M.A.C.A.No.3394 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940** ## **M.A.C.A.No.3394 of 2017** **AGAINST THE AWARD IN O.P.(M.V) NO.634/2015 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 29-03-2017** ## **APPELLANTS/PETITIONERS:** **1 RAMALAKSHMI W/O. SUNDARARAJAN, AGED 58 YEARS,MALYIL HOUSE, THIRUVATHUKKAL, VELOOR VILLAGE,KOTTAYAM DISTRICT.** **2 SASIKUMAR S/O. SUNDARARAJAN, AGED 33 YEARS, MALYIL HOUSE, THIRUVATHUKKAL, VELOOR VILLAGE,KOTTAYAM DISTRICT.** - **3 ANU** **D/O. SUNDARARAJAN, AGED 27 YEARS,MALYIL HOUSE, THIRUVATHUKKAL, VELOOR VILLAGE,KOTTAYAM DISTRICT.** - **4 ALAGAMMAL** **W/O. SANKARN, AGED 80 YEARS,391 PATIRAKALI, AMMANKOVIL STREET, SAMUGARANGAPURAM, RAGAPURAM, THIRUNELVELI, THAMILNADU.`** **BY ADVS. SRI.P.M.JOSHI SMT.SIJI K.PAUL** ## **RESPONDENT/3RD RESPONDENT:** **THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, KOTTAYAM -01.** **BY ADV.SRI. A.A. ZIYAD RAHMAN, SC .** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No.3394 of 2017 2** ## **JUDGMENT** The appeal on hand is directed against the award dated 29.03.2017 of the Motor Accidents Claims Tribunal, Kottayam (for short 'the Tribunal') in O.P.(M.V.) No.634 of 2015. The appellants are petitioners who had filed the claim petition as above before the Tribunal claiming compensation for the loss sustained by them due to death of Sundararajan in a motor accident. The appeal is preferred in challenge of the award for the reason that the compensation granted by the Tribunal is inadequate, unjust and unreasonable. 2. The motor accident that caused the death of petitioners' son was occurred at 20.30 hours on 18.02.2015 at Kottayam in front of Maliyil House situated by the side of Kottayam-Thiruvathukkal-Pulimakkal public road. Sundararajan was standing on the western side footpath of the road and knocked down by a scooter bearing registration No.KL-05-AJ8247. The accident was allegedly occurred due to rash and negligent riding of the scooter by it's rider. Sundararajan had sustained fatal injuries and succumbed to those on 28.02.2017, while undergoing treatment at Medical College Hospital, Kottayam. Alleging that the driver, owner and insurer of the ## **M.A.C.A.No.3394 of 2017 3** scooter are jointly and severally liable to pay a sum of Rs.12,00,000/- as compensation for the loss caused to them them due to death of Sundararajan, his wife, children and mother had moved the claim petition as above before the Tribunal seeking compensation. 3. First and second respondents filed written statement before the Tribunal jointly contending that the accident as alleged was not occurred. According to them, the scooter was ridden by the first respondent in a moderate speed and therefore, he was not responsible for the accident. The compensation claimed was also disputed as excessive. 4. The third respondent had filed written statement admitting policy for the scooter for the period covering the date of accident. Contentions were also raised against the amount claimed as compensation, negligence of the rider of the scooter and age, occupation and income of the deceased. 5. During trial petitioners have adduced documentary evidence as Exts.A1 to A8. On the side of the third respondent, two documents were marked in evidence as Exts.B1 and B2. 6. On appreciation of entire evidence on record, the Tribunal found the rider of the scooter responsible for the accident by his rash and negligent riding. The Tribunal had also ## **M.A.C.A.No.3394 of 2017 4** arrived at a sum of Rs.6,94,150/- as compensation payable to the petitioners. Interest at the rate of 9% per annum and proportionate costs were also awarded by the Tribunal. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners have approached this Court in the appeal on hand seeking for enhancement. 8. According to Shri.P.M.Joshi, the learned counsel Rs.8,000/- fixed by the Tribunal as monthly income is on the lower side. According to him, the petitioners claimed that the deceased was a salesman in a textile shop namely, Parthas Textiles at Kottayam and was earning Rs.12,500/- as monthly income at the relevant time when he met with the motor accident. Ext.A8, a certificate allegedly issued by the employer of the deceased was produced and marked in evidence to prove the monthly income. But the Tribunal on an incorrect appreciation of evidence, overlooked it. The learned counsel pleaded that at least Rs.12,000/- ought to have been fixed by the Tribunal while arriving at compensation for loss of dependency. 9. The further contention advanced by the learned counsel was with reference to the compensation awarded under various other heads such as loss of estate, bystander expenses, extra nourishment and pain and sufferings. According to him the ## **M.A.C.A.No.3394 of 2017 5** victim died after 11 days of the accident and was undergoing treatment at the hospital for those days. The Tribunal had awarded Rs.3,000/- against a claim of Rs.4,000/- and Rs.2,250/against a claim of Rs.3,000/- respectively as compensation for bystander expenses and extra nourishment. According to him, the aforesaid sums being low and inadequate, enhancement is required. 10. Evidently, the victim had survived for 11 days with the fatal injuries sustained by him in the motor accident and therefore, Rs.20,000/- awarded by the Tribunal as compensation under the head pain and sufferings is highly unjust and disproportionate to his sufferings. Accordingly the learned counsel seeks for enhancement of the same. 11. Shri.A.A.Ziyad Rahman, the learned Standing Counsel on behalf of the third respondent has contended that the compensation awarded by the Tribunal is just and reasonable and interference of any nature is uncalled for. According to him a sum of Rs.25,000/- was awarded by the Tribunal as compensation for funeral expenses and in view of the Constitution Bench in ## _**National Insurance Company Limited v. Pranay Sethi**_ _**[2017(4) KLT 662 (SC)]**_ the sum awarded is excess. According to him, the amount payable as directed by the Apex ## **M.A.C.A.No.3394 of 2017 6** Court being Rs.15,000/-, Rs.10,000/- needs to be deducted from Rs.25,000/- awarded by the Tribunal as per the impugned award. According to him Rs.1,00,000/- awarded by the Tribunal under the head loss of consortium is also on the higher side and the sum payable being Rs.40,000/- under that head in view of the dictum cited supra, a sum of Rs.60,000/- needs to be deducted. The further contention of the learned counsel was that for want of reliable evidence adduced by the petitioners that the Tribunal has fixed the monthly income notionally as Rs.8,000/- and it being a reasonable sum, interference is totally unwarranted. 12. In the backdrop of the rival contentions advanced by the respective counsel as above, this Court has ventured to analyse the evidence on record. It is pertinent to note from Ext.A4, the post-mortem certificate that the victim of the accident was aged 62 years at the relevant time. Exts.A7 and A8 are the documents marked in evidence from the side of the petitioners to establish the job and monthly income of the victim. It is true that Exts.A7 and A8 were marked in evidence. Ext.A7 is a certificate dated 03.03.2017, wherein the monthly salary drawn by Sudararajan from Parthas Textiles, Kottayam was certified as Rs.12,414/-. In Ext.A8, the wage slip issued from Parthas Textiles, the net wages as on 31.01.2015 was shown as ## **M.A.C.A.No.3394 of 2017 7** Rs.14,037/-. The accident was occurred on 18.02.2015. Exts.A7 and A8 were not considered by the Tribunal for the reason that the those were not proved by the petitioners by examining the person responsible for issuance of it. In the said circumstances those were discarded and the monthly income was fixed notionally as Rs.8,000/-. However, this Court finds the fixation of the monthly income as Rs.8,000/-, on the lower side. It is true, the signatory of Exts.A7 and A8 was not examined and therefore, those documents are not proved and have no relevancy for fixation of monthly income. But, it is a reality that the deceased was maintaining a family consisting of the first petitioner, his wife, second and third petitioner, his son and an unmarried daughter and additional fourth petitioner, his mother. Without sufficient income being earned, maintenance of a large family like the one of the nature is impracticable. In _**Ramachandrappa v.**_ ## _**Royal Sundaram Alliance Insurance Company Limited**_ _**[(2011) 13 SCC 236]**_ the Apex Court had taken Rs.4,500/- as the monthly income of a coolie worker who had met with a motor accident in the year 2004, and therefore the accident in the case on hand being occurred in the year, 2015 every justification is there for fixing the monthly income of the deceased as Rs.9,000/-. Therefore, this Court fixes the monthly income as ## **M.A.C.A.No.3394 of 2017 8** Rs.9,000/-. The age of the deceased being 62, 7 is the multiplier applicable. The Tribunal had applied the correct multiplier as 7 and deducted 1/3 towards personal expenses, likely to be incurred by the deceased, had he been alive. When compensation is re-fixed with the modified monthly income of Rs.9,000/-, the multiplier as 7, Rs.5,04,000/- [(9000x12x7)-1/3[rd ] ] is payable as compensation for loss of dependency. Rs.4,48,000/- is already awarded by the Tribunal under that head and therefore, Rs.56,000 **/-** is payable additionally. The Tribunal had awarded Rs.25,000/- and Rs.1,00,000/- respectively under the heads funeral expenses and loss of consortium. In _**Magma General**_ ## _**Insurance Co.Ltd v. Nanu Ram and Others [2018 ACJ 2782**_ _**(SC)]**_ the Apex Court has granted compensation under the head 'filial consortium' and 'parental consortium' apart from grant of compensation under the head consortium towards spouse. In the case on hand, the deceased was survived by his wife, mother, son and unmarried daughter. Rs.40,000/- being the sum awarded by the Apex Court in the case cited supra, this Court is inclined to award Rs.40,000/- each to petitioners 1, 3 and 4. Therefore, Rs.1,20,000/- is payable as compensation towards loss of consortium of wife, mother and unmarried daughter. Since Rs.1,00,000/- was already awarded by the Tribunal, Rs..20,000/- ## **M.A.C.A.No.3394 of 2017 9** is payable in addition under the above heads. Rs.25,000/- being the sum awarded by the Tribunal as compensation for funeral expenses, in view of **Pranay Sethi's** case supra, a sum of Rs.10,000/- is deducted threfrom. 13. As compensation for loss of estate, Rs.10,000/- was awarded by the Tribunal. Rs.15,000/- being the sum payable in view of the Constitution Bench of the Apex Court in _**Pranay Sethi's**_ case supra _**,**_ this Court is inclined to grant Rs.5,000/additionally as compensation under that head. Since it is evident from the materials on record that Sundararajan was alive for 11 days after the accident, this Court is inclined to grant Rs.3,300/as compensation under the head bystander expenses by fixing Rs.300/- per day for 11 days. The Tribunal had awarded Rs.3,000/- and therefore Rs.300/- is payable additionally under that head. Under the head extra nourishment for 11 days, the Tribunal has awarded Rs.2,250/-. The sum claimed being Rs.3,000/- this Court is inclined to award the same as compensation under that head. Therefore, Rs.750/- is payable additionally as compensation under that head. As compensation for pain and suffering Rs.20,000/- was awarded. Since the victim was alive for 11 days with the fatal injuries as revealed from the certificate of post mortem examination available in evidence as ## **M.A.C.A.No.3394 of 2017 10** Ext.A4, Rs.20,000/- awarded by the Tribunal appears to this Court is unjust and unreasonable. Therefore, this Court is inclined to grant a sum of Rs.20,000/- additionally as compensation under the head pain and suffering. In the refixation as above a total sum of Rs.92,050/- is payable as compensation additionally. In the result, this appeal stands allowed in part. The appellants are found entitled to get Rs.92,050/- (Rupees ninety two thousand and fifty only) with interest at the rate 8% per annum from the date of the petition till the date of realisation. The third respondent shall deposit the aforesaid sum with interest as directed within two months from the date of receipt of a copy of this judgment. No order as to costs. **Sd/-** **MARY JOSEPH JUDGE** NAB