MACA Nos. 2163/2013 & 2222/2013 (Lilly Thomas & Others v. RadhaKrishnan & Ors; Yesudas & Others v. RadhaKrishnan & Ors)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **MACA.No.2163 OF 2013** **AGAINST THE AWARD IN OPMV 1039/2010 DATED 31-05-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT:** - **1 LILLY THOMAS W/O.LATE THOMAS, PALACKALODIYIL HOUSE, VALLIPADAVIL, UZHAVOOR EAST P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT.** **2 LINCE MON S/O.LATE THOMAS, PALACKALODIYIL HOUSE, VALLIPADAVIL, UZHAVOOR EAST P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT.** **3 PRINCE S/O.LATE THOMAS, PALACKALODIYIL HOUSE, VALLIPADAVIL, UZHAVOOR EAST P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.ABRAHAM MATHEW (VETTOOR)** ## **RESPONDENTS:** **1 RADHAKRISHNAN S/O.BALAKRISHNAN, THOTTUCHIRAYIL HOUSE, ACHINAKAM BHAGOM, KUDAVECHOOR KARA, VECHOOR VILLAGE, PIN-686744.** - **2 BAIJU P.K. S/O.KARUNAKARAN, PARAMBIL HOUSE, CHERPUNKAL P.O., MEENACHIL, KOTTAYAM DISTRICT, PIN-686584.** - **3 THE ORIENTAL INSURANCE CO.LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM, PIN-686101.** ## **R1, R3 BY ADV. SRI.VPK.PANICKER** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH MACA.2222/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. Nos. 2163 & 2222 of 2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **MACA.No.2222 OF 2013** **AGAINST THE AWARD IN OPMV 46/2011 DATED 31-05-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANTS:** |**1**|**YESUDAS**| |---|---| ||**S/O.ASHIRWAD, 128, CHINNAR ESTATE LAYAM,**| ||**CHINNAR KARA, ELAPPARA VILLAGE,**| ||**IDUKKI DISTRICT.**| |**2**|**VANITHA VANAJA**| ||**W/O.YESUDAS, 128, CHINNAR ESTATE LAYAM, CHINNAR**| ||**KARA, ELAPPARA VILLAGE, IDUKKI DISTRICT.**| ||**BY ADV. SRI.ABRAHAM MATHEW (VETTOOR)**| ## **RESPONDENTS:** |**1**|**RADHAKRISHNAN**| |---|---| ||**S/O.BALAKRISHNAN, THOTTUCHIRAYIL HOUSE,**| ||**ACHINAKAM BHAGOM, KUDAVECHOOR KARA,**| ||**VECHOOR VILLAGE, PIN - 686 144.**| |**2**|**BAIJU P.K.**| ||**S/O.KARUNAKARAN, PARAMBIL HOUSE,**| ||**CHERPUNKAL P.O., MEENACHIL,**| ||**KOTAYAM DISTRICT, PIN - 686 584.**| |**3**|**THE ORIENTAL INSURANCE CO. LTD.**| ||**REPRESENTED BY ITS DIVISIONAL MANAGER,**| ||**KOTTAYAM, PIN - 686 101.**| ||**R1, R3 BY ADV. SRI.VPK.PANICKER**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH MACA.2163/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. Nos. 2163 & 2222 of 2013 3 ## **P.V.KUNHIKRISHNAN, J** **======================== M.A.C.A. Nos. 2163 & 2222 of 2013, ========================** Dated this the 8[th] day of April 2021 ## **J U D G M E N T** These two appeals are connected and therefore, I am disposing these two appeals by a common judgment. M.A.C.A No. 2163/2013 is filed by the petitioners in O.P(M.V) No. 1039/2010 and MACA No. 2222/2013 is filed by the petitioners in OP (MV) No. 46/2011 respectively on the file of the Motor Accidents Claims Tribunal, Pala. (Hereinafter parties are mentioned in accordance to their rank before the Tribunal) The above claim petitions were disposed of along with OP (MV) Nos. 184/2011 and 730/2011. 2. The short facts are like this:- The deceased as well as the petitioners in OP (MV) Nos. 184/2011 and 730/2011 were travelling in a stage M.A.C.A. Nos. 2163 & 2222 of 2013 4 carriage bus bearing registration No. KL 5/X-3355 through Cherthala -Kottayam Public road. The first respondent was driving the bus. According to the petitioners, the first respondent was driving the bus in a rash and negligent manner. When the bus reached Thazhathangadi, it hit on an electric post and fell down into the Meenachil river. As a result of it, ten persons died in the accident. Several passengers in the bus sustained injuries. According to the petitioners, the accident occurred due to the negligence of the first respondent driver of the bus. The second respondent is the owner and third respondent is the insurer of the offending bus. The petitioners claimed compensation from the respondents. 3. To substantiate the case Exhibits A1 to A23 were marked on the side of the petitioners. Two witnesses were examined on the side of petitioners as PW1 and PW2. After going through the evidence and documents, the Tribunal allowed the petitions in part. The petitioners in OP(MV) No. 1039/2010 is allowed to realise an amount M.A.C.A. Nos. 2163 & 2222 of 2013 5 of Rs.5,68,000/- with interest. The petitioners in OP (MV) No. 46/2011 is allowed to realise an amount of Rs.4,50,000/- with interest. Aggrieved by the quantum of compensation these two appeals are filed by the petitioners. 4. Heard the learned counsel for the petitioners and the learned counsel for the 3[rd] respondent. 5. The learned counsel for the petitioners submitted that, the compensation amount awarded by the Tribunal is too low considering the facts and circumstances of the case. The learned counsel for the 3[rd] respondent submitted that, the Tribunal based on the available evidence awarded the compensation and there is nothing to inferfere with the same. 6. I will consider these two appeals separately. **MACA No. 2163/2013** 7. In this case, the deceased was aged 51 years and he was a rubber tapper. The Tribunal fixed the monthly income of the deceased as Rs.6,000/-. The petitioners M.A.C.A. Nos. 2163 & 2222 of 2013 6 claimed that the deceased was getting an amount of Rs.8,000/-. The accident in this case occurred on 23.03.2010. If the principle laid down by the Apex Court in **Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236]** is taken as basis, I think an amount of Rs. 7,500/- can be fixed as monthly income. Even a coolie will get an amount of Rs.4,500/- in the year 2004, in the light of the observations in _**Ramachandrappa’s case** (Supra)_ . Moreover, 10% increase is to be given to the monthly income towards the future prospectus. Then the amount will be Rs.8,250/-. Based on the above monthly income the dependency compensation is to be reassessed in the following manner:- Rs. 8,250x12x11x2/3=7,26,000/- 8. An amount of Rs.5,28,000/- is already given by the tribunal and that is to be deducted from the above amount. The balance amount will be **Rs.1,98,000/-** (Rs. 7,26,000-5,28,000=1,98,000/-). M.A.C.A. Nos. 2163 & 2222 of 2013 7 9. The Tribunal awarded no amount to damage to clothing. The petitioners are entitled **Rs.500/-** in that head. Towards funeral expense only an amount of Rs.10,000/- is awarded. The petitioners are entitled an additional amount of **Rs.5,000/-** . Towards loss of estate, the tribunal awarded only an amount of Rs.5,000/-. The petitioners are entitled an additional amount of **Rs.10,000/-** in that head also. The petitioners are the wife and children of the deceased. 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], the petitioners**_ are entitled an amount of Rs. 40,000/- each towards loss of consortium. The tribunal awarded an amount of Rs.5,000/- towards loss of love and affection and another Rs.10,000/- towards loss of consortium to the 1[st] petitioner. These amounts are to be deducted from the above amount. Therefore, the balance amount will be **Rs. 1,05,000/-** (Rs.40,000X3=Rs.1,20,000–15,000 = M.A.C.A. Nos. 2163 & 2222 of 2013 8 1,05,000/-). 10. Therefore, the petitioners in O.P(M.V) No.1039/2010 is entitled enhanced compensation in the following manner; Loss of dependency : Rs. 1,98,000/Damage to clothing : Rs. 500/Funeral expense : Rs.5,000/Loss of estate : Rs.10,000/Loss of consortium : Rs.1,05,000/----------------------- Total **Rs.3,18,500/-** 11. The petitioners are entitled interest at the rate of 7.5% p.a for the enhanced compensation from the date of application till realisation. ## **MACA No. 2222/2013** 12. In this case, the deceased was working as nurse and she was aged 20 years. According to the petitioners the deceased was working in a private hospital at M.A.C.A. Nos. 2163 & 2222 of 2013 9 Kottayam. Ext.A10 is the certificate issued by the medical director of that hospital in which it is stated that the deceased was getting an amount of Rs.5,000/- as a trainee and she was offered an amount of Rs.8,000/- as salary after completing the training period. But Ext.A10 is not proved in a manner known to law. But, it is a fact that the deceased was a nurse and she had sufficient qualification as evident by Ext.A9. In such circumstances, taking the principle laid down by the Apex Court in **Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236** this Court can safely fix the monthly income as Rs. 7,500/-. Moreover, towards future prospectus 40% is to be added to the monthly income. Then the amount will be Rs.10,500/- (7500+3000). Based on the same, the compensation for dependency is to be reassessed in the following manner; Rs.10,500 X 12 X 18 X 1/2 = Rs.11,34,000/- 13. An amount of Rs.4,20,000/- is already given by the tribunal and that is to be deducted from the above M.A.C.A. Nos. 2163 & 2222 of 2013 10 amount. The balance amount will be **Rs.7,14,000/-** (Rs.11,34,000-4,20,000=7,14,000). Towards damage to clothing no amount is awarded by the Tribunal. The petitioners are entitled an amount of **Rs.500/-** in that head. Towards funeral expense only an amount of Rs.10,000/- is awarded. The petitioners are entitled an amount of **Rs.5,000/-** in that head. Towards loss of estate, the Tribunal awarded only an amount of Rs.5,000/-. The petitioners are entitled another amount of **Rs.10,000/-** in that head also. Towards love and affection, the tribunal awarded only an amount of Rs.5,000/-. The petitioners are the parents of the deceased. 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],**_ petitioners are entitled an amount of Rs. 40,000/- each towards loss of consortium (Rs.40,000X2=Rs.80,000/-). The tribunal awarded only an amount of Rs.5,000/- which is to be deducted from the above amount. Then the M.A.C.A. Nos. 2163 & 2222 of 2013 11 balance amount will be **Rs.75,000/-** (Rs. 80,0005,000=75,000/-) 14. Therefore, the petitioners in O.P(M.V) No. 46/2011 is entitled an enhanced compensation in the following manner; Dependency compensation : Rs. 7,14,000/Damage to clothing : Rs. 500/Funeral expense : Rs.5,000/Loss of estate : Rs.10,000/Loss of consortium : Rs.75,000/- ------------------ Total **Rs.8,04,500/-** 15. The petitioners are entitled interest at the rate of 7.5% p.a for the enhanced compensation from the date of application till realisation. Therefore, these appeals are allowed in part. The impugned award is modified to the effect that the appellants in MACA No. 2163/2013 are entitled an M.A.C.A. Nos. 2163 & 2222 of 2013 12 enhanced compensation of Rs.3,18,500/- and the appellants in MACA No. 2222/2013 are entitled an enhanced compensation of Rs.8,04,500/- respectively with interest @ 7.5% p.a from the date of application till realisation. The 3[rd] respondent is directed to pay the enhanced compensation with interest to the petitioners. **(Sd/-) P.V.KUNHIKRISHNAN JUDGE** LU