MACA Nos.521/2013 & 522/2013 (Josephine George v. Preethy Pramod et al.)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 18 [ TH ] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ## `MACA NO. 521 OF 2013` ``` AGAINST THE ORDER/JUDGMENT DATED 19.09.2012 IN OPMV NO.2353 OF 2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## `APPELLANTS:` ``` JOSEPHINE GEORGE W/O.LATE G.GEORGE,TRANGUILATY T C.44/667,VALIYATHURA,VALLAKADAVU P.O,THIRUVAVANTHAPURAM, BY ADVS. SRI.NAGARAJ NARAYANAN SRI.I.J.AUGUSTINE SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.A.K.SREENARAYANA BHATTATHIRI ``` ``` RESPONDENTS: ``` - `1 PREETHY PRAMOD PREETHI BHAVAN, THAMARKUDY P O, MYLIM, KOTTARAKKARA, KOLLAM DIST` - `2 SREENIVASANACHARI SREEPI S/O.SIVANDASAN ACHAN, AZHATHAVILA VEEDU, VETTIYAR, NAVARKULAM P O, THIRUVANANTHAPURAM` - `3 M/S.ORIENTAL INSURANCE COMPANY LTD DIVISIONAL OFFICE NO 1,THAKARAPPARAMBU ROAD, PAZHAVANGADI, THIRUVANANTHAPURAM BY ADV SRI.A.R.GEORGE` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2024, ALONG WITH MACA.522/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA Nos.521/2013 & 522/2013 2 ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 18 [ TH ] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ``` MACA NO. 522 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 19.09.2012 IN OPMV NO.2359 OF 2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## `APPELLANT:` ``` JOSEPHINE GEORGE AGED 80 YEARS W/O. LATE G. GEORGE, TRANGUILATY T.C. 44/667, VALIYATHURA, VALLAKADAVU.P.O., THIRUVANTHAPURAM. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.I.J.AUGUSTINE SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI SRI.SAIJO HASSAN SRI.SEBIN THOMAS ``` ## `RESPONDENTS:` ``` 1 PREETHY PRAMOD PREETHI BHAVAN, THAMARAKUDY.P.O., MYLIM, KOTTARAKKARA, KOLLAM DISTRICT-691506. ``` ``` 2 SREENIVASANACHARI SREEPI S/O. SIVADASAN ACHAN, AZHANTHAVILA VEEDU, VETTIYAR, NAVARKULAM.P.O., THIRUVANANTHAPURAM-695603. 3 MS. ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE NO. 1, THAKARAPPARAMBU ROAD, PAZHAVANGADI, THIRUVANANTHAPURAM-695002. ``` ``` BY ADV SRI.A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2024, ALONG WITH MACA.521/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA Nos.521/2013 & 522/2013 3 ## JUDGMENT [MACA Nos.521/2013 and 522/2013] These appeals are directed against the common award in OP(MV) Nos.2353 of 2004 and 2359 of 2004 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram. 2. On 12/9/2004, while Sri.Jose George was riding his motorcycle carrying his wife Smt.Lali Jose and son master Glen on the pillion seat, they were knocked down by KL-02/S 1537 mini lorry driven by the 2[ nd ] respondent in a rash and negligent manner. All of them were thrown down and Sri.Jose George and his wife Lali Jose died at the spot and their son master Glen aged 9, died at the hospital. Sri.Jose George was a 43 year old Contractor earning monthly income of Rs.10,000/-. Mother of Sri.Jose George filed OP(MV).No.2353 of 2004 claiming compensation of Rs.7 lakh on the death of her grandchild Glen, and OP(MV) No.2359 of 2004 claiming compensation of Rs.10 lakh on the death of her son Sri.Jose George. Learned Tribunal awarded only Rs.50,000/- for MACA Nos.521/2013 & 522/2013 4 the death of the minor child and Rs.94,000/- for the death of Sri.Jose George. Contending that the award amount is arbitrarily low, the claimant Smt.Josephine George filed these appeals. 3. MACA No.521 of 2013 is filed against the award in OP(MV) No.2353 of 2004 claiming enhanced compensation for the death of the minor child Glen and MACA No.522 of 2013 is filed against the award in OP(MV) No.2359 of 2004 claiming enhanced compensation for the death of Sri.Jose George. 4. The 2[ nd ] respondent was the driver of the offending mini lorry, the 1[ st ] respondent was its owner and the 3[ rd ] respondent was its insurer. 5. The 3[ rd ] respondent-insurer admitted the accident as well as the policy before the tribunal, but according to them there was violation of the policy conditions, since the 2[ nd ] respondent was not having valid driving licence, as on the date of accident, to drive the offending mini lorry. 6. Learned Tribunal finding that there was violation of the MACA Nos.521/2013 & 522/2013 5 policy conditions ordered recovery against the owner of that mini lorry. 7. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned common award warranting interference by this Court. 8. Heard learned counsel for the appellant and learned counsel for the 3rd respondent insurer. ## **MACA No.521 of 2013** 9. A 9 year old boy named Glen died in the accident and his grandmother approached the Tribunal claiming compensation of Rs.7 lakh. But learned Tribunal awarded only Rs.50,000/- under various heads. Only Rs.22,500/- was awarded towards loss of dependency, taking his annual income as Rs.15,000/- and from that amount 1/2 was deducted towards personal expenses, and multiplier was taken as 3. 10. Learned counsel for the appellant would rely on the decision _**Meena Devi v. Nunu Chand Mahto @ Nemchand**_ MACA Nos.521/2013 & 522/2013 6 _**Mahto and others [2022 KHC 7080]**_ in which claim for the death of a 12 year old child was taken into consideration. That accident occurred on 29/7/2003 and the Apex Court was pleased to take, annual income of Rs.30,000/- for the child as his notional income including future prospects and without deducting anything, towards personal expenses. Relying on that decision, this Court is inclined to fix the notional income of the child as Rs.30,000/-. Applying the multiplier of 15, loss of dependency can be assessed as Rs.4,50,000/- (30,000x15). After deducting Rs.22,500/- already awarded by the Tribunal, the balance will come to Rs.4,27,500/-. 11. Towards funeral expenses and loss of estate, learned Tribunal awarded only Rs.5000/- each, based on _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662],**_ Rs.15,000/- is to be awarded under each head, and so the appellant will get Rs.10,000/- each as enhancement, under the head loss of estate and funeral expenses. MACA Nos.521/2013 & 522/2013 7 12. Since the claim was preferred by the grandmother, based on _**Pranay Sethi’s** case cited_ supra, she was not eligible to get compensation for loss of consortium. So Rs.10,000/awarded by the tribunal under the head love and affection is liable to be deducted. 13. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification. 14. The enhanced compensation awarded in MACA No.521 of 2013 is stated in the table given below:- |Head of<br>claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted<br>in appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|22,500/-|4,50,000/-<br>[30,000x15]|—|4,27,500/-| |Funeral<br>expenses &<br>loss of estate|5,000/-<br>5,000/-|15,000/-<br>15,000/-|—|10,000/-<br>10,000/-| |Love &<br>affection|10,000/-||10,000/-|| |TOTAL 10,000/-<br>4,47,500/-||||| |So eligible amount = 4,37,500/-[4,47,500-10,000]||||| MACA Nos.521/2013 & 522/2013 8 15. So the appellant is entitled to get enhanced compensation of Rs.4,37,000/-. 16. Since the accident pertains to the year 2004, this Court is inclined to award interest @ 7%. 17. The 3rd respondent/insurer is directed to deposit the enhanced compensation of Rs.4,37,000/- with 7% interest per annum, from the date of petition till the date of deposit, (excluding 60 days of delay in filing the appeal) before the Motor Accidents Claim Tribunal, Thiruvananthapuram, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund etc. ## **MACA 522 of 2013** 18. Sri.Jose George, who died in the accident is the son of the appellant. He was a 43 year old contractor earning monthly MACA Nos.521/2013 & 522/2013 9 income of Rs.10,000/- as stated in the clam petition. But no documents were there to prove his income or profession. So earned Tribunal fixed his notional income @ Rs.4,000/-. Learned counsel for the appellant would rely on the decision _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** ,_ to say that in the year 2004, even a coolie was eligible to get his notional income fixed @ Rs.4,500/- per month. Accepting that argument, this Court is inclined to fix his notional income @ Rs.4,500/-. Based on the decision _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662],**_ being a self employed man aged below 50, he was eligible to get 25% addition towards future prospects. So that his income could be taken as Rs.5,625/- (4500+25%). Since he was having three dependents, 1/3rd has to be deducted towards his personal expenses. So the balance income would be Rs.3,750/-. The multiplier applicable is 14, as he was aged 43. So the loss of dependency could be assessed as Rs.6,30,000/- [3750x12x14]. After deducting MACA Nos.521/2013 & 522/2013 10 Rs.72,000/- already awarded by the Tribunal, the appellant is entitled to get Rs.5,58,000/- as enhanced compensation, under the head loss of dependency. 19. Towards loss of estate and funeral expenses, learned Tribunal awarded only Rs.5,000/- each. Based on _**Pranay Sethi’s** case cited_ supra, the appellant is entitled to get Rs.15,000/- each. So she will get the balance amount of Rs.10,000/- each, under the head loss of estate and funeral expenses, amounting to Rs.20,000 in total. 20. Towards loss of love and affection, learned Tribunal awarded only Rs.10,000/-. Being the mother of the deceased, the appellant is entitled to get Rs.40,000/- as compensation for loss of consortium, based on _**Pranay Sethi’s** case_ . After deducting Rs.10,000/- already awarded by the Tribunal, she will get the balance amount of Rs.30,000/-. 21. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification. MACA Nos.521/2013 & 522/2013 11 ## 22. The enhanced compensation awarded in MACA No.522 of ## 2013 is stated in the table given below:- |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of<br>dependency|72,000/-|6,30,000/-<br>[3750x12x14]|5,58,000/-| |Funeral<br>expenses &<br>Loss of estate|5,000/-<br>5,000/-|15,000/-<br>15,000/-|10,000/-<br>10,000/-| |Love and<br>affection/Loss<br>of consortium|10,000/-|40,000/-|30,000/-| |TOTAL 6,08,000/-|||| 23. So in MACA No.522 of 2013 the appellant is entitled to get enhanced compensation of Rs.6,08,000/-. 24. Since the accident is of the year 2004, this Court is inclined to award interest @ 7% only. 25. The 3rd respondent/insurer is directed to deposit the enhanced compensation of Rs.6,08,000/- with 7% interest per annum, from the date of petition till the date of deposit, (excluding 60 days of delay in filing the appeal) before MACA Nos.521/2013 & 522/2013 12 the Motor Accidents Claim Tribunal, Thiruvananthapuram, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellant after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund etc. 26. The recovery ordered against the 1[ st ] respondent owner of the offending lorry is not under challenge. So the recovery ordered against him is upheld. After depositing the enhanced compensation in the above appeals by the 3[ rd ] respondent, they can recover that amount also, from the 1[ st ] respondent-owner of the offending mini lorry. The appeals are allowed to the extent as above, and no order is made as to costs. ``` Sd/- ``` ``` SOPHY THOMAS, ``` ``` JUDGE ``` ``` ska ```