MACA No. 2540 of 2014 (Babu Samuel & Others v. National Insurance Co. Ltd. & Ors.)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944`** ## **`MACA NO. 2540 OF 2014`** ``` AGAINST THE AWARD DATED 12.11.2013 IN O.P(M.V) NO.1032/2011 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL, ERNAKULAM.`** ## **`APPELLANTS:`** ``` 1BABU SAMUEL, AGED 51 YEARS, S/O.K.Y.SAMUEL, KALLUMPURATH HOUSE, PAZHAKULAM P.O, ADOOR, PIN 691 527 2MERCY BABU, AGED 43 YEARS, W/O.BABU,KALLUMPURATH HOUSE, PAZHAKULAM P.O, ADOOR, PIN 691 527 3JINU K.BABU, AGED 25 YEARS, S/O.BABU,KALLUMPURATH HOUSE, PAZHAKULAM P.O, ADOOR ,PIN 691 527 BY ADV SRI.P.T.JOSE 1YESUDAS.K.J., S/O.CHEEKKU JOSEPH, KOCHERRY HOUSE, H.NO.16/1567,THOPPUMPADY ,KOCHI 682 301 2SANIL.S, S/O.SCARIA ABRAHAM, THEKKEMANNIL VEEDU, KUNDAYAM PO, PATHANAPURAM,KOLLAM 3THE MANAGER, NATIONAL INSURANCE CO.LTD.,3RD PARTY CELL, AJAY VIHAR, MG ROAD, KOCHI -16. BY ADV SRI.A.R.GEORGE ``` ## **`RESPONDENTS:`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2540/2014 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 15[th] day of March, 2023. This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short, ‘the Tribunal’) on 12.11.2013 in O.P.(M.V) No.1032 of 2011. The appellants are the petitioners before the Tribunal, who had raised a claim for compensation for the death of one Mr.Manu K. Babu in a motor accident occurred at about 9.30 am on 07.03.2011. He was travelling as pillion rider in a motorcycle bearing Registration No.KL-43/A 9396 ridden by another man through VyttilaPalarivattom road. Due to the rash and negligent riding of the motorcycle by its rider, Manu fell on the road from the pillion seat of the motorcycle and sustained serious injuries. He was taken to Ernakulam Medical Centre, Palarivattom and therefrom to N.S.S Medical Mission Hospital, Pandalam. Since his condition turned very bad on 08.03.2011, he was referred to Pushpagiri Medical College Hospital, Thiruvalla and shifted to Lakeshore Hospital, Maradu, where he succumbed to death at 9.30 p.m on 09.03.2011. ``` MACA NO. 2540/2014 ``` ``` 3 ``` Alleging that the motor accident was occurred due to the rash and negligent driving of the motorcycle by its rider, who was arrayed as the 2[nd] respondent in the Original Petition and claiming for a sum of `10,00,000/- as compensation, the above Original Petition was moved before the Tribunal. The compensation claimed was once limited to `5,00,000/- and further enhanced to `10,00,000/- 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. 3. All the respondents were served with notice in the Original Petition. Respondents 1 and 2, did not turn up to contest the Original Petition and therefore declared exparte. In the written statement filed by the 3[rd] respondent, insurance coverage for the motorcycle as on the alleged date of the motor accident was admitted but contended that the 2[nd] respondent, who was riding the motorcycle was riding it properly and was not responsible for the accident. The age, occupation and monthly income of the deceased were disputed. The compensation claimed is also disputed for its excessive nature. ``` MACA NO. 2540/2014 ``` ``` 4 ``` 4. Before the Tribunal, evidence adduced by the petitioner consists of the oral evidence tendered by an occurrence witness as PW1 and documents marked as Exts.A1 to A17. No evidence was let in by the 3[rd] respondent. On the basis of the uncontroverted oral evidence let in by a witness, who had seen the motor accident as PW1, the Tribunal found that it was occurred due to the rash and negligent riding of the motorcycle by its rider, who was the 2[nd] respondent. The Tribunal has also found that the victim of the motor accident died on account of the fatal injuries sustained by him in the motor accident and arrived at `5,50,000/- as the total compensation payable infavour of the petitioners, who are his legal representatives. The 3[rd] respondent insurer was directed by the Tribunal to deposit the said sum with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate costs. 5. According to the learned counsel for the petitioners, the monthly income was fixed by the Tribunal as Rs.4,000/- and compensation was arrived at on its basis. According to the learned counsel, compensation arrived at is inadequate when viewed in the ``` MACA NO. 2540/2014 ``` ``` 5 ``` backdrop of Exts.A11 to A15 marked in evidence by the petitioners. According to the learned counsel it stands proved on the basis of Exts.A12 and Ext.A13 that the deceased had completed a course from Hindustan Institute of Engineering Technology and that he had passed the examination with good marks. Ext.A14 is a provisional certificate issued from Hindustan Institute of Engineering Technology, which shows that the deceased has completed the Engineering Course. Ext.A15 also certifies the very same factum. 6. It is pertinent to note from the Original Petition that the petitioners had raised a claim for Rs.6,000/- as his monthly income. Lateron, the Original Petition was amended successively to substitute it by Rs.3,200/- and Rs.6,000/-. From the amendments carried out, it appears that petitioners have no idea about the monthly income earned by the deceased as on date of his death. However, documents of merits marked in evidence as Ext.A12 to A15 would reveal that the deceased was qualified to get a good job with a reasonable salary, if not died in the motor accident. When viewed in the backdrop of the documentary evidence discussed ``` MACA NO. 2540/2014 ``` ``` 6 ``` above, the monthly income is re-fixed as `10,000/-. 18 adopted by the Tribunal as the multiplier being correct, is maintained. The deceased being aged 22 years, this Court adds 40% to the re-fixed monthly income in consideration of future prospects and thus, `14,000/- is arrived at [ `10,000 + (40% of `10,000)]. Being a bachelor at the relevant time, half of the monthly income of the deceased is deducted in consideration of the personal expenditure, he would have met, had he been survived after the motor accident. 7. When compensation is re-assessed with the above factors, `15,12,000/- is arrived at. `4,32,000/- stands awarded by the Tribunal when deducted therefrom, petitioners will get `10,80,000/-, as additional compensation under the head loss of dependency. Deceased was survived by his parents, who are petitioners 1 and 2 and as directed by the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)], each of them are entitled to get `44,000/as compensation towards loss of consortium and thus `88,000/(`44,000/- x 2) is arrived at. As compensation towards loss of estate and funeral expenses, `10,000/- each was awarded by the ``` MACA NO. 2540/2014 ``` ``` 7 ``` Tribunal whereas the petitioners are entitled to get `16,500/- each. When the compensation already awarded by the Tribunal when deducted, the petitioners will get `6,500/- each as compensation under the respective heads. 8. The compensation when re-assessed in the above manner, `11,81,000/- is arrived at. Petitioners are not entitled to get any compensation towards pain and suffering and therefore `5,000/- stands awarded is deducted from the total additional compensation that would be arrived at in the appeal on hand. Thus, the petitioners will get `11,76,000/- (Rupees Eleven lakhs seventy six thousand only) [(` 10,80,000/- + `88,000/- + `6,500/+ `6,500/-) - `5,000/-] as additional compensation. It will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 9. Appeal was filed with a delay of 225 days. The 3[rd] respondent stands exonerated from liability to pay interest for the period by order passed by this Court on 10.08.2022 in C.M Application No.2939/2014. Therefore, the 3[rd] respondent shall pay the additional compensation now arrived at with interest fixed on it ``` MACA NO. 2540/2014 ``` ``` 8 ``` within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No. 03/2019 dated 06.09.2019. 10. Total compensation stands awarded in favour of the petitioners being excess than the sum claimed, the petitioners are bound to pay court fee for the sum stands in excess of the claim. M.A.C.A stands allowed accordingly. ``` Sd/- ``` MARY JOSEPH JUDGE JJ