Lucy ALOSIOUS, Manju K. ALOSIOUS, and EBY MATHEW vs MOHANAN and others

1 MACA No.2599 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 23[RD] DAY OF JUNE 2021 / 2ND ASHADHA, 1943** **MACA NO. 2599 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 320/2008 OF THE MOTOR ACCIDENTS CLAIMS** **TRIBUNAL ,KALPETTA, WAYANAD** ## **APPELLANT/S:** 1 LUCY ALOSIOUS, AGED 55 YEARS W/O. LATE ALOSIOUS, KUZHIKANDATHIL HOUSE, KANNIVAYAL, PAYYAMPALLY POST, MANANTHAVADY, PIN-670 646. 2 MANJU K.ALOSIOUS, AGED 33 YEARS D/O. LATE ALOSIOUS, KUZHIKANDATHIL HOUSE, KANNIVAYAL, PAYYAMPALLY POST, MANANTHAVADY, PIN-670 646. 3 EBY MATHEW, AGED 28 YEARS S/O. LATE ALOSIOUS, KUZHIKANDATHIL HOUSE, KANNIVAYAL, PAYYAMPALLY POST, MANANTHAVADY, PIN-670 646. BY ADV SRI.N.J.ANTONY ## **RESPONDENT/S:** 1 MOHANAN, AGED 47 YEARS S/O. GOPALAN, VARAKIL HOUSE, KURUKKANMOOLA, PAYYAMPALLY POST, MANANTHAVADY TALUK, PIN-670 646.(DRIVER OF THE TRACTOR NO.KL11/J 3480, D.L. NO NOT KNOWN). 2 PREMA, D/O. GOVINDAN, AGED NOT KNOWN, KANNANKARA PADEETEL, AMARAKUNI, PADICHIRA POST, PULPALLY, SULTHAN BATHERY TALUK, PIN-673 579. (OWNER OF THE TRACTOR NO.KL-11/J 3480). 3 UNITED INDIA INSURANCE CO. LTD. KALPETTA, PIN-673 121. (LOCAL BRANCH OF THE INSURER MICRO OFFICE, NO.3061/A, DHANNAWTHIRI COMPLEX, 1ST FLOOR, NANJANGUD, MYSORE, POLICY NO.NOT KNOWN). 4 ABRAHAM S/O. ULAHANNAN, ELAYIDATH HOUSE, PAYYAMPILLY POST, MANANTHAVADY, PIN-670 646. (OWNER OF THE TRACTOR KL-11/J 3480). BY ADV SRI.M.A.GEORGE R3- SRI.JOHN JOSEPH VETTIKKAD ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **23.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2599 of 2012 ## **C.S.DIAS, J.** **====================== MACA No.2599 of 2012 ====================== Dated this the 23[rd] day of June, 2021.** ## **JUDGMENT** The appellants were the supplemental petitioners 2 to 4 in OP (MV) 320/2008 on the file of the Motor Accidents Claims Tribunal, Wayand, Kalpetta. The respondents in the appeal were the respondents in the claim petition. 2. The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988 (in short 'the Act'), claiming compensation on account of the injuries sustained by the first petitioner, who during the pendency of the claim petition expired on 19.9.2010. The petitioners got themselves impleaded as supplemental petitioners 2 to 4 before the Tribunal. 3. The concise case of the petitioners in the claim petition, relevant for determination of appeal, is that on 3 MACA No.2599 of 2012 5.12.2007 while the first petitioner (deceased) was riding a motor cycle bearing registration No.KL-12C/6983 from Koyiliery to Pulpally, he was hit by a Tractor (offending vehicle) bearing registration No.KL 11J/3480 driven by the first respondent in a rash and negligent manner. The offending vehicle was owned by the second respondent and insured with the third respondent. The fourth respondent was the subsequent transferee of the offending vehicle. The first petitioner was an Agriculturist cum Rubber Tapper by profession and earning an amount of Rs.6,000/- per month. The petitioners 2 to 4 were his dependents. On account of the death of the first petitioner, the petitioners 2 to 4 were entitled for compensation which they quantified at Rs.18,11,000/-, but limited to Rs.15,00,000/-. 4. The first respondent did not contest the proceedings and was set ex parte. 5. The second respondent, the owner of the vehicle, filed a written statement contending that she had transferred the vehicle to the fourth respondent. A petty 4 MACA No.2599 of 2012 case was charged against the second respondent and she was acquitted of the charge. 6. The third respondent filed a written statement admitting that the offending vehicle was insured by it, but contended that its liability was limited as per the conditions of the policy. It denied the rashness and negligence attributed against the first respondent and also contended that the compensation claimed in the claim petition was excessive. 7. The fourth respondent filed a written statement contending that he was not the owner of the offending vehicle at the time of the accident and, therefore, he was not liable to pay any compensation and at any rate, it was the third respondent – the insured, who was liable to pay the compensation. 8. The deceased was examined as PW1 and a witness was examined as PW2. Exts A1 to A13 were produced and marked through them. Ext C1 disability certificate and Ext X1 case sheet were also marked in evidence. RWs 1 to 3 5 MACA No.2599 of 2012 tendered evidence on behalf of the respondents. 9. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the third respondent to pay an amount of Rs.3,74,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of payment and proportionate costs to the appellants/petitioners 2 to 4. 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the supplemental petitioners 2 to 4 are in appeal. 11. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the third respondent – Insurance Company. 12. The sole question that emanates for consideration in the appeal is whether the amount of compensation awarded by the Tribunal is reasonable and just. 13. Ext A1 FIR and Ext A4 charge-sheet substantiates that the accident was caused due to the rash and negligent 6 MACA No.2599 of 2012 driving of the vehicle by the first respondent. The fact that the deceased sustained serious injuries is established by Ext A5 wound certificate and Ext A6 discharge summary. It is also proved by Ext X1 case sheet that the deceased expired on 19.9.2010 as a result of the injuries that he sustained in the accident. Ext C1 disability certificate issued by the Medical Board also proves that serious injuries sustained by the deceased. 14. It is undisputed that the offending vehicle was owned by the second respondent at the time of accident and was insured with the third respondent. Therefore, the third respondent is liable to indemnify the owner of the offending vehicle and pay compensation to the appellants. 15. Even though the claim petition was filed for one claiming compensation on account of the injuries sustained by the first petitioner/deceased, after the death of the first petitioner, the petitioners 2 to 4 got themselves impleaded as supplemental petitioners 2 to 4 and amended the claim petition claiming compensation on account of the death of 7 MACA No.2599 of 2012 the first petitioner. The Tribunal accordingly treated the claim petition as a death claim. 16. It is evident that the deceased was 52 years of age at the time of accident and that he died on 19.9.2010 at the age of 55. He had claimed to be an Agriculturist cum Rubber Tapper by profession earning a monthly income of Rs.6,000/-. However, the Tribunal fixed the notional income of the deceased at Rs.3,000/- per month. 17. The Hon'ble Supreme Court in **Ramachandrappa** **v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month and that of a vegetable vendor in the year 2006 at Rs.6,500/per month, respectively. 18. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decisions and 8 ## MACA No.2599 of 2012 considering the fact that the deceased was aged 55 years at the time of his death and was an Agriculturist by profession, I am of the considered opinion that the deceased's notional income can safely be fixed at Rs.6,000/as claimed in the claim petition. Hence, I fix the deceased's notional income at Rs.6,000/- per month. 19. Although the Tribunal had treated the claim petition as a death claim, it is seen that the Tribunal has awarded compensation to the appellants under the head loss of earnings. In view of the fact that the first petitioner expired, I am of the opinion that the appellants are not entitled for compensation under the said head. 20. It is proved that the deceased met with the accident on 5.12.2007 and was under constant treatment till his death on 19.9.2010. He had suffered a cervical cord injury with multiple disc prolapse with soft tissue injury left wrist. He was advised physiotherapy and good nursing care as per Ext A6 discharge summary. Even though the petitioners had claimed an amount of Rs.25,000/- towards 9 MACA No.2599 of 2012 bystander expenses, only an amount of Rs.1,600/- was awarded by the Tribunal, which according to me is a meagre amount. Taking into consideration the fact that the deceased was under treatment for nearly three years, I am of the opinion that the appellants are entitled for bystander expenses as claimed in the claim petition at Rs.25,000/-. In view of granting of compensation under the said head, I set aside the amount awarded by the Tribunal under the head compensation for engaging a nurse for the deceased fixed at Rs.10,000/-. 21. In view of the refixation of the notional income of the deceased and that he was aged 55 years at the time of his death, the relevant multiplier is 11. 22. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Hon'ble Supreme Court has held that the dependents of the deceased are also entitled for future prospects. 23. Considering the age of the deceased and the 10 MACA No.2599 of 2012 relevant multiplier being 11, I hold that the appellants are entitled for future prospects, but after deducting one-third towards the personal living expenses of the deceased. 24. Following the above parameters, I hold that the appellants are entitled for compensation under the head loss of dependency at Rs.5,80,800/- instead of Rs.2,16,000/awarded by the Tribunal. 25. The Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** in clause (8) of paragraph 61, has held that the dependents of the deceased are entitled for compensation under the conventional heads, viz., loss of estate, loss of consortium and funeral expenses at Rs.15,000/-, Rs.40,000/and Rs.15,000/- respectively. 26. In the case on hand, the Tribunal has only awarded Rs.5,000/- each under the heads funeral expenses and loss of estate. In light of the law laid down in **Pranay Sethi** (supra), I enhance the compensation under the above-said 11 MACA No.2599 of 2012 heads at Rs.15,000/- each. Similarly, the Tribunal has only awarded an amount of Rs.5,000/- under the head loss of consortium. In light of the law laid down in **Pranay Sethi** (supra), I hold that the appellants are entitled to Rs.40,000/- each as spousal consortium and filial consortium, i.e., total amount of Rs.1,20,000/-. 27. The Tribunal has awarded an amount of Rs.5,000/towards loss of love and affection. In light of the law laid down by this Court in **Kunjandy. L & Ors v. Rajendran &** **Ors [2020 (2) KLT 315],** I hold that the appellants are not entitled for any compensation under the head loss of love and affection as it would result in duplication as compensation is awarded under the head loss of consortium. 28. With respect to the other heads, viz., medical expenses, extra nourishment and damage to clothing, I find that the Tribunal has awarded reasonable and just compensation. 29. On an overall re-appreciation of the pleadings, 12 MACA No.2599 of 2012 materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the afore-cited precedents, I am of the firm opinion that the appellants are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|36,000/-|Nil| |2|Medical and miscellaneous<br>expenses|82,800/-|82,800/-| |3|Compensation for engaging a<br>nurse to the deceased|10,000/-|Nil| |4|Bystander expenses|1,600/-|25,000/-| |5|Transportation expenses|5,000/-|5,000/-| |6|Extra nourishment|1,600/-|1,600/-| |7|Damage to clothing|1,000/-|1,000/-| |8|Loss of consortium|5,000/-|1,20,000/-| |9|Loss of love and affection|5,000/-|Nil| |10|Funeral expenses|5,000/-|15,000/-| |11|Loss of estate|5,000/-|15,000/-| |12|Loss of dependency|2,16,000/-|5,80,800/-| ||Total|3,74,000/-|8,46,200/-| In the result, the appeal is allowed by enhancing the compensation by an amount of Rs.4,72,200/- (Rupees Four Lakh Seventy Two Thousand and Two Hundred only) with 13 MACA No.2599 of 2012 interest at the rate of 7.5% per annum from the date of claim petition till the date of realisation with proportionate costs. The third respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The appellants/petitioners 2 to 4 would be at liberty to move the Tribunal for the withdrawal of the deposited amount. **SD/-** SKS/23.6.2021 **C.S.DIAS JUDGE**