MACA NO. 861 OF 2011

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945 ``` ## **`MACA NO. 861 OF 2011`** ## **`AGAINST THE AWARD DATED 31.12.2010 IN OP(MV) 3339/2004 OF MOTOR`** ## **`ACCIDENT CLAIMS TRIBUNAL, THRISSUR`** ## **`APPELLANT/PETITIONERS:`** ``` 1MARY SUNNY AGED 41 YEARS W/O.LATE P.K.SUNNY, PULOKOTTIL HOUSE, P.O.NADATHARA, THRISSUR DISTRICT. 2SONI P.SUNNY, AGED 24 YEARS -DO-. 3SONA P.SUNNY, AGED 21 YEARS -DO-. 4MARIAMMA AGED 70 YEARS W/O.LATE KURIAPPAN, -DO- (MOTHER OF LATE, P.K.SUNNY). BY ADV SRI.P.V.CHANDRA MOHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1BASIKUMAR @ BASI MAMBULLY HOUSE, P.O.POOTHOLE, THRISSUR DISTRICT. 2TONY JOHN S/O.JOHNY, PYNADAN HOUSE KECHERY COLONY, NADATHARA, THRISSUR DISTRICT. 680001 ``` ``` 3UNITED INDIA INSURANCE CO. LTD. JOSE TRUST BUILDING, P.B.NO.3644, CHITTOOR ROAD, KOCHI-682035. ``` ``` 2 ``` ## **`MACA NO. 861 OF 2011`** ``` BY ADV ADV SRI.P.JAYASANKAR ADV RAJAN P KALIYATH - SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 861 OF 2011 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the claimants in O.P.(M.V.) No.3339/2004 on the files of the Motor Accident Claims Tribunal, Thrissur. The aforesaid claim petition was submitted by them seeking compensation for the death of one P.K.Sunny due to the injuries sustained in a motor accident that occurred on 19.07.2004. The said Sunny was the husband of the 1[st] appellant, father of the 2[nd] and 3[rd] appellants and the son of the 4[th] appellant. 2. The accident occurred when the motorcycle ridden by the deceased was hit by another motorcycle bearing Registration No.KL-08 AA 5415, ridden by the 2[nd] respondent. The 1[st] respondent was the owner of the motorcycle, and it was insured by the 3[rd] respondent. According to the appellants, the deceased was a marble worker with a monthly income of Rs.10,000/-. He was aged 54 years at the time of the accident. The total compensation claimed was Rs.10,49,750/-. 3. The 1[st] and 2[nd] respondents remained ex parte. The 3[rd] respondent Insurance Company filed a written statement, admitting ``` MACA NO. 861 OF 2011 ``` ``` 4 ``` the coverage of the policy in respect of the vehicle owned by the 1[st] respondent. However, liability was disputed on various grounds. The negligence as well as the quantum of compensation, was disputed. 4. The evidence in this case consists of Exts.A1 to A8 series from the side of the appellants, and from the side of the 3[rd] respondent, Ext.B1 was marked. After appreciating the materials placed on record, the Tribunal arrived at the conclusion that the accident occurred due to the negligent riding of the motorcycle by the 2[nd] respondent and being the insurer of the said vehicle, the 3[rd] respondent was held responsible for paying the compensation. The quantum of compensation was fixed as Rs.3,18,000/- and the 3[rd] respondent was directed to deposit the said amount along with interest @ 8% per annum from the date of petition till realization with proportionate cost. Being dissatisfied with the quantum of compensation, this appeal is submitted by the appellants. 5. Heard Sri.P.V. Chandamohan, learned counsel for the appellants and Sri.Rajan P. Kaliyath, learned counsel for the 3[rd] ``` MACA NO. 861 OF 2011 ``` ``` 5 ``` respondent Insurance Company. 6. The main contention put forward by the learned counsel for the appellants is with regard to the inadequacy of compensation granted under the head of ‘loss of dependency’. For the purpose of computing the said compensation, the monthly income taken by the Tribunal was only Rs.2,500/- and no addition was also made towards future prospects. After considering the materials placed on record, I find some force in the contention put forward by the appellants in this regard. The accident occurred in the year 2004, and going by the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] even in respect of a coolie, the monthly income has been fixed Rs.4,500/- in respect of an accident occurred in the year 2004. As far as the deceased in this case is considered, he was working in the employment of laying marbles, which is a skilled employment. Therefore, some amount higher than the monthly income taken for an ordinary worker can be fixed. In the facts and circumstances of the case, I deem it ``` MACA NO. 861 OF 2011 ``` ``` 6 ``` appropriate to fix the monthly income as Rs.5,000/-. Apart from the above, an addition of 10% is also to be added in the light of the principles laid down by the Hon’ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. Therefore, while reworking the compensation with the above revised monthly income and the addition of future prospects, the amount under this head would come to Rs.5,44,500/- [ (5000 + 10%) x 12 x 11 x3/4]. After deducting Rs.2,20,000/- awarded by the Tribunal under this head, the additional amount would come to Rs.3,24,500/-. 7. In addition to the above, an amount of Rs.10,000/- is to be granted under the head of ‘funeral expenses’ as the amount awarded by the Tribunal is only Rs.5,000/-. Similarly, the amount awarded under the head of ‘loss of estate’ by the Tribunal is only Rs.10,000/- and therefore, a further some of Rs.5,000/- is to be granted under that head. Another ground which requires reconsideration is compensation for ‘loss of consortium’. As per the principles laid down in **Pranay Sethi’s** case, the said amount ``` MACA NO. 861 OF 2011 ``` ``` 7 ``` has to be @ Rs.40,000/- each to the dependents, and therefore, the compensation to be awarded under this head would come to Rs.1,60,000/-. At this juncture, the learned counsel for the respondent Insurance Company would point out that an amount of Rs.10,000/- is already awarded under the head of ‘loss of consortium’ and a further some of Rs.10,000/- is granted towards ‘loss of love and affection’. It is a well settled position of law in the light of the principles laid down in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760], when compensation is awarded for ‘loss of consortium’ a further amount need not be awarded under the head of ‘loss of consortium’. Therefore, the said amounts can be adjusted towards the amount fixed towards ‘loss of consortium’. Thus, the additional compensation under the head of ‘loss of consortium’ would come to Rs.1,40,000/-. 8. Thus, the total amount of compensation receivable by the appellants, in addition to the amount awarded by the Tribunal, would come to Rs.4,79,500/- (3,24,500 + 10,000 + 5,000 + ``` MACA NO. 861 OF 2011 ``` ``` 8 ``` ## 1,40,000). In the light of the above observations, this appeal is allowed, and the award dated 31.12.2010 in O.P.(M.V.) No.3339/2004 passed by the Motor Accident Claims Tribunal, Thrissur is hereby modified by grating an additional amount of Rs.4,79,500/- (Rupees four lakhs seventy nine thousand and five hundred only), and the said amount shall be deposited by the 3[rd] respondent Insurance Company along with interest at the rate as ordered by the Tribunal from the date of petition till realization with proportionate cost, within a period of three months from the date of receipt of copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs