MACA NO. 1450 OF 2012

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 3[RD] DAY OF JANUARY 2024 / 13TH POUSHA, 1945 MACA NO. 1450 OF 2012 ``` ``` AGAINST THE AWARD DATED 24.02.2012 IN OP(MV) 306/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`APPELLANTS/PETITIONERS IN THE O.P(M.V):`** - `1 KOCHURANI T.J., W/O.JOY JAMES, PULLUKATTIL HOUSE, RAJAGIRI ROAD, KALAMASSERY.` - `2 JAMES JOY (MINOR) AGED 9 YEARS S/O. JOY JAMES, PULLUKATTIL HOUSE, -DO- -DOREPRESENTED BY HIS MOTHER AND NEXT FRIEND KOCHURANI PULLUKATTIL HOUSE, RAJAGIRI ROAD, KALAMASSERY.` - `3 JOHN JOY (MINOR) AGED 6 YEARS, S/O. JOY JAMES, PULLUKATTIL HOUSE, -DO- -DO- REPRESENTED BY HIS MOTHER AND NEXT FRIEND KOCHURANI, PULLUKATTIL HOUSE, RAJAGIRI ROAD, KALAMASSERY.` - `*4 JAMES P.K. (DIED) SO.KURUVILA MATHEW PULLUKATTIL HOUSE, RAJAGIRI ROAD, KALAMASSERY.` - `5 ELIYAMMA JAMES W/O.JAMES, PULLUKATTIL HOUSE, RAJAGIRI ROAD, KALAMASSERY.` - `*ADDL.6 JINI BAIJU D/O LATE JAMES P.K., RESIDING AT PYNADATH HOUSE, KARUKUTTY P.O., ANKAMALY, ERNAKULAM DISTRICT-683576` ``` *ADDL.7JUDY BIJU D/O LATE JAMES P.K., RESIDING AT VALIYAVEETTIL HOUSE, KOONAMMAVU, ERNAKULAM-683518 ``` ``` *THE ABOVE LEGAL HEIRS OF THE DECEASED 4TH APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 6 AND 7 AS PER ORDER DATED 29.03.2023 IN IA 1/2023 IN MACA 1450/2012. ``` ``` 2 ``` ## **`MACA NO. 1450 OF 2012`** ``` BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## **`RESPONDENTS/RESPONDENTS IN O.P.(MV):`** - `**1 SALIM (DELETED) KARIYIL HOUSE, EDATHALA P.O. ALUVA, ERNAKULAM. 683 561.` - `**2 AZEEZ (DELETED) S/O.IBRAHIM, MALOTHUPARAMBIL HOUSE, KUZHIVELIPADY, PERUMBAVOOR - 683 542.` ``` **RESPONDENT NOS.1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 29/03/2023 IN IA 3/2023 IN MACA 1450/2012. ``` - `3 ROYAL SUNDARAM ALLIANCE INSURANCE DI, II FLOOR, AMRITHA TOWERS, K.P.C.C. JUNCTION OPPOSITE MAHARAJA GROUND, M.G. ROAD, KOCHI-682 011.` - `**4 JAYA ANTONY , D/O LATE JAMES.P.K., RESIDING AT KANAPPILLY HOUSE, VARAPPUZHA, ERNAKULAM -683517` - `**5 JOHNY JAMES S/O JAMES.P.K. RESIDING AT PULLUKKATTIL HOUSE, VARAPPUZHA, ERNAKULAM-683517` ``` **THE ABOVE LEGAL HEIRS OF THE DECEASED 4TH APPELLANT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 AND 5 AS PER ORDER DATED 29.03.2023 IN IA 2/2023 IN MACA 1450/2012. ``` ``` MACA NO. 1450 OF 2012 ``` ``` 3 ``` ``` BY ADVS. ADV.P.JACOB MATHEW(K/713/1997) ( BY ORDER ) ADV MATHEW JACOB (SR)-R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1450 OF 2012 ``` ``` 4 ``` ## **`JUDGMENT`** This appeal was filed by the claimants in O.P.(M.V.) No.306/2008 on the files of the Motor Accident Claims Tribunal, Perumbavoor. The said claim petition was filed seeking compensation for the death of one Joy James in a motor accident that occurred on 28.01.2008. During the pendency of this appeal, the fourth appellant died, and the legal heirs of the fourth appellant were impleaded as the additional appellants 6 and 7 and additional respondents 4 and 5 herein. 2. The accident occurred when the bus driven by the deceased was hit by a lorry Registration No.KL 7 AF 1731 driven by the 2[nd] respondent, owned by the 1[st] respondent and was insured with the 3[rd] respondent herein. The deceased was aged 31 years at the time of the accident and was a driver with a monthly income of Rs.6,000/-. The claimants were wife, two minor children and the parents of the deceased. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent filed a written statement admitting the coverage of policy in respect of the lorry but disputed the ``` MACA NO. 1450 OF 2012 ``` ``` 5 ``` liability on various grounds. They also disputed the negligence as well as the quantum of compensation. 4. The said claim petition was tried along with O.P.(M.V.) Nos.281/2008, 505/2008 and 555/2008. Evidence in this case consists of oral testimony of PW1 and as documentary evidence Exts.A1 to A21 were marked. From the side of the respondents, Ext.B1 was marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the 2[nd] respondent, the driver of the lorry, and being the insurer of the lorry, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.6,18,750/- and the said amount was directed to be deposited by the 3[rd] respondent with interest @ 8% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.K.M. Jamaludheen, learned counsel for the appellants and Sri. Mathews Jacob, learned senior counsel, appearing for the 3[rd] respondent Insurance Company. 6. The only dispute relates to the quantum of ``` MACA NO. 1450 OF 2012 ``` ``` 6 ``` compensation awarded under the various heads. The first contention raised by the learned counsel for the appellants is with respect to the amount awarded for loss of dependency. It is pointed out that the monthly income taken by the Tribunal was on the lower side and no addition was also made by the Tribunal towards future prospects. From the materials placed on record, I find force in the said contention. The monthly income taken by the Tribunal was Rs..4,000/- which appears to be on the lower side. According to the claimants, the deceased was working as a driver at the relevant time. The said aspect is evident from the records as at the relevant time the deceased was driving the bus. With regard to the monthly income, it is true that there are no documents produced to substantiate the same. However, when the method of computation evolved from the principles laid down by the honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, the monthly income of an ordinary worker even in the absence of any ``` MACA NO. 1450 OF 2012 ``` ``` 7 ``` evidence can be fixed as Rs.4,500/- in respect of an accident occurred in the year 2004. The usual method that is adopted for determining the monthly income for the subsequent years is to make an addition of Rs.5,00/- per year. When that method of computation is adopted, the monthly income in respect of an accident occurred in the year 2008 can be reasonably fixed as Rs.6,500/-. The learned counsel for the Insurance Company pointed out that the monthly income claimed was only Rs.6,000/-. However, I am of the view that, merely because the amount of Rs.6,000/- alone was claimed as the monthly income that would not preclude this Court in taking a higher monthly income if the facts and circumstances of the case would justify the same. Moreover, in **Minu Rout v. Satya Pradyumna Mohapatra** [(2013) 10 SCC 695] the honourable Supreme Court was pleased to take the monthly income at higher rate than claimed in the claim petition. It is also to be noted in this regard that, the monthly income was mentioned by the legal heirs, after the death of the deceased and therefore, the chances of the legal heirs committing mistake in disclosing the income, due to lack of awareness of the ``` MACA NO. 1450 OF 2012 ``` ``` 8 ``` exact income also cannot be ruled out. In such circumstances, I am inclined to take the monthly as Rs 6,500/- which is the monthly income fixed on the basis of the principles laid down in in **Ramachandrappa** and **Syed** Sadiq (cited supra). 7. The next aspect relates to the addition to be made towards future prospects. Evidently the deceased was aged 31 years at the time of the accident and therefore 40% of the monthly income has to be added towards future prospects. Thus, while reassessing the compensation with the revised monthly income and by making addition of 40% thereof, the amount of compensation towards loss of dependency would come to Rs.13,10,400/- [(6,500 + 40%) x 12 x 16 x 3/4]. The amount already awarded by the Tribunal is Rs.5,76,000/- and thus the additional amount under this head would come to Rs.7,34,400/-. 8. When moving on to the other heads it can be seen that the amounts awarded by the Tribunal towards funeral expenses and loss of estate were Rs.2,500/- each, whereas the actual amounts payable under these heads are Rs.15,000/- each in the light of **National Insurance Company Ltd. v. Pranay Sethi** ``` MACA NO. 1450 OF 2012 ``` ``` 9 ``` [(2017) 16 SCC 680]. Therefore, further sum of Rs.12,500/- each is awarded under these heads. The next head, which requires attention is loss of consortium. The deceased left behind wife, two children and the parents and in the light of the observations made in **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram** [(2018) 18 SCC 130] and **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760] all the claimants were entitled for compensation for loss of consortium @ Rs.40,000/- each, thereby making a total amount of Rs.2,00,000/-. The Tribunal awarded only an amount of Rs.15,000/- under this head. However, it is seen that, in addition to the said amount the Tribunal awarded a further sum of Rs.15,000/- towards loss of love and affection. It is held in **Satinder Kaur** that, when compensation is awarded for loss of consortium no further amount needs to be granted for loss of love and affection. Therefore the said amount of Rs.15,000/- is adjusted against the additional amount granted by this Court towards loss of consortium. Thus, the addition compensation under the said head would come to Rs.1,70,000/-. ``` MACA NO. 1450 OF 2012 ``` ``` 10 ``` 9. In such circumstances, the total additional compensation is determined as Rs.9,29,400/- (Rupees nine lakh twenty nine thousand and four hundred only) (7,34,400 + 12,500 + 12,500 + 1,70,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 24.02.2012 passed by the Motor Accident Claims Tribunal, Perumbavoor in O.P.(M.V.) No.306/2008 is hereby modified by granting an additional compensation of Rs.9,29,400/- (Rupees nine lakh twenty nine thousand and four hundred only) and the said amount shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate as ordered by the Tribunal and with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs