MACA No. 2541 of 2010 & MACA No. 2540 of 2010, Annamma Thomas v. SOSAMMA Yohannan (dead) and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942** ## **MACA.No.2541 OF 2010** **AGAINST THE AWARD IN O.P.M.V 806/2003 DATED 07-10-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/S:** **ANNAMMA THOMAS, AGED 37 YEARS W/O.LATE P.J.THOMAS, CHAKKALA KIZHAKKETHIL HOUSE,, CHAKKALA VATTOM, IRANIKUZHY.P.O., PANDALAM. BY ADV. SRI.GRASHIOUS KURIAKOSE** ## **RESPONDENT/S:** |**1**|**SOSAMMA YOHANNAN (DIED)**| |---|---| ||**AGED 68 YEARS**| ||**PURAYIDATHIL HOUSE,**| ||**VAYALATHALA.P.O.,,**| ||**PATHANAMTHITTA DISTRICT.**| ||**PIN- 689 660.**| |**2**|**ANNAMMA THOMAS,**| ||**AGED 48 YEARS**| ||**PURAYIDATHIL HOUSE,**| ||**VAYALATHALA.P.O.,**| ||**PATHANAMTHITTA DISTRICT.**| ||**PIN- 689 660.**| |**3**|**P.J.JOSEPH,**| ||**AGED 56 YEARS**| ||**S/O.LATE SOSAMMA YOHANNAN,**| ||**PURAYIDATHIL HOUSE,,**| ||**VAYALATHALA.P.O.,**| ||**CHERUKOLE VILALGE,,**| ||**PATHANAMTHITTA DISTRICT.**| ||**PIN - 690 104.**| MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 2 **4 SOSAMMA THOMAS, AGED 49 YEARS D/O.LATE SOSAMMA YOHANNAN, VARIKOIL HOUSE,, UTHIMOODU.P.O., RANNY, PATHANAMTHITTA. 689 672.** **5 MATHEWKUTTY, AGED 46 YEARS S/O.LATE SOSAMMA YOHANNAN, PURAYIDATHIL HOUSE, CHERUKOLE VILLAGE, PATHANAMTHITTA DISTRICT. PIN - 690 104.** **6 BINU KUMAR.K.R. OTTAPLAVUNILKUNNATHIL HOUSE, NARANGANAM, KANAMUKKU, KOZHENCHERRY, PATHANAMTHITTA. PIN - 689 641.** - **7 P.V.SOMASEKHARAN NAIR, PADATHUKALAYIL HOUSE, PAZHAVANGADY.P.O., MANKUZHY, RANNY, PATHANAMTHITTA DISTRICT.** - **8 THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, RANNY.** **R2-5 BY ADV. SRI.PHILIP M.VARUGHESE R8 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA** **SMT.CELINE JOSEPH FOR APPELLANT, SMT.K.S.SANTHI, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2021, ALONG WITH MACA.2540/2010, THE COURT ON 03-032021 DELIVERED THE FOLLOWING:** MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942** ## **MACA.No.2540 OF 2010** **AGAINST THE AWARD IN OPMV 1409/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANT/PETITIONER:** **ANNAMMA THOMAS AGED 37 YEARS PURAYIDATHIL HOUSE, VAYALATHALA.P.O.,, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.GRASHIOUS KURIAKOSE** ## **RESPONDENT/S:** |**1**|**P.V.SOMASEKHARAN NAIR**| |---|---| ||**S/O.VELUPILLAI,**| ||**PADATTUKALAYIL HOUSE,,**| ||**PAZHAVANGADI.P.O.,**| ||**RANNY. 689 672**| |**2**|**BINU KUMAR.K.R.**| ||**S/O.RAJASEKHARAN NAIR,**| ||**OTTAPLAVUNILKUNNATHIL,,**| ||**NARANGANAM,**| ||**KOZHENCHERRY 689 641**| |**3**|**THE DIVISIONAL MANAGER**| ||**DIVISIONAL OFFICE,**| ||**ORIENTAL INSURANCE CO.LTD.,,**| ||**MARTHOMA BUILDINGS,**| ||**THIRUVALLA, BRANCH OFFICE,,**| ||**RANNY 689 672**| **R3 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2021, ALONG WITH MACA.2541/2010, THE COURT ON 03-032021 DELIVERED THE FOLLOWING:** MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 4 ## **`P.V.KUNHIKRISHNAN, J`** ## **`--------------------------------------M.A.C.A. No. 2540 of 2010 & M.A.C.A. No. 2541 of 2010 ------------------------------------------`** ``` Dated this the 3[rd] day of March 2021 ``` ## **`JUDGMENT`** ``` These two appeals are connected and therefore, I am disposing these two appeals by a common judgment. M.A.C.A. No. 2540/2010 is filed by the petitioner/claimant in O.P.(M.V) No. 1409/2002 on the files of the Motor Accident Claims Tribunal, Pathanamthitta. The appellant in M.A.C.A. No. 2541/2010 is the 4[th] respondent in O.P(M.V) No. 806/2003. The appellant in both the appeals are same. She is the widow of one Mr. P.J. Thomas, who died in a motor vehicle accident. ``` `2. The short facts of the case can be summarised like` ``` this:- On 01.10.2002 at about 07.15 p.m, the deceased Thomas was travelling in an auto-rickshaw through Ranni- Kozhencherry Public road and when the auto-rickshaw ``` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 5 ``` reached near Pulamon Junction, a stage carriage bearing registration No. KL-8/L-1224, which was driven by the 2[nd] respondent hit at the back side of the auto-rickshaw and as a result, deceased Thomas sustained serious injuries. Immediately after the accident, deceased was taken to Muthoot Medical centre, Kozhencherry and from there he was referred to Medical College Hospital, Kottayam. On the next day i.e., on 02.10.2002, Thomas succumbed to his injuries. Deceased Thomas was aged 35 years at the time of the accident. He was a rubber tapper and was getting Rs. 5,000/- per month as income. According to the claimants, the accident occurred solely due to the rash and negligent driving of the bus by the 2[nd] respondent. ``` ``` 3. O.P.(M.V) No. 1409/2002 was filed by the widow of the deceased. O.P.(M.V) No. 806/2003 was filed by the mother and elder sister of the deceased. Pending O.P. (M.V) No. 806/2003, the mother died and two brothers and another sister of the deceased was impleaded as additional claimants in O.P(M.V) No. 806/2003. ``` ``` 4. Both these cases were tried together. To ``` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 6 ``` substantiate the case, the claimant in O.P(M.V). No. 1409/2002, who is the widow of the deceased was examined as PW1. Exhibit A1 to A9 were also marked on her side. After going through the evidence and documents, the Tribunal found that a total compensation of Rs. 4,78,200/- (Rupees Four Lakh Seventy Eight Thousand and Two Hundred) is entitled as compensation and the amount was apportioned between the claimants in O.P (M.V) No. 1409/2002 and claimants in O.P.(M.V) No. 806/2002 respectively at the rate of 50% each. Aggrieved by the quantum of compensation and also against the apportionment of the compensation, the widow who is the claimant in O.P.(M.V) 1409/2002 and 4[th] respondent in O.P(M.V). No. 806/2004 filed these two separate appeals. ``` ``` 5. Heard Sri. Grashious Kuriakose, the learned Senior counsel for the appellant and Sri. George Cherian Thiruvalla, the learned counsel for the Insurance Company. ``` `6. The learned Senior Counsel submitted that the` `deceased was aged 32 years at the time of the accident` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 7 ``` and he was a rubber tapper. Therefore, the monthly income assessed by the Tribunal is too low. According to the learned Senior Counsel, his work was a skilled work. The monthly income fixed by the Tribunal is Rs. 3,000/-. PW1, the widow of the deceased gave oral evidence before the Tribunal to the effect that the deceased was getting Rs. 5,000/- per month. There is no contra evidence adduced. The accident happened in the year 2002. Considering the entire facts and circumstances of the case, I think that monthly income can be fixed as Rs. 4,000/-. While fixing the monthly income, 40% of the monthly income is to be added to the future prospects in the light of the decision of the Apex Court inNational Insurance Co. Ltd v. Pranay sethi [2017 (4) KLT 662]. If that is the case, the monthly income is to be fixed as Rs. 5,600/-. Based on the above monthly income, the dependency is to be re assessed in the following manner:- 5600x12x16x2/3=Rs.7,16,800/-. ``` ``` The Tribunal awarded a compensation of Rs.4,08,000/- and this amount is to be deducted. ``` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 8 ``` Therefore, the enhanced compensation entitled by the claimants are Rs.3,08,800/-(7,16,800-4,08,000). ``` ``` 7. The learned Senior Counsel submitted that the mother and the widow are entitled for consortium in the light of the decision of the Apex Court inMagma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others.[(2018) 18 SCC 130]. They are entitled an amount of Rs. 40,000/- each. The Tribunal already award Rs. 20,000/- to the widow, who is the appellant in these appeals. Therefore, the appellants are entitled an amount of Rs.20,000/- (Rupees Twenty Thousand Only) more towards consortium. ``` `8. Towards loss of love and affection, the Tribunal` `awarded an amount of Rs.10,000/- to the petitioners in O.P.(M.V) No.806/2003. They are entitled another amount of Rs. 30,000/- (Rupees Thirty Thousand Only) more on this count.` `9. Therefore, the appellant who is the claimant in` `O.P(M.V). No. 1409/2003 is entitled an amount of Rs. 20,000/- more towards consortium and the petitioners in` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 9 ``` O.P.(M.V) No. 806/2003 are entitled an amount of Rs. 30,000/- more towards love and affection. ``` ``` 10. Towards funeral expenses, the Tribunal awarded only an amount of Rs. 10,000/-. They are entitled an amount of Rs. 15,000/-. Therefore the enhanced compensation entitled by the appellant for funeral expenses is Rs. 5,000/- (Rupees Five Thousand Only). ``` ``` 11. For loss of estate, no amount is allowed. The claimants are entitled to Rs. 15,000/- (Fifteen Thousand Only) towards loss of estate. ``` ``` 12. The appellants are entitled enhanced compensation in the manner mentioned above. ``` ``` 13. The next question to be decided is about the apportionment of the compensation. The Tribunal considered this point in Para. 13 of the impugned judgment, which is extracted below:- ``` ``` “At this juncture, it is very pertinenet to go through S. 166(1)(c) of the M.V. Act. As per section 166 (1) (c) of M.V. Act where death has resulted from the accident by all or any of the legal representatives of ``` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 10 ``` the deceased can file an application for compensation. I have already discussed that deceased Thomas died issueless. On the date of accident his father was not alive. Admittedly parties are Christians. If that be so, intestate Succession of the deceased Thomas is governed by Indian Succession Act. As per 5.33(b) of Indian Succession Act if the deceased has left no lineal descendant, but has left persons who are of kindred to him one half of his property shall belong to his widow and the other half shall go to those who are kindred to him. As per 5.43 of Indian Succession Act if the intestate's father is dead, but the intestate's mother is living and there are also brothers or sisters of the intestate living, and there is no child living of any decease brothers or sisters the mother and each living brother or sister shall succeed to the property in equal shares. If that be so as per the provisions of Indian Succession Act the petitioner in O.P. (M.V.) No. 1409/2002 i.e. the widow of the deceased is entitled to get half of the ``` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 11 ``` properties owned by the deceased and the remaining half will be entitled to the petitioners in O.P.(M.V.) No.806/2003 in equal proportions. ``` ``` 14. I cannot agree with the above finding of the Tribunal. As far as the claim petitions in motor accident cases are concerned, the claim is to be allowed based on dependency. This point is considered by the Apex Court in Sarla Verma & Others v. Delhi Transport Corporation & another [2010 (2) KLT 802], and the relevant paragraph is extracted hereunder:- ``` ``` “24. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, ``` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 12 ``` subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non earning sisters or brothers, his personal and living expenses may be restricted to one third and contribution to the family will be taken as two third.” ``` ``` 15. Therefore, the dependancy is the matter to be considered while fixing apportionment. The claimants in ``` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 13 ``` O.P(M.V). No. 1409/2002 is the widow of the deceased. The claimants in O.P(M.V). No. 806/2003 are the mother and other siblings of the deceased. As I said earlier, the mother of the deceased is already died pending the claim petition and other siblings are impleaded as additional claimants. As per the dictum laid down in the Sarla Verma's Case (supra), only the mother can be a dependant. Ofcourse, the widow is also a dependant. There is no evidence to prove that the brothers and sisters are dependant of the deceased. Therefore, they cannot be treated as dependants. But, since the mother died, the siblings and others are the legal heirs of the deceased. In other words, the share of the mother is to be distributed among the siblings and other legal heirs. ``` ``` 16. Admittedly, the mother was aged 68 years at the time of the accident. The life span of the mother and the life span of the widow is to be considered for fixing apportionment. Admittedly, the widow was aged 29 years. The Senior Counsel submitted that she is even now unmarried. In such circumstances, it will be proper to fix ``` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 14 ``` the apportionment of compensation as 75% to the widow and 25% to the legal heirs of deceased mother. I am fixing this because, the widow is also entitled a share from the deceased mother. Considering the entire aspects, from the total compensation 75% can go to the widow and 25% can be given to the legal heirs of the deceased mother. ``` ``` 17. Therefore, the enhanced compensation entitled by the claimants can be summarised like this:- ``` ``` Loss of dependancy: Rs. 3,08,800/- Additional consortium : Rs. 50,000/- Funeral expenses: Rs. 5,000/- Loss of estate: Rs. 15,000/- ------------------- Rs. 3,78,800 ``` ``` 18. The claimants are entitled enhanced compensation of Rs. 3,78,800/- (Rupees Three Lakhs Seventy Eight Thousand and Eight Hundred Only) with interest at the rate of 8% from the date of application till realisation. The above enhanced amount is to be ``` MACA.No.2541 OF 2010 & MACA.No.2540 OF 2010 15 ``` distributed between the claimant/petitioner in O.P(M.V.) 1409/2002 and the legal heirs of the deceased 1[st] claimant in O.P(M.V) No.806/2003 at the rate of 75% and 25% respectively. ``` ``` Therefore, this appeal is allowed in part. The impugned award is modified. The widow and the deceased mother are entitled an amount of Rs. 3,78,800/- (Rupees Three Lakhs Seventy Eight Thousand and Eight Hundred Only) with interest at the rate of 8% from the date of application, till realisation. The total compensation (including the enhanced compensation) with interest is to be distributed between the claimants/petitioners in O.P(M.V) No. 1409/2002 and the legal heirs of the deceased first petitioner in O.P(M.V) No. 806/2003 at the rate of 75% and 25% respectively. ``` ## **`Sd/-`** ## **`P.V.KUNHIKRISHNAN`** ## **`JUDGE`** ``` avs ```