MACA No.1839 of 2012 (B) and MACA No.2316 of 2012, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** ## **MACA.No.1839 OF 2012(B)** **AGAINST THE AWARD IN OPMV 1065/2007 DATED 09-05-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **ICICI LAMBARD GENERAL INSURANCE CO.LTD REGISTERED OFFICE, ICICI BANK TOWERS, BANDRA EAST,MUMBAI - 400051.** **BY ADVS. SRI.K.B.RAMANAND SRI.R.AJITH KUMAR (128/84)** ## **RESPONDENT/S:** |**1**|**VARGHESE**| |---|---| ||**S/O.CHAKKU, CHENGALUKARAN HOUSE, AYYANKODE**| ||**(P.O),MUTTHITHADI, KALLUR, THRISSUR DISTRICT 680003.**| |**2**|**ROSILY W/O.VARGHESE CHENGALUKARAN HOUSE AYYANKODE P.O**| ||**MUTTATHADI, KALLUR, THRISSUR DISTRICT 680003.**| |**3**|**ALEXANDER S/O.VARGHESE CHENGALUKARAN HOUSE AYYANKODE P.0**| ||**MUTTITHADI, KALLUR, THRISSUR DISTRICT 680003.**| |**4**|**MINOR SONIYA D/O.VARGHESE CHENGALUKARAN HOUSE AYYANKODE**| ||**(P.O), MUTTATHADI, KALLUR, THRISSUR DISTRICT 680003.**| ||**(REPRESENTED BY HER FATHER, VARGHESE)**| |**5**|**K.BHASKARAN S/O.KOCHAMMINI SNEHALAYA PUTHIYAVILA**| ||**KAYAMKULAM, ALAPPUZHA DISTRICT 690502.**| |**6**|**SOMAN SO.GOPALAN KARUGASSERY HOUSE KANNANPILLY DESOM**| ||**PATHIYUR, KAYAMKULAM, ALAPPUZHA DISTRICT 690502.**| ||**R1 BY ADV. SRI.P.S.APPU**| ||**R1 BY ADV. SRI.A.R.NIMOD**| ||**R1, R5 BY ADV. SMT.P.K.PRIYA**| ||**R1 BY ADV. SRI.T.C.SURESH MENON**| ||**R1 BY ADV. SRI.T.K.VIPINDAS**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021, ALONG WITH MACA.2316/2012(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1839 OF 2012(B)** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** **MACA.No.2316 OF 2012** **AGAINST THE AWARD IN OPMV 1065/2007 DATED 09-05-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** |**1**|**VARGHESE**| |---|---| ||**S/O. CHAKKU.**| |**2**|**ROSILY**| ||**W/O. VARGHESE**| |**3**|**ALEXANDER**| ||**S/O. VARGHESE**| |**4**|**SONIYA**| ||**D/O. VARGHESE ALL ARE RESIDING AT CHANGALUKARAN HOUSE,**| ||**AYYANKODE P.O, MUTTITHADI, KALLUR, THRISSUR DISTRICT.**| ||**BY ADVS.**| ||**SRI.T.C.SURESH MENON**| ||**SRI.P.S.APPU**| ||**SRI.K.A.ANAS**| ||**SRI.A.R.NIMOD**| |**RESPONDENT/S**<br>**:**|| |**1**|**K.BHASKARAN**| ||**S/O. KOCHAMMINI, RESIDING AT SNEHALAYA, PUTHIYAVILA,**| ||**KAYAMKULAM, ALAPPUZHA DISTRICT - 690 531.**| |**2**|**SOMAN**| ||**S/O. GOPALAN, RESIDING AT KARUGASSERY HOUSE, KANNAMPILLY**| ||**DESOM, PATHIYUR, KAYAMKULAM, ALAPPUZHA DISTRICT - 690**| ||**552.**| |**3**|**ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED**| ||**REGISTERED OFFICE, ICICI BANK TOWERS, BANDRA EAST,**| ||**MUMBAI - 400 051.**| ||**R1 BY ADV. SRI.R.AJITH KUMAR 12884**| ||**R1 BY ADV. SRI.K.B.RAMANAND**| ||**R3 BY ADV. SRI.R.AJITH KUMAR (128/84)**| |**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON**|| |**19.03.2021, ALONG WITH MACA.1839/2012(B), THE COURT ON THE SAME DAY**|| |**DELIVERED THE**|**FOLLOWING:**| **MACA.No.1839 OF 2012(B)** **3** **P.V.KUNHIKRISHNAN, J ----------------------------------------------M.A.C.A. No.1839 & 2316 of 2012 -------------------------------------Dated this the 19[th] day of March, 2021** ## **JUDGMENT** These two appeals are connected and therefore, I am disposing of these appeals by a common judgment. The appellant in M.A.C.A. No. 1839/2012 is the 3[rd] respondent in O.P(M.V) No. 1065/2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The appellants in M.A.C.A No. 2316/2012 is the claimants/petitioners in the above claim petition. The Tribunal considered O.P(M.V). No. 1065/2007 along with O.P(M.V) No. 547/2007 which was filed by an injured, who sustained injuries in the same accident. 2. The Short facts are like this:- On 11.01.2007, at about 8 p.m., the deceased was travelling in a motor cycle bearing Registration No.KL-8/AC-4097 and the pillion rider was the petitioner in O.P(M.V) No. 547/2007. They were travelling through Amballur-Palappilly Public Road in the West to East **MACA.No.1839 OF 2012(B)** **4** direction keeping the northern side of the road and when they reached eastern side of the Kalakallu Junction, a tipper lorry bearing Registration No. KL-29/190 came through AmballurPalappilly Public Road from East to West direction driven by the 2[nd] respondent in a rash and negligent manner and hit against the motor cycle causing injuries to them. Both of them were taken to the hospital. The deceased was ‘Charles’ who was riding the motor cycle succumbed to the injuries. O.P(M.V) No.1065/2007, was filed by the parents and sister of the deceased ‘Charles’ claiming compensation from the respondents. Respondent No.1 is the RC Owner of the tipper lorry. The respondent No.3 is the insurer. Respondent No.2 is the driver of the offending vehicle. 3. To substantiate the case, Exhibits A1 to A24 were marked on the side of the petitioners. Two witnesses were examined on the side of the petitioners as PW1 and PW2. After going through the evidence and documents, the Tribunal awarded a total compensation of Rs.3,47,000/- (Rupees Three Lakhs Forty Seven Thousand Only) with interest at the rate of 7.5% p.a., from the date of petition till realisation. Aggrieved by **MACA.No.1839 OF 2012(B)** **5** the quantum of compensation, M.A.C.A No.2316/2012 is filed by the petitioners and the 3[rd] respondent filed M.A.C.A. No. 1839/2012 challenging the multiplier used by the Tribunal for calculating dependency. 4. Heard counsel for the appellants. 5. I will consider MACA No. 1839/2012 first. ## **MACA 1839/2012** 6. This appeal is filed by the 3[rd] respondent, who is ICICI Lombard General Insurance Company Limited. The main contention raised by the appellant is that the multiplier used by the Tribunal for assessing the dependency compensation is not correct. The multiplier used by the Tribunal is ’18’. In the light of the decision in **Sarla Verma & Others v. Delhi Transport Corporation & another** [2010 (2) KLT 802] **,** the multiplier used by the Tribunal is perfectly correct. Therefore, according to me, there is nothing to interfere with the impugned award based on an appeal filed by the Insurance Company. ## **MACA No. 2316/2012** 7. In this case, the petitioners want enhancement of compensation. The first point raised by the counsel for the **MACA.No.1839 OF 2012(B)** **6** petitioners is that the deceased was aged 21 and he was doing aluminum fabrication work. According to the counsel, the deceased was getting an amount of Rs.6,000/- per month. The accident was in 2007. The counsel relied the judgment of the Apex Court in **Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited** [AIR 2011 SC 2951] and contended that the Tribunal ought to have accepted Rs.6,000/- as monthly income in the facts and circumstances of this case. There is force in the argument of the counsel for the appellant. Admittedly, the deceased was a qualified person and he is having a certificate from CV Polytechnic College. According to the appellants, the deceased was an aluminum fabrication worker. The Apex Court in **Ramachandrappa’s** case (supra), observed that, even a coolie will get Rs.4,500/- and that case was decided in 2004. If that case is taken as a basis, this Court can safely fix the monthly income of the deceased as Rs.6,000/- because the accident in this case occurred in 2007. While assessing the monthly income, 40% is to be increased towards future prospects in the light of the judgment of the Apex Court in **National Insurance Co. Ltd.** **MACA.No.1839 OF 2012(B)** **7** **v. Pranay Sethi,** [2017 (5) KHC 350 : 2017 (16) SCC 680]. Then, the monthly income can be re-fixed as Rs.8,400/-. Consequently, the dependency compensation is to be re-calculated in the following manner. 8,400 x 12 x 18 x ½ = Rs. 9,07,200/- 8. From the above amount, the amount already granted is to be deducted. Then, the balance amount will be Rs.5,83,200/(9,07,200 – 3,24,000). 9. Then, the counsel submitted that, only an amount of Rs.2,000/- is awarded towards funeral expenses and the appellants are entitled altogether Rs.15,000/- towards funeral expenses. It is true that the appellants are entitled Rs.15,000/towards funeral expenses. Therefore, the appellants are entitled another amount of Rs.13,000/- towards funeral expenses. Towards loss of love and affection, only Rs.5,000/- is awarded. The claimants are the parents and younger siblings. They are entitled an amount of Rs.40,000/- each in the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others** [(2018) 18 SCC 130]. Therefore, the appellants are entitled an amount of **MACA.No.1839 OF 2012(B)** **8** Rs.1,60,000/- (4 x 40,000). From the above amount, the amount already granted towards loss of love and affection is to be deducted. Then the balance amount will be Rs.1,55,000/(160,000 – 5000). Towards loss of estate, the Tribunal awarded only Rs.10,000/-. The appellants are entitled another Rs.5,000/in this head also. Therefore, the enhanced compensation entitled by the appellants can be summarized like this : |**Sl.No.**|**Head**|**Amount**| |---|---|---| |1|Compensation for loss of<br>dependency|Rs.5,83,200/-| |2|Loss of estate|Rs.5,000/-| |3|Loss of love and affection|Rs.1,55,000/-| |4|Funeral expenses|Rs.13,000/-| ||**Total**|**Rs.7,56,200/-**| 10. The appellants are entitled interest at the rate of 7.5% per annum from the date of petition till realization. Therefore, these two appeals are disposed of in the following manner : - 1) MACA 1839/2012 is dismissed - 2) MACA No.2316/2012 is allowed in part. The impugned award is modified. The appellants are entitled an enhanced **MACA.No.1839 OF 2012(B)** **9** amount of Rs.7,56,200/- with interest at the rate of 7.5 % per annum from the date of petition till realization. - 3) The 3[rd] respondent is directed to pay the enhanced compensation with interest. avs SKS **P.V.KUNHIKRISHNAN JUDGE**