M.A.C.A No. 2052 of 2009

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944 ``` ## **`MACA NO. 2052 OF 2009`** ``` AGAINST THE AWARD DATED 06-07-2007 IN OP(MV) NO.847/2001 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1CLARA, W/O.LATE SIMON, PANOKKARAN HOUSE, KANIMANGALAM DESOM,THRISSUR. 2SIMJU, S/O.LATE SIMON PANOKKARAN HOUSE, KANIMANGALAM DESOM, THRISSUR. 3SIMNA, D/O.LATE SIMON PANOKKARAN HOUSE, KANIMANGALAM DESOM, THRISSUR. 4SIMISHA, D/O.LATE SIMON PANOKKARAN HOUSE, KANIMANGALAM DESOM, THRISSUR. 5MARTHA JOHN, W/O.LATE JOHN PANOKKARAN HOUSE, KANIMANGALAM DESOM, THRISSUR. BY ADV.SRI.A.N.SANTHOSH ``` M.A.C.A No. 2052 OF 2009 2 ## **`RESPONDENTS/RESPONDENTS:`** ``` 1BIJOY T.V., S/O.VIDYASAGAR, THANDAPARAMBIL HOUSE, ENGANDIYUR. ``` ``` 2V.A.MOHEMMAD, S/O.ADIMAKUTTY, VALIYAKATH HOUSE, KANDANISSERY, THRISSUR. ``` - `3 THE ORIENTAL INSURANCE CO. LTD. 2[ND ] FLOOR, T.D.BUILDING, P.B.NO.158,ROUND WEST,THRISSUR.` ``` BY ADVS. SRI.GEORGE A.CHERIAN SRI.JACOB MATHEW KAITHALIL (K/000596/1989), SMT.K.S.SANTHI, R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A No. 2052 OF 2009 3 ## **BASANT BALAJI, J.** ## **=========================== M.A.C.A. No. 2052 of 2009 ============================ Dated this the 25[th] day of October, 2022** ## **JUDGMENT** The appellants are the petitioners in O.P.(M.V.)No.851/ 2001 on the files of the Motor Accidents Claims Tribunal, Thrissur. The claim was filed under Section 166 of the M.V.Act on the death of one Simon, the husband of the 1[st] appellant. 2. On 31.10.2000 at about 7 p.m., the deceased Simon was travelling through Thrissur-Vatanappilly public road and when he reached near Health Centre, Aimbur a bus bearing Reg.No.KRZ 3930 driven by the 1[st] respondent in rash and negligent manner hit against the Car whereby the deceased Simon sustained serious injuries and he was taken to Aswini hospital, Thrissur and while undergoing treatment he died on the same day. The accident happened due to rash and negligent driving of the 1[st] respondent. The 2[nd] respondent is the owner and 3[rd] respondent is the insurer. 3. The 1[st] respondent did not file any written statement. The 2[nd] respondent was set exparte. The 3[rd] respondent filed written statement admitting that the vehicle involved in the accident was insured with them. It was M.A.C.A No. 2052 OF 2009 4 contended that they are not liable to compensate the petitioners as the accident was not due to the negligence of the 1[st] respondent. It was also contended that the accident was due to negligent driving of car and another bus and hence the owner, driver and insurer of that bus and car are essential parties and without their juncture this petition is bad for nonjoinder of necessary parties. The compensation claimed under various heads are exorbitant and hence prayed for dismissal of the Original petition. 4. The present Original Petition was tried along with other two petitions namely O.P.(M.V.)Nos.847 2001 and 11/2002 and relying on Exts.A1 to A17 and oral evidence of PW, Tribunal awarded a total compensation of Rs.4,53,000/- with interest @ 7% per annum from 31.03.2001 till realisation. Aggrieved by the said award of compensation, this appeal is filed. 5. The counsel for the appellant contends that the deceased was aged 52 years at the time of accident and he was working as the Manager of an Engineering Firm earning a monthly income of Rs.10,000/-. The Tribunal has taken the monthly income as Rs.4,000/- without any reason. Though Ext.A15 Bank statement of current account was produced and PW1 was examined, the Tribunal did not accept the claim that M.A.C.A No. 2052 OF 2009 5 the deceased was having Rs.10,000/- as income per month and the Tribunal took it as Rs.4000/-. On going through the deposition of PW1, it cannot be seen that there is positive assertion that the deceased was earning Rs.7500/- but it is seen that the Tribunal has taken only Rs.4000/- per month. The counsel for the appellant relies on the decision of this Court **in K.Ramakrishnapillai & others v. New India Assurance** **Company Ltd. [2015(3) KLJ 750]** in which an Engineering Student who died in accident in the year 2005, the Court took the monthly income at Rs.12000/-. When this Court has taken a view that an Engineering student in the year 2015 was earning Rs.12000/- definitely the appellant would be earning more than what an Engineer student would earn. Taking into consideration of the dictum laid down in the decision in **K.Ramakrishnapillai (supra)** , I am inclined to take the monthly income of the deceased as Rs.8,000/-. Since the deceased was aged 52 years and self employed, 10% percent increase as future prospects is taken into consideration. So the monthly income can be fixed as Rs.8,800/-. The multiplier adopted is 11 and Tribunal has taken the same correctly. The claimants are 5 in number who are the wife, children and mother of the deceased. Hence ¼ has to be deducted towards M.A.C.A No. 2052 OF 2009 6 personal and living expenses of the deceased. So, the compensation for loss of dependency can be calculated as 8,800x12x11x3/4=8,71,200/-less what is awarded by the Tribunal. 6. Towards funeral expenses, the Tribunal has awarded only Rs.5,000/-. So, the appellants are entitled for a sum of Rs.10,000/- more on the said head and 10% escalation for three years. 7. Towards compensation for pain and suffering, the Tribunal has awarded Rs.15,000/-. Since the deceased died on the same date of accident, the legal heirs are not entitled for compensation for pain and suffering. Hence, the amount awarded under the head ‘pain and suffering’ to the tune of Rs.15000/- is set aside. 8. Towards loss of estate, Tribunal has awarded Rs.15,000/- which is just and reasonable. 9. For loss of consortium Rs.10,000/- is awarded. As per the decision reported in **National Insurance Company** ## **Limited v. Pranay Sethi and Ors (2017 (4) KLT 662),** the claimants viz. Wife, children and mother of the deceased are entitled for Rs.40,000/- each with 10% increase. So, they are entitled for Rs.2,10,000/- (44,000x5-10,000). M.A.C.A No. 2052 OF 2009 7 10. The Tribunal has awarded a sum of Rs.10,000/- on the head ‘loss of love and affection’. When loss of consortium is awarded, the claimants are not entitled for any sum under head ‘loss of love and affection’. Hence, the sum of awarded by Tribunal on the head ‘loss of love and affection’ is set aside. 11. Accordingly, the following enhancements are made to the award made by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt. Enhanced<br>in appeal (Rs.)| |---|---|---|---| |1.|Loss of dependency|3,96,000|8,71,200| |2.|Funeral expense|5,000|16,500| |3.|Pain and sufering|15,000|0| |4.|Loss of consortium|10,000|2,20,000| |5|Loss of love and afection|10,000|0| ||Total|4,36,000|11,07,700| ||Amount enhanced –11,07,700 – 4,36,000 = 6,71,700**/**-||| In the result, appeal is allowed and the appellant is entitled for enhanced compensation of Rs.6,71,700/- with interest @7% per annum from the date of petition till realisation. All other findings entered by the Tribunal stands confirmed. M.A.C.A No. 2052 OF 2009 8 The appeal was filed with delay of 527 days. This Court while condoning the delay as per order dated 16.02.2022 held that ultimately the appeal is allowed and the compensation enhanced, petitioners would be disentitled for interest for a period of 527 days. Hence, the appellants will not be entitled for interest for the enhanced compensation for the delay of 527 days. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. **Sd/BASANT BALAJI JUDGE** nk