MACA Nos. 2155 of 2014 and 2582 of 2014, High Court of Kerala at Ernakulam (Motor Accident Claims Appeals)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944 ``` ## **`MACA NO. 2155 OF 2014`** ``` AGAINST THE AWARD DATED 30.04.2014 IN O.P(M.V) NO.248/2012 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, KOTTAYAM APPELLANTS/PETITIONERS: ``` ``` 1PRASANNA, CHIRAYIL HOUSE, NEENDOOR P O, KOTTAYAM 2SUDHEENA SUKUMARAN, CHIRAYIL HOUSE, NEENDOOR P O, KOTTAYAM 3SUDHI SUKUMARAN, CHIRAYIL HOUSE, NEENDOOR P O, KOTTAYAM 4SOORYAMOL SUKUMARAN, CHIRAYIL HOUSE, NEENDOOR P O, KOTTAYAM 5PADMAKSHI, KUNNUMPARAMBIL HOUSE, VELLIYAMATTOM BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.C.JOSEPH, KALARICKATHOTTIYIL HOUSE, VAZHAKKULAM P O, MUVATTUPUZHA-686 661 2THANKACHAN V S VELLAMATTAHIL HOUSE, NEDIYASALA P O, THODUPUZHA-685 584 3THE ORINETAL INSURANCE CO LTD DIVISIONAL OFFICE, KOTTAYAM-686 001 ``` ``` R3 BY ADV.SRI.P.BHARATHAN, SC ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD`** ``` ON 07.11.2022, ALONG WITH MACA.2582/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos.2155 & 2582 of 2014 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944 ``` ``` MACA NO. 2582 OF 2014 ``` ``` AGAINST THE AWARD DATED 30.04.2014 IN O.P(M.V) NO.247/2012 ``` ``` OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-II, KOTTAYAM APPELLANTS/PETITIONER: ``` ``` ANTONY SIMON, PARAMALA HOUSE, NEENDOOR P.O, KOTTAYAM BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.C. JOSEPH, KALARICKATHOTTIYIL HOUSE, VAZAKKULAM P.O, MUVATTUPUZHA- 682 021 2THANKACHAN V.S, VELLAMATTATHIL HOUSE, NEDIYASALA P.O, THODUPUZHA 686 001 3THE ORIENTAL INSURANCE CO.LTD DIVISIONAL OFFICE, KOTTAYAM 686 001 ``` ``` R3 BY ADV SRI.P.BHARATHAN, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2022, ALONG WITH MACA.2155/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos.2155 & 2582 of 2014 ``` ``` 3 ``` ## **`JUDGMENT`** ## **`Dated this the 07[th] day of November, 2022`** Both these appeals have been originated from a common award passed by Motor Accidents Claims Tribunal, Kottayam (for short ‘the Tribunal’) in O.P(M.V.) Nos.248/2012 and 247/2012. For the sake of convenience, the parties to these appeals will hereinafter be referred to in accordance with their status in the Original Petitions. 2. Both the claim petitions have been originated from a motor accident occurred at 3 pm on 16.01.2012 at Kidangoor. One person died and another person got injured in the motor accident. The person died was one Sukumaran who was survived by his wife, three children and mother. The person injured was one Mr.Antony Simon. Both applications were filed under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’), seeking for compensation by the legal representatives of the deceased as well as the injured himself. ``` M.A.C.A.Nos.2155 & 2582 of 2014 4 ``` 3. O.P(M.V) No.248/2012 was filed by the legal representatives of deceased Sukumaran. Legal representatives originally raised a claim in the Original Petition that Sukumaran was an autorickshaw driver by profession. Lateron, the Original Petition was amended to incorporate occupation of Sukumaran as the milk vendor. Rs.10,000/- was his monthly income. He was also shown as aged 48 years at the relevant time of the motor accident. According to the petitioners, Sukumaran while driving an Autorickshaw was hit by a Bus bearing Registration No.KL 17A 225 at Kidangoor due to the rash and negligent driving by it’s driver. He sustained serious injuries and succumbed to those. The legal representatives of deceased Sukumaran filed Original Petition seeking for a total sum of Rs.10,00,000/- as compensation from respondents 1 to 3, who are the driver, owner and insurer of the Bus bearing Registration No. KL 17A 225, jointly and severally. 4. Though notices issued from the Tribunal were served on the 1[st] and 2[nd] respondents they did not file any written statement and contest the Original Petitions. In that context, ``` M.A.C.A.Nos.2155 & 2582 of 2014 ``` ``` 5 ``` they were declared ex parte by the Tribunal. In the written statement filed, the 3[rd] respondent contended that the motor accident was occurred due to the rash and negligent driving of the autorickshaw by Sukumaran. The amount claimed as compensation is also disputed for being exorbitant. 5. O.P(M.V.) No.247/2012 was filed by one Mr.Antony who sustained injuries in the motor accident. According to him he had undergone treatment as inpatient for 10 days. The petitioner was a passenger in an autorickshaw bearing Registration No.KL 5Y 2497. He was aged 45 years and a self employed person at the relevant time of the motor accident. Rs.10,000/- is claimed as his monthly income. Rs.8,00,000/- was claimed as compensation from the respondents. 3[rd] respondent had taken contentions similar to those taken in the written statement filed by it in O.P(M.V.) No.248/2012. 6. Before the Tribunal, evidence was adduced by both parties to the Original Petition. On the side of the petitioners, two witnesses were examined as PW1 and PW2 and Exts.A1 to A16 and Ext.X1 were marked. Respondents did not adduce any ``` M.A.C.A.Nos.2155 & 2582 of 2014 6 ``` evidence. The Tribunal appreciated the evidence and passed a common award. Rs.1,49,050/- was arrived at as compensation payable to the petitioner in O.P(M.V.) No.247/2012 and Rs.4,73,000/- was arrived at as compensation payable to the petitioners in O.P(M.V) No.248/2012. The driver of the Bus referred to above was found negligent and responsible for causing the motor accident in question. The offending vehicle being validly insured with the 3[rd] respondent, it was directed to deposit the compensation arrived at in each cases with interest at the rate of 7.5% per annum from 14.03.2012, the date of filing of the Original Petition till the date of realisation. 7. The contention firstly taken in M.A.C.A No.2155/2014 was against the monthly income fixed and based for arriving at the compensation. According to the learned counsel, Rs.10,000/was claimed by the petitioners as the monthly income of the deceased, but the Tribunal fixed Rs.4,000/- as the monthly income on a notional basis. Sukumaran was aged 48 years at the relevant time of his death. The multiplier was taken by the Tribunal as 13 and is the correct one also. The deceased being ``` M.A.C.A.Nos.2155 & 2582 of 2014 7 ``` aged 48 years at the relevant time of his death, 25% is required to be added to the monthly income in consideration of loss of future prospects. It is contended that as compensation payable towards loss of estate, funeral expenses and loss of consortium also compensation was awarded by the Tribunal but not in tune with their entitlement as fixed by the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]. As per the allegations, the deceased was a driver cum milk vendor at the relevant time. Ext.A15 is a certificate marked in evidence and the monthly income earned by the deceased was certified as Rs.7,500/-. The employer of the deceased was not examined and since Ext.A15 stands not proved, the Tribunal fixed Rs.4,000/- as the monthly income on a notional basis. The accident was occurred in the year 2012. Therefore this Court finds justification in fixing Rs.8,500/- as the monthly income in the case of the deceased. 25% is liable to be added to it in consideration of future prospects and 1/4[th] liable to be deducted from it in consideration of personal expenditure, that ought to have been spent by the victim, had his death, not ``` M.A.C.A.Nos.2155 & 2582 of 2014 ``` ``` 8 ``` occurred in the motor accident. The Tribunal overlooked the factum that the deceased was survived by five members and therefore, opted to deduct only 1/3[rd] instead of 1/4[th] . 8. As compensation towards funeral expenses and loss of estate as directed by the Apex Court in National Insurance Company Limited supra petitioners are entitled to get Rs.16,500/- each. Similarly as compensation towards loss of consortium, each of the petitioners are entitled to get Rs.44,000/-. 9. It is found that the Tribunal had granted only Rs.5,000/- as compensation towards funeral expenses and compensation was declined under the head loss of estate. It is also noticed that the Tribunal has awarded Rs.25,000/- as compensation towards loss of consortium and awarded Rs.25,000/- towards loss of love and affection. It being settled that the petitioners are not entitled to get any sum as compensation towards loss of love and affection, Rs.25,000/stands awarded is liable to be deducted from the compensation found payable. When Rs.44,000/- is considered for five members, ``` 9 ``` ## **`M.A.C.A.Nos.2155 & 2582 of 2014`** who survived the deceased as legal representatives, Rs.2,20,000/- (Rs.44,000/- x 5) is arrived at. Rs.25,000/- each stands granted as compensation towards loss love and affection and loss of consortium when deducted therefrom, the petitioners will get Rs.1,70,000/- [Rs.2,20,000/- - (Rs.25,000/- + Rs.25,000/-) ] as additional compensation. 10. As compensation towards funeral expenses, only Rs.5,000/- stands awarded and therefore, the petitioners will get Rs.11,500/- as additional compensation. Rs.16,500/- is also awarded as compensation for loss of estate. The Tribunal has wrongly mentioned, Rs.4,16,000/- as the compensation payable under the head loss of estate instead of compensation for loss of dependency. The amount actually was meant as compensation payable towards loss of dependency. 11. As already stated the monthly income for the purpose of computation of compensation for loss of dependency is re-fixed by this Court as Rs.8,500/-. 25% is added in consideration of future prospects and 1/4[th] , deducted in consideration of the personal expenditure of the victim, had he been alive. 13 ``` M.A.C.A.Nos.2155 & 2582 of 2014 ``` ``` 10 ``` adopted by the Tribunal being the correct multiplier is maintained. When compensation is re-assessed with the above factors, Rs.12,43,125/- [((Rs.8,500/- + 25% of Rs.8,500/-) x 12 x 13) – ¼] is arrived at. Rs.4,16,000/- stands awarded by the Tribunal when deducted therefrom, the petitioners will get Rs.8,27,125/(Rs.12,43,125/- - Rs.4,16,000/- ) as additional compensation towards loss of dependency. 12. In the above manner of reassessment, Rs.10,25,125/(Rupees Ten lakh twenty five thousand one hundred and twenty five only) (Rs.8,27,125/- + Rs.16,500/- + Rs.11,500+ Rs.1,70,000/-) is payable as total additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of payment. 13. O.P(M.V.) No.247/2012 is filed by a victim who had sustained injuries in the motor accident. Exts.A5 and A6 were marked in evidence to establish the injuries sustained by him in the motor accident. Ext.A5 is nothing but the accident register cum wound certificate prepared at Little Lourdes Mission Hospital, ``` M.A.C.A.Nos.2155 & 2582 of 2014 ``` ``` 11 ``` Kidangoor. It is found that he had sustained deformity of right forearm, lacerated wound of 2.5x1cm over the ulnar border of right forearm, lacerated wound 4x0.5cm over the right thigh. Lacerated wound 6x.5cm over the left knee, piercing wound on left thigh 2x1cm, and multiple abrasions on left side of face, abdomen, left knee and chin. As per Ext.A6, the discharge summary issued from the very same hospital, comminutted fracture of radius and ulna and middle 3[rd] Femur shaft, fracture radial styloid with intraarticular extension and comminutted fracture of middle 3[rd] of Femur shaft were reported as diagnosed in X-ray. Petitioner was treated by Open Reduction and Internal Fixation with 3.5 mm DCP and Screws, ORIF of fracture shaft of right Femur with IMIL Nail, wound debridement, wound dressing, application of B/K Cast and suturing. Petitioner was treated as inpatient till 26.01.2012. At the time of discharge, he was directed to take medication for four weeks and to review on 24.02.2012. 14. The claim of the petitioner was that he was self employed and earning monthly income from the sale of snacks. ``` M.A.C.A.Nos.2155 & 2582 of 2014 ``` ``` 12 ``` The owner of the bakery was examined as PW2. He deposed to the effect that the petitioner would supply food items to his bakery. The petitioner also mounted the witness box to depose as PW1. According to him, he sells food items prepared by him to the bakery. The Tribunal fixed the monthly income as Rs.5,000/on a notional basis. In the backdrop of the oral evidence adduced by the petitioner as above, this Court finds justification in re-fixing the monthly income as Rs.8,500/-. This Court is also inclined to take a period of six months for calculating compensation towards loss of earning. Thus, Rs.51,000/- (Rs.8,500/- x 6) is arrived at as the compensation payable. Rs.20,000/- stands awarded by the Tribunal when deducted therefrom, the petitioner will get Rs.31,000/- (Rs.51,000/- - Rs.20,000/-) as additional compensation. 15. As compensation towards transportation expenses, the Tribunal has awarded only Rs.2,000/- and this Court is inclined to enhance it to Rs.6,000/- and therefore, the petitioner will get Rs.4,000/- as additional compensation. As compensation towards extra nourishment, the Tribunal failed to award any sum and this ``` M.A.C.A.Nos.2155 & 2582 of 2014 ``` ``` 13 ``` Court grants Rs.3,000/-. As compensation towards bystander expenses, the Tribunal has awarded only Rs.3,000/- and this Court is inclined to enhance it to Rs.6,000/- and therefore the petitioner will get Rs.3,000/- as additional compensation. The medical bills produced is considered by the Tribunal for the purpose of assessment of compensation towards treatment and this Court is declined to interfere with. 16. As compensation towards pain and suffering, the Tribunal has awarded only Rs.15,000/-. This Court has already discussed with the injuries sustained by the petitioner and the treatment procedures undergone by him. In the above circumstances, Rs.40,000/- is a reasonable sum to be re-fixed as compensation towards pain and suffering and this Court do so. Rs.15,000/- having been awarded by the Tribunal in the impugned award, the petitioner will get Rs.25,000/- as additional compensation. As compensation towards loss of amenities and enjoyments in life Rs.10,000/- was awarded by the Tribunal. This Court is inclined to modify it to Rs.25,000/- and therefore, the petitioner will get Rs.15,000/- as additional compensation. ``` M.A.C.A.Nos.2155 & 2582 of 2014 ``` ``` 14 ``` 17. In Ext.X1, the permanent disability of the petitioner is certified as 5%. It being issued by the Medical Board, the Tribunal had arrived at compensation on it’s basis. Since monthly income was re-fixed as Rs.8,500/-, compensation needs to be reassessed and thus Rs.71,400/- (Rs.8,500/- x 12 x 14 x 5/100) Rs.71,400/- is arrived at. The Tribunal has already awarded Rs.20,000/- under that head and therefore the petitioner will get Rs.51,400/- as additional compensation towards permanent disability. 18. In the above manner of re-assessment, the petitioner will get Rs.1,32,400/- (Rupees One lakh thirty two thousand four hundred only) [Rs.31,000/- + Rs.4,000/- + Rs.3,000/- + Rs.3,000/- + Rs.25,000/- + Rs.15,000/- + Rs.51,400/-] as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 19. The 3[rd] respondent being the insurer shall deposit the additional compensation arrived at now and the original compensation stands awarded by the Tribunal (if not already ``` 15 ``` ## **`M.A.C.A.Nos.2155 & 2582 of 2014`** paid) in each of the cases with interest respectively fixed, from the date of filing of the Original Petitions till the date of realisation. The amount shall be paid by the 3[rd] respondent to the petitioners in each cases in accordance with Circular No.03/2019 issued by this Court on 06.09.2019, within a period of two months from the date on which a certified copy of this judgment is received. Both M.A.C.As stand allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB