MACA No. 2168 of 2014

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ## _`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`_ ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ## _`MACA NO. 2168 OF 2014`_ ``` AGAINST THE AWARD DATED 31.01.2014 IN OPMV NO.260 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## _`APPELLANTS/RESPONDENTS 5 AND 4:`_ - _`1 SUMA AGED 50 YEARS S/O.LATE JOSE THOMAS, GOPALASSERI HOUSE, KUNNAMAGALAM P.O., KOZHIKODE (NOW RESIDING AT THETTATHU HOUSE, P.O.PAYAMBARA, KUNNAMANGALAM, KOZHIKODE - 673 571)`_ - _`2 ATHITHYAN JOSE P. THOMAS (MINOR) AGED 17 YEARS GOPALASSERI HOUSE, KUNNAMANGALAM P.O., KUNNAMANGALAM AMSOM DESOM, KOZHIKODE DISTRICT, REPRESENTED BY 1ST APPELLANT - SUMA. BY ADV SMT.CELINE JOSEPH`_ ## _`RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3 & 6:`_ - _`1 SHALY K.S. AGED 43 YEARS D/O.SCARIA, KAYYALATHODIYIL HOUSE, MANIKUNI, SULTHAN BATHERY, WAYANAD DISTRICT.`_ - _`2 RENJIMON THOMAS, (MINOR) S/O. JOSE G. THOMAS, KAYYUALATHODIYIL HOUSE, MANIKUNI, SULTHAN BATHERY, WAYANAD DISTRICT, REPRESENTED BY RESPONDENT NO. 1 - MOTHER - SHALY K.S`_ - _`3 SREEJITH A S/O. GANGADHARAN NAIR, ARIYIL HOUSE, KUNNAMANGALAM P.O., CALICUT DISTRICT.`_ - _`*4 SHEENAMMA M. PHILIP(DIED) DOOR NO. 28/680, GOPALASSERY HOUSE, CHEVAYOOR P.O., KOZHIKODE DISTRICT, NOW RESIDING AT GOPALASSERY HOUSE, P.O.KUMARAMPURAM, PALLIKKARA, ERNAKULAM DISTRICT - 683 565.`_ - _`5 THG NEW INDIA ASSURANCE COM. LTD SILVER PLAZA, I.G ROAD, CALICUT.`_ - _`**6 M.J.MARY (DIED) W/O. LATE G.C. THOMAS, RESIDING AT GOAPALASSERY, 28/680, NEAR VILLAGE OFFICE, P.O.CHEVAYOOR, KOZHIKODE.`_ - _`* ADDITIONAL RESPONDENTS 7 TO 9 7 ALEX G THOMAS RESIDING AT DOOR NO.28/680,GOPALASSERY HOUSE,CHEVAYOOR P.O,KOZHIKODE DISTRICT,NOW RESIDING AT GOPALASSERY HOUSE P.O KUMARAPURAM,PALLIKKARA,ERNAKULAM DISTRICT-683565`_ ``` MACA. No. 2168 of 2014 ``` ``` ..2.. ``` ``` 8ANN MARIYA ALEX D/O ALEX G THOMAS,AGED 21 YEARS,RESIDING AT DOOR NO.28/680,GOPALASSERY HOUSE,CHEVAYOOR P.O,KOZHIKODE DISTRICT,NOW RESIDING AT GOPALASSERY HOUSE,P.O KUMARAPURAM,PALLIKKARA,ERNAKULAM DISTRICT-683565 9NEHA G ALEX AGED 13 YEARS,(MINOR) REP BY HER FATHER ALEX G THOMAS RESIDING AT DOOR NO.28/680,GOPALASSERY HOUSE,CHEVAYOOR P.O,KOZHIKODE DISTRCT,NOW RESIDING AT GOPALASSERY HOUSE P.O KUMARAPURAM,PALLIKKARA,ERNAKULAM DISTRICT-683565(LEGAL HEIRS OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL.R7 TO R9 AS PER ORDER DATED 5/10/2017 IN IA NO.3068/2017 IN MACA NO.2168/2014). **10LISSY PHILIP ( IMPLEADED ) GOPALASSERY HOUSE, GOPALASSERY HOUSE, P.O. KUMARAPURAM, KUNNATHUNADU, PALLIKKARA, KUMARAPURAM,ERNAKULAM (ADDITIONAL 10TH RESPONDENT IMPLEADED AS THE LEGAL HEIR OF DECEASED 6TH RESPONDENT AS PER ORDER DATED 21.11.2023 IN IA 1/2023 IN MACA 2168/2014) BY ADVS. BENNY P.S SRI.JOY JOSEPH MANAYATHU ``` ## _`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON`_ ``` 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA. No. 2168 of 2014 ``` ``` ..3.. ``` ## **SOPHY THOMAS, J.** ## **=====================** M.A.C.A. No. 2168 of 2014 ## **========================** ## _**J U D G M E N T**_ ## **Dated this the 02[rd] day of April, 2024** This appeal is at the instance of respondents 4 and 5 in O.P. (MV) No. 260 of 2007 on the file of Motor Accident Claims Tribunal, Kalpetta, challenging the award on the ground of inadequacy of compensation, and also challenging exoneration of the 3[rd] respondent from the liability to pay the compensation. 2. Sri. Jose G Thomas met with a road traffic accident on 03.03.2006 at 08.30 p.m., while he was pillion riding KL-11W2810 scooter, ridden by the 1[st] respondent in a rash and negligent manner. The scooter lost its control and capsized due to the negligence of the 1[st] respondent, and Sri. Jose G Thomas sustained fatal injuries in that accident. He was taken to Medical ``` MACA. No. 2168 of 2014 ``` **==> picture [31 x 7] intentionally omitted <==** College Hospital, Kozhikode, and while undergoing treatment, on the next day morning, he succumbed to the injuries. The first wife, and the son of deceased Jose G Thomas approached the Tribunal claiming compensation of Rs.10,00,000/-. The 5[th] respondent in the O.P.(MV) was the second wife of deceased Jose G Thomas, after he divorced the 1[st] petitioner/first wife. The 4[th] respondent was the son of deceased Jose G Thomas in his second wife, and the 6[th] respondent was the mother of deceased Jose G Thomas. 3. The 1[st] respondent, the rider of the offending scooter and the 2[nd] respondent its owner remained exparte.The 3[rd] respondent is the insurer of the offending scooter. Respondents 3 to 6 appeared before the Tribunal through their respective counsel and contested the case. 4. Learned Tribunal awarded compensation of Rs.5,94,000/fixing the liability on respondents 1 and 2, finding that the deceased pillion rider was not covered under the policy. The 1[st] ``` MACA. No. 2168 of 2014 ``` **==> picture [31 x 7] intentionally omitted <==** petitioner/first wife was not awarded any compensation, as she was the divorced wife of the deceased, at the time of the accident. 5. The appeal is preferred by respondents 4 and 5, the second wife and the son of the deceased, contending that the compensation awarded by the Tribunal is arbitrarily low, and the offending vehicle was having valid policy covering the pillion rider also, and so, the 3[rd] respondent insurance company was liable to indemnify the 2[nd] respondent owner of the offending vehicle. 6. Pending appeal, the 4[th] respondent [R2 in the O.P.(M.V)] who was the owner of the offending scooter, passed away. Her legal heirs were impleaded as additional respondents 7 to 9. The 6[th] respondent in the appeal, who is the mother of the deceased also passed away pending appeal, and her legal heir was impleaded as additional 10[th] respondent. 7. Heard learned counsel for the appellants, and learned ``` MACA. No. 2168 of 2014 ``` **==> picture [31 x 7] intentionally omitted <==** counsel for the 5[th] respondent New India Assurance Company Ltd (R3 in the OPMV). 8. Now this Court is called upon to find out whether there is any illegality, impropriety or irregularity in the award of the Tribunal warranting interference by this Court. 9. Learned counsel for the 5[th] respondent insurer fairly admitted before Court that the insurance policy of the offending scooter was covering the pillion rider also. Ext.B1 is the copy of the insurance policy of the offending vehicle during the period of accident. Now there is no dispute with respect to the fact that during the period of accident, the offending scooter was having valid insurance policy covering the pillion rider also. So, the finding of the Tribunal that the insurance company was not liable to indemnify the owner of the offending scooter is liable to be set aside. The insurance company is liable to indemnify the owner, so as to compensate the legal heirs of deceased Jose G Thomas died, who died in the road traffic accident which occurred due to ``` MACA. No. 2168 of 2014 ``` **==> picture [31 x 7] intentionally omitted <==** the rash and negligent riding of the offending scooter by the 3[rd] respondent [R1 in the OP(MV)] respondent. 10. Now coming to the compensation awarded by the Tribunal, the appellants are challenging the award on the ground of inadequacy of the compensation. According to the appellants, the deceased was a 43 year old lorry driver earning monthly income for Rs.10,000/-. They produced Ext.B2 salary certificate, and examined RW1 employer, to show that the deceased was drawing monthly salary of Rs.12,000/-. But learned Tribunal fixed his notional income @ Rs.2,500/-. According to them, the notional income fixed by the Tribunal cannot be justified, as there was salary certificate, and also the testimony of the employer, to show that he was drawing monthly salary of Rs.12,000/-. Though the case of the appellants was that, the deceased was a lorry driver by profession, even copy of his driving license was not seen produced. So, learned Tribunal cannot be blamed for not accepting Ext.B2 salary certificate, or ``` MACA. No. 2168 of 2014 ``` **==> picture [31 x 7] intentionally omitted <==** the testimony of RW1. Going by the decision _**Ramachandrappa**_ _**v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]**_ , even a coolie was eligible to get his notional income fixed @ Rs.5,500/- in the year 2006. Relying on that decision, this Court is inclined to fix the monthly income of the deceased notionally @ Rs.5,500/-. Since he was self employed, and below 50 years, 25% addition can be given towards future prospects. So, his monthly income can be taken as Rs. 6,875/- (5,500 + 25%). He was having four dependents. So, 1/4 has to be deducted towards his personal expenses. So, the balance will be Rs.5,1,56/-. The multiplier applicable is 14, as he was aged 43. So, the compensation for dependency can be assessed as Rs.8,66,208/- (5,156 x 12 x 14). After deducting Rs.3,64,000/- already awarded by the Tribunal, the balance entitled towards enhancement in loss of dependency is Rs,5,02,208/-. 11. Towards transportation expenses, no amount was ``` MACA. No. 2168 of 2014 ``` **==> picture [31 x 7] intentionally omitted <==** awarded though Rs.5,000/- was claimed. The deceased was taken to Medical College Hospital, Kozhikode, immediately after the accident, and after his death, his body had to be taken to his house at Kunnamangalam. So, this Court is inclined to award Rs.2,000/- towards transportation expenses. 12. Towards loss of consortium, the appellants, and the 3[rd] respondent are entitled to get Rs.40,000/- each going by the decision _**National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680].** S_ o, they are entitled to get Rs.1,20,000/-. The mother of the deceased is no more. Learned Tribunal awarded Rs.1,00,000/- each towards loss of consortium and loss of love and affection. So, Rs.80,000/- is liable to be refunded by the appellants under that head. 13. Towards loss of estate, learned Tribunal awarded only Rs.5,000/-. So, an addition of Rs.10,000/- is to be awarded. 14. Towards funeral expenses tribunal awarded Rs. 25,000/-. Going by the decision _**Pranay Sethi cited supra,**_ they are entitled ``` MACA. No. 2168 of 2014 ``` ``` ..10.. ``` to get Rs.15,000/- only and so, they are liable to refund Rs.10,000/- under that head. ## 15. The enhanced compensation awarded in this appeal is given in the table below:- |_SL. No_|_Head of_<br>_claim_|_Amount_<br>_awarded by_<br>_the Tribunal_|_Amount_<br>_awarded in_<br>_appeal_|_Amount_<br>_deducted_<br>_in appeal_|_Difference_<br>_to be_<br>_drawn as_<br>_enhanced_<br>_compensat_<br>_ion_| |---|---|---|---|---|---| |_1_|_Loss of_<br>_dependency_|_3,64,000/-_|8,66,208_/-_|_……._|_5,02,208/-_| |_2_|_Transportati_<br>_on expenses_|_……._|_2,000/-_|_……._|_2,000/-_| |_3_|_Loss of estate_|_5,000/-_|_15,000/-_|_…….._|_10,000/-_| |_4_|_Loss of_<br>_consortium_|_1,00,000/-_|_1,20,000/-_|_80,000/-_|_…….._| |_5_|_Loss of love_<br>_and affection_<br>_limb_|_1,00,000/-_|||| |_6_|_Funeral_<br>_expenses_|_25,000/-_|_15,000/-_|_10,000/-_|_…….._| |_Total_||||_90,000/-_|_5,14,208/-_| ## 16. So the appellants, the 2[nd] respondent and additional 10[th] respondent are entitled to get enhanced compensation of Rs.4,24,208/- [(5,02,208 + 2,000 + 10,000) - (80,000 + 10,000)]. ``` MACA. No. 2168 of 2014 ``` **==> picture [37 x 7] intentionally omitted <==** 17. Additional 10[th] respondent who is the legal heir of deceased 6[th] respondent will be given a lumpsum amount of Rs.50,000/-. The balance amount will be shared equally between the appellants and the 2[nd] respondent. 18. The 5[th] respondent Insurance company is directed to deposit the enhanced compensation in the bank account of the appellants, 2[nd] respondent, and additional 10[th] respondent, (and the balance amount in equal share in the bank accounts of appellants 1 and 2 and the 2[nd] respondent) with interest @ 7.5% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. Out of the compensation amount Rs.50,000/- shall be deposited in the Bank account of Additional 10[th] respondent, and the balance amount shall be deposited in the bank account of appellants 1 and 2 and 2[nd] respondent, in equal share. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in ``` MACA. No. 2168 of 2014 ``` **==> picture [37 x 7] intentionally omitted <==** O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. 19. The amount payable under the impugned award also shall be deposited by the 5[th] respondent insurance company, as the company is found liable to indemnify the insured. Out of the award amount with interest, the company has to deposit Rs.50,000/- in the account of additional 10[th] respondent, as directed by the Tribunal, and the balance amount shall be deposited in the bank account of the appellants, and the 2[nd] respondent in equal share. The appeal is allowed to the extent as above and no order as to costs. **Sd/-** ## **SOPHY THOMAS** ## **JUDGE** RMV