M.A.C.A.No.2991 of 2014

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 ``` ``` MACA NO. 2991 OF 2014 ``` ``` AGAINST THE AWARD IN OPMV 136/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM DATED 17/02/2012 ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1M V LEELA AGED 49 YEARS W/O. LATE P.V.APPU, PERUNILATH HOUSE, MARKET ROAD, THRIPPUNITHURA P.O., PIN-682 301. 2KUMARI SINEESH APPU AGED 49 YEARS D/O. LATE P.V.APPU, PERUNILATH HOUSE, MARKET ROAD, THRIPPUNITHURA P.O., PIN-682301. BY ADVS.SRI.P.M.JOSHI SMT.SIJI K.PAUL ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1CELINE KURIACHEN S/O. KURIACHAN, ELAYIDOM HOUSE, MULANTHURUTHY P.O., ERNAKULAM DISTRICT, PIN CODE-682 314. 2TONY THOMAS DANIEL S/O. THOMAS DANIEL, MATTAMMEL HOUSE, KANDANADU P.O., THIRUVANKULAM, PINCODE- 3THE NATIONAL INSURANCE COMPANY LIMITED 2ND FLOOR, DAMODAR CHAMBERS, STATUE JUNCTION, TRIPPUNITHURA, 682301, REPRESENTED BY ITS MANAGER. 4M.A.ZAKEER S/O. ABOOBECKER, 450, MATHRAKKATTU HOUSE, PINARMUNDA, PERINGALA. 5K.H.KHADERKUNJU S/O. HYDROSE, KARMAKKATTU HOUSE, PERINGALA, KUNNATHANADU. BY ADVS.SRI.P.G.GANAPPAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: ``` ``` M.A.C.A.No.2991 of 2014 ``` ``` 2 ``` ## **JUDGMENT** **Dated this the 29[th] day of November, 2022** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 17.02.2012 in O.P.(M.V) No.136/2011. The appellants are the petitioners before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 6 in accordance with their status in the Original Petition. 3. The petitioners are the legal heirs of one Mr.Sinosh, who met with a motor accident and died on the day itself due to the injuries sustained. Raising a claim for `12,00,000/- as compensation from respondents 1 to 6 jointly and severally, the Original Petition was filed. ``` M.A.C.A.No.2991 of 2014 ``` ``` 3 ``` 4. According to the petitioners, the Motorcycle bearing Registration No.KL-07/AZ 5450 ridden by Mr.Sinosh through Thripunithura – Thiruvankulam road was hit by a Scooter bearing Registration No.KL 39/2656 and thus Mr.Sinosh sustained fatal injuries. According to them, the Scooter was proceeding against the direction in which the Mr.Sinosh as rider of the Motorcycle was proceeding and the rider of the Scooter caused the motor accident by his rash and negligent riding. The motorcyclist who had fallen on the road in the impact was run over by a Stage Carriage (Bus) bearing Registration No.KL-06/B-6600 and therefore, the driver of the Bus was also alleged as contributed to the motor accident. Mr.Sinosh, on account of the fatal injuries received, succumbed to those at the spot of accident itself. The rider, the owner and the insurer of the Scooter and the driver, the owner and the insurer of the Stage Carriage (Bus) bearing ``` M.A.C.A.No.2991 of 2014 ``` ``` 4 ``` Registration No.KL-06/B-6600 were arrayed respectively as respondents 1 to 6 in the Original Petition. All respondents were served with notice from the Tribunal, but respondents other than 3 and 6 turned up and contested the Original Petition. Respondents 3 and 6 for their failure to appear before the Tribunal were declared as . _ex parte_ 5. In the written statement filed, a valid policy was admitted to have been issued by the 3[rd ] and the 6[th] respondents respectively for the Scooter as well as the Stage Carriage Bus, covering the date of accident. 6. Petitioners marked Exts.A1 to A11 in evidence. The third respondent did not adduce any evidence. 7. On appreciation of the evidence on record, the Tribunal found the rider of the Scooter as well as the driver of the Stage Carriage (Bus) negligent in driving the respective vehicles. The Tribunal also arrived at `4,84,160/- as the ``` M.A.C.A.No.2991 of 2014 ``` ``` 5 ``` compensation payable and directed respondents 3 and 6 to pay the amount in the ratio 50:50. 8. It is contended by Sri.P.M.Joshi, the learned counsel for the petitioners that though a claim was raised in the Original Petition that the victim was earning `8,000/monthly, the Tribunal fixed the monthly income as `4,000/on a notional basis. The learned counsel canvassed for consideration of a better sum as the monthly income. The victim was aged 24 years and the Tribunal has adopted ‘13’ as the multiplier. It being incorrect is substituted by ‘18’, the correct one. 9. The Tribunal failed to consider loss of future prospects though the death of the victim was an untimely one. According to the learned counsel, the Tribunal also failed to award compensation, under the conventional heads, as directed by the Constitution Bench of the Apex Court in ``` M.A.C.A.No.2991 of 2014 ``` ``` 6 ``` ## _**National Insurance Company Limited v. Pranay Sethi and**_ _**others**_ [2017 (4) KLT 662 (SC)]. 10. The motor accident being occurred in the year 2009, the monthly income is modified to `7,000/-. since the victim of the motor accident died untimely, 40% is also added to it in consideration of loss of future prospects. Thus `9,800/- (`7,000/- + 40% of `7,000/-) is arrived at. 11. ‘18’ being the multiplier corresponding to the age of the victim, the same is considered. Being a bachelor, half of the monthly income fixed is also deducted in consideration of the personal expenditure, which he would have spent, had his death not been occurred due to the motor accident. 12. In the manner of assessment afresh with the factors modified by this Court as above, `10,58,400/- (`9,800/- x 12 x 18 x ½) is arrived at as compensation towards loss of dependency. `4,16,000/-, stood already awarded by the ``` M.A.C.A.No.2991 of 2014 ``` ``` 7 ``` Tribunal as compensation when adjusted against, petitioners will get `6,42,400/- as additional compensation. 13. The Tribunal failed to award compensation towards loss of estate and therefore, `16,500/- is awarded. The Tribunal also failed to award compensation towards loss of consortium, though the petitioners are entitled to get it. The victim was survived by his mother and an unmarried young sister aged 23 years. Since the second petitioner lost her only sibling in the motor accident and being disentitled to get compensation for loss of consortium, this Court is inclined to award `25,000/- as compensation towards loss of love and affection. `44,000/ is also awarded as compensation towards loss of consortium in favour of the 1[st] petitioner. 14. `7,500/- was found awarded by the Tribunal as compensation towards funeral expenses and that when adjusted against `16,500/-, the sum eligible to be received, by ``` 8 ``` ## **`M.A.C.A.No.2991 of 2014`** the petitioners, they will get `9,000/- as additional compensation under that head. The Tribunal has also awarded `25,000/- and `20,000/- respectively as compensation towards loss of love and affection and pain and suffering, which the petitioners are not entitled to received and therefore, those are deducted from the total additional compensation arrived at now payable. 15. In the manner of calculation afresh, the petitioners will get `6,91,500/- [(`6,42,400/- + `16,500/- + `44,000/- + `25,000 + `9,000/-) - (`25,000/- + `20,000/-)] (Rupees Six lakhs ninety one thousand and five hundred only) as additional compensation, which amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 844 days of delay occurred in filing the appeal on hand. Liability was fixed by the Tribunal on the 3[rd] and 6[th] ``` M.A.C.A.No.2991 of 2014 ``` ``` 9 ``` respondents in the ratio 50:50 and for want of any challenge against, it is maintained. Thus, the 3[rd] and 6[th] respondents are directed to pay the additional compensation with interest fixed, in the ratio 50:50 in favour of the petitioners within a period of two months from the date of receipt of a certified copy of this judgment in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. MACA stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** SMA