M.A.C.A Nos.1193/2013 & 1320/2013

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 ``` ``` MACA NO. 1193 OF 2013 ``` ``` AGAINST THE AWARD DATED 13.09.2012 IN O.P(M.V) NO.2255/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANT/PETITIONER:`** ``` ROOPESH, AGED 23 YEARS S/O GOVINDAN, RESIDING AT EDATHARA HOUSE, P.O. M.G.KAVU, THRISSUR DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1KRISHNA KUMAR RESIDING AT EDASSERY VALAPPIL HOUSE, VALLANIKKARA, THRISSUR-680 654. 2M.MUKUNDAN S/O CHANDRA MENON, RESIDING A ROCK NEW QUARTERS, ANANTHANAM, KANJIRAPILLY, THRISSUR-680 721 3THE NATIONAL INSURANCE COMPANY LIMITED THRISSUR-680 001 4C.B.SHAJU S/O BHASKARAN, RESIDING AT CHENAMTHARA HOUSE, KOTTAPPURAM ROAD, THRISSUR-680 001. BY ADVS. R3 BY SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2023, ALONG WITH MACA.1320/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 /2ND PHALGUNA,1944 ``` ``` MACA NO. 1320 OF 2013 ``` ``` AGAINST THE AWARD DATED 13.09.2012 IN O.P(M.V) NO.2095/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1ROOPA DEVI, W/O.LATE REJI. 2KUNJAN, S/O.PARAMGODAN 3VILASINI, W/O.KUNJAN, ALL ARE RESIDING AT ATHRAPULLY HOUSE, KOTTEL DESOM, P.O.KARIKKAD, KUNNAMKULAM, THRISSUR DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1KRISHNA KUMAR, RESIDING AT EDASSERY VALAPPIL HOUSE, VALLANIKKARA, THRISSUR DISTRICT, PIN-680654. 2M.MUKUNDAN, S/O.CHANDRA MENON, RESIDING AT ROCK NEW QUARTERS, ANANTHANAM, KANJIRAPILLY-680721. 3THE NATIONAL INSURANCE COMPANY LIMITED THRISSUR-680 001. 4C.B.SHAJU, S/O.BHASKARAN, RESIDING AT CHENAMTHARA HOUSE, KOTTAPPURAM ROAD, THRISSUR-680001. 5SHANI, S/O.KUNJAN, RESIDING AT ATHRAPULLY HOUSE, KOTTEL DESOM, P.O.KARIKKAD, KUNNAMKULAM, THRISSUR DISTRICT. BY ADVS. R3 BY SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2023, ALONG WITH MACA.1193/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 21[st] day of February, 2023** These appeals have been originated from a common award passed by Motor Accidents Claims Tribunal, Thrissur (for short ‘the Tribunal’) on 13.09.2012 in O.P(M.V) Nos.2255/2005 and 2095/2005. 2. M.A.C.A No.1320/2013 was filed by the legal representatives of one Mr.Reji who sustained fatal injuries in a motor accident occurred on 27.04.2005 at about 11.25 a.m. He was travelling in a Jeep bearing Registration No.KL-8X 2775, alongwith his friend. Both of them were employed at Taluk Office, Thalappilly. A Bus bearing Registration No.KL-8/8703 hit the Jeep in which they were travelling and both of them sustained fatal injuries. Mr.Reji succumbed to the injuries while undergoing treatment at Aswini Hospital Pvt. Ltd., Thrissur. Mr.Roopesh was also admitted at Aswini Hospital Pvt. Ltd., Thrissur and was treated as inpatient for several days. Alleging that the compensation stands awarded by the Tribunal in favour ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 4 ``` of the legal representatives of Mr.Reji in O.P(MV) No.2095/2005 and Mr.Roopesh in O.P(M.V) No.2255/2005 are inadequate and disproportionate to the claims raised, the appeals on hand are filed. 3. The facts of the case are narrated in brief hereunder:On 27.04.2005, Mr.Reji as well as Mr.Roopesh were travelling in a Jeep bearing registration No.KL-8/X 2775 and a Bus bearing Registration No.KL-8/8703 driven by its driver in excessive speed came from the opposite direction and dashed against it and thereby both of them sustained injuries. While undergoing treatment at Aswini Hospital Pvt. Ltd, Thrissur, Mr.Reji died. Mr.Roopesh though sustained injuries, survived. Alleging that the motor accident was occurred due to the rash and negligent driving of the Bus by its driver, Original Petitions as above were moved before the Tribunal. ₹12,00,000/- and ₹7,50,000/- respectively were claimed as total compensation in O.P(M.V.) No.2095/2005 and O.P(M.V.) No.2255/2005. 4. Summons was served on the 1[st] and 2[nd] respondents in the Original Petitions from the Tribunal. None of them turned up to contest and accordingly declared _ex parte_ . The 3[rd] ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 5 ``` respondent filed written statement admitting insurance coverage for the offending vehicle as on date of accident. Negligence was alleged against the driver of the Jeep and not the 2[nd] respondent who was driving the Bus at the relevant time. The age, occupation and monthly income of the deceased as well as the injured and sums claimed as compensation were also disputed. 5. Evidence was adduced by both sides before the Tribunal. In O.P.(M.V) No.2255/2005, the petitioner himself was examined as PW1 and Exts.A12 to A24 were marked. In O.P(MV) No.2095/2005, Exts.A1 to A11 were marked. Neither any oral nor documentary evidence was adduced by respondent No.3 in both the Original Petitions. Respondent No.3 had obtained permission of the Tribunal to contest the Original Petitions by availing all statutory defences. 6. On appreciation of the evidence adduced as above, the Tribunal found negligence on the part of the driver of the Bus bearing Registration No.KL-8/8703 who was arrayed as the 2[nd] respondent in both Original Petitions. The Tribunal also found that the petitioners in O.P(M.V) No.2095/2005 and the petitioner in O.P(M.V) No.2255/2005 are entitled to get ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 6 ``` compensation and arrived at ₹7,59,000/- and ₹2,40,200/respectively as the compensation payable. The 3[rd] respondent, insurer, was directed to deposit the compensation arrived at in the above Original Petitions with interest at the rate of 8% per annum from the date of filing of the above Original Petitions till the date of realisation and proportionate costs. Aggrieved by the quantum of compensation awarded as above, the petitioners in O.P(M.V) No.2095/2005 and the petitioner in O.P(M.V) No.2255/2005 are before this Court in the respective appeals on hand. 7. It was contended by Sri.T.C.Suresh Menon, the learned counsel for the appellants in M.A.C.A No.1320/2013 that the Tribunal has fixed the monthly income on the basis of a certificate issued by the employer of the deceased and marked in evidence as Ext.A11. According to him the Tribunal had added only a meagre sum towards the monthly income in consideration of loss of future prospects of the deceased and took ₹5,000/- as the monthly income for calculation purpose. According to him the deceased being aged 34 years at the relevant time of the motor accident, the Tribunal is erred in ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 7 ``` fixing the monthly income in the above manner. According to him, the Tribunal ought to have followed the directions of the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi** [2017 (4) KLT 662 (SC)] and opted to adopt addition of 50% of the monthly income, to it in consideration of future prospects. 8. The learned counsel urged that though the petitioners are entitled to get ₹16,500/- each as compensation towards the conventional heads viz., funeral expenses and loss of estate, the Tribunal has awarded only ₹5,000/-. According to him a re-fixation of compensation under the above heads is highly warranted. According to the learned counsel the deceased Reji was survived by his wife aged 23 years, parents respectively aged 60 and 56 years and also a brother. It is noticed that the age of the brother is not shown in the cause title of Original Petition No.2095/2005. However, the Tribunal observed that the 4[th] petitioner is not a dependent of the deceased. The Tribunal has calculated compensation by treating petitioners 1 to 3 in O.P(M.V) No.2095/2005 as the legal representatives of deceased Reji. The wife and parents of the deceased undoubtedly are ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 8 ``` entitled to get compensation for loss of consortium and ₹1,32,000/- (₹44,000/- x 3) is the sum payable. The Tribunal has awarded ₹50,000/- as compensation towards loss of consortium in favour of the wife of the deceased only and the said amount is liable to be deducted from the sum now arrived at. Therefore, the petitioners will get ₹82,000/- as additional compensation under that head. 9. As already stated the petitioners are entitled to get ₹16,500/- each as compensation towards loss of estate and funeral expenses. A sum of ₹5,000/- each stands awarded by the Tribunal as compensation, when adjusted against, the petitioners will get ₹11,500/- each as additional compensation under the respective heads. 10. 50% of the monthly income when added to ₹4,653/-, ₹6,979.50 is arrived at. 1/3[rd] is liable to be deducted in consideration of the personal expenditure liable to be met with by Mr.Reji, had he been alive after the motor accident. When the compensation for loss of dependency is calculated with the monthly income as ₹6,979.50, the multiplier as 16 and the deduction towards personal expenditure as 1/3[rd] , ₹8,93,376/- ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 9 ``` (₹6979.50 x 12 x 16 x 2/3) is arrived at. ₹6,40,000/- stands awarded by the Tribunal when deducted therefrom the petitioners will get ₹2,53,376/- (₹8,93,376/- - ₹6,40,000/-) as additional compensation towards loss of dependency. The Tribunal failed to award any compensation under the head damages to clothing and this Court awards ₹1,000/-. 11. It is noticed that the Tribunal has awarded ₹32,000/and ₹25,000/- respectively as compensation towards loss of love and affection and loss of expectation of life of the deceased, for which the petitioners have no entitlement and therefore, this Court deducts those from the total additional compensation found payable. 12. When calculated in the above manner, ₹3,02,376/[(₹2,53,376/- + ₹11,500/- + ₹11,500/- + ₹82,000/- + ₹1,000/-) - (₹32,000/ + ₹25,000/-)] is arrived at as the additional compensation. The petitioners are entitled to get the above sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 13. In M.A.C.A No.1193/2013, the appellant was the injured. He had sustained fracture of ribs 1 to 11 on the right ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 10 ``` side and 1[st] rib on the left side in the motor accident. In the CT scan of brain, fractures of maxillary antrum and zygomatic arch were also detected. It is revealed from the discharge certificate marked in evidence as Ext.A13 that the petitioner was treated as inpatient from 27.04.2005 till 23.05.2005. He was found intubated on 27.04.2005 and extubated on 09.05.2005. The treatment was at Aswini Hospital Pvt.Ltd, Thrissur. The petitioner was examined by an individual Medical Practitioner and the certificate issued by him certifying his disability as 9% is marked in evidence as Ext.A19. 14. The petitioner examined himself as PW1 but he failed to examine the Doctor who had issued Ext.A19. Therefore, the Tribunal was constrained to take only 7% as the disability of the petitioner and to assess compensation on its basis. Though the petitioner raised a claim that he was having ₹4,500/- as his monthly income, the Tribunal had fixed only ₹3,000/-, on a notional basis. 6 months’ period is also considered for the purpose of assessment of compensation for loss of earning. Thus ₹18,000/- (₹3,000/- x 6) is arrived at as the compensation payable. Fixation of ₹3,000/- as the monthly income in the case ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 11 ``` of an accident occurred in the year 2005 being too low, this Court re-fixes it as ₹4,500/- in accordance with the sum claimed by the petitioner in the Original Petition itself. 15. In consideration of the fractures sustained to 12 ribs and maxillary antrum and zygomatic arch, loss of earning is calculated for 8 months and ₹36,000/- (₹4,500/- x 8) is arrived at. ₹18,000/- stands awarded by the Tribunal when deducted from the sum now arrived at by this Court, the petitioner will get ₹18,000/- (₹36,000/- - ₹18,000/-) as additional compensation towards loss of earning. 16. Towards transportation expenses ₹4,000/- stands awarded being reasonable is maintained. Towards extra nourishment, this Court awards ₹3,000/-. ₹2,000/- stands awarded by the Tribunal when adjusted against, the petitioner will get ₹1,000/- (₹3,000/- - ₹2,000/-) as additional compensation. Towards damages to clothing compensation being declined by the Tribunal, this Court awards ₹1,000/-. Towards bystander expenses, this Court enhances the compensation to ₹8,000/-. ₹5,400/- stands awarded by the Tribunal when adjusted against, the petitioner will get ₹2,600/- ``` 12 ``` ## **`M.A.C.A.Nos.1193 & 1320 of 2013`** (₹8,000/- - ₹5,400/-) as additional compensation. As compensation towards pain and suffering and discomforts and inconveniences ₹30,000/- and ₹20,000/- awarded by the Tribunal being inadequate, this Court modifies those to ₹50,000/- and ₹40,000/- respectively. Therefore, the petitioner will get ₹20,000/- as additional compensation under each heads. 17. The Tribunal had adopted 7% as the disability for the purpose of assessment of compensation. Ext.A19 certificate stands not proved for failure of the petitioner to examine the Doctor who issued it. Therefore, the Tribunal cannot be found fault with in taking a lower percentage of disability than that was found certified in Ext.A19. In Ext.A19 several reasons have been stated by the Doctor while certifying the disability of the petitioner. Petitioner had sustained fractures of 12 ribs and also maxillary antrum and zygomatic arch. Apart from those, he had also sustained several lacerated wounds on various parts of his body. It is also reported in the discharge certificate that he was intubated in view of lung congestion for a prolonged time. Therefore, this Court adopts 8% as the permanent disability of the petitioner and the compensation is recalculated on it’s basis. ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 13 ``` 18. In the recalculation based on the monthly income modified as ₹4,500/-, disability as 8% and the multiplier as 17, ₹73,440/- (₹4,500/- x 12 x 17 x 8/100) is arrived at. ₹42,840/stands awarded by the Tribunal when adjusted against, the petitioner will get ₹30,600/- as additional compensation. 19. ₹15,000/was found awarded by the Tribunal towards loss of earning power, without any evidence being adduced by the petitioner and the same is deducted from the additional compensation arrived at. 20. When compensation is reassessed in the above manner, the petitioner will get ₹78,200/- (Rupees Seventy eight thousand and two hundred only) [(₹18,000/- + ₹1,000/- + ₹1,000/- + ₹2,600/- + ₹20,000/- + ₹20,000/- + ₹30,600/-) - (₹15,000/-)]. Additional compensation arrived at as above 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. Liability was fixed by the Tribunal on the 3[rd] respondent with whom the offending vehicle stands insured at the relevant time of the motor accident. In the absence of a challenge raised against fixation of liability, it is maintained. ``` M.A.C.A.Nos.1193 & 1320 of 2013 ``` ``` 14 ``` 21. The 3[rd] respondent insurer shall pay ₹3,02,376/(Rupees Three lakhs two thousand three hundred and seventy six only) and ₹78,200/- (Rupees Seventy eight thousand two hundred only) arrived at respectively in M.A.C.A.Nos.1320/2013 and 1193/2013, with interest at the rate of 7.5% per annum for the period stated above, excluding 115 and 122 days, being the delay occurred in filing the respective appeals, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.As stand allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB