MACA Nos. 2222 of 2009, 1965 of 2009 & 2204 of 2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** ## **MACA.No.2222 OF 2009** **AGAINST THE AWARD IN OPMV 1215/1996 DATED 21-05-2007 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA** ## **APPELLANTS/PETTIONERS 2,3 & ADDITIONAL PETITIONER NO.4:** - **1 JYOTHI CHAKKALAKIZHEKKETHIL EVOOR P.O., CHEPPAD.** - **2 RESMI CHAKKALAKIZHEKKETHIL EVOOR P.O., CHEPPAD.** **3 KAMALAKSHY AMMA CHAKKALAKIZHEKKETHIL,, EVOOR P.O., CHEPPAD.** **BY ADVS. SRI.S.MOHANAN SRI.B.BIPIN SRI.R.REJI** ## **RESPONDENTS:** **1 THOMAS MATHEW THALEKOTTEAL HOUSE EDAYARUMMULA P.O., PATHANAMTHITTA. 2 THE ORIENTAL INSURANCE CO.LTD. REPRESENTED BY ITS BRANCH MANAGER,, KAYAMKULAM.** MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 2 **3 UNION OF INDIA REPRESENTED BY GENERAL MANAGER,, SOUTHERN RAILWAY, MADRAS.** **R1 BY ADV. SRI.VARGHESE P.THOMAS SR.SCRAILWAYS R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA R1 BY ADV. SRI.K.G.NARAYANAN NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, ALONG WITH MACA.1965/2009, MACA.2204/2009(B), THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING:** MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** **MACA.No.1965 OF 2009** **AGAINST THE AWARD IN OPMV 84/1997 DATED 21-05-2007 OF ADDITIONAL DISTRICT COURT-II & MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/PETITIONER:** **NAGANATHAN POONTHURUTHI MADOM, EVOOR, CHEPPAD.** **BY ADVS. SRI.S.MOHANAN SRI.R.REJI SRI.M.V.THAMBAN** ## **RESPONDENT/S:** **1 THOMAS MATHEW THALEKKOTTEAL HOUSE, EDAYARUMMULA P.O., PATHANAMTHITTA. 2 THE ORIENTAL INSURANCE CO. LTD REPRESENTED BY ITS BRANCH MANAGER,, KAYAMKULAM. 3 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY,, MADRAS.** **R1 BY ADV. SRI.VARGHESE P.THOMAS SR.SCRAILWAYS** 4 MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 **R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA R1 BY ADV. SRI.K.G.NARAYANAN NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, ALONG WITH MACA.2204/2009(B), MACA.2222/2009(B), THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING:** MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** ## **MACA.No.2204 OF 2009** **AGAINST THE AWARD IN OPMV 131/1997 DATED 21-05-2007 OF ADDITIONAL DISTRICT COURT-II & MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANTS/2ND PETITIONER AND 3RD ADDITIONAL PETITIONER:** |**1**|**LEKHA**| |---|---| ||**31 YEARS**| ||**D/O BHANUMATHI AMMA**| ||**RESIDING AT PUTHENPURACKAL HOUSE,,**| ||**PULAPUTTA,**| ||**PALAKKAD.**| |**2**|**VIDYA UNNIKRISHNAN**| ||**MINOR AGED 17 YEARS**| ||**CHITTAKATTETHU KIZHAKKETHIL**| ||**VETTUVENI, HARIPAD.,**| ||**(REP. BY 1ST APPELLANT MOTHERS SISTER AS**| ||**NEXT FRIEND 1ST APPELLANT LEKHA.)**| ||**BY ADV. SRI.S.MOHANAN**| |**RESPONDENT/S**<br>**:**|**RESPONDENT/S**<br>**:**|| |---|---|---| |**1**||**THOMAS MATHEW**| |||**THALEKOTTEAL HOUSE**| |||**EDAYARUMMULA.P.O.**| |||**PATHANAMTHITTA.**| |**2**||**THE ORIENTAL INSURANCE CO. LTD.**| |||**REP.BY ITS BRANCH MANAGER,**| |||**KAYAMKULAM.**| |**3**||**UNION OF INDIA**| 6 MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 **REP. BY GENERAL MANAGER SOUTHERN RAILWAY MADRAS.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, ALONG WITH MACA.1965/2009(B), MACA.2222/2009(B), THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING:** MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 7 ## **P.V.KUNHIKRISHNAN, J** **---------------------------------------** **M.A.C.A. No. 2222 of 2009, M.A.C.A. No. 2204 of 2009 & M.A.C.A. No. 1965 of 2009** **------------------------------------------** Dated this the 8[th] day of March 2021 ## **JUDGMENT** These three appeals are connected and therefore, I disposing these three appeals by a common judgment. The Tribunal disposed about 43 claim petitions by a common award. This Court in M.A.C.A. No. 1070/2009 and connected cases, modified several awards passed by the Tribunal in the above common award. These are the remaining three appeals pending before this Court against the three awards passed by the Tribunal in the above common award. 2. The claim petitions are arised from a single motor vehicle accident involving a collision between a bus bearing Registration No. KL-3/9399 carrying a marriage party and a MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 8 'push pull' Railway Train, at an unmanned level cross, on the public road leading from Mampra-Alummoodu Junction in NH-47, which occurred at 1.22 p.m., on 14.05.1996. About 36 bus passengers and its driver died and eight other bus passengers sustained severe bodily injuries. The injured bus passengers and the legal heirs of the deceased passengers in the ill-fated bus, filed claim petitions under section 166 of the Motor Vehicles Act. About 35 claim petitions were filed seeking compensation for the death and eight claim petitions were filed seeking compensation for bodily injuries. 3. O.P. (M.V.) Nos. 1215/1996, 131/1997 and 84/1997 are filed by the legal heirs of the deceased, who died in the accident. All the claim petitions were considered together by the Tribunal. 4. To substantiate the case, PW1 to PW35 were examined on the side of the claimants. Exhibits A1 to A150 were marked on the side of the claimants. Exhibit B1 to B5 were marked on the side of the respondents. RW1 is the MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 9 respondent's witness. C1 to C3 are the Commission report, Mahazar and Report of Commissioner. After going through the evidence and documents, the Tribunal passed separate awards fixing compensation to the claimants. Aggrieved by the quantum of compensation in O.P(M.V). No. 1215/1996, O.P(M.V). No. 131/1997 and O.P(M.V). No.84/1997, M.A.C.A. No. 2222/2009 and M.A.C.A. No. 2204/2009 and M.A.C.A. No. 1965/2009 were filed. Heard the learned counsel for the appellants/claimants and the learned counsel for the Insurance Company. I will consider these three appeals separately. ## **M.A.C.A. No. 1965/2007** 5. In this case, the deceased was aged 65 years at the time of accident. The main grievance of the appellant is that the monthly income of the deceased fixed by the Tribunal is only Rs. 1,500/- and the multiplier used is '5' instead of '7'. The learned counsel for appellant submitted that towards love and affection, only an amount of Rs. 5,000/- is awarded and MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 10 no amount is awarded for loss of estate. The learned counsel submitted that the amount awarded for funeral expenses is also on the lower side. 6. There is some force in the arguments of the learned counsel for the appellant. According to the appellant in this case, the deceased was a Poojari. The monthly income is fixed as Rs. 1,500/-. In the other connected cases, this Court fixed Rs. 3,000/- as monthly income as a general norm. Therefore, an amount of Rs. 3,000/- can be accepted as monthly income of the deceased. 7. Similarly, the multiplier taken is also wrong in the light of the decision of the Apex Court in **Sarla Verma & Others v. Delhi Transport Corporation & another [2010** **(2) KLT 802].** The correct multiplier as per the above decision is ‘7’. Therefore, the enhanced amount entitled by the appellant for loss of dependency is to be reassessed in the following manner:- 3000x12x7x2/3=1,68,000/-. 11 MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 From the above, an amount of Rs.60,000/-, which is already granted by the Tribunal is to be deducted. Therefore, the enhanced amount entitled by the appellant towards loss of dependency is Rs. 1,08,000/- (1,68,000-60,000). (Rupees One Lakh and Eight Thousand Only) 8. As far as loss of love and affection is concerned, the Tribunal awarded only an amount of Rs. 5,000/-. Appellant is the brother of the deceased. In the light of decision of the Apex Court in **National Insurance Co. Ltd v. Pranay sethi [2017(4) KLT 662],** and other decisions of the Apex Court, the appellant is entitled an amount of Rs. 40,000/- towards consortium. The amount awarded by the Tribunal towards love and affection (Rs.5000/-) is to be deducted from the above amount. Therefore, the amount payable towards loss of consortium is Rs.35,000/-(Rupees Thirty Five Thousand Only). 9. Towards funeral expenses, another amount of Rs. 12,000/- (Rupees Twelve Thousand Only) is entitled by the MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 12 ## appellant. 10. Towards loss of estate an amount of Rs.15,000/(Rupees Fifteen Thousand Only) is entitled by the appellant. 11. Therefore, the enhanced compensation entitled by the appellant can be summarised like this:- Loss of dependancy : Rs. 1,08,000/Additional consortium : Rs. 35,000/Funeral expenses : Rs. 12,000/Loss of estate : Rs. 15,000/------------------Rs. 1,70,000/========== 12. Therefore, the appellant is entitled an amount of Rs. 1,70,000/- (Rupees One Lakh Seventy Thousand Only) with interest at the rate of 7% p.a, from the date of petition till realisation. ## **M.A.C.A. No. 2222/2009** 13. The above captioned appeal is filed against the award in O.P.(M.V) No. 1215/1996, filed by the legal heirs of the deceased. The deceased was aged 40 years at the time of 13 MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 accident and she was a house wife. In this case also, the main grievance is about the fixation of monthly income and the wrong multiplier taken by the Tribunal. As per the connected case M.A.C.A. No. 1070/2005, this Court taken the monthly income of a housewife as Rs.3,000/-. The same can be taken in this case also. The multiplier used by the Tribunal is ‘12’ instead of ‘15’. Therefore, dependency compensation is to be recalculated in the following manner:- 3000x12x15x2/3=3,60,000/- 14. The Tribunal already awarded an amount of Rs.1,44,000/-, which is to be deducted. Therefore, the balance amount of Rs.2,16,000/- (Rupees Two Lakhs Sixteen Thousand Only) is entitled by the appellants towards dependency compensation. 15. Appellants are also entitled for loss of consortium 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].** Hence, the MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 14 appellants are entitled an amount of Rs.80,000/- towards loss of consortium. An amount of Rs.10,000/- is already awarded by the Tribunal, which is to be deducted. Therefore, the appellants are entitled an amount of Rs.70,000/- (Rupees Seventy Thousand Only) towards loss of consortium. 16. In this case also the appellants are entitled an extra amount towards funeral expenses also. An amount of Rs.12,000/- (Rupees Twelve Thousand Only) is to be allowed for funeral expenses. 17. Towards loss of estate an amount of Rs.15,000/(Fifteen Thousand Only) is allowed. 18. Therefore, the enhanced compensation entitled by the appellants can be summarised like this:- Loss of dependancy : Rs. 2,16,000/Additional consortium : Rs. 70,000/Funeral expenses : Rs. 12,000/Loss of estate : Rs. 15,000/------------------Rs. 3,13,000/- ========== MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 15 19. Therefore, the appellants are entitled an amount of Rs. 3,13,000/- (Rupees Three Lakhs Thirteen Thousand Only) with interest at the rate of 7% p.a, from the date of petition till realisation. ## **M.A.C.A. No.2204/2009** 20. In this case, a minor child aged 2 years died in the accident. In M.A.C.A. No. 1070/2009 and connected cases a 2½ year old child is given compensation fixing Rs.15,000/- as annual income. The same Principe can be adapted in this case also, after fixing ‘15’ as multiplier. Therefore the amount for dependency can be reassessed the following manner. 15000x15=2,25,000/- The amount already awarded by the Tribunal is Rs.60,000/-. That is to be deducted. Therefore, the balance enhanced amount entitled by the appellant is Rs.1,65,000/(Rupees One Lakh Sixty Five Thousand Only). 21. The claimant in this case is the minor sister of the MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 16 deceased and she is entitled Rs.40,000/- as compensation for loss of consortium. 22. Therefore, the enhanced compensation entitled by the appellants can be summarised like this:- Loss of dependancy : Rs. 1,65,000/Consortium : Rs. 40,000/------------------Rs. 2,05,000/========== 23. Therefore, the appellant is entitled a total enhanced compensation of Rs.2,05,000/- (Rupees Two Lakhs Five Thousand Only). The appellant is entitled interest at the rate of 7% p.a. Therefore, these three appeals are allowed in part and the impugned awards are modified. 1. The appellant in M.A.C.A. No.1965/2009 is entitled an enhanced compensation of Rs.1,70,000/- (Rupees One Lakh Seventy Thousand Only) with interest at the rate of 7% p.a., from date of application till realisation. MACA.2222/2009, MACA.1965/2009 & MACA.2204/2009 17 2. The appellants in M.A.C.A No. 2222/2009 is entitled the enhanced compensation of Rs.3,13,000/(Rupees Three Lakhs Thirteen Thousand Only) with interest at the rate of 7% p.a., from date of application till realisation 3. The second appellant in M.A.C.A. No. 2204/2009 is entitled an enhanced compensation of Rs.2,05,000/(Rupees Two Lakhs Five Thousand Only) with interest at the rate of 7% p.a., from date of application till realisation. 4. The enhanced amount is to be paid by the Respondent Nos.2 and 3 in the ratio of 50:50. **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** avs