MACA NO.1822/2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ## **`MACA NO. 1822 OF 2023`** ``` AGAINST THE AWARD DATED 28.05.2015 IN O.P(MV) NO.873 OF 2012 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL, PALAKKAD`** ## **`APPELLANTS/PETITIONERS 1 TO 4:`** ``` 1KASUMANI, AGED 59 YEARS, W/O GOPALAN, POOTTIMADA, VANOOR (P.O), KATTUSSERY, ALATHUR, PALAKKAD DISTRICT, KERALA-, PIN – 678 542 2SANTHOSH.G, AGED 37 YEARS, S/O GOPALAN, POOTTIMADA, VANOOR (P.O), KATTUSSERY, ALATHUR, PALAKKAD DISTRICT, KERALA-, PIN – 678 542 3SARITHA.G, AGED 33 YEARS, D/O GOPALAN, POOTTIMADA, VANOOR (P.O), KATTUSSERY, ALATHUR, PALAKKAD DISTRICT, KERALA- PIN – 678 542 4SATHEESH.G, AGED 24 YEARS, S/O GOPALAN, POOTTIMADA, VANOOR (P.O), KATTUSSERY, ALATHUR, PALAKKAD DISTRICT, KERALA- PIN – 678 542 BY ADVS. A.R.NIMOD M.A.AUGUSTINE ``` ## **`RESPONDENTS / RESPONDENTS:`** ``` 1VINODKUMAR @ VINU, S/O NAGARAJ, SASTHA NIVAS, CHIRAKKAD, KUNNATHURMEDU (P.O), PALAKKAD DISTRICT, KERALA- PIN – 678 013 2THE NEW INDIA ASSURANCE CO. LTD, N.S.TOWERS, NEAR STADIUM BUS STAND, PALAKKAD TOWN, PALAKKAD DISTRICT, KERALA-678 013, REPRESENTED BY ITS BRANCH MANAGER. ``` ``` BY ADVS. LAL K JOSEPH P.MURALEEDHARAN (THURAVOOR)(K/1651/2000) SURESH SUKUMAR(K/634/1997) ANZIL SALIM(K/000447/2018) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON ``` ``` 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1822/2023 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 25[th] day of March, 2024.** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Palakkad (for short ‘the Tribunal’) on 28.05.2015 in O.P (M.V) No.873/2012. Appellants are petitioners before the Tribunal who filed the above Original Petition seeking compensation for the death of one Mr.Gopalan in a motor accident. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 5 and respondents 1 and 2 in accordance with their status in the Original Petition. 3. Petitioners are none other than the wife, three children and mother of deceased Gopalan. Gopalan was aged 55 years at the relevant time of the motor accident, a tailor by occupation earning `7,000/- monthly. The motor accident in question was occurred at about 4.30 p.m on 04.05.2012. ``` MACA NO.1822/2023 ``` ``` 3 ``` A motorcycle bearing registration No.KL 09 V 6017 knocked down Mr.Gopalan at Arangattuparambu, Alathur while he was walking through the road. He sustained serious injuries and was rushed to a hospital and while undergoing treatment there, succumbed to the injuries. Alleging that the motor accident in question was occurred due to the rash and negligent riding of the motorcycle by its rider and claiming a sum of `12,00,000/as compensation, the Original Petition above was filed. The rider cum registered owner of the motorcycle and its insurer were arrayed as the 1[st] and the 2[nd] respondents in the above Original Petition. 4. Before the Tribunal, Exts.A1 to A17 were marked by the petitioners in evidence. On its basis, the Tribunal found negligence on the part of the rider of the motorcycle bearing registration No. KL 09 V 6017. The Tribunal also found the petitioners who are legal representatives of the deceased, entitled to get compensation and arrived at a sum of `6,94,000/- as the compensation payable. It directed the 2[nd] respondent to pay the compensation, with interest at the rate of ``` MACA NO.1822/2023 ``` ``` 4 ``` 9% per annum from the date of filing of the Original Petition till the date of realisation and proportionate costs. 5. Challenge was raised against the impugned award mainly for the reason that the quantum of compensation stood awarded by the Tribunal is inadequate. According to the learned counsel, a sum higher than `7,000/- ought to have been fixed by the Tribunal as the monthly income for calculation of compensation having due regard to the factum that the motor accident in question was occurred in the year 2012. 6. The learned counsel pointed out further that 1/4[th] ought to have been deducted by the Tribunal instead of 1/3[rd] in consideration of the personal expenditure, the deceased would have spent, had he been alive. According to the learned counsel multiplier ought to have been adopted by the Tribunal is ‘11’, instead of ‘9’. 7. The learned counsel contended furthermore that the Tribunal failed to award compensation payable under the conventional heads in tune with the directions issued by the Apex Court in **National Insurance Company Ltd. v. Pranay** ``` MACA NO.1822/2023 ``` ``` 5 ``` **Sethi and Others [2017 (4) KLT 662 (SC)]** . According to him, the Tribunal ought to have awarded `15,000/- each towards loss of estate and funeral expenses and `40,000/- to each of the petitioners towards loss of consortium. 8. The learned counsel for the 2[nd] respondent contended on the contrary that the compensation stood awarded by the Tribunal is just and reasonable in all aspects and therefore, there is absolutely no scope for interference. According to him, the monthly income was fixed by the Tribunal notionally, due to failure of the petitioners to establish the same. He thus canvassed for maintaining the impugned award. 9. On a perusal of the impugned award it is noticed that the Tribunal went wrong in calculating compensation. Therefore, this Court finds it reasonable to calculate the compensation payable afresh. The motor accident in the case on hand was occurred in the year 2012 and the petitioners raised a plea in the Original Petition that the deceased was a tailor by occupation at the relevant time of his death in the ``` MACA NO.1822/2023 ``` ``` 6 ``` motor accident. According to them, he was aged 55 years. The occupation and the monthly income were not proved by the petitioners and therefore, the Tribunal opted for a notional fixation. But, it appears that the monthly income fixed notionally is inadequate and disproportionate to the cost of living and price index prevalent in the year 2012. This Court finds it appropriate to re-fix it as `8,500/-. The deceased was aged 55 years at the relevant time and he suffered an untimely death. Therefore, undoubtedly he lost his future prospects and having due regard to his age at the relevant time, 10% is added to the monthly income while calculating the compensation payable. The multiplier was adopted by the Tribunal as ‘9’ and that being incorrect, ‘11’, the correct multiplier is adopted by this Court. When 10% is added to the monthly income re-fixed, `9,350/- (`8,500/- + 10% of `8,500/-) is arrived at. 10. Five members survived the deceased, and they include his spouse, three children and his mother. The Tribunal took a view that the 2[nd] and the 3[rd] petitioners being ``` MACA NO.1822/2023 ``` ``` 7 ``` aged 27 and 23 years respectively at the relevant time of death of Mr.Gopalan, are not dependents of the deceased. The respondent did not adduce any evidence to establish that they were employed, married and residing away from the deceased at the relevant time of his death. Therefore, the Tribunal is unjustified in taking a view that they are not dependents of the deceased. Therefore, this Court finds it appropriate to consider 3/4[th] of the monthly income of the petitioner as his contribution to support the family, for the purpose of calculation of the compensation payable. 11. Thus in the calculation of compensation for loss of dependency on the basis of modified factors as discussed above, `9,25,650/- (`9,350/- x 12 x 11 x ¾) is arrived at. 12. ` 15,000/- each is also awarded as compensation towards loss of estate and funeral expenses. Since each of the petitioners are entitled to get `40,000/- as compensation towards loss of consortium, a sum of `2,00,000/- was arrived at as the total compensation payable. ``` MACA NO.1822/2023 ``` ``` 8 ``` 13. Petitioners are not entitled to get `10,000/- and `50,000/- respectively stood awarded by the Tribunal as compensation towards loss of love and affection and care and protection. Though the injured survived for six days after the motor accident and was undergoing treatment then, the Tribunal failed to award compensation towards transportation expenses, extra nourishment, bystander expenses and damages to clothing. This Court finds it reasonable to award `1,000/towards damages to clothing, `3,000/- each towards transportation expenses, extra nourishment and bystander expenses. 14. When the compensation stood awarded by the Tribunal is calculated in the above manner, `11,65,650/(`9,25,650/- + `15,000/- + `15,000/- + `2,00,000/- + `1,000/- + `3,000/- + `3,000/- + `3,000/-) (Rupees eleven lakh sixty five thousand six hundred and fifty only) is arrived at. The said amount shall carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the ``` MACA NO.1822/2023 ``` ``` 9 ``` date of realisation. Proportionate costs was also ordered to be paid. 2[nd] respondent is exonerated from paying interest for 1989 days being the period of delay occurred in filing the appeal on hand. 2[nd] respondent shall deposit the compensation with interest and costs in favour of the petitioners within two months from the date of receipt of a certified copy of this judgment. The disbursal of the amount shall be as directed by the Tribunal in the award under challenge and also in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. Amount if any was paid by the 2[nd] respondent in compliance of the original award shall be adjusted in the sum payable as per this judgment. MACA stands allowed accordingly. **Sd/-** **MARY JOSEPH JUDGE** JJ