. Similarly, the tribunal did not make any addition towards future prospects as held in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]. 8. After considering the materials on record, I find some force in the contentions. The monthly income taken by the tribunal was Rs.2,400/-. According to the appellant, the deceased was working as a manual labourer with a monthly income of Rs.4,000/-. Considering the facts and circumstances of the case, and also the date of the accident, I am of the view that an amount of Rs.3,000/- would be the reasonable amount to be fixed as monthly income, and the M.A.C.A. No.26042012 : 7 : same is fixed as such. As per the principles laid down by the Hon’ble Supreme Court in Pranay Sethi ’s case, an addition of 40% has to be made towards future prospects. As the deceased was aged 27 years at the time of the accident, the proper multiplier is 17. 9. Another shortcoming in the assessment of compensation made by the tribunal is that the deduction made by the tribunal towards personal expenses was 1/3. However, it is discernible from the records that, the appellant left behind his wife, two children and parents and thus there were five dependents. Hence, the proper deduction ought to have been 1/4. Therefore, while reassessing the compensation with the above revised criteria, the amount payable under this head would come to Rs.6,42,600/[(3000+40%)x12x17x3/4]. After deducting 3,26,400 /-, the amount already awarded by the tribunal, the additional compensation would come to Rs.3,16,200/-. 10. When moving on to the other heads, it can be M.A.C.A. No.26042012 : 8 : seen that the tribunal awarded compensation of Rs.3,000/only towards the funeral expenses, whereas the same is Rs.15,000/- as per Pranay Sethi ’s case. Therefore, an additional amount of Rs 12,000/- is awarded under the said head. Similarly, for the loss of estate, the amount awarded is Rs.5,000/- and the proper amount to be awarded is Rs.15,000/- thereby, an additional amount of Rs.10,000/- is to be granted under the said head. As loss of consortium the amount awarded is Rs.10,000/-. As per the principles laid down by the Hon’ble Supreme Court in Magma General Insurance Co.Ltd. v.Nanu Ram and Others [2018 ACJ 2782] New India Assurance Company Limited v. Somwati and Others [(2020)9 SCC 644] , the wife, children and parents are entitled to loss of consortium at the rate of 40,000/- each. Therefore, in this case, the appellants and respondents 4 and 5 were entitled to compensation for loss of consortium at the rate of Rs.40,000/- each. The learned counsel for the insurance company opposes the award under loss of consortium to M.A.C.A. No.26042012 : 9 : respondents 4 and 5. The objection raised was that, even though they were parties to the claim petition, they have chosen not to file an appeal before this Court, and only petitioners 1 to 3 in the claim petition have approached this Court. Therefore, the only conclusion possible, according to the learned counsel for the insurance company, is that they are not aggrieved by the said award, and therefore, no compensation for loss of consortium needs to be granted to them. However, I am not inclined to accept the said contention. This Court is under a duty to ensure just compensation to the victims of the accident. As far as the compensation under the head of loss of consortium is concerned, the same is something which the Hon’ble Supreme Court has clearly specified as an integral part of the compensation to be awarded to the dependents of the deceased in a case of death. Respondents 4 and 5, being the deceased's parents, fall within the degree of relationship with the deceased, and are entitled to compensation for loss M.A.C.A. No.26042012 : 10 : of consortium. Therefore, they are entitled to the additional compensation granted under the head of loss of consortium, being the compensation as per the law declared by the Hon’ble Supreme Court. Merely because the said respondents have chosen not to file an appeal, the amount of compensation they were entitled to cannot be denied. Therefore, all the claimants are entitled to compensation for loss of consortium at the rate of 40,000/- each and thus, the additional compensation receivable by the parties concerned for loss of consortium is fixed as Rs.1,90,000/- [(40000 x 5) – 10000]. Thus, the total additional compensation receivable by the petitioners in the claim petition is determined as Rs.5,28,200/- (316200+12000+10000 +190000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 20.10.2010 passed by the Motor Accident Claims Tribunal, Mavelikkara in OP(MV) No.783/2000 is hereby modified by awarding an additional compensation of Rs.5,28,200/- (Rupees five lakhs M.A.C.A. No.26042012 : 11 : twenty eight thousand only). The said amount shall be deposited by the 3[rd] respondent insurance company with interest at the rate as ordered by the tribunal and proportionate costs within three months from receipt of a copy of this judgment. However, it is clarified that, as the delay of 643 days in filing the appeal was condoned by this Court on the condition that the appellants shall not be entitled to interest for the said period, the insurance company shall be entitled to exclude the said period of delay, while computing the interest on the compensation. The additional amount shall be apportioned in the same proportion as ordered in the tribunal. Sd/- ZIYAD RAHMAN A.A. JUDGE ncd