Lillykutty and others v. K.K. Shaji, Alavudheen and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939** **MACA.No. 1651 of 2006 ( ) -------------------------AGAINST THE AWARD IN O.P.(M.V.) 174/2002 OF MACT,KALPETTA,WAYANAD** **---** **APPELLANT(S)/APPELLANTS (PEITIONERS): ------------------------------------** **1. LILLYKUTTY, W/O.LATE C.A.STEPHEN, AGED 57 YEARS, CHERADIYIL,, KELLOOR P.O., KAPPANKUNNU, MANANTHAVADY TALUK.** **2. C.A.LISA, D/O.LATE C.A.STEPHEN, AGED 31 YEARS, CHERADIYIL, KELLOOR P.O., KAPPANKUNNU, MANANTHAVADY TALUK.** **3. C.S.MINI, D/O.LATE C.A.STEPHEN, AGED 28 YEARS, CHERADIYIL, KELLOOR P.O., KAPPANKUNNU, MANANTHAVADY TALUK.** **BY ADV. SRI.N.J.ANTONY** **RESPONDENT(S):** **--------------** **1. K.K.SHAJI, AGED 36 YEARS, S/O.KURIAKOSE, KATTICHIRAKKAL HOUSE, NALLORNADU POST, PAYADODE,, (DRIVER OF AUTORICKSHAW KL/12A 9147).** **2. ALAVUDHEEN, S/O.MUHAMMED,** **KUNNUMMEL HOUSE, KANIYARAM,, MANANTHAVADY, WYNAD, (OWNER OF AUTORICKSHAW KL/12A 9147).** **3. THE NEW INDIA ASSURANCE CO.LTD., KALPETTA, POLICY NO.3176060484013.** **R3 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKG** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.1651 of 2006 **-----------------------------------------------** Dated this the 13[th] day of June, 2017 ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** . This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Wayanad, in O.P.(MV)No.174/2002, which was an application filed under Section 166 of the Motor Vehicles Act, 1988, claiming a total compensation of `5,00,000/on account of the death of one Stephen, husband of the 1[st] appellant and father of appellants 2 and 3, who met with a motor accident on 2.4.2002, who succumbed to injuries on the date of accident itself. While the deceased was walking along a public road, he was hit by an autorickshaw bearing registration No.KL12/A-9147 driven and owned by the 1[st] and 2[nd] respondents and insured with the 3[rd] respondent. 2. Before the Tribunal, Exts.A1 to A6 were got marked and PW1 was examined, on the side of the appellants. Respondents have not chosen to adduce any oral or documentary evidence. M.A.C.A.1651/06 :-2-: 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred solely due to the rash and negligent driving of the autorickshaw by the 1[st] respondent, driver. Since the vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Under different heads, the Tribunal awarded a total compensation of `98,000/- and the 3[rd] respondent insurer was directed to deposit the said amount together with interest at the rate of 9% per annum from the date of petition till the payment is made and also the proportionate costs. Since the 1[st] respondent driver was not holding a valid driving licence, the 3[rd] respondent insurer was given the right to recover the amount of compensation paid to the appellants/ claimants from the 2[nd] respondent/owner. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants are before this Court in this appeal. 5. The pleadings and materials on record would show that at the time of accident, the deceased was aged 62 years. The appellants claimed that the deceased was earning a monthly M.A.C.A.1651/06 :-3-: income of `4,500/- as an agriculturist. However, no reliable materials were placed before the Tribunal to prove his monthly income. Therefore, the Tribunal notionally fixed the monthly income of the deceased as `1,500/- and awarded a compensation of `60,000/- under the head 'loss of life'. 6. The accident occurred in the year 2002 and at the time of accident, the deceased was aged 62 years. The fact that the deceased was maintaining a family, consisting of his wife and two children, is not in dispute. Therefore, considering the facts and circumstances of the case, we deem it appropriate to re-fix the monthly income of the deceased notionally at ` **2,500** /-. 7. Since the deceased was aged 62 years, the proper multiplier applicable is '7'. Since the deceased was maintaining a family consisting of wife and two children, 1/3[rd] of the notional income has to be deducted towards his personal expenses and the remaining 2/3[rd] alone can be reckoned for the purpose of dependency compensation. Taking the notional monthly income as `2,500/- and the multiplier as '7', the compensation to the appellants under the head 'loss of dependency' comes to `1,40,000/- (2,500x12x7x2/3). After deducting `60,000/- M.A.C.A.1651/06 :-4-: awarded by the Tribunal under the head 'loss of life', the appellants are entitled for an additional compensation of ` **80,000** /- under the head 'loss of dependency'. 8. Towards transportation to hospital and pain and suffering, the Tribunal awarded `1,000/- and `10,000/respectively. The compensation awarded by the Tribunal under the above heads represents just and reasonable compensation, which warrants no interference in this appeal. 9. Towards 'loss of love and affection', the Tribunal awarded a sum of `25,000/-. In **Rajesh v. Rajbir Singh [2013 (9) SCC 54]** , the Apex Court awarded a sum of `1,00,000/- as compensation towards the head 'loss of love and affection' to the children of the deceased who were minors. In the said case, the deceased was aged 39 years and the accident was of the year 2007. In instant case, the accident is of the year 2002 and the deceased was survived by two children aged 29 and 26 years respectively. Therefore, considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under the head 'loss of love and affection' as `50,000/-, resulting an additional compensation of ` **25,000** /- M.A.C.A.1651/06 :-5-: payable to the 2[nd] and 3[rd] respondents. 10. The Tribunal awarded an amount of `2,000/- towards 'funeral expenses'. In **Rajesh's case (supra)** , the Apex Court awarded `25,000/- under the head 'funeral expenses'. In the said case, the accident was of the year 2007 and in the instant case, the accident is of the year 2002. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under the head 'funeral expenses' at `15,000/-, resulting an additional compensation of ` **13,000** /-. 11. Towards 'loss of consortium', the Tribunal has not awarded any amount. In **Rajesh's case (supra)** , the Apex Court awarded a sum of `1,00,000/-. In the said case, the deceased was aged only 33 years and he was survived by his wife who was still young. In **Valsamma & anr. v. Binju Jose & ors. (2014(1) KLT 10)** , a Division Bench of this Court, after referring to the judgment of the Apex Court in Rajesh's case (supra), has held that the age of the widow and age of the deceased are relevant factors while considering the question of compensation to be awarded for 'loss of consortium'. In the instant case, at the time of the accident, the deceased was aged M.A.C.A.1651/06 :-6-: 62 years and his wife was at 55. Therefore, we deem it appropriate to grant a sum of `50,000/- as compensation towards 'loss of consortium'. In the result, the 1[st] appellant widow will be entitled for an amount of ` **50,000** /- as compensation under the head 'loss of consortium'. 12. In the result, the appellants will be entitled for an additional compensation of ` **1,68,000** /- (80,000+25,000+ 13,000+50,000) which will carry interest at the rate of 8% per annum from the date of petition till realisation, excluding the period of delay of 606 days in filing this appeal, which was condoned by order dated 31.5.2016, subject to the condition that in the event of the appellants being granted enhanced compensation in this appeal, such enhanced compensation will not carry any interest for the said period of 606 days. 13. Since the insurance coverage of the vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount together with interest before the Tribunal within a period of 2 months from the date of receipt of a certified copy of this judgment. However, in view of the finding of the Tribunal regarding violation of the policy condition, the 3[rd] respondent M.A.C.A.1651/06 :-7-: insurer will be entitled to recover the aforesaid amount paid to the appellants/claimants from the 2[nd] respondent/owner. No order as to costs. Sd/- **JUDGE** **C.T.RAVIKUMAR** Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/19.6.17 //True copy// P.A.to Judge