Ligi v. Rojo Joseph and Others

MACA.No.1548/2014 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945_ ## _MACA NO. 1548 OF 2014_ _AGAINST THE ORDER/JUDGMENT OPMV 832/2008 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL , IRINJALAKUDA_ ## _APPELLANTS/APPLICATNTS:_ - _1 LIGI, W/O.LATE JIJO, PUTHUSSERY HOUSE, METTIPADAM DESOM, KODASSERRY VILLAGE._ - _2 AJAY P.J. (MINOR), S/O.LATE JIJO, -DO- -DO- REP. BY MOTHER LIGI._ - _3 AJITH P.J., (MINOR),S/O.LATE JIJO, -DO- -DO- REP. BY MOTHER LIGI._ - _4 ALANS P.J., (MINOR),S/O.LATE JIJO, -DO- -DO- REP. BY MOTHER LIGI._ - _5 JOSEPH, PUTHUSSERY HOUSE, METTIPADAM DESOM, KODASSERRY VILLAGE._ - _6 ANNIE, W/O.JOSEPH, -DO- -DOBY ADV.A.N.SANTHOSH_ ## _RESPONDENTS/RESPONDENTS:_ - _1 ROJO JOSEPH,_ MACA.No.1548/2014 2 _S/O.JOSEPH, PEREPPADAN HOUSE, METTIPADAM DESOM, KODASSERY VILLAGE._ _2 JACOB P.J., S/O.JOSEPH, PANTHALLOOKKARAN HOUSE, KANAKAMAL P.O.,THRISSUR DISTRICT._ - _3 THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, SOUTH CHALAKUDY._ _BY ADVS. SRI.T.V.LENIN GHOSH SRI.GEORGE CHERIAN (SR.) SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SRI.G.SREEKUMAR CHELUR SMT.K.S.SANTHI_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1548/2014 3 ## **JUDGMENT** The appellants are the petitioners in O.P.(MV).No.832 of 2008 on the files of Motor Accidents Claims Tribunal, Irinjalakuda. The claim petition was submitted by the appellants seeking compensation for the death of one Jijo, who died due to the injuries sustained in a motor accident that occurred on 26.01.2008. The accident occurred when the motorcycle ridden by him, was hit by another motorcycle bearing registration No.KL-45-8378 driven by the 1[st] respondent. 2. The 2[nd] respondent in the claim petition was the owner of the said motorcycle and the 3[rd] respondent in the claim petition was its insurer. According to the appellants, the deceased was a registered head load worker with a monthly income of Rs.10,000/-, and was aged 34 years. 1[st] appellant is the wife of the deceased. Appellants 2 to 4 are the children and appellants 5 and 6 are the parents of the deceased. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing written statement, wherein they admitted the coverage of policy MACA.No.1548/2014 4 but disputed the liability on various grounds. Negligence and quantum of compensation was also disputed by them. 4. Th evidence in this case consists of oral testimony of PW1 and PW2 and Ext.A1 to A13 were marked from the side of the appellants. The policy of insurance was produced and marked as B1 from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent, in riding the motorcycle insured with the 3[rd] respondent. Thus, the 3[rd] respondent was held liable to pay the compensation and the quantum of compensation was fixed as Rs.5,30,975/-, with interest at the rate of 7.5% per annum. This appeal is filed by the appellants seeking enhancement of compensation. 5. Heard Sri.A.N.Santhosh, learned counsel for the appellants and Smt.Latha Susan Cherian, learned counsel for the 3[rd] respondent Insurance Company. 6. Only dispute relates to the quantum of compensation. The main contest is in respect of the amount awarded under the head of loss of dependency. It was pointed out by the learned MACA.No.1548/2014 5 counsel for the appellants that, the Tribunal took the monthly income as Rs.3,500/- even though the monthly income claimed was Rs.10,000/-. On going through the materials placed on record, it can be seen that the deceased was a registered head load worker, which is proved by Ext.A11 and A12 certificates issued by the Kerala Head Load Workers Welfare Fund Board. PW2, Junior Superintendent of Kerala Head Load Workers Welfare Fund Board was examined to substantiate the contents of Ext.A11 and A12. Ext.A11 shows that the average wages of the deceased during the months of 12/2007, 01/2008 and 02/2008 were, Rs.8,813.07/-, Rs.9,082.90/- and Rs.8,908.13/-, respectively. The aforesaid documents were clearly proved by examining PW2. Therefore the wages as per the same can be accepted for determining the monthly income of the deceased. The average of the said amounts would come to Rs.8,935/-. Since the said figures are mentioned in the official records maintained by the Kerala Head Load Workers Welfare Fund Board, I have no hesitation in accepting the said figure. Thus, the monthly income is fixed as Rs.8,935/- in this case. As the deceased was aged 34 years, 40% MACA.No.1548/2014 6 of the same is to be added towards future prospects and the deduction for personal expenses is to be made as ¼, since he left behind six dependents. While re-assessing the compensation with the revised monthly income and other criteria, the amount of compensation for the loss of dependency would come to Rs.18,01,296/- [(8935+40%) x 12 x 16 x ¾]. The amount already awarded by the Tribunal is Rs.4,48,000/- and thus, the additional amount under the said head of Loss of dependency would be Rs.13,53,296/-. 7. When moving on to the other heads, it can be seen that the Tribunal awarded Rs.1,000/- towards funeral expenses, whereas the amount to be awarded under this head is Rs.15,000/as per **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)].** Thus, a further sum of Rs.14,000/- is awarded under the said head. Similarly, towards loss of estate, only Rs.10,000/- was granted and therefore, a further sum of Rs.5000/is awarded under this head. The next head which requires reconsideration is the loss of consortium. The Tribunal awarded only Rs.10,000/- under this head. As per the principles laid down MACA.No.1548/2014 7 by the Honourable Supreme Court in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** , all the appellants herein are entitled to get compensation of Rs.40,000/- each. Thus, the total compensation under the head loss of consortium will come to Rs.2,40000/- and after deducting Rs.10,000/- already awarded the additional amount would come to Rs.2,30,000/-. Thus, the total additional compensation receivable by the appellants is determined as Rs.16,02,296/- [1353296+14000+5000+230000]. 8. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 15.12.2012 passed by the Motor Accidents Claims Tribunal, Irinjalakuda in OP(MV) No.832 of 2008 is hereby modified by granting an additional amount of Rs.16,02,296/- [Rupees sixteen lakhs two thousand two hundred and ninety six only] and the 3[rd] respondent is hereby directed to deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. MACA.No.1548/2014 8 However, it is clarified that as the appeal was filed with a petition to condone the delay of 481 days, the appellant shall not be entitled to interest for the additional amount for the period of delay. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/30.11.23