M.A.C.A.Nos.838 & 982 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **MACA.No.982 OF 2010** **AGAINST THE AWARD IN OPMV 9/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL THALASSERY** ## **APPELLANTS:** **THANKAMMA RAJU AGED 40 YEARS W/O DECEASED RAJU, M/O DECEASED PRAVEEN RAJ, GOVT.AYURVEDIC DISPENSARY,PAYAM P.O., IRITTY,KANNUR.** **BY ADV. SRI.GRASHIOUS KURIAKOSE** ## **RESPONDENTS:** - **1 SUDHEESH K.B S/O BALAN, KOCHUVAZHAYIL HOUSE, PAYYANNUR, AMSOM DESOM, KANJIRAMKOLLI P.O.,KANNUR DISTRICT** - **2 JAISON THOMAS S/O THOMAS, PAYYANNUR AMSOM DESOM, KANJIRAMKOLLI P.O., KANNUR DISTRICT** - **3 NEW INDIA ASSURANCE COMPANY LTD. ARISTO COMPLEX,MAIN ROAD,MAHE-673010** - **4 P.G. RAJU FATHER OF DECEASED PRAVEEN RAJ, S/O GOPALAN, PLAMIDAMOOLAYIL HOUSE, VYTHIRI TALUK, PALLIKUNNU P.O.,KAMBLAKKAD** **R1 BY ADV. SRI.M.JACOB MURICKAN R3 BY ADV. M.JACOB MURICKAN R4 BY ADV. PRATHEESH.P** ## **OTHER PRESENT:** ## **SR.ADV.SRI.GRASHIOUS KURIAKOSE AND SMT.CELINE JOSEPH FOR APPELLANT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-03-2021, ALONG WITH MACA.838/2010, THE COURT ON 25-03-2021 DELIVERED THE FOLLOWING:** M.A.C.A.Nos.838 & 982 of 2010 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **MACA.No.838 OF 2010** **AGAINST THE AWARD IN OPMV 1193/2004 DATED 03-10-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANT:** **THANKAMMA V.P. D/O NARAYANAN, 45 YEARS, PLAMIDAMOLAYIL, KEEZHUR AMSOM, PLANCHERI DESOM, IRITTY,KANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.)** ## **RESPONDENTS:** **1 JAISON THOMAS PAYYANNUR AMSOM DESOM, KANJIRAMKOLLI P.O., KANNUR DISTRICT. 2 SUDHEESH.K.B SO.BALAN KOCHUVAZHAYIL HOUSE, PAYYAVUR AMSOM, KANJIRAMKOLLI P.O., KANNUR DISTRICT. 3 THE NEW INDIA ASSURANCE CO.LTD ARISTO COMPLEX,MAIN ROAD,MAHE. 4 P.G.RAJAN AGED 41 YEARS FO. DECEASED PRAVEEN RAJ, S/O. GOPALAN, PLAMIDAMOOLAYIL HOUSE,, VALLACHIMOOLA, PALLIKKUNNU P.O, KALPETTA, WAYANAD DISTRICT. R3 BY ADV. P.MURALEEDHARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-03-2021, ALONG WITH MACA.982/2010, THE COURT ON 25-03-2021 DELIVERED THE FOLLOWING:** M.A.C.A.Nos.838 & 982 of 2010 3 ## **P.V.KUNHIKRISHNAN, J** ========================= M.A.C.A.Nos.838 & 982 of 2010 ========================= Dated this the 25[th] day of March, 2021 ## **J U D G M E N T** These two appeals are connected cases and therefore, I am disposing of these two appeals by a common judgment. A boy aged 18 died in a motor vehicle accident. The petitioner in O.P.(MV) No.1193/2004 is the mother of the deceased boy and the petitioner in O.P.(MV) No.9/2008 is the father of the deceased boy. The Tribunal considered these two claim petitions together and passed a common judgment. Aggrieved by the award in O.P.(MV) Nos. 1193/2004 and 9/2008, the mother of the deceased boy filed these two appeals. The mother of the boy is the fourth respondent in O.P.(MV) No.9/2008. 2. The short facts are like this: On 2.8.2004, M.A.C.A.Nos.838 & 982 of 2010 4 the deceased boy Praveen Raj was travelling in a motor cycle bearing Registration No. KL-13 C -9645 along with his friend Afnas and when they reached at Kappacheri, a jeep with registration No.KL-13 B 6489 driven by second respondent in a rash and negligent manner hit against the motor cycle. As a result of the accident, the above said Praveen Raj died on the spot. The father and mother of the deceased Praveen Raj, filed two separate claim petitions. (Hereinafter, the parties are mentioned in accordance to their rank before the Tribunal). 3. Both claim petitions were tried together. Exts.A1 to A10 were marked on the side of the claimants. Ext.B1 is the copy of the scene mahazar. After going through the evidence and documents, the Tribunal passed compensation of Rs.3,35,000/- in O.P. (MV) No.1193/2004 and O.P.(MV) No.9/08 together and from the said compensation amount, only 60% of M.A.C.A.Nos.838 & 982 of 2010 5 the amount is given to the claimants because, the Tribunal found that there is contributory negligence on the part of the deceased. Moreover, the compensation amount was distributed among the father and mother of the deceased in the ratio of 60:40. Aggrieved by the above award, the petitioner in O.P.(MV) No.1193/2004 who is the mother of the deceased filed M.A.C.A. No.838/2010. The mother of the deceased was arrayed as fourth respondent in O.P.(MV) No.9/08 which was filed by the father of the deceased. M.A.C.A.No.982/2010 is filed by the fourth respondent mother against O.P.(MV) No.9/2008. 4. Heard the counsel for the appellant and standing counsel for the respondents. 5. Senior counsel Sri. Gracious Kuriakose, as instructed, appeared for the respondents. He fairly submitted before me that the appeal filed against the award in O.P.(MV) No.1271/2004 which was filed by M.A.C.A.Nos.838 & 982 of 2010 6 the pillion rider of the motorcycle considered by this Court and this Court as per judgment dated 24.10.2013 in MACA No.1183/2010 confirmed the contributory negligence attributed to the deceased by the Tribunal. In such circumstances, no interference is necessary as far as the finding of the Tribunal regarding contributory negligence attributed to the deceased in the light of the judgment dated 24.10.2013 in MACA No. 1183/2010. 6. The next question to be considered is about the claim of the appellant for enhanced compensation. The first submission made by the learned counsel is that, the deceased was working as saleman and he was getting an amount of Rs.3,500/- per month. But the tribunal without considering the claim fixed a notional monthly income as Rs.2,500/-. The learned senior counsel submitted that, the accident occurred in the year 2004. The learned counsel relied the judgment of Apex Court in _**Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC**_ M.A.C.A.Nos.838 & 982 of 2010 7 _**236],**_ and submitted that even a coolie will get more than Rs.3,500/- in the year 2004 and the claim of the appellant is only Rs.3,500/- per month. There is some force in the argument of the learned counsel for the appellant. Therefore, the claim of the petitioner that the deceased was getting Rs.3,500/- per month can be accepted in the light of the decision in _**Ramachandrappa' case**_ (Supra). Moreover, in the light of the decision of the Apex Court in _**National Insurance Co. Ltd v. Pranay sethi [2017(4) KLT 662],**_ 40% increase is necessary for future prospectus. Then the amount will be Rs.4,900/-. The multiplier used by the tribunal is '15'. Admittedly, the correct multiplier applicable in this case is '18', because the deceased was aged 18 years at the time of accident. The tribunal deducted 1/3 from the compensation amount towards the personal expense of the deceased. Admittedly, the deceased was bachelor and the tribunal ought to have deducted 50%. Therefore, the dependency compensation is to be re assessed in the following manner; M.A.C.A.Nos.838 & 982 of 2010 8 Rs.4,900 X 12 X 18 X 1/2 = Rs.5,29,200/- 7. An amount of Rs. 3,00,000/- is already granted by the tribunal and that is to be deducted from the above amount. Then the enhanced amount entitled by the appellant is for Rs,5,29,200-3,00,000 = **Rs. 2,29,200/-** . 8. As far as the loss of love and affection only an amount of Rs.20,000/- is awarded. The father and mother of the deceased are before the tribunal and they are entitled an amount of Rs.40,000/- each as per the decision in _**Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others.[(2018) 18 SCC 130].**_ Then the total amount will be Rs.80,000/-. The tribunal awarded an amount of Rs.20,000/-. Therefore, the balance amount will be Rs.80,000-20,000 = **Rs. 60,000/-** . 9. Towards funeral expense the tribunal awarded only Rs.10,000/-. The appellant is entitled Rs.5,000/more in that head. Similarly the loss of estate, the appellants are entitled another amount of **Rs.10,000/-** . M.A.C.A.Nos.838 & 982 of 2010 9 10. In the light of the above discussions, the enhanced compensation entitled by the petitioners can be summarized like this: 1. Loss of dependency - Rs.2,29,200/- 2. Loss of love and affection - Rs.60,000/- - - 3. Funeral expense Rs.5,000/4. Loss of estate - Rs.10,000/- ------------------ **Total Rs.3,04,200/-** === ======== 11. From the above amount the appellant is entitled only 60% because the tribunal found that, there is 40% contributory negligence on the part of the deceased. Then the balance amount Rs.1,82,520/-. Then the learned Senior counsel argued that, the tribunal erred in distributing the compensation amount at the rate of 60% and 40% to the mother and father respectively. The learned counsel submitted that, the father left the company of the mother and the deceased son and was M.A.C.A.Nos.838 & 982 of 2010 10 living with the mother. The learned counsel submitted that, even as per legal heir ship certificate produced before the tribunal, the mother alone is shown as the dependent. Even before the tribunal the father has not appeared and contested the case. 12. In such circumstances, the findings of the tribunal that, the compensation amount which is to be apportioned at the rate of 60% to the mother and 40% to the father is not correct. Before this Court, the father appeared through a counsel. He argued that he is entitled at least 40%. According to me, in the facts and circumstances of the case, the father of the deceased is entitled only 25% of the compensation awarded by the tribunal and the compensation now decided by this Court. Admittedly, the father abandoned the mother and the deceased child. He is living separately. The mother was residing with the deceased son and the mother was dependent of the deceased son. In such circumstances, according to me, the mother is entitled 75% of the M.A.C.A.Nos.838 & 982 of 2010 11 compensation awarded in this case. Therefore, the distribution of the enhanced compensation will be like this. To the mother (75%) Rs.1,36,890/- To the father (25%) Rs. 45,630/-. Hence the appeal is allowed in part. _1. The impugned award dated 03.10.2009 in OP (MV) No. 9/2008 and OP (MV) No. 1193/2004 of the Motor Accidents Claims Tribunal, Thalassery is modified._ _2. The appellant is entitled 75% of the compensation awarded by the tribunal and the enhanced compensation awarded by this Court in these appeals._ _3. The mother of the deceased in MACA No. 982 of 2010 and MACA No.838 of 2010 is entitled an enhanced compensation of Rs. 1,36,890/- with interest at rate of 8%._ M.A.C.A.Nos.838 & 982 of 2010 12 _4. The father of the deceased, who is the respondent No. 4 in MACA No. 982 of 2010 is entitled enhanced compensation of Rs.45,630 with interest at the rate of 8% p.a. from the date of application till realization._ **(Sd/-)** **P.V.KUNHIKRISHNAN JUDGE** LU/al