M.A.C.A.No.1619 of 2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939 MACA.No. 1619 of 2015 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO.1711/2013 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 28-02-2015 ## APPELLANTS/PETITIONERS 1,2,3: ------------------------------------ ## 1. SUDHA RAMANAN W/O.LATE RAMANAN, KAKKARETH HOUSE, KAKKDU, MAMALA P.O. ## 2. ASHNA RAMANAN D/O.LATE RAMANAN, AGED 18 YEARS, KAKKARETH HOUSE, KAKKDU, MAMALA P.O. ## 3. AKSHAY RAMANAN, S/O.LATE RAMANAN, AGED 15 YEARS, KAKKARETH HOUSE, KAKKDU, MAMALA P.O. REPRESENTED BY HIS GUARDIAN & MOTHER SMT.SUDHA RAMANAN. BY ADVS.SRI.SAIGI JACOB PALATTY SMT.ANU S. NAIR ## RESPONDENTS/RESPONDENTS & PETITIONERS 4 & 5: ---------------------------------------------------------- 1. VINOD KUMAR T.K. S/O.KUTTAPPAN KARTHA, THACHETHU HOUSE, KANDANAD-682 305. 2. VISHNU NAMBOODIRI M.S. AMEDA MANGALAM (WEST), UDAYAMNPEROOR P.O., TRIPUNITHRUA, ERNAKULAM-682 307. ## 3. THE DIVSIONAL MANAGER NATIONAL INSURANCE COMPANY LTD, 1ST FLOOR, AJAY VIHAR, M.G.ROAD, KOCHI-682 016. 4. KUNJAN K.R., AGED 92 YEARS, KAKKARETH HOUSE, KAKKDU MAMALA P.O., PIN-682 305. MACA.No. 1619 of 2015 2 5. KARTHHYAYANI, W/O.KUNAJN K.R. AGED 86 YEARS, KAKKARETH HOUSE, KAKKDU MAMALA P.O., PIN-682 305. R3 BY ADV. SRI.P.JACOB MATHEW R3 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------M.A.C.A.No.1619 of 2015 -------------------------------Dated 20[th] June, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Ernakulam dated 28.02.2015 in O.P.(M.V)No.1711 of 2013, an application filed by the appellants herein under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Ramanan, husband of the first appellant, father of appellants 2 and 3 and son of respondents 4 and 5, who died in a motor accident which occurred on 26.02.2012. On the date of accident, while the deceased was walking along the side of Tripunithura road he was hit by an Omni Van bearing Reg.No.KL-07/AM-4747 driven and owned by respondents 1 and 2 and insured with the third respondent. He succumbed to the injuries on 5.3.2012 while undergoing inpatient treatment. Claiming a total compensation of 20,00,000/- claim petition₹ was filed before the Tribunal. 2. Before the Tribunal, Exts.A1 to A17 were marked on the side of the claimants. The alleged employer of the deceased was examined as PW1. The respondents have not chosen to adduce any oral or M.A.C.A.No.1619 OF 2015 2 documentary evidence. 3. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the Omni Van by the first respondent driver. Since the said vehicle was covered by a valid insurance policy at the time of accident, the third respondent insurer was held liable to indemnify the second respondent owner. Under different heads the Tribunal awarded a total compensation of 13,89,000/- and directed the₹ third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of petition till realisation, with proportionate costs. The Tribunal directed apportionment of the amount of compensation equally between the appellants and respondents 4 and 5 herein. The Tribunal has also ordered that the compensation amount payable to appellants 2 and 3 who are minors, shall be deposited in a Nationalised Bank till they attain majority. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants 1 to 3 are before this Court in this appeal. 5. Heard arguments. 6. The compensation awarded by the Tribunal under different M.A.C.A.No.1619 OF 2015 3 ## heads are as follows:- |**_Heads_**|**_Amount_**<br>**_Claimed_**|**_Amount_**<br>**_Awarde_**<br>**_d(In_**<br>**_Rs.)_**| |---|---|---| |Loss of earning|50000|0| |Transport to hospital and back to home|5000|5000| |Damages to clothing or articles|7500|0| |Extra nourishment|1000|0| |Funeral Expenses|20000|20000| |Medical Expenses|400000|200000| |Compensation for loss of dependency|1500000|819000| |Compensation for loss of estate|200000|20000| |Compensation for pain and sufferings|100000|100000| |Compensation for loss of expectation of life|0|0| |Compensation for love and affection|0|100000| |Compensation for loss of consortium|0|100000| |Compensation for mental shock and agony|25000|25000| |Loss of amenities|100000|0| |Total|2417500|1389000| |Claim limited to Rs.20,00,000/-||| The accident occurred on 26.02.2012 while the deceased was walking along a public road. The appellants claimed that at the time of accident the deceased was aged 46 years and he was earning a monthly salary of 19,500/- as a driver under the establishment of PW1 and he was₹ also earning annual bonus of 14,000/-. In order to substantiate the₹ aforesaid claim the appellants relied on Ext.A8 salary certificate issued M.A.C.A.No.1619 OF 2015 4 by PW1 who was running an establishment namely, `Kalapurackal Associates'. In order to show that the deceased was authorised to drive LMV, HPMV, HGMV and transport vehicles, Ext.A12 driving licence was produced. After considering the oral evidence adduced by PW1, with reference to the documents on records, the Tribunal notionally fixed the monthly income of the deceased at 5,000/- for the purpose of₹ assessing compensation under different heads. After adding 30% towards future prospects and deducting ¼[th] towards his personal and living expenses the multiplicand for the purpose of dependency compensation was taken as 6,500/-. Though the Tribunal adopted`14'₹ as the multiplier, going by the judgment of the Apex Court in _**Sarla Verma** v._ _**Delhi Transport Corporation (2010 (2) KLT 802),**_ the proper multiplier is only '13'. 7. From the pleadings and materials on record we find that, at the time of accident the deceased was aged 46 years and he was holding a valid driving licence to drive heavy transport vehicles. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ the Apex Court fixed the monthly income of a coolie, who met with a motor accident in the year 2004, as 4,500/-. ₹ Considering the fact that in the instant case the accident is of the year 2012 and at the time of accident the M.A.C.A.No.1619 OF 2015 5 deceased was aged 46 years, who was holding heavy duty licence and maintaining a family consisting of his wife, two minor children and his parents, we deem it appropriate to fix his monthly income notionally at ₹9,000/-. After adding 30% towards future prospects and deducting ¼[th] towards his personal and living expenses, the dependency compensation is re-fixed as ₹13,68,900/- (9000+(30% of 9000) x12x13x3/4). After deducing 8,19,000/- awarded by the Tribunal,₹ the appellants will be entitled for an additional compensation of **₹ 5,49,900/-** under this head. 8. Towards funeral expenses, the Tribunal awarded a sum of ₹20,000/-. In **Rajesh** v. **Rajbir Singh (2013(3) KLT 89)** the Apex Court has re-fixed the compensation towards funeral expenses as ₹25,000/-. As such, the appellants are entitled for re-fixation of the compensation under the head funeral expenses as 25,000/-, resulting₹ an additional compensation of **5,000/-₹** . 9. Towards compensation for pain and sufferings, the Tribunal awarded 1,00,000. In₹ **Jyni** v. **Raphael (ILR 2016 (2) Kerala 54)** a Division Bench of this Court has laid down that even in death cases in which there is instantaneous death of the deceased appropriate amount has to be awarded to the claimants towards pain and sufferings. In the instant case, considering the fact that the death occurred only five days M.A.C.A.No.1619 OF 2015 6 after the accident, we deem it appropriate to hold that an amount of ₹30,000/- would represent just and reasonable compensation payable to the appellants under the head pain and sufferings. Therefore, the compensation of 1,00,000/- awarded by the Tribunal under the above₹ head will have to be scaled down to **₹ 30,000/-** . 10. Towards mental shock and agony, the Tribunal awarded ₹25,000/-. The pleadings and materials on record would not show as to whether any one of the appellants had witnessed the accident. In the absence of any such materials the compensation awarded by the Tribunal under this head warrants no enhancement. 11. Towards compensation for love and affection and loss of consortium the Tribunal awarded a sum of 1,00,000/- each. The₹ compensation awarded by the Tribunal under the above heads represents just and reasonable compensation in view of the law laid down by the Apex Court in **Rajesh's** Case (supra) and that of this Court in **Jyni's** case (supra). 12. The compensation awarded by the Tribunal under other heads represent just and reasonable compensation, which warrants no interference in this appeal. 13. In the result, the appellants will be entitled for an additional compensation of **₹ 4,84,900/-** (5,49,900+5000-70,000) M.A.C.A.No.1619 OF 2015 7 which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since respondents 4 and 5, parents of the deceased, are adequately compensated based on the award passed by the Tribunal, we hold that the appellants namely, the widow and children of the deceased alone are entitled to the additional compensation awarded in this appeal. 14. Since the insurance coverage of the offending vehicle is not in dispute the third respondent insurer shall deposit the said amount along with interest, before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. No order as to costs. The appeal is disposed of as above. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS