M.A.C.A. No. 2746 of 2012

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 ``` ## **`MACA NO. 2746 OF 2012`** ``` AGAINST THE AWARD DATED 03.08.2006 IN O.P(M.V) NO.1981/1999 ``` ``` OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1N.KANNAN,S/O.RAMASWAMY, AGED 49 YEARS 2EZHINALA, S/O.KANNAN, AGED 21 YEARS 3MEENA, D/O.KANNAN, AGED 17 YEARS (MINOR) 4RAMASWAMY, S/O.KANNAN, AGED 15 YEARS(MINOR) 5MUTHULAKSHMI, D/O.KANNAN, AGED 15 YEARS(MINOR) 6SUMATHU, S/O.KANNAN, AGED 12 YEARS(MINOR) 7SANTHU, S/O.KANNAN, AGED 10 YEARS(MINOR) (MINORS ARE BEING REPRESENTED BY THEIR FATHER N KANNAN ALL ARE RESIDING AT KEERANTHAPATTU VILLAGE P.O KAPPALAMPADI, SENGI TALUK, TAMIL NADU ``` ``` BY ADV SRI.C.P.PEETHAMBARAN ``` ## **`RESPONDENTS/RESPONDENTS IN OP(MV):`** ``` 1A.DEEPESH, S/O.NARAYANAN, MANIYOOR AMSOM, VASALA P.O KOODALI (VIA) MATTANNUR 2K.K SARUMMA, W/O.KHADERKUTTY, KUNHIKKANDY HOUSE, P.O CHEKKIKULAM 3K.ABOO, S/O.KAMAL, P.P HOUSE, KEEZHALLUR AMSOM, EDAZHYANNUR DESOM 4N.PURUSHOTHAMAN S/O.KUNHIRAMAN NAMBIAR, MANIYEER AMSOM, VESALA DESOM 5N.K.RATHNAKARAN S/O. KANNAN, KOODALI AMSOM, POOVATHUR DESOM, P.O KOODALI BY ADVS. R1 BY SRI.MANJERI SUNDERRAJ R2 BY SRI.K.R.AVINASH KUNNATH SRI.ABDUL RAOOF PALLIPATH R4 BY SRI.P.P.RAMACHANDRAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2746 of 2012 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 17[th] day of March, 2023 ``` The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Thalassery (for short ‘the Tribunal’) on 03.08.2006 in O.P(M.V) No.1981/1999. The appellants are the petitioners before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 5 in accordance with their status in the Original Petition. 3. The petitioners are the legal representatives of one Mrs.Anjala who died in a motor accident occurred at about 3 p.m. on 23.10.1998. She was travelling in a Lorry bearing Registration No.KL N 5254 from Kummanam to Moorkanparamba and it overturned at Moorkanparamba due to the rash and negligent driving ``` M.A.C.A.No.2746 of 2012 ``` ``` 3 ``` by its driver. As a result, she sustained serious injuries and while being transported to hospital, she succumbed to the injuries. She was alleged as 30 years old as on date of the motor accident, a stone cutter by occupation and having ₹3,000/- as monthly income. The 1[st] petitioner is her husband and other six petitioners are their children. Claiming a sum of ₹3,00,000/- as compensation and alleging negligence on the part of the driver of the Lorry, the Original Petition above was filed. The driver, the owner and the insurer of the Lorry were arrayed as respondents 1 to 3 in the Original Petition. 4. All respondents were served with notice. 1[st] respondent, though served, did not turn up to contest the Original Petition and accordingly declared as _ex parte_ . 5. The 2[nd] respondent in the written statement filed has taken a contention that the Lorry bearing Registration No.KL N 5254 was sold to one Mr.K.Aboo, S/o.Kamal, P.P.House, Keezhalur amsom, Edayanoor ``` M.A.C.A.No.2746 of 2012 ``` ``` 4 ``` desom on 09.08.1994, who is the 3[rd] respondent in the Original Petition and therefore, she has no ownership or possession over the said vehicle. The compensation claimed under various heads was also contended as exorbitant in nature and devoid of any basis. Claims of the petitioners regarding her age, occupation and monthly income were also contended as devoid of truth. The alleged tranferees of the vehicle from the 2[nd] respondent were also brought on record as supplemental 4[th] and 5[th] respondents. 6. The 3[rd] respondent entered appearance and filed written statement denying information about the motor accident occurred on 23.10.1998 and possession of the vehicle involved in view of execution of an agreement for sale in favour of one Mr.Purushothaman, S/o.Kunhiraman Nambiar, Maniyur amsom, Vesala desom of Taliparamba on 18.05.1994. He has also brought the transferees allegedly taken possession of the vehicle as supplemental ``` M.A.C.A.No.2746 of 2012 ``` ``` 5 ``` respondents 4 and 5, on record in the Original Petition. 7. Supplemental 4[th] respondent was also served with notice from the Tribunal. He was the transferee of the vehicle from the supplemental 3[rd] respondent. Written statement was filed by him denying possession of the offending vehicle or any right over it at the relevant time of the motor accident, in view of execution of an agreement for sale to one Mr.Rathnakaran, S/o.Kannan, Koodali amsom, Poovathur desom on 24.05.1996. Mr.Rathnakaran, being the transferee of the vehicle from the supplemental 4[th] respondent was impleaded in the Original Petition as supplemental 5[th] respondent. He did not turn up despite receipt of notice to contest and accordingly was declared as _ex parte_ by the Tribunal. 8. During trial, 1[st] petitioner was examined before the Tribunal as PW1 and Exts.A1 to A7 were marked. On the side of the respondents Exts.B1 to B3 were marked. Based on the evidence adduced by the petitioners and ``` M.A.C.A.No.2746 of 2012 ``` ``` 6 ``` respondents, the Tribunal arrived at a finding that the motor accident was occurred due to the rash and negligent driving of the Lorry bearing Registration No.KL N 5254 by its driver, arrayed as the 1[st] respondent in the Original Petition on hand. The Tribunal found furthermore that Mrs.Anjala died on account of the fatal injuries sustained by her in the motor accident and the petitioners as her legal representatives are entitled to get compensation from the respondents. It being established that the offending vehicle was not insured at the relevant time of the motor accident, the Tribunal fixed liability upon respondents 1 and 5 jointly and severally and thus directed them to deposit ₹2,11,500/- arrived at as compensation alongwith interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation and proportionate costs. They were also directed to deposit the compensation, interest and costs within one month from the date of the award. ``` M.A.C.A.No.2746 of 2012 ``` ``` 7 ``` Aggrieved by the quantum of compensation stood awarded by the Tribunal in favour of the petitioners, the appeal on hand is filed. 9. Sri.C.P.Peethambaran, the learned counsel advanced arguments on behalf of the petitioners. According to him, as per the pleadings in the Original Petition, Mrs.Anjala was aged 30 years, working as a stone cutter and earning ₹3,000/- monthly. According to the learned counsel, ₹1,500/- fixed as monthly income and based by the Tribunal for calculation of compensation being too low, interference of this Court is required. According to the learned counsel in Ext.A3 certificate of postmortem examination, Mrs.Anjala at the relevant time of her death was shown as aged 30 years. The Tribunal has adopted ‘15’ as the multiplier on its basis and calculated compensation for loss of dependency. According to her, the Tribunal had also deducted 1/3[rd] from the compensation arrived at having due regard to ``` M.A.C.A.No.2746 of 2012 ``` ``` 8 ``` the personal expenditure likely to be incurred by the victim, had she been alive. 10. The learned counsel pointed out further that loss of future prospects of the victim on account of her untimely death was not considered by the Tribunal while arriving at the compensation payable. 11. The learned counsel for the 1[st] respondent contended on the contrary that, the Tribunal went wrong in fixing liability on respondents 1 and 5. According to her, the registered ownership of the offending vehicle at the relevant time was in the name of the 2[nd] respondent. Exts.B1 to B3 were relied on by the respondents to contend that the offending vehicle was not transferred by the 2[nd] respondent in favour of respondents 3, 4 and 5. Exts.B1 to B3, being only copies of agreement for sale, ownership of the vehicle cannot be said to have been transferred on the strength of those. ``` M.A.C.A.No.2746 of 2012 ``` ``` 9 ``` 12. 2[nd] respondent has stated in her written statement that the vehicle was transferred by her to another man but she failed to produce the certificate of registration wherein the name of the alleged transferee has been incorporated as its registered owner. Similarly the 3[rd] respondent has also produced an agreement for sale marked as Ext.B3 and contended that by virtue of that, the offending vehicle has been transferred in favour of supplemental 4[th] respondent. Supplemental 4[th] respondent has also contended that by virtue of an agreement for sale marked in evidence as Ext.B2, the offending vehicle was transferred in favour of the supplemental 5[th] respondent. Supplemental 5[th] respondent despite service of notice on him did not respond and therefore, declared as _ex parte_ by the Tribunal. Since the certificate of registration shows the name of the 2[nd] respondent as the registered owner of the vehicle as on date of motor accident, she alone can be ``` M.A.C.A.No.2746 of 2012 ``` ``` 10 ``` made liable for payment of compensation arrived at. Therefore the Tribunal went wrong in fixing the liability upon respondents 1 and 5 and the same is reversed. 13. In Ext.A3, the certificate of postmortem examination, the deceased was shown as aged 30 years. As per the claim of the petitioners also the deceased was aged 30 years. Authentic documents are not forthcoming to prove the age of the deceased at the relevant time. In the absence of reliable evidence, the Tribunal was constrained to consider the age of the deceased as 30 years on the basis of Ext.A3. The Tribunal in the above context cannot be found fault with for doing so. 14. As directed in **National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)]** 50% is also added to the monthly income having due regard to the loss of future prospects of the deceased. ₹2,000/- is considered by this Court as the monthly income of the deceased in the absence of any evidence ``` M.A.C.A.No.2746 of 2012 ``` ``` 11 ``` adduced in that regard. When 50% is added to ₹2,000/-, ₹3,000/- (₹2,000/- + 50% of ₹2,000/-) is arrived at. The multiplier was adopted as ‘15’ and it being incorrect with reference to the age taken as 30 years, is substituted by ‘17’, the correct one. The deceased was survived by her husband and 6 children. In the above circumstances, 1/3[rd] deduction adopted by the Tribunal in consideration of personal expenditure of the deceased, is replaced by 1/5[th] . 15. In the calculation of compensation for loss of dependency afresh with the above modified factors, ₹4,89,600/- (₹3,000/- x 17 x 12 x 4/5) is arrived at. ₹1,80,000/- stood awarded by the Tribunal when deducted therefrom, ₹3,09,600/-(₹4,89,600/₹1,80,000/-) is arrived at as additional compensation payable under that head. 16. As compensation towards funeral expenses and loss of estate, petitioners are entitled to get ₹16,500/- ``` M.A.C.A.No.2746 of 2012 ``` ``` 12 ``` each. ₹2,000/- and ₹2,500/- respectively stood awarded by the Tribunal as compensation when deducted therefrom, the petitioners will get ₹14,500/- and ₹14,000/- respectively as additional compensation under the respective heads. 17. As compensation towards loss of consortium, the Tribunal has awarded ₹5,000/- in favour of the 1[st] petitioner alone. In view of **Pranay Sethi** supra and **Magma General Insurance Company Limited v. Nanu Ram Alias Chuhru Ram and Others [(2018) 18 SCC 130],** the surviving members being the husband and children of the deceased are entitled to get ₹44,000/each. Thus ₹3,08,000/- (₹44,000/- x 7) is arrived at as the total compensation payable towards loss of consortium. ₹5,000/- stood awarded by the Tribunal when adjusted against, the petitioners will get ₹3,03,000/- (₹3,08,000/- - ₹5,000/-) as additional compensation under the above head. ``` M.A.C.A.No.2746 of 2012 ``` ``` 13 ``` 18. It is noticed from the impugned award that ₹10,000/- each was awarded by the Tribunal towards loss of love and affection and pain and suffering. Petitioners are not entitled to get the compensation awarded as above and therefore those are deducted from the total additional compensation arrived at now as payable. 19. In the above manner of calculation afresh, ₹6,21,100/- [(₹3,09,600/- + ₹14,500/- + ₹14,000/- + ₹3,03,000/-) - (₹10,000/- + ₹10,000/-)] (Rupees Six lakhs twenty one thousand and one hundred only) is arrived at which amount 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, excluding 2044 days being the period of delay occurred in re-presentation of the appeal after curing the defects. 20. 2[nd] respondent was already found as the registered owner of the offending vehicle. Therefore, fastening of liability on respondents 1 and 5 is set aside ``` M.A.C.A.No.2746 of 2012 ``` ``` 14 ``` and sole liability is fixed on the 2[nd] respondent. Therefore, 2[nd] respondent shall pay the additional compensation with interest accrued on it at the rate fixed as above and also the original compensation stood awarded by the Tribunal with interest accrued on it at the rate fixed by it and costs, 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. 21. Since the total compensation awarded in favour of the petitioners exceeds the claim of the petitioners, they are bound to pay additional court fee in proportion to the total compensation awarded in excess. The Tribunal shall take measures to realise that. ## M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** ``` NAB ```