MACA.No.180/2014

MACA.No.180/2014 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945_ ## _MACA NO. 180 OF 2014_ _AGAINST THE ORDER/JUDGMENT OPMV 969/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR_ ## _APPELLANT/PETITIONER IN O.P.(MV).No.969/06:_ - _1 M.P.GEORGE, S/O.PATHROSE, MATTAPADATH HOUSE, VENGOOR KARA, VENGOOR VILLAGE._ - _2 ANNIES GEORGE, MATTAPADATH HOUSE, VENGOOR KARA, VENGOOR VILLAGE._ - _3 JOBIN, AGED 27 YEARS, S/O.GEORGE, ---DO----_ - _4 LUDHIYA, AGED 24 YEARS D/O.GEORGE, -DO-_ _BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY SRI.BINOY DAVIS_ ## _RESPONDENT/(RESPONDENT No.3 IN O.P.(MV).No.969/06:_ _1 ABDUL RAZACK, S/O.EBRAHIM, CHITTERTHUDKUDY HOUSE, ASAMANNOOR P.O., ODAKKALI, PIN-683 540._ MACA.No.180/2014 2 - _2 THE MANAGER,_ _NATIONAL INSURANCE CO.LTD., MULLAPPILLY BUILDING, A.M.ROAD, PERUMBAVOOR, PIN-683 542._ _BY ADVS. SRI.A.R.GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.180/2014 3 ## **JUDGMENT** The appellants are the petitioners in O.P.(MV).No.969 of 2006 on the files of the Motor Accidents Claims Tribunal, Perumbavoor. The said claim petition was submitted by the appellants seeking compensation for the death of one Titus due to the injuries sustained in a motor accident that occurred on 04.03.2006. 2. The accident occurred when the mini lorry driven by the deceased was hit by a bus driven by the 1[st] respondent. The said bus was owned by the 2[nd] respondent in the claim petition and was insured with the 3[rd] respondent in the claim petition, the 2[nd] respondent herein. According to the appellants, the deceased was a driver by profession, aged 23 years, with a monthly income of Rs.5,000/-. The appellants 1 and 2 are the parents, and the 3[rd] and 4[th] appellants are the siblings of the deceased. The claim petition was submitted in such circumstances. The said claim petition was tried along with claim petitions that arose in connection with the very same accident and were disposed of on the common award. MACA.No.180/2014 4 3. The 2[nd] respondent insurance company filed a written statement admitting the coverage of the policy with respect to the vehicle but disputed the liability on various grounds. It was also contended by the insurance company that the vehicle itself was being operated beyond the time prescribed in the permit, and, therefore, there was a violation of policy conditions. 4. Evidence in this case consists of oral testimonies of PW1 and PW2, as well as Exts.A1 to A112 from the side of the appellants. Exts.B1 to B2 were marked from the respondents' side, and the disability certificate was marked as X1. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the said vehicle, and hence, being the insurer, the 2[nd] respondent herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.5,07,313/-, and the 2[nd] respondent Insurance Company was directed to deposit the said amount along with interest at the rate of 8% per annum. However, the Tribunal found that there was a violation of policy conditions on the part of the registered owner of the said vehicle and the Insurance Company was MACA.No.180/2014 5 permitted to recover the said amount from the 1[st] respondent herein. This appeal is submitted by the appellants in such circumstances, seeking enhancement of compensation. 5. Heard Smt.Anupama Johny, learned counsel for the appellant and Sri.A.R.George, learned counsel for the Insurance Company. Even though notice was served upon the 1[st] respondent, there was no appearance for him. 6. The main challenge in this appeal is pertaining to the quantum of compensation granted under the head of loss of dependency. It was pointed out that even though the monthly income of Rs.5,000/- was claimed, the Tribunal took a sum of Rs.2,500/-. Moreover, the multiplier applied was that of the age of the deceased's mother, and it was also challenged. Similarly, no addition was made towards the future prospects. 7. After considering the materials on record, I find some force in the contention. The fact that the appellant was a driver is not in dispute as, evidently, he was driving a Mini Lorry when the accident occurred. The monthly income claimed was Rs.5,000/-. However, going by the principles laid down by the Honorable MACA.No.180/2014 6 Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735],** the monthly income of ordinary employees can be taken as Rs.5,500/- even in the absence of any evidence in this regard, in respect of an accident that occurred in the year 2006. In this case, the accident occurred in the year 2006. Even though the monthly income claimed is only Rs.5,000/-, I am inclined to fix it as Rs.5,500/- for the assessment of compensation as the same is reasonable. As the deceased was 23 years of age at the time of the accident, 40% of the monthly income has to be added towards future prospects. Similarly, as per the settled position of law, the multiplier to be applied is one which is applicable to the age of the deceased and not that of the claimant. Therefore, while re-assessing the compensation with the above criteria, the amount would come to Rs.8,31,600/[(5500+40%) x 12 x 18 x 1/2] under the said head. After deducting Rs.2,94,000/- already awarded by the Tribunal, the additional amount would come to Rs.5,37,600/-. MACA.No.180/2014 7 8. In addition to the above, Rs.12,500/- is to be granted under the head of loss of estate as the amount awarded is only Rs.2,500/-. At this juncture, the learned counsel for the Insurance Company would point out that the Tribunal awarded Rs.25,000/under the head of funeral expenses, where the appropriate amount is only 15,000/-. The said contention has to be accepted, in the light of **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)],** and an amount of Rs.10,000/- has to be deducted. It is also to be noted that the Tribunal has not awarded any compensation towards the loss of consortium. As per the observations made in **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760], the 1st and 2nd appellants, being the parents of the deceased, are entitled to** compensation at the rate of Rs.40,000/- each. Thereby, a total sum of Rs.80,000/- in this head is to be granted. Further, it is pointed out by the learned counsel for the 2[nd] respondent Insurance Company that the Tribunal has already awarded an amount of Rs.1,00,000/- in the head loss of love and affection. Since no additional compensation can be granted for loss of love and MACA.No.180/2014 8 affection, when compensation is granted for loss of consortium, the said amount is to be deducted. The learned counsel for the Insurance Company further pointed out that the Tribunal has awarded an amount of Rs.10,000/- towards pain and suffering, which ought not to have been granted, going by the principles laid down by the Honourable Supreme Court in **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** . However, I am of the view that the said contention cannot be accepted as what is observed in **Satinder Kaur (supra)** is concerning the compensation for pain and suffering of the relatives of the deceased. It is seen in this case that the deceased died two days after the accident, and therefore, some amount has to be awarded as compensation for the pain and suffering of the deceased, the cause of action of which is heritable by virtue of Section 2 of the Kerala Torts (Miscellaneous Provisions) Act. Therefore, this contention is rejected. Thus, the total amount of compensation receivable by the appellant, in addition to the amount awarded by the Tribunal, is fixed as Rs.5,20,100/[(537600+12500+80000)– (100000+10000)]. MACA.No.180/2014 9 In the light of the aforesaid observations and findings, the award dated 31.08.2013 passed by the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV).No.969 of 2006 is hereby modified by granting an additional compensation of Rs.5,20,100/and the 2[nd] respondent Insurance Company is directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation within a period of three months from the date of receipt of a copy of this judgment. However, as this Court is not interfering with the finding of the Tribunal, granting the right of recovery to the 2[nd] respondent, the said respondent shall be entitled to recover the additional compensation from the 1[st] respondent herein. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG