MACA No. 2809 of 2012 (Against the Award in OP(MV) No: 1097/2007 of MACT Muvattupuzha, dated 20-07-2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 18TH DAY OF JULY 2017/27TH ASHADHA, 1939** ## **MACA.No. 2809 of 2012 ()** **------------------------AGAINST THE AWARD IN OP(MV) No: 1097/2007 of MACT MUVATTUPUZHA DATED 20-07-2012** **..........................** **APPELLANTS/PETITIONERS 1 TO 5 :** **--------------------------------------------------** **1. SOPHY, W/O. LATE GEORDY PAILY, CHAKKALAKUDIYIL HOUSE, AVOLY P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT.** **2. ALEXANDER, S/O. LATE GEORDY PAILY, AGED 20 YEARS, CHAKKALAKUDIYIL HOUSE, AVOLY P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT.** **3. ALBERT, S/O. LATE GEORDY PAILY, AGED 19 YEARS, CHAKKALAKUDIYIL HOUSE, AVOLY P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT.** **4. ANGELEENA (MINOR), D/O. LATE GEORDY PAILY, AGED 17 YEARS, CHAKKALAKUDIYIL HOUSE, AVOLY P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, REPRESENTED BY MOTHER, 1ST APPELLANT, AS NEXT FRIEND.** **5. SARAMMA, M/O LATE GEORDY PAILY, AGED 73 YEARS, CHAKKALAKUDIYIL HOUSE, AVOLY P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT.** **BY ADVS.SRI.T.K.KOSHY SMT MARIA GORETTI SMT.V.V.RISANI** **RESPONDENT(S)/RESPONDENTS 1 TO 3 :** - **----------------------------------------------------------** **1. K.A SHEREEF, SHEJEENA MANZIL, PALLIKKARA, KUMARAPURAM, ERNAKULAM-683 565.** **2. PAUL, S/O. KURIAKOSE, KARIPPARA VEEDU, NJARALLOOR KARA, KIZHAKKAMBALAM, PIN-683 562.** **3. THE NATIONAL INSURANCE CO. LTD. SANTHI PARK, KOLENCHERRY, ERNAKULAM DISTRICT-682 311.** - **R3 BY ADV. SRI.LAL K.JOSEPH R3 BY ADV. SRI.A.A.ZIYAD RAHMAN R3 BY ADV. SRI.V.S.SHIRAZ BAVA R BY M.A GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMV** ## **C.T. RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **................................................. M.A.C.A.No. 2809 of 2012 ............................................... Dated this the 18[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J** This appeal arises out of an award passed by the Motor Accidents Claims Tribunal, Muvattupuzha dated 20.07.2012 in O.P. (MV)No.1097/2007, a claim petition filed the appellants/claimants, under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Geordy Paily, husband of the 1[st] appellant, father of appellants 2 to 4 and son of the 5[th] appellant, who died in a motor accident occurred on 07.11.2006, while driving his motor car bearing registration No.KL-7/Z-2121. At the place of accident, the said vehicle was hit by a stage carriage bearing registration No.KL-17/C-1179 owned and driven by the 1[st] and 2[nd] respondents respectively and insured with the 3[rd] respondent. As a result of the accident, the deceased sustained fatal injuries, who succumbed to the injuries on the same day itself. Alleging that the accident occurred due to the rash and negligent driving of the stage carriage by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of ₹15,20,000/- under different heads. 2. Before the Tribunal Exts.A1 to A14 were marked on the side of the appellants/claimants. The respondents have produced Ext.B1 policy certificate. Both sides have not chosen to adduce any M.A.C.A.No. 2809 of 2012 2 oral evidence. 3. After considering the materials on record, the Tribunal arrived at a finding that the accident occurred due to the rash and negligent driving of the stage carriage by the 2[nd] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 1[st] respondent owner. Under different heads, the Tribunal awarded a total compensation of ₹9,54,474/- and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 8% per annum from the date of petition till deposit, with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants are before this Court in this appeal. 5. We heard arguments of the learned counsel for the appellants/claimants and also learned counsel for the 3[rd] respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellants are entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident is of the year 2006 and at the time of accident the deceased was aged 43 years. The appellants contended that the deceased was a rubber dealer earning a monthly income of M.A.C.A.No. 2809 of 2012 3 Rs.11,000/-. In order to substantiate the said contention, they relied on Ext.A12 income tax return submitted by the deceased for the assessment year 2006-07, which would show that the deceased had declared ₹93,900/- as his annual income from business for the year 2005-06. Ext.A13 is another income tax return for the assessment year 2005-06, in which he had declared ₹73,143/- as his annual income from business for the year 2004-05. It was after taking into consideration Exts.A12 and A13 income tax returns that the Tribunal worked out the annual income of the deceased at ₹83,522/- [(93,900+73,143)/2]. After deducting ¼[th] towards the personal and living expenses of the deceased and applying a multiplier of '14' applicable to his age group, the Tribunal awarded ₹8,76,974/- as compensation under the head of loss of dependency. As evident from Exts.A12 and A13 income tax returns there was fluctuation in the income earned by the deceased from business. In such circumstances, the Tribunal added the annual income from business, as reflected in Exts.A12 and A13 income tax returns, and took the average income as ₹83,522/-, for the purpose of assessing dependency compensation. The assessment so made by the Tribunal is perfectly legal, which warrants no interference in this appeal. 8. The compensation awarded by the Tribunal under different heads reads thus ; M.A.C.A.No. 2809 of 2012 4 |Head|Amount<br>claimed|Amount<br>awarded| |---|---|---| |Funeral expenses|₹5,000|₹5,000| |Loss of estate||₹2,500| |Pain and suffering|₹15,000|₹10,000| |Loss of consortium to the 1stpetitioner|₹25,000|₹15,000| |Loss of love and affection to petitioners<br>2 to 4 15,000/- each<br>₹|₹35,000|₹45,000| |Compensation for loss of dependency<br>62641x14|₹14,40,000|₹8,76,974| |Total|₹15,20,000|₹9,54,474| 9. As we have already noticed, the Tribunal worked out dependency compensation taking 83,522/- as the multiplicand,₹ deducting ¼[th] towards the personal and living expenses of the deceased and applying the multiplier of '14' based on the age group of the deceased. Therefore, the Tribunal took the monthly income of the deceased as 6,960/-. Since the deceased was aged 43 years,₹ 30% addition can be made towards future prospects. By adding 30% of the monthly income of 6,960/- towards future prospects,₹ the multiplicand for the purpose of assessment of compensation under the head dependency would come to ₹9,048/[6,960+2,088]. Taking 9,048/- as multiplicand, deducting ¼₹ th towards personal and living expenses of the deceased and applying the multiplier of 14, the compensation under the head loss of dependency is reworked as 11,40,048/- [9,048x12x14x3/4]. The₹ Tribunal has already awarded a sum of 8,76,974/- under this head.₹ In the result, the appellants/claimants will be entitled for an M.A.C.A.No. 2809 of 2012 5 additional compensation of **₹2,63,074/-** under this head. 10. Towards funeral expenses the Tribunal awarded a sum of 5,000/-. In ₹ **Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** the Apex Court awarded a sum of Rs.25,000/- under this head. In the said case the accident was of the year 2007. In the instant case the accident is of the year 2006. Striking a balance, we deem it appropriate to re-fix the compensation under the head funeral expenses as 20,000/-, resulting an additional compensation₹ of ₹ **15,000/** -. 11. Towards loss of estate, Tribunal awarded a sum of ₹2,500/-. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as ₹10,000/-, resulting an additional compensation of **₹7,500/-** . 12. Towards pain and sufferings, the Tribunal awarded a sum of ₹10,000/-. Considering the fact that the deceased succumbed to the injuries on the date of accident itself, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. 13. Towards loss of consortium, the Tribunal awarded a sum of Rs.15,000/- to the first appellant, the widow of the deceased. In **Rajesh's case (supra)** the Apex Court awarded a sum of 1,00,000/- under the head loss of consortium. In the said₹ M.A.C.A.No. 2809 of 2012 6 case the accident was of the year 2007 and the deceased, who was aged 33 years, was survived by his wife who was still younger. In the instant case, the accident is of the year 2006 and at the time of accident the deceased was aged 43 years and the first appellant widow was aged 42 years. Therefore, we re-fix the compensation under the head loss of consortium as 90,000/-, resulting an₹ additional compensation of **₹75,000/-** payable to the first appellant widow. 14. Towards loss of love and affection, the Tribunal awarded a sum of 45,000/- to appellants 2 to 4, namely, the minor children₹ of the deceased. In **Rajesh's case (supra)** the Apex Court awarded a sum of 1,00,000/- under the head of loss of love and₹ affection to three minor children of the deceased. In that case the accident was of the year 2007. In the instant case, the accident is of the year 2006 and the deceased was survived by his minor children aged 15, 14 and 12 years respectively. In such circumstances, we deem it appropriate to re-fix the compensation under the head loss of love and affection as ₹90,000/-, resulting an additional compensation of **₹45,000/-** payable to appellants 2 to 4. 15. Towards damages to clothing and travelling expenses, no compensation has been awarded by the Tribunal. Considering the fact that the accident is of the year 2006, we deem it appropriate to grant a sum of **₹1,000/-** towards damage to clothing M.A.C.A.No. 2809 of 2012 7 and a further sum of **₹1,000/-** under the head of transportation expenses. 16. In the result, the appellants/claimants will be entitled for an additional compensation of **₹4,07,574/-** [2,63,074+15,000 +7,500+75,000+45,000+1,000+1,000] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till deposit. The additional compensation awarded in this appeal, excluding that under the head 'loss of consortium' payable to the 1[st] appellant widow and that under the head 'loss of love and affection' payable to appellants 2 to 4 children, shall be apportioned among the appellants in the ratio 30:20:20:20:10. 17. The learned counsel for the appellants/claimants has filed a memo dated 08.04.2016 reporting the death of the 5[th] appellant, namely, the mother of the deceased. Therefore, the disbursement of the additional compensation payable to the 5[th] appellant mother shall be subject to production of legal heirship certificate. The appeal is disposed of as above. No orders as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** sd/- **ANIL K. NARENDRAN, JUDGE** AMV/19/07/2017