M.A.C.A.No.2502 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939** **MACA.No. 2502 of 2012 -------------------------** **AGAINST THE JUDGMENT & AWARD IN OP(MV).53/2005 of MACT, THRISSUR, DATED 31-05-2012** ## **APPELLANTS/PETITIONERS:** ## **------------------------** **1. MARY W/O.LATE JOY @ JOSEPH.** **2. JOGY JOY, S/O.LATE JOY@ OUSEPH.** **3. JOSHY JOY, S/O.LATE JOY @ OUSEPH.** **4. JULIE BABU, D/O.LATE JOY @ OUSEPH. ALL ARE RESIDING AT NEELAMKAIL HOUSE NADATHARA, THRISSUR DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.M.ARAVIND SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **---------------------------** **1. K.K.BABU S/O.KOCHAPPAN, RESIDING AT KUNDUKULANGARA HOUSE PARAVATTANI EAST FORT, THRISSUR 680 005.** **2. JOSE, S/O.VARKEY, RESIDING AT NO.37/04, POOVATHUMKUDY HOUSE PUTHENKADU, P.O. VETTUKKAD, PUTHUR THRISSUR 680 014.** **3. THE NATIONAL INSURANCE COMPANY LIMITED, KOLLANNUR BUILDING, THRISSUR-680 001.** ## **R3 BY ADV. SRI M A GEORGE(NO MEMO)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** ## **-----------------------------------------------** M.A.C.A.No.2502 of 2012 **-----------------------------------------------** Dated this the 6[th] day of July, 2017 ## **J U D G M E N T** ## Ravikumar, J. The petitioners are the appellants. They filed O.P.(MV) No.53/2005 under Section 166 of the Motor Vehicles Act, seeking compensation for the death of Sri.Joy @ Ouseph, the husband of the 1[st] appellant and the father of appellants 2 to 4. He died in a motor vehicle accident occurred on 30.9.2004 while he was getting into a bus bearing registration No.KL-08/W-2406. The 2[nd] respondent - driver of the bus moved the bus forward and consequently, the said Joy fell down from the bus and sustained serious injuries. He was initially taken to Co-operative Hospital, Thalassery and thereafter, shifted to Jubilee Mission Hospital, Thrissur. He died while undergoing treatment, on 8.10.2004. It is in the said circumstances that O.P.(MV)No.53/2005 was filed before Motor Accidents Claims Tribunal, Thrissur, claiming a total compensation of `4,50,000/-. 2. The evidence before the Tribunal consisted only of the documentary evidence. On the side of the appellants, viz., M.A.C.A.No.2502 of 2012 :-2-: Exts.A1 to A9 were got marked and on the side of the respondents, the copy of the policy pertaining to the offending vehicle was marked as Ext.B1. The Tribunal as per the impugned award, granted a total compensation of `3,36,750/- with interest at the rate of 8% per annum from the date of petition till realisation. The appellants/petitioners seek for enhancement of quantum of compensation. 3. We have heard the learned counsel for the appellants and also the learned counsel appearing for the 3[rd] respondent. 4. In view of the admitted position that there is no dispute regarding the accident, the cause of the accident as also the liability to indemnify the insured owner of the offending vehicle, we are called upon only to consider the question whether the appellants are entitled to get enhanced compensation. 5. The main grievance of the appellants is that the Tribunal erred in fixing the monthly income of the deceased. It was averred in the claim petition that the deceased was earning a monthly income of `6,000/- and he was aged 56 years at the time of the accident. However, the Tribunal fixed the monthly income notionally as `3,000/-. The further grievance of the appellants is that the Tribunal granted only meagre amounts as compensation M.A.C.A.No.2502 of 2012 :-3-: under the heads 'loss of love and affection', 'loss of consortium' and 'pain and suffering'. It is also submitted that only a meagre amount was granted towards 'bystander expenses' and no amount was granted by the Tribunal towards 'extra nourishment' and 'damage to clothing'. The learned counsel appearing for the respondents submitted that a glance at the schedule of compensation given in the impugned judgment would reveal that 'just compensation' was granted by the Tribunal taking into account all relevant factors. 6. We will firstly consider the question whether the Tribunal erred in fixing the monthly income for calculating compensation for 'loss of dependency'. True that the appellants had failed to establish their averments regarding the occupation and income of the deceased. Therefore, the Tribunal is justified in fixing the monthly income notionally. But, we are of the view that fixation of the monthly income notionally as `3,000/- invites interference in the light of the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236]** . Taking into account the decision in Ramachandrappa's case (supra), the year of the accident and the age of the deceased at the time of M.A.C.A.No.2502 of 2012 :-4-: accidental death, we are of the view that the monthly income of the deceased for calculation purpose can be fixed notionally as `4,500/-. The learned counsel for the appellant relied on the decision of the Apex Court in **Rajesh v. Rajbir Singh [2013(3) KLT 89(SC)** ] to contend that as the victim of the accident was aged between 50-60 years, an addition of 15% of the income can be granted reckoning the future prospects. Taking into account the fact that the accident involved in **Rajesh** 's case (supra) had occurred in the year 2007 and the decision was rendered much later, the appellants cannot, as a matter of right, claim for addition to the income of the deceased based on the future prospects relying on the said decision. It is also to be noted that the appellants had failed to establish the occupation of the deceased and thereby, to establish whether he was a salaried man or a person with fixed wages. However, taking into account the average age of an Indian citizen and the age of Joy @ Ouseph at the time of his accidental death, we are of the considered view that he would have had further prospects in life but for the accidental death. It could not be said or believed that hike in price index and cost of living would not have any reflection on him, had he been alive. He would have been constrained to M.A.C.A.No.2502 of 2012 :-5-: demand increase in wages for service to cope up with such situations. It is also to be noted that in the case of manual workers, there would be no retirement. Reckoning such aspects, it is only proper to make an addition of 15% to the income fixed, for calculating compensation for loss of dependency. In that view of the matter, the monthly income for calculation purpose has to be taken as `5,175/-. The Tribunal has correctly adopted the multiplier as also rightly deducted 1/4[th] towards 'personal and living expenses' of the deceased, for the purpose of calculating compensation for loss of dependency. In such circumstances, by substituting the monthly income, the compensation for 'loss of dependency' has to be re-assessed. On such re-assessment, the amount payable is `4,19,175/-. After deducting the amount already granted by the Tribunal, viz., `2,43,000/-, the appellants would be entitled to get an amount of ` **1,76,175** /- as additional compensation. 7. Towards 'loss of love and affection' and 'loss of consortium', the Tribunal granted only `20,000/- each. The first appellant/widow was aged only 46 years at the time of death of her husband. Taking into account the said aspect as also the year of the accident, we are of the view that an amount of ` **40,000** /- M.A.C.A.No.2502 of 2012 :-6-: can be granted additionally to the 1[st] appellant towards 'loss of consortium'. Appellants 2 to 4 are the children of the deceased and they were aged 28 years, 26 years and 26 years respectively at the time of the death of their father. The Tribunal has granted only an amount of `20,000/-. We are inclined to grant an amount of ` **40,000** /- additionally under the head 'loss of love and affection'. 8. Towards 'pain and suffering', the Tribunal granted only an amount of `15,000/-. On sustaining injuries on 30.9.2004, the victim underwent treatment for 8 days in the hospital and he succumbed to the injuries only on 8.10.2004. Hence, it is evident that he had to suffer severe pain during those 9 days. In such circumstances, we are inclined to grant ` **5,000** /- additionally under the head 'pain and suffering'. 9. Towards 'damage to clothing' and 'extra nourishment', no amount was paid by the Tribunal. Towards 'extra nourishment', we are inclined to grant `100/- per day and taking into account the period of hospitalisation, the appellants are entitled to get an amount of ` **900** /-. Towards 'damage to clothing' an amount of ` **500** /- is granted, as the dresses worn by him at the time of the accident must have been spoiled. M.A.C.A.No.2502 of 2012 :-7-: 10. Towards 'funeral expenses', only an amount of `5,000/was granted by the Tribunal. We are of the view that it is on the lower side and a sum of ` **10,000** /- can be granted additionally under that head. In the light of the assessment and re-assessment made by us, the appellants are entitled to get a total compensation of ` **2,72,575** /- (1,76,175+40,000+40,000+5,000+900+500+ 10,000) additionally. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. There is no dispute regarding the liability of the 3[rd] respondent to indemnify the insured owner of the offending vehicle. Hence, the 3[rd] respondent shall deposit the additional compensation along with interest thereon, within a period of 2 months from the date of receipt of a certified copy of this judgment. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR JUDGE** ## Sd/- **ANIL K.NARENDRAN JUDGE** ami/12.7.17 //True copy// P.A.to Judge