MACA Nos. 1775 & 2081 of 2013 (The Oriental Insurance Co. Ltd v. Vijayamma Kalarickaltharayil Veedu and others)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI THURSDAY, THE 23RD DAY OF DECEMBER 2021 / 2ND POUSHA, 1943** **MACA NO. 1775 OF 2013** **AGAINST THE AWARD IN OPMV 810/2003 MOTOR ACCIDENT CLAIMS TRIBUNAL (ADDITIONAL DISTRICT & SESSIONS COURT-II)** ## **MAVELIKKARA** ## **APPELLANT/3RD RESPONDENT:** THE ORIENTAL INSURANCE CO.LTD THIRUVALLA,REPRESENTED BY ITS ASSISTANT MANAGER,REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI 18 BY ADVS. SRI.GEORGE CHERIAN (THIRUVALLA) SMT.K.S.SANTHI ## **RESPONDENTS/CLAIMANTS & RESPONDENTS 1 & 2:** 1 VIJAYAMMA KALARICKALTHARAYIL VEEDU,KATTANAM MURI, BHARANIKAVU PANCHAYATH, KATTANAM PIN 690 503 2 SANKARAN KALARICKALTHARAYIL VEEDU,KATTANAM MURI, BHARANIKAVU PANCHAYATH, KATTANAM PIN 690 503 3 BINDU KALARICKALTHARAYIL VEEDU,KATTANAM MURI, BHARANIKAVU PANCHAYATH, KATTANAM PIN 690 503 4 BAIJU KALARICKALTHARAYIL VEEDU,KATTANAM MURI, BHARANIKAVU PANCHAYATH, KATTANAM PIN 690 503 5 RADHAKRISHNAN PARACKATTU SANKARA SADANAM, PALLICKAL NADUVILE MURI, BHARANIKAVU 690 503 M.A.C.A.Nos.1775 & 2081 OF 2013 2 6 M.K KRISHNAKUMAR MUDIYIL BUNGLOW,PELA P.O,MAVELIKARA 690 103 BY ADVS. SRI.A.R.DILEEP SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL SRI.MANU SEBASTIAN SRI.K.J.SHARATH KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.10.2021, ALONG WITH MACA.2081/2013, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING: M.A.C.A.Nos.1775 & 2081 OF 2013 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI THURSDAY, THE 23RD DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 MACA NO. 2081 OF 2013 AGAINST THE ORDER/JUDGMENT IN OPMV 810/2003 OF ADDITIONAL DISTRICT COURT-II & IST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANTS/PETITIONERS 1 AND 3 TO 4:** 1 VIJAYAMMA KALARICKALTHARAYIL VEEDU, KATTANAM MURI, BHARANIKKAVU PANCHAYATH, KATTANAM. 2 BINDU KALARICKALTHARAYIL VEEDU, KATTANAM MURI, BHARANIKKAVU PANCHAYATH, KATTANAM. 3 BAIJU KALARICKALTHARAYIL VEEDU, KATTANAM MURI, BHARANIKKAVU PANCHAYATH, KATTANAM. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.K.J.SHARATH KUMAR ## **RESPONDENTS/RESPONDENTS:** 1 RADHAKRISHNAN(DELETED) PARACKATTU SANKARA SADANAM, PALLICKAL NADUVILE MURI, BHARANIKKAVU-690 541. (RESPONDENT NO.1 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DT.15.9.2021 IN I.A.1/2021 IN MACA 2081/2013) M.A.C.A.Nos.1775 & 2081 OF 2013 4 - 2 M.K.KRISHNAKUMAR MUDIYIL BUNGALOW, PELA.P.O., MAVELIKKARA-690 103. 3 THE ORIENTAL INSURANCE CO. LTD. REP. BY ITS DIVISIONAL MAANGER, THIRUVALLA DIVISION. R3 BY ADV SRI.GEORGE CHERIAN THIRUVALLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.10.2021, ALONG WITH MACA.1775/2013, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING: M.A.C.A.Nos.1775 & 2081 OF 2013 5 ## **T.R. RAVI, J.** **--------------------------------------------** M.A.C.A.Nos.1775 & 2081 OF 2013 -------------------------------------------Dated this the 23[rd] day of December, 2021 ## **JUDGMENT** The above appeals have been filed challenging the award passed by the Motor Accidents Claims Tribunal, Mavelikkara in OP(MV) No.810 of 2003. M.A.C.A.No.1775 of 2013 has been filed by the Insurance Company which was the 3[rd] respondent before the Tribunal and M.A.C.A.No.2081 of 2013 has been filed by the claimants before the Tribunal. The parties are referred to as claimants and Insurer. 2. The claimants are the parents and siblings of late Binu, who died in a motor accident. On 11.10.2002, the motorcycle driven by the deceased was hit by a car driven in a rash and negligent manner. The accident was denied by the Insurance Company. According to the insurer, no car was involved in the incident and the car, the driver and the eye witness were subsequently brought in, in order to sustain a claim petition. The Tribunal held that the accident occurred due to the negligence of the driver of the car. A sum of Rs.6,03,300/-, was awarded as compensation. The claimants have M.A.C.A.Nos.1775 & 2081 OF 2013 6 filed the appeal claiming enhancement. The insurer has filed the appeal challenging the entire award. 3. Heard the counsel for the claimants and the insurer. 4. According to the counsel for the insurer, no car was involved in the accident. It is submitted that even though the car was examined on 3.12.2002, no damage was noticed to the car. It is further contended that the Tribunal did not take into account the evidence tendered by PW2 and did not follow the decision in **New** **India Assurance Co.Ltd. v. Pazhaniammal** reported in **[2011** **(1) KLT 648]** . Ext.A6 is the charge sheet which shows that the negligence is on the driver of the offending vehicle. The insurer had not adduced any independent evidence to show that the deceased was negligent. In the absence of any documentary or oral evidence tendered on behalf of the insurer, the Tribunal ought to have held that there was no contributory negligence. 5. The counsel for the claimants submitted the deceased was aged 28 years at the time of the accident and he was working as a High School Assistant in Malayalam, earning a salary of Rs.7,700/- per month. It is submitted that the Tribunal went wrong in adopting the multiplier applicable to the age of the mother of the deceased, instead of adopting 17 as the multiplier. The next M.A.C.A.Nos.1775 & 2081 OF 2013 7 contention of the counsel is that the Tribunal went wrong in fixing contributory negligence on the deceased at 50%. It is submitted that in the absence of any contra evidence, the Tribunal should have gone by the charge sheet and found that the driver of the car alone was negligent. It is pointed out that the Tribunal ought to have granted Rs.15,000/- each towards funeral expenses and loss of estate. It is also submitted that the amount awarded towards loss of love and affection and awarding merely Rs.5,000/- towards loss of consortium are wrong. It was further argued that the Tribunal ought to have granted compensation for pain and suffering. 6. The Hon'ble Supreme Court has held in the decision in **United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur & Ors.** reported in **[2020 (3) KHC 760]** that in cases of death the compensation is to be granted for loss of estate, funeral expenses and for loss of dependency and under no other head. It has been specifically held that no amount can be granted as compensation under the head pain and sufferings to the legal representatives of the deceased. The counsel for the claimants submitted the judgment in **Satinder Kaur (supra)** does not specifically deal with the question whether the pain and sufferings that the deceased underwent between the accident and his death M.A.C.A.Nos.1775 & 2081 OF 2013 8 should be compensated. It is submitted that as per the provisions of the Kerala Torts (Miscellaneous Provisions) Act, all rights available when the deceased was alive, would continue to be available to the legal representatives. Reference is made to Section 1 of the Fatal Accidents Act. The counsel on either side referred to the decisions reported in **R.Ayyavu & Anr. v. Gopinathan Nair & Anr. [ILR 1991(2) Kerala 201], Jyni & Ors. v. Raphel P.T. & Ors. [2016(2) KHC 870], KSRTC v. John [1990(2) KLT 695], United India Insurance Co.Ltd v. Beena Pathrose & Ors. [2017(2) KHC 577], Jaya & Ors. v. Shaji & Ors. [2014(1) KLT 31], Bhagyalakshmi v. Shriram General Insurance Co.Ltd & Ors. [2020 ACJ 2431], National Insurance Co. Ltd v. Sivabakkiyam (since deceased) & Ors. [2020 ACJ 531]** . 7. In **KSRTC (supra)** , another Division Bench of this Court held that the legal representatives can claim compensation for the pain and agony even where the death was instantaneous. In **Ayyavu (supra)** , a Division Bench of this Court had held that pain and suffering of deceased, loss of expectation of life and present value of future contribution which the deceased could have made are heads of claims available to the legal representatives. The Court had found that the death was not instantaneous and that he died on M.A.C.A.Nos.1775 & 2081 OF 2013 9 the next day after the accident. In the above circumstances, it was held that a fair compensation is payable for the pain and suffering incurred by the child. In **Jaya (supra)** , a Division Bench of this Court relied on Section 2 of the Torts (Miscellaneous Provisions) Act, 1976 (Kerala) and held that legal heirs are entitled to claim compensation for the personal injuries sustained by the deceased. In **Jyny (supra)** , a Division Bench of this Court held that in cases of instantaneous death as well as in cases where the deceased was unconscious between the time of accident and time of his death, some notional amount is payable under the head pain and suffering and that a slightly higher amount can be awarded if the death is not instantaneous. The same view was expressed in **Bhagyalakshmi (supra)** , by a Single Bench of this Court. In **Beena Pathrose (supra)** , where the deceased succumbed to the injuries on the way to the hospital, a Division Bench of this Court awarded a nominal amount as compensation stating that the deceased would have suffered pain. In **Sivabakkiam (supra)** , a learned Single Judge of the Madras High Court held that compensation under the head pain and suffering will not be available to the legal representatives by invoking the maxim _actio personalis moritum cum persona_ . 8. In **Satinder Kaur** , the Hon'ble Supreme Court held that M.A.C.A.Nos.1775 & 2081 OF 2013 10 in death cases, compensation can be awarded under the heads loss of estate, loss of consortium and funeral expenses alone. It was held that no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. However, there is no detailed enquiry in the judgment as to whether the pain and sufferings of the deceased from the time of the accident till the time of his death is to be compensated as an addition to his estate. Since the Hon'ble Supreme Court in **Satinder Kaur (supra)** did not specifically state that no amount should be paid for pain and suffering of the deceased, I am of the opinion that going by the decisions referred above, there is justification for the claim made by the claimants. 9. The claimants are hence entitled to enhanced compensation. The claimants are entitled to an additional sum of **Rs.10,000/- each** under the heads funeral expenses and loss of estate. A sum of **Rs.10,000/-** is awarded towards pain and suffering. The parents are entitled to loss of consortium of Rs.40,000/- each and hence an additional amount of **Rs.60,000/-** is awarded towards loss of consortium. The compensation towards loss of dependancy is reworked by applying the multiplier of 17 as Rs.11,78,100/- (11550x12x17x50%). After deducting the amount of M.A.C.A.Nos.1775 & 2081 OF 2013 11 Rs.7,62,300/- awarded by the Tribunal, the claimants will be entitled to an additional compensation of **Rs.4,15,800/-.** Since I have held that there was no contributory negligence on the side of the deceased the amount of **Rs.2,01,000/-** reduced by the Tribunal on that count has to added to the compensation awarded. In the result, M.A.C.A.No.1775 of 2013 is dismissed. M.A.C.A.No.2081 of 2013 is allowed and the appellants/claimants are awarded an additional compensation of **Rs.7,06,800/(Rupees Seven Lakhs Six Thousand Eight Hundred only)** with interest at the rate of 9% per annum from the date of filing of the claim petition (15.05.2003) till the date of realisation, with proportionate costs. The 3rd respondent insurer shall deposit the additional compensation granted in this appeal along with interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants/claimants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants/claimants shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn