Latha and Others v. Sankar and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, ``` ## **`1945`** ``` MACA NO. 1593 OF 2013 ``` ``` AGAINST THE AWARD DATED 29.05.2010 IN OPMV NO.352 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 LATHA`** - **`AGED 64 YEARS`** ``` W/O.RAGHAVAN,MANGALATH HOUSE, KALLOOR 67TH MILE, NOOLPUZHA P.O., NOOLPUZHA VILLAGE, SULTJHAN BATHERY TALUK, WAYANAD DISTRICT. ``` - **`2 ANITHA AGED 42 YEARS`** ``` D/O.RAGHAVAN, KALLOOR, 67TH MILE, NOOLPUZHA P.O. NOOLPUZHA VILLAGE, SULTJHAN BATHERY TALUK, WAYANAD DISTRICT. ``` - **`3 AJITHKUMAR`** ``` AGED 39 YEARS ``` ``` S/O.RAGHAVAN, KALLOOR,67TH MILE, NOOLPUZHA P.O., NOOLPUZHA VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. ``` ## **`4 AJITHA`** - **`AGED 33 YEARS`** ``` D/O.RAGHAVAN,KALLOOR,67TH MILE, NOOLPUZHA P.O., NOOLPUZHA VILLAGE, SULTJHAN BATHERY TALUK, WAYANAD DISTRICT. ``` ``` BY ADVS.SRI.MOHAN JACOB GEORGE ``` MACA No.1593 of 2013 -:2:- ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SANKAR`** - **`AGED 36 YEARS`** ``` S/O.KATTAYYAN,CHENNALLOOR VILLAGE, PERIYAMOOR POST, GINGEE TALUK, TAMILNADU(DRIVER OF T.N.20/V/7230 MINILORRY) ``` - **`2 USHA`** - **`AGED 45 YEARS`** - **`D/O.MANIKAVUE, 10/A, BALAJI COLONY,`** - **`VALACHERY,CHENNAI-42 (OWNER OF THE TN 20/V/7230 MINILORRY)`** - **`3 NEW INDIA ASSURANCE CO.LTD NO.2, 8R COMPLEX WOOD ROAD, ANNA SALAI, CHENNAI2, INSURER OF TN 20/V/7230 MINILORRY)`** - **`4 MS.SREE ENTERPRISES`** - **`10-A, BALAJI COLONY, VALACHERY PO, CHENNAI DISTRICT, TAMIL NADU.`** ``` BY ADV LAL K.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.11.2022, THE COURT ON 14.12.2023 DELIVERED THE FOLLOWING: ``` MACA No.1593 of 2013 -:3:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1593 of 2013 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of December, 2023 ## **JUDGMENT** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Kalpetta (for short 'The Tribunal') on 29.05.2010 in O.P.(M.V.) No.352/2006. The appellants are the petitioners before the Tribunal. The Original Petition was filed seeking compensation for the death of the first appellant's son in a motor vehicle accident. The first appellant is the mother of the deceased, appellants 2 and 4 are his sisters and the third appellant is his brother. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 4 and respondents 1 to 4 in accordance with their status in the Original Petition. Respondents respectively are the driver, the owner, the insurer and the registered owner of the mini lorry bearing MACA No.1593 of 2013 -:4:- registration No.TN 20 V/7230 at the relevant time of the motor accident. 3. As per the averments in the Original Petition, the deceased was employed in Karun Alco company and was engaged in painting of traffic lines in roads and Highways. On 14.03.2005 while the deceased was travelling in a mini lorry bearing Reg. No. TN 20 V/7230, due to the rash and negligent driving by its driver, the left door of the vehicle opened and he was thrown on the road. He sustained serious injuries and was rushed to Good Shepherd Hospital, Vythiri, wherefrom was shifted to Leo Hospital, Kalpetta and further to Baby Memorial Hospital, Calicut where, he succumbed to the injuries on 29.03.2005. The motor accident was alleged as occurred due to the rash and negligent driving of the Lorry by it’s driver. A sum of `7,00,000/- was claimed as compensation. 4. All respondents were served with notice from the Tribunal. R1 and R2 entered appearance and filed joint written statement raising contentions that the offending vehicle was driven by the 1[st] respondent slowly and carefully, that due to MACA No.1593 of 2013 -:5:- some mechanical defect, that the left door of the vehicle was opened and 1[st] petitioner’s son was thrown out of the mini lorry. It was contended furthermore that the carelessness of the victim has also contributed to the accident. Thus they denied to have the liability to compensate the petitioners. 5. 3[rd] respondent, in the written statement filed admitted issuance of a policy for the mini lorry covering the date of the motor accident. It was contented that the deceased was travelling in the mini lorry as a gratuitous passenger, and therefore not covered under the policy issued. The validity of the driving licence held by the driver and other vehicular documents were also denied. Compensation claimed is also disputed for being exorbitant in nature. 6. 4[th] respondent filed written statement in the Original Petition. Admittedly he was the registered owner of the mini lorry that was insured with the 3[rd] respondent. It was further contended that the 1[st] respondent was authorised to drive the vehicle and has driven it carefully and that the door of the mini MACA No.1593 of 2013 -:6:- lorry was opened due to some mechanical defect. Amount claimed as compensation was also disputed for it’s exorbitance. 7. Petitioner has adduced oral evidence as PW1 and marked Exts.A1 to A7. Respondent has marked Ext. B1 to B3. Ext.X1 is marked as Court Exhibit. The Tribunal arrived at a finding on the basis of the evidence that the driver of the mini lorry is responsible for causing the motor accident by his rash and negligent driving. It is reported in Ext.A5, the accident register cum wound certificate issued from Baby Memorial Hospital, Kalpetta that the petitioner sustained serious head injury. It was found reported in the certificate of postmortem examination marked in evidence as Ext.A6 that the victim died due to the injuries sustained by him in the motor accident. 8. The deceased was survived by his mother aged 58 years and three siblings including two sisters and a brother respectively aged 35 years, 26 years and 33 years. The Tribunal appreciated the oral as well as the documentary evidence on record and calculated compensation on the basis of those. It arrived at a sum of `1,94,500/- as the compensation payable. MACA No.1593 of 2013 -:7:- The Tribunal found on the basis of the driving license produced by the 1[st] respondent and marked in evidence as Ext.B2 that he has valid authorisation at the relevant time of the motor accident to drive the mini lorry. Accordingly it directed the 3[rd] respondent to deposit the award amount with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of it’s realisation. The Tribunal also found from the certificate of insurance produced and marked in evidence as Ext.B3 that the mini lorry was insured by the 4[th] respondent as a goods carrying commercial vehicle and the policy issued is a ‘B package’ one. The copy of the certificate of insurance is produced by the petitioner and marked in evidence as Ext.A4. It is revealed from Ext.A4 that premium has been collected under Ext.B3(A4) to cover the risk of three employees of the lorry. A partner of 4[th] respondent was examined as RW1. RW1 tendered evidence to the effect that R4 was engaged in the work of road painting at National Highway 212, Kalpetta at the relevant time of the motor accident and that the deceased was the cleaner of the lorry as well as it’s agent to transport materials from the MACA No.1593 of 2013 -:8:- godown to the worksite. Therefore, evidence has come to the effect that at the relevant time of the motor accident the deceased was travelling in the mini lorry as an agent of the 4[th] respondent who was also responsible for loading those in the mini lorry. On the basis of that evidence, the Tribunal took the view that the deceased was not a gratuitous passenger in the mini lorry involved in the motor accident. Thus the Tribunal made the 3[rd] respondent liable to indemnify the owner of the vehicle, who was also it’s insured at the relevant time. 9. The learned counsel had also raised a contention against the compensation stood awarded by the Tribunal for the reason of its inadequency and disproportionality to the actual loss and sufferings of the petitioners. The Tribunal fixed the monthly income as `2,500/- on a notional basis. According to him, the calculation being done on the basis of a meagre amount fixed as monthly income of the deceased, the compensation for loss of dependency was arrived at on the lower side. Accordingly he seeks for re-fixation of a reasonable sum as monthly income and re-calculation of compensation on it’s basis. MACA No.1593 of 2013 -:9:- 10. According to PW1, the mother of the deceased, M/S Sree Enterprisers, was engaged by a company named Karun Alco Company for the work of painting of National Highways and the deceased while travelling as an agent of the company engaged for the work, accompanying the goods required for the work viz; machine, paints and other allied articles at the relevant time when the vehicle met with the motor accident. According to PW1, her son was getting `6,000/- as the monthly income at the relevant time. According to her, apart from her oral evidence, any other relevant materials to establish the monthly income are not forthcoming. Since the monthly income was not proved by cogent materials, the Tribunal was constrained to opt for a notional fixation. `2,500/- fixed being an adequate sum when viewed in the backdrop of the year in which the motor accident was occurred and also the number of surviving members, `2,500/- fixed by the Tribunal is an unreasonable sum. The motor accident being occurred in the year 2005, this Court finds it appropriate to re-fix the monthly income as `5,000/-. The Tribunal took the age of the victim at the relevant time of the MACA No.1593 of 2013 -:10:- motor accident as 22 years and that was maintianed for want of challenge against. Therefore, there is every justification to add 40% to his monthly income in consideration of loss of future prospects of the victim of the motor accident due to his untimely death, on the basis of the guidelines issued by the Apex Court in **National Insurance Co.Ltd. v. Pranay Sethi and others** [2017 (4) KLT 662(SC)]. Thus, `7,000/- (`5,000/- + 40% of `5,000/-) is arrived at. Deceased being a bachelor at the relevant time of the motor accident, 1/2 of the monthly income is liable to be deducted in consideration of the personal expenditure the victim would have spent, had he been alive after the motor accident. The Tribunal adopted the multiplier applicable to the age of the 1[st] petitioner at the relevant time of the motor accident. The multiplier applicable to the victim aged 22 years is 18 and the same is adopted by this Court. When compensation for loss of dependency is re-calculated with the above modified factors, `7,56,000/- (`7,000/- x 12 x 18 x 1/2) is arrived at. `1,60,000/- stood awarded by the Tribunal when adjusted MACA No.1593 of 2013 -:11:- against the sum now arrived at, petitioners will get `5,96,000/as additional compensation. 11. As per the guidelines issued by the Constitution Bench of the Apex Court in **Pranay Sethi** (supra), `40,000/- is payable per head as compensation to the legal representatives who would come within the status of mother and siblings, as far as their relation to the deceased are concerned. `15,000/- each is payable as compensation towards loss of estate and funeral expenses. The Tribunal failed to award compensation in tune with the entitlement of the petitioners towards, loss of consortium and loss of estate. A sum of `5,000/- alone was awarded as compensation towards funeral expenses. As already stated, the deceased was survived by his mother and siblings and therefore, the mother alone will get `40,000/- as compensation towards loss of consortium. The petitioners undoubtedly are entitled to get `15,000/- and as compensation towards loss of estate and `10,000/- as additional compensation towards funeral expenses. `10,000/- each was found awarded by the Tribunal as compensation towards pain and suffering and loss of love and MACA No.1593 of 2013 -:12:- affection. It is settled that the petitioners being the legal representatives of the victim of the motor accident who died consequently are not entitled to get compensation under the above heads. Therefore, `20,000/- (`10,000/- + `10,000/-) stood awarded in total is deducted from the total additional compensation now arrived at as payable to the petitioners. 12. In the above manner of calculation afresh, petitioners will get `6,41,000/- (Rupees Six lakh forty one thousand only) (`5,96,000/- + `40,000/- + `15,000/- + `10,000/-) - (`10,000/+ `10,000/-) as additional compensation. The said amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. On the basis of the evidence on record, the Tribunal arrived at a finding that the deceased was travelling in the mini lorry as representative of the owner of the goods loaded in it. The Tribunal has also found based on the certificate of insurance issued for the mini lorry that a ‘B package’ policy was issued for it treating it as goods carrying vehicle. The risk of an employee is covered under the policy issued by the 3[rd] respondent. The MACA No.1593 of 2013 -:13:- Tribunal has also found that the 1[st] respondent was having a valid authorisation to drive the mini lorry involved in the motor accident. Thus, liability was fixed by the Tribunal on the 3[rd] respondent to indemnify the insured/owner of the mini lorry. In the absence of a challenge raised against, the fixation of liability is maintained. Accordingly, the 3[rd] respondent was directed to pay the additional compensation arrived at alongwith interest accrued on it at the rate fixed, from the date of filing of the Original Petition till the date of realisation, excluding 1002 days, being the period of delay occurred in filing the appeal, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A is allowed accordingly. Sd/- **MARY JOSEPH, JUDGE.** ttb