Leena and others v. Abbas S/O Muhammed and Ligia Reji and New India Assurance Co. Ltd. and Saji S/O Joseph and Bennat Thomas and United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944 MACA NO. 2022 OF 2014 ``` ``` AGAINST THE AWARD DATED 25.02.2013 IN OPMV 456/2007 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 LEENA AGED 36 YEARS W/O.LATE GEORGEKUTTY, VALAYATHIL HOUSE, ERUMALAKKAPPU BHAGOM, PARATHODE KARA, KONNATHADY VILLAGE, PIN: 685 571.`** - **`2 AMBIT AGED 12 YEARS`** - **`S/O.LATE GEORGEKUTTY, MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN, LEENA, W/O.LATE GEORGEKUTTY, VALAYATHIL HOUSE, ERUMALAKKAPPU BHAGOM, PARATHODE KARA, KONNATHADY VILLAGE.`** - **`3 AMBIE AGED 9 YEARS`** - **`D/O.LATE GEORGEKUTTY, MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN, LEENA, W/O.LATE GEORGEKUTTY, VALAYATHIL HOUSE, ERUMALAKKAPPU BHAGOM, PARATHODE KARA, KONNATHADY VILLAGE.`** - **`BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 ABBAS S/O.MUHAMMED, KALLUVETTUKUZHIYIL HOUSE, KOOMPANPARA KARA, VELLATHOOVAL VILLAGE, PIN: 685 561 (DRIVER)`** - **`2 LIGIA REJI W/O.REJI JOSEPH, VADUTHALAKUNNEL HOUSE, VELLAYAMKUDY P.O., KATTAPPANA, PIN 685 515 (RC OWNER)`** - **`3 NEW INDIA ASSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM - 686 001.`** ``` MACA NO. 2022 OF 2014 ``` ``` 2 ``` ``` 4SAJI S/O.JOSEPH, NELLIKKUNNEL HOUSE, ERUMALAKKAPPU BHAGOM, PARATHODE KARA, KONNATHADY VILLAGE, PIN: 685 571 (RIDER KL-11/A-2591) ``` - **`5 BENNAT THOMAS S/O.THOMAS, PADIYARAKUDIYIL HOUSE, POTHANIKKADU, KOTHAMANGALAM, ERNAKULAM, PIN: 686 671.`** - **`6 UNITED INDIA INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, MUVATTUPUZHA - 686 661.`** ``` BY ADVS. R6 BY JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY R3 BY VPK.PANICKER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2022 OF 2014 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 10[th] day of June, 2022 Petitioners in O.P.(MV).No.456/2007 on the files of the Motor Accidents Claims Tribunal, Thodupuzha, who are wife and children of deceased Georgekutty, have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’), challenging award dated 25.02.2013 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 R3 as well as R6 Insurance Companies respectively. 3. Brief facts of the case are as follows:- The appellants approached the Tribunal by filing petition under Section 166 of the MV Act and claimed compensation to the tune of Rs.10,00,000/-, on the assertion that one ‘Georgekutty’, the husband of the first appellant and the father of appellants 2 and 3 died in consequence of a motor accident occurred on 04.01.2007 while the above ``` MACA NO. 2022 OF 2014 ``` ``` 4 ``` said Georgekutty was travelling as a pillion rider on a motor cycle. 4. The further case put up by the appellants before the Tribunal is that, the second respondent, who had driven the pickup van bearing registration No.KL-6C 4940 dashed against the motor cycle bearing registration No.KL-11A 2591, where the said Georgekutty was travelling and thereby Georgekutty sustained very serious injuries. Though he was admitted and treated in consequence of the injuries, he breathed his last. 5. The third respondent Insurance Company filed written statement by denying accident and negligence. The quantum of compensation challenged while admitting policy. 6. The sixth respondent Insurance Company also filed written statement by denying accident and negligence as well as disputing the quantum of compensation while admitting policy. 7. The Tribunal ventured the matter. PW1 examined and Exts.A1 to A8 marked on the side of the appellants. ``` MACA NO. 2022 OF 2014 ``` ``` 5 ``` Ext.B1 marked on the side of the respondents. After analysing the evidence, the Tribunal granted Rs.8,94,400/along with interest at the rate of 7.5% per annum. 8. While assailing correctness of the award, the learned counsel for the appellants would submit that the Tribunal took Rs.5,000/- as the income of the deceased, though it has been specifically contended before the Tribunal that being an agriculturist, aged 33 years, the deceased was having income at Rs.6,000/- per month. 9. Since the accident is of the year 2007, by applying the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** the monthly is liable to be fixed at Rs.6,000/-. Similarly, since the deceased is aged less than 33 years, 40% addition also is entitled, following the ratio in **National** **Insurance Company Limited v. Pranay Sethi and Ors** **(2017 (4) KLT 662).** Thus, the monthly income for the purpose of calculating ‘loss of dependency’ is fixed as Rs.8,400/-. Accordingly, loss of disability income is ``` MACA NO. 2022 OF 2014 ``` ``` 6 ``` recalculated as under:- 8400 x 12 x 16 x 2/3 = 10,75,200 Out of which, Rs.6,72,000/- was granted by the Tribunal. Thus, **Rs.4,03,200/-** (10,75,200 – 6,72,000) is granted as enhanced compensation under the head ‘loss of dependency’. 10. Coming to conventional heads, the appellants are entitled to get Rs.40,000/- each under the head ‘loss of consortium’. Out of which, the Tribunal granted Rs.10,000/-. Deducting the same, **Rs.1,10,000/-** more is granted under the head ‘loss of consortium’. Towards ‘funeral expense’, the Tribunal granted Rs.5,000/- alone. Hence, I am inclined to increase the same by **Rs.10,000/-** more. 11. Similarly, towards ‘loss of estate’, the Tribunal granted Rs.10,000/- and the appellants are entitled to get Rs.5,000/- more, following the ratio in **Pranay Sethi’s case (Supra).** Therefore, I am inclined to grant **Rs.5,000/-** more under the head ‘loss of estate’. ``` MACA NO. 2022 OF 2014 ``` ``` 7 ``` 12. It is pointed out by the learned Standing Counsel for the third respondent/Insurance Company that Rs.10,000/granted under the head ‘loss of love and affection’ and Rs.10,000/- granted under the head ‘pain and suffering’ 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].** Thus, **Rs.20,000/-** is reduced on those heads. 13. Since the appellants claimed only Rs.10,00,000/-, the appellants are liable to pay court fee for the compensation granted in excess of Rs.10,00,000/-. Hence, the grant of enhanced compensation is subject to payment of court fee for additional sum of Rs.4,02,600/-. In the result, this appeal stands allowed. It is held that the appellant is entitled to get Rs.14,02,600/- as compensation out of which Rs.8,94,400/- was granted by the Tribunal and the balance amount of **Rs.5,08,200/-** (Rupees five lakh eight thousand and two hundred only) is granted as enhanced compensation with the same rate of interest ``` MACA NO. 2022 OF 2014 ``` ``` 8 ``` awarded by the Tribunal, payable by the Insurance Company, from the date of petition till the date of deposit or realisation. The Insurance Company is directed to deposit court fee for a sum of Rs.4,026/- in the name of the Motor Accidents Claims Tribunal being the additional court fee and the remaining amount in the name of the appellants in the proportion 4:3:3 within two months from today. On deposit, the appellants are at liberty to release the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr