M.A.C.A.508/2010

M.A.C.A.508/2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 23[RD] DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944** ## **MACA NO. 508 OF 2010** **AGAINST THE ORDER/JUDGMENT OPMV 1139/2003 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, ERNAKULAM** ## **APPELLANTS/PETITIONERS 1 TO 3:** 1 R. RADHAKRISHNAN NAIR, S/O.LATE RAGHAVAN, SREERAGAM, 17/1922,NEAR ERNADU TEMPLE, PALLURUTHY.P.O, PALLURUTHY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 2 S.R.RAGESH AGED 33 YEARS, S/O.R.RADHAKRISHNAN NAIR, SREERAGAM, 17/1922,NEAR, ERNADU TEMPLE, PALLURUTHY.P.O, PALLURUTHY, VILLAGE,KOCHI TALUK,ERNAKULAM DISTRICT. 3 S.R.REMYA AGED 28 YEARS, D/O.R.RADHAKRISHNAN NAIR, SREERAGAM,17/1922,, NEAR ERNADU TEMPLE, PALLURUTHY.P.O, PALLURUTHY, VILLAGE,KOCH TALUK,ERNAKULAM DISTRICT. BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. ## **RESPONDENTS/RESPONDENTS:** 1 BIJU JOHN.M, S/O.M.S.JOHN, TRIKKAKARA.P.O, COCHIN-682 021. 2 T.H.JALAL (JALEEL), S/O. HANEEFA, OLIYIL HOUSE, KAKKANADU, COCHIN - 682 030. 3 THE NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, ERNAKULAM,COCHIN-682 016. M.A.C.A.508/2010 2 BY ADVS. SRI.PRASAD CHANDRAN E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.508/2010 3 ## **C.JAYACHANDRAN, J.** **---------------------------------------------M.A.C.A.No.508 of 2010** **--------------------------------------------Dated this the 23[rd] day of September, 2022** ## **J U D G M E N T** **1.** This M.A.C.A is preferred by the husband of a woman, aged 56 years, who died in an accident out of collision between a two wheeler and a bus on 12.04.2003. The deceased was the pillion rider. By order dated 04.03.2009, the Tribunal granted a total compensation of Rs.1,90,465/-. **2.** The appeal is preferred by the husband, as also, by two major children of the deceased woman. Respondents 1 and 2 - the driver and owner respectively - remained ex parte. The third respondent/insurance company alone contested the matter. **3.** Heard the learned counsel for the appellants/claimants and the third respondent/insurance company. Perused the records. M.A.C.A.508/2010 4 **4.** The first ground under which the appellants seek enhancement is with respect to the income of the deceased. The appellants/claimants claimed a sum of Rs.5,000/- per month, whereas, a sum of Rs.2,500/- alone is seen allowed by the learned Tribunal. The Tribunal took stock of the fact that the deceased was 56 years old at the time of death and that, no proof regarding income was adduced. However, it is an admitted fact that the deceased was a retired teacher at the time of death, drawing pension. The notional income for the year 2004 as laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager,** ## **Royal Sundaram Alliance Insurance Company Ltd. [2011 KHC** **4675]** is Rs.4,500/-. Taking cue from this index for the year 2004, this Court is of the opinion that a sum of Rs.4,000/- per month would be reasonable for the year 2003 and the same is accordingly fixed. **5.** A sum of Rs.5,000/- each is seen granted under the head “loss of estate” and “transportation and funeral expenses”. Going by the judgment of the Hon’ble Supreme M.A.C.A.508/2010 5 Court in **National Insurance Co. Ltd.** v. **Pranay Sethi [2017** **(4) KLT 662(SC)]** , the course adopted by the Tribunal cannot be approved. The appellants are entitled to Rs.15,000/- each towards 'loss of estate' and 'funeral expenses' going by the said judgment. Besides, this Court is of the opinion that a sum of Rs.5,000/- can be granted towards expenses for transportation. **6.** The next ground urged is with respect to medical expenses. Learned Tribunal fixed the amount towards the medical expenses only as Rs.465/-, taking into account the medical bills produced. I have perused the records available in this Court. No bill other than for a sum Rs.465/- is seen produced. In the circumstance, enhancement on that ground cannot be granted. The contention of the appellants that the deceased was taken to Medical Trust Hospital on the same day and considerable amounts would have been spent to save her life, which the Tribunal lost sight of, is not liable to be accepted. It may be true that the patient would have been taken to the M.A.C.A.508/2010 6 hospital and amounts would have been spent. However, in the absence of proof, there is no room for any speculation as regards medical bills. Therefore, the said contention is rejected. **7.** Another head which was canvassed by the learned counsel for the appellants/petitioners is the 'loss on account of future prospects'. Learned counsel submitted that the victim at the time of her death was aged 56 years and therefore, 10% of the income is liable to be reckoned towards future prospects, after deducting 1/3[rd] of the amount towards personal expenses. This claim of the appellants is only to be allowed and it is ordered. **8.** What remains is the consortium to be given to the husband and two children. Going by the judgment in Pranay Sethi’s case, all the three are entitled to Rs.40,000/each. However, as pointed out by the learned counsel for the 3[rd] respondent insurance company, the amount granted under the heads “love and affection” and “pain and M.A.C.A.508/2010 7 suffering” are to be deleted. **9.** Finally, learned counsel for the appellants pointed out that the correct multiplier applicable to the victim who was 56 years old at the time of death is '9' and not '8' as reckoned by the Tribunal. The said claim is also correct and is liable to be recognized. **10.** In the result, this MACA is allowed and the appellants are entitled to get compensation as indicated in the tabular statement herein. |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|Medical expenses|465|465| |2|Transportation|5,000|5,000| |3|Funeral expenses|-|15,000| |4|Shock, pain & Suffering|10,000|Nil| |5|Loss of dependency|1,60,000|3,16,800 [4000 +<br>4000x10/100 x 12 x<br>2/3 x 9]| |6|Loss of companionship|5,000|Nil| M.A.C.A.508/2010 8 ||||| |---|---|---|---| |7|Loss of Estate|5,000|15,000| |8|Loss of love and<br>affection|5,000|Nil| |9|Loss of Consortium||1,20,000<br>[40,000 x 3]| ||Total|1,90,465|4,72,265| |Amount enhanced = Rs.4,72,265/ – Rs.1,90,465/ =**Rs.2,81,800**/|||| **11.** The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 5% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given M.A.C.A.508/2010 9 within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. Sd/- **C.JAYACHANDRAN JUDGE** ``` Sbna/ ```