Kunjumol and others v. Johnson Mathew and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944** ## **MACA NO. 2528 OF 2016** ## **AGAINST THE AWARD DATED 30.01.2016 IN OPMV 147/2010 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA** ## **APPELLANT/PETITIONER:** - **1 KUNJUMOL, SREERAJ BHAVAN, KAPPIL EAST, KRISHNAPURAM P.O.** - **2 RAJAN, SREERAJ BHAVANAM, KAPPIL EAST, KRISHNAPURAM P.O.** - **3 SYAM RAJ, SREERAJ BHAVANAM, KAPPIL EAST, KRISHNAPURAM P.O.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN** ## **RESPONDENT/S:** - **1 JOHNSON MATHEW MONIPPALLY HOUSE, MEVADA-686 620.** - **2 T.M.ALEY, MONIPPALLY HOUSE, MEDICAL COLLEGE P.O., CALICUT-673 017.** **3 NATIONAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KAYAMKULAM-690 502.** **BY ADVS. SRI.VARGHESE C.KURIAKOSE SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2528 OF 2016 ..2..** ## **JUDGMENT** The appeal is filed against the award dated 30.01.2016 in O.P. (MV)No.147/2010 on the files of the Motor Accidents Claims Tribunal, Mavelikkara. The parties are referred to as per their status in the claim petition. 2. The petitioners are the legal heirs of late Sreeraj, who died in a motor vehicle accident on 19.01.2010. The 1[st] petitioner is the mother, 2[nd] petitioner is the father and the 3[rd] petitioner is the brother, of the deceased. According to the petitioners, while deceased Sreeraj was riding a motor cycle, a car bearing Reg.No.KL/11T-3637, driven by the 1[st] respondent in a rash and negligent manner, hit against the motor cycle and the deceased sustained serious injuries. He succumbed to the injuries on the way to the hospital. The 2[nd] respondent is the owner of the car and the 3[rd] respondent is its insurer. The petitioners claimed an amount of Rs.10,00,000/- as compensation for the death of Sreeraj. 3. Before the Tribunal, the 1[st] petitioner was examined as PW1 and Exts.A1 to A8 documents were marked on the side of the **MACA NO. 2528 OF 2016 ..3..** petitioners. No evidence was adduced by the respondents. The 3[rd] respondent filed a written statement admitting that the offending vehicle was insured with them and that the 1[st] respondent was not having a valid driving licence at the time of the accident and as such, there is violation of conditions of policy. It was also contended that the accident happened due to the negligence of the deceased and the amount of compensation claimed is excessive and exorbitant. 4. The Tribunal found that the accident happened due to the negligence on the part of the 1[st] respondent-driver and awarded an amount of Rs.7,52,500/- as compensation with 9% interest per annum from the date of the petition till realisation with cost of Rs.10,000/-. The compensation awarded by the Tribunal under different heads is as follows: ||Head of claim (Rs)|Amount<br>claimed (Rs.)|Amount<br>awarded<br>(Rs.)| |---|---|---|---| |1|Funeral expenses and<br>miscellaneous expenses|14,000|25,000| **MACA NO. 2528 OF 2016 ..4..** |2|Transportation charges<br>and abulance|4,000|4,000| |---|---|---|---| |3|Damage to clothing etc|1,000|500| |4|Pain and suffering|25,000|25,000| |5|Loss of expectation of<br>life and prospects of the<br>family and loss of estate|20,000|20,000| |6|Loss of dependency|9,50,000|6,48,000| |7|Loss of love and<br>affection|30,000|30,000| ||Total|10,44,000<br>limited<br>to<br>10,00,000|7,52,500| 5. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners have preferred this appeal. 6. According to the petitioners, the deceased was aged 24 years at the time of the accident and was a mason by profession. The Tribunal fixed the notional income of the deceased as Rs.4,000/- per month. Going by the decision of the Hon'ble Court in _**v**_ **.** Supreme **Ramachandrappa Manager, Royal** **MACA NO. 2528 OF 2016 ..5..** **Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236 : AIR 2011 SC 2951], since the deceased was a casual worker at the time of his death in the year 2010, the notional income of the deceased can be taken as Rs.7,500/- per month. Therefore, I take the notional monthly income of the deceased as Rs.7,500/- for the purpose of computation of compensation. The Tribunal has added 50% of the income towards future prospects. In the light of the decision of the Hon'ble Supreme Court in _**National**_ v. _**Insurance Company Ltd. Pranay Sethi** [2017(4) KLT 662 SC],_ only 40% of the notional income can be added towards future prospects. Therefore, the notional income comes to Rs.10,500/[7,500+3,000]. Since the deceased was a bachelor, 50% of the income has to be deducted towards his personal and living expenses. The multiplier applicable is '18'. Accordingly, the for loss of is re-calculated as compensation dependency Rs.11,34,000/- [10,500x12x18x50/100]. The Tribunal has already awarded an amount of Rs.6,48,000/- under the said head. After deducting the said amount, the petitioners are entitled for an **MACA NO. 2528 OF 2016 ..6..** amount of **Rs.4,86,000/-** [11,34,000-6,48,000] as enhanced compensation for loss of dependency. 7. The Tribunal has awarded an amount of Rs.30,000/- under the head compensation for loss of love and affection. The parents of the deceased ie., petitioners 1 and 2, are entitled for Rs.44,000/each (40,000+10% hike for every three years) towards loss of consortium following the decision in _**Pranay Sethi**_ . Therefore, an amount of **Rs.88,000/-** is awarded under the said head. The Hon'ble **United India Insurance Co.Ltd.** _**v.**_ Supreme Court has held in **Satinder Kaur [AIR 2020 SC 3076]** that, when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for loss of love and affection as a separate head. Therefore, the petitioners are not entitled for any amount under the head loss of love and affection and the amount of **Rs** . **30,000/-** awarded under the said head has to be deducted from the total compensation. 8. Towards funeral expenses, the Tribunal has awarded an amount of Rs.25,000/- . In the light of the decision _**Pranay Sethi**_ **MACA NO. 2528 OF 2016 ..7..** _(supra),_ the petitioners are entitled only for an amount of Rs.16,500/- [15,000+10% hike for every three years]. Therefore, an amount of **Rs.8,500/-** [25,000-16,500] has to be deducted under the said head. 9. An amount of Rs.20,000/- was awarded by the Tribunal towards loss of estate. Going by the decision in _**Pranay Sethi**_ (supra), the petitioners are entitled only for an amount of Rs.16,500/- [15,000 + 10% hike for every three years]. Therefore, **Rs.3,500/-** [20,000-16,500] has to be deducted from the compensation awarded under the said count. 10. The Tribunal has awarded just and reasonable compensation under other heads. Accordingly, the petitioners are entitled for a total enhanced compensation of **Rs.5,32,000/-** (Rupees five lakhs thirty two thousand only)[4,86,000+58,000-8,500-3,500]. The 3[rd] respondent insurance company shall deposit the said amount before the Tribunal with 9% interest per annum along with cost of Rs.5,000/within a period of two months from the date of receipt of copy of **MACA NO. 2528 OF 2016 ..8..** this judgment. The appeal is disposed of. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB/17/06/2022