M.A.C.A No. 1445 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 26[TH] DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945** ## **MACA NO. 1445 OF 2014** **AGAINST THE ORDER/JUDGMENT OPMV 1309/2010 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANTS/CLAIMANTS 3 TO 5 IN OP (MV):** 1 M.UMADEVI AMMA AGED 56 YEARS PERUMANA, KIDANGAYAM, NADUVILMURI, PATHARAM.P.O., SOORANADU VILLAGE, KOLLAM DISTRICT. 2 OMANAKUTTAN PILLAI AGED 59 YEARS PERUMANA, KIDANGAYAM, NADUVILMURI, PATHARAM.P.O., SOORANADU VILLAGE, KOLLAM DISTRICT. 3 LEKSHMI AGED 28 YEARS PERUMANA, KIDANGAYAM, NADUVILMURI, PATHARAM.P.O., SOORANADU VILLAGE, KOLLAM DISTRICT. BY ADV SRI.G.SUDHEER ## **RESPONDENTS/RESPONDENTS AND CLAIMANTS 1 AND 2 IN OP (MV):** 1 HAMSA S/O.SAYED MOHAMMED HAJI, 8/119, PUTHIYAVEETTIL HOUSE, PAZHUVIL DESOM, CHAZHOOR.G.P., KURUMBILAV VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 2 SUNIL KUMAR S/O.UNNEERIKUTTY.K.P., KAIPALLIPARAMBATHU VEEDU, OMASSERY.P.O., NEAR PETROL PUMB, PUTHUR VILLAGE, PUTHUR AMSOM DESOM, KOZHIKODE DISTRICT. 3 THE ORIENTAL INSURANCE COMPANY LTD. CITY HEIGHTS BUILDING, 1ST FLOOR, SOUTH JUNCTION, CHALAKUDY. 4 RAJALEKSHMI AGED 30 YEARS W/O.LATE ARUN THAMPU.K.O., PERUMANA, KIDANGAYAM, M.A.C.A No. 1445 of 2014 2 NADUVILMURI, PATHARAM.P.O., SOORANADU SOUTH VILLAGE, KOLLAM DISTRICT. 5 RUDRA R.THAMPU AGED 4 YEARS D/O.LATE ARUN THAMPU, (MINOR), REPRESENTED BY HER MOTHER THE 4TH RESPONDENT, RAJALEKSHMI, PERUMANA, KIDANGAYAM, NADUVILMURI, PATHARAM.P.O., SOORANADU SOUTH VILLAGE, KOLLAM DISTRICT. BY ADVS. PRATHEESH.P SRI.VPK.PANICKER ANJANA KANNATH(K/939/2014) GOPIKA T.G.(K/922/2021) ## **OTHER PRESENT:** SC- SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 1445 of 2014 3 ## **JUDGMENT** The appellants are the petitioners 3 to 5 in O.P.(M.V) No. 1309/2010 on the files of the Motor Accidents Claims Tribunal, Kollam. The aforesaid claim petition was filed by them along with respondents 4 and 5 herein, seeking compensation for the death of one Arun Thampu due to the injuries sustained in a motor accident that occurred on 18.04.2010. The deceased was the husband of the 4[th] respondent, the father of the 5[th] respondent, the son of the appellants 1 and 2 and the brother of the 3[rd] appellant. 2. The accident occurred, when the motorcycle ridden by the deceased was hit by a tourist bus bearing registration No.KL17B-2255. Respondents 1 to 3 herein were the registered owner, driver and insurer of the said vehicle, respectively. According to the claimants, the deceased was working as a reserve conductor in the KSRTC and was aged 26 years at the time of the accident. He was drawing a salary of Rs.10,000/- per month. The claim petition was submitted in such circumstances seeking compensation. M.A.C.A No. 1445 of 2014 4 3. The 3[rd] respondent /insurance company alone contested the matter by filing a written statement wherein they admitted the coverage of policy in respect of the said vehicle. However, they disputed the negligence and the quantum of compensation. 4. The evidence in this case consists of oral testimony of PW1 and documentary evidence in the form of Exts.A1 to A10. No evidence was adduced by the respondents in the claim petition. 5. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the bus and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.9,48,000/- and the 3[rd] respondent/insurance company was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realisation. The Tribunal further directed that the compensation awarded shall be distributed among the 4[th] and 5[th] respondents as well as the appellants 1 and 2, at the ratio of 40:40:10:10. This appeal is filed by claimants 3 to 5, challenging M.A.C.A No. 1445 of 2014 5 the apportionment of the amount awarded by the Tribunal and also seeking enhancement of the compensation. 6. Heard Sri.G.Sudheer, the learned counsel appearing for the appellants, Sri.V.P.K.Panicker, the learned counsel appearing for the 3[rd] respondent and Sri.Pratheesh.P, the learned counsel appearing for the 4[th] and 5[th] respondents. 7. One of the challenges in the appeal is against the apportionment of the compensation. As observed above, the Tribunal apportioned the compensation at the ratio of 40:40:10:10 among the wife, daughter, mother, and father of the deceased. One of the contentions raised is that, even though all the parties were sailing together when the claim was submitted, the 1[st] claimant, the wife of the deceased, after obtaining employment under dying in harness and getting other service benefits of the deceased, turned against the appellants herein and filed a case against them. It is also contended that the 1[st] claimant purposefully did not adduce any evidence on behalf of the appellants herein. However, apart from the contention, there is absolutely nothing on record to substantiate the same. Even M.A.C.A No. 1445 of 2014 6 otherwise, since the relationship of the 1st and 2nd claimants, the 4[th] and 5[th] respondent herein, with the deceased is admitted, under any circumstances, the apportionment of compensation in such a manner as to set apart 80% of the compensation to them, cannot be termed as an erroneous finding. Respondents 4 and 5, being the wife and daughter, are entitled to compensation to that extent, and no other conclusion is possible under any circumstances. 8. The learned counsel for the appellants also raised a contention that the 3[rd] appellant herein, who is the sister of the deceased and was unmarried at the relevant time, is also entitled to compensation. However, it is a well settled position of law that, in the absence of any specific evidence, a sibling of the deceased cannot be treated as a dependent for the purpose of compensation under the provision of the Motor Vehicles Act. In this case, no evidence has been adduced to substantiate the dependency of the 3[rd] respondent upon the deceased. Merely because the 3[rd] appellant remains unmarried as on the date of the deceased brother, it cannot be assumed that she was dependent upon her brother. This is particularly because, father of the 3[rd] respondent M.A.C.A No. 1445 of 2014 7 and the deceased were alive at the relevant time. Therefore, I do not find any ground for interference in the award on the said issue as well. 9. When moving on to the question of the quantum of compensation, I find some force in the contention put forward by the claimants. The Tribunal calculated the compensation for loss of dependency by taking the monthly income as Rs.5,000/- which appears to be on the lower side. The case of the claimants was that the deceased was working as a reserve conductor in KSRTC. Evidently, it was not a permanent employment and there was no job security. It was an employment for daily wages, as rightly found by the Tribunal. Therefore, the entire monthly income of Rs.10,000/- as claimed by the claimants cannot be accepted. However, as per the method of computation of monthly income evolved from the principles laid down by the honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd.** [2014 (2) SCC 735], the monthly M.A.C.A No. 1445 of 2014 8 income of an ordinary employee even in the absence of evidence has to be taken as Rs.4,500/- in respect of an accident that occurred in the year 2004. To determine the monthly income of the employee for the subsequent years, an addition of Rs.500/per year is to be made. While adopting the said method of computation, the monthly income in this case can be fixed as Rs.7,500/- as the accident occurred in the year 2010. The said amount is reasonable, and therefore, it is fixed for the purpose of computing the compensation for loss of dependency. 10. Another infirmity in the award passed by the Tribunal is that no addition was made towards future prospects. In the light of the principles laid down by the honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], 40% of the monthly income has to be added towards the same. Thus, while reassessing the compensation with the above revised criteria, the compensation for loss of dependency would come to Rs.16,06,500/- [(7,500+40%) x 12 x 17 x 3/4 ]. The amount already awarded by the Tribunal is Rs.7,65,000/-. Thus, the additional amount receivable by the M.A.C.A No. 1445 of 2014 9 claimants would come to Rs.8,41,500/-. In addition to the same, an amount of Rs.10,000/- is to be awarded under the head of loss of estate, as only Rs.5,000/- has been awarded by the Tribunal under this head. 11. The other head which requires attention is the loss of consortium. The Tribunal has awarded compensation of Rs.1,00,000/-to the 1[st] respondent under this head, and no compensation was granted to the daughter and the parents of the deceased. As per the principles laid down in **Pranay Sethi** 's case, and **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780], the claimants 1 to 4 are entitled to compensation at the rate of Rs.40,000/- each under the said head. 12. However, at this juncture, the learned counsel for the 3rd respondent/ insurance company would point out that an amount of Rs.50,000/- has been granted towards loss of care and guidance for the minor child, which was not warranted. The said contention has to be accepted. Since the compensation is awarded for loss of consortium, that would take care of the compensation M.A.C.A No. 1445 of 2014 10 under the said head as well and therefore, no separate compensation needs to be granted for that purpose. Thus, the amount of Rs.50,000/- awarded under the head of loss of care and guidance for the minor child is adjusted against the compensation awarded under the head of loss of consortium. Hence, the additional compensation under the head of the loss consortium would come to Rs.10,000/-. 13. Similarly, an amount of Rs.25,000/- has been granted towards funeral expenses, and the same is in excess by Rs.10,000/- while following the principles in **Pranay Sethi** 's case. The said amount of Rs.10,000/- is directed to be deducted. Thus, the additional compensation receivable by the claimants has been determined as Rs. 8,51,500/- (8,41,500 + 10,000 + 10,000 – 10,000). In the light of the aforesaid observations and findings, the award dated 22.10.2013, passed by the Motor Accidents Claims Tribunal, Kollam in O.P.(M.V) No. 1309/2010, is hereby modified by granting an additional compensation of Rs.8,51,500/- (Rupees eight lakhs fifty one thousand and four hindered only) and the said M.A.C.A No. 1445 of 2014 11 amount shall be deposited by the 3[rd] respondent/ Insurance company along with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the said amount shall be apportioned among the appellants 1 and 2 and respondents 4 and 5 at the ratio as mentioned in the award. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk