Mallika and Saraswathy v Pushpa, Vijayam, Suresh Babu, P. P. Majeed and The New India Assurance Co. Ltd. (MACA Nos. 1002 of 2011 and 1150 of 2011)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ``` MACA NO. 1002 OF 2011 ``` ``` AGAINST THE AWARD DATED 20.05.2011 IN O.P(M.V) NO.59/2009 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1MALLIKA, AGED 44 YEARS, SISTER OF DECEASED RAMASWAMY, 715, PALAPPURAM THERUVU, PALAPPURAM, OTTAPALAM TALUK. 2SARASWATHY, AGED 31 YEARS, SISTER OF DECEASED RAMASWAMY, ALAPARAMBU THERUVU, KANNIAMPURAM, OTTAPALAM TALUK. BY ADV SRI.R.SREEHARI S / RESPONDENTS:/ RESPONDENTS:RESPONDENTS:S: 1PUSHPA,AGED 45 YEARS, W/O.NARAYANANKUTTY, KACHERIPURA HOUSE, KAILIYAD POST, PALAKKAD DISTRICT, PIN- 679122 2VIJAYAM, AGED 47 YEARS, W/O. RAMANANDAN, PALAKKAPARAMBU HOUSE, POST PAZHAYANNUR, THRISSUR DISTRICT, PIN 680587. 3P.P. MAJEED, AGED 34 YEARS, S/O. AHAMEDKUTTY, PALATHUPANIKKA VEETTIL, R.S ROAD, OTTAPALAM POST, PIN - 670 101. 4THE NEW INDIA ASSURANCE CO. LTD. J R J COMPLEX, OTTAPALAM - 679 101. R1 AND R2 BY SRI.P.JAYARAM R4 BY SMT.P.K.SANTHAMMA ``` ## **`RESPONDENTS / RESPONDENTS:/ RESPONDENTS:RESPONDENTS:S:`** ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON`** ``` 08.02.2024, ALONG WITH MACA.1150/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ``` MACA NO. 1150 OF 2011 ``` ``` AGAINST THE AWARD DATED 20.05.2011 IN O.P(M.V) NO.1298/2008 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## **`APPELLANTS/RESONDENTS 1 AND 2:`** ``` 1MALLIKA, AGED 44 YEARS, SISTER OF DECEASED RAMASWAMY, 715, ANGADIYIL HOUSE, PALAPPURAM THERUVU, PALAPPURAM POST, PALAKKAD, DISTRICT. 2SARASWATHY, AGED 31 YEARS SISTER OF DECEASED RAMASWAMY AND W/O. RAJAMANIKKAM, ALAPARAMBU THERUVU, POST KANNIAMPURAM, PALAKKAD DISTRICT. BY ADV SRI.R.SREEHARI ``` ## **`RESPONDENTS / PETITIONERS AND RESPONDENTS 3 AND 4:`** ``` 1PUSHPA, AGED 45 YEARS, W/O. NARAYANANKUTTY, KACHERIPURA HOUSE, POST KAILIYAD, PALAKKAD DISTRICT-679122. 2VIJAYAM, AGED 48 YEARS, W/O. RAMANDAN, PALAKKAPARAMBU HOUSE, POST, PAZHAYANNUR, THRISSUR DISTRICT-680587. 3SURESH BABU, AGED 31 YEARS S/O. LATE PAZHANIYANDI,ANGADIYIL HOUSE, POST PALAPPURAM, PALAKKAD DISTRICT-679103. *4P.P. MAJEED AGED 34 YEARS(*DELETED) S/O. AHAMADKUTTY, PALATHUPANIKKA VEETTIL, R S ROAD, OTTAPALAM POST,PIN-679101. 5THE NEW INDIA ASSURANCE CO. LTD. JRJ COMPLEX, OTTAPALAM-679101. (*THE FOURTH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 03/12/2021 IN IA 1/2021) R1 BY SRI.P.JAYARAM R5 BY SMT.P.K.SANTHAMMA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2024, ALONG WITH MACA.1002/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 08[th] day of February, 2024** The above appeals were originated from an award passed by Motor Accident Claims Tribunal, Ottappalam (for short ‘the Tribunal’) on 20.05.2011 in O.P.(M.V) Nos.59/2009 and 1298/2008. 2. The appellants are none other than the legal representatives of one Mr.Ramaswamy who succumbed to the fatal injuries caused to him in a motor accident occurred at about 10.15 a.m on 14.12.2008 at Palappuram. The appellants are none other than the siblings of the deceased who was a bachelor. Though Mr.Ramaswamy was rushed to Sevana Hospital, Pattambi, during the course of treatment there he died on 18.12.2008. It was alleged that the motor accident was occurred due to the rash and negligent riding of the motorcycle by the 3[rd] respondent, who was the owner ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` ``` 4 ``` cum rider of the motorcycle at the relevant time. The insurer of the motorcycle was arrayed as the 4[th] respondent in the Original Petitions. The 3[rd] petitioner in O.P(M.V) No.1298/2008 was none other than the son of the predeceased brother of Ramaswamy. The claim raised by the petitioners in the Original Petition filed was that being the legal representatives of the deceased, they are entitled to get compensation from the respondents. 3. All respondents were served with notice. Respondents 1 and 2 in each Original Petitions filed joint written statement contending that being legal representatives of deceased Ramaswamy, compensation arrived at as payable is required to be apportioned among themselves as well as the petitioners equally. It was contended furthermore that the motor accident was occurred solely due to negligence of the 3[rd] respondent who was riding the motorcycle at the relevant time. ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` ``` 5 ``` 4. 3[rd] respondent filed separate written statement in the Original Petitions, denying the allegation of negligence against him. It was contended that the careless walking of the victim through the road resulted in the motor accident in question. Compensation claimed was also disputed for it’s exorbitance. Admittedly the motorcycle was validly insured with the 4[th] respondent at the relevant time of the motor accident. The 4[th] respondent in the written statement filed also admitted issuance of a policy for the motorcycle and it’s coverage on the alleged date of the motor accident. The motor accident was contended as occurred due to the carelessness of Mr.Ramaswamy who was walking through the road, carrying a sack on his head. Claims of the petitioners regarding the deceased’s age, occupation and monthly income were disputed. The amount claimed as compensation was also disputed for it’s exorbitance and disproportionality ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` ``` 6 ``` to the loss caused to the petitioners on account of the death of Mr.Ramaswamy in the motor accident. 5. Exts.A1 to A12 were marked on the side of the petitioners and Exts.B1 to B4, on the side of the respondents. On the basis of the evidence adduced by the parties, the Tribunal arrived at a finding that the motor accident in question was occurred due to the rash and negligent riding of the motorcycle bearing registration No.KL 51 3718 by it’s rider, the 3[rd] respondent. 6. The Tribunal also found that the petitioners in each of the Original Petition except petitioner No.3 in O.P(M.V) No.1298/2008, being legal representatives of the deceased are entitled to get compensation. A sum of `2,45,300/- was also arrived at as the compensation payable. 4[th] respondent was directed to deposit the sum arrived at with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` ``` 7 ``` of realisation alongwith a cost of `2,500/-. 4[th] respondent was directed to deposit the compensation alongwith interest and costs, in favour of the petitioners other than petitioner No.3 in O.P(M.V) No.1298/2008. 7. Aggrieved by the quantum of compensation stood awarded by the Tribunal, the appeals on hand are filed by the petitioners. As already stated petitioners in the Original Petitions were none other than the siblings of deceased Ramaswamy. 8. Sri.R.Sreehari, the learned counsel for the appellants pointed out in both the cases that the Tribunal failed to award reasonable compensation, which the petitioners are entitled to get under the conventional heads as directed by the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]** . According to him, petitioners are entitled to get `15,000/- each as ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` ``` 8 ``` compensation towards loss of estate and funeral expenses, but, the Tribunal awarded only `5,000/- as compensation towards funeral expenses and failed to award any sum as compensation towards loss of estate. 9. According to the learned counsel, 13 has been correctly adopted by the Tribunal as the multiplier and ½ as the deduction, since the deceased was a bachelor at the relevant time of the motor accident. The main challenge raised by him was against the monthly income fixed as `2,500/-. It was urged by the learned counsel that the deceased being a street hawker, while fixing his monthly income, the fixation of the monthly income by the Apex Court in the case of a coolie worker in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [ (2011) 13 SCC 236] can be taken as a guideline. 10. The motor accident being occurred in the year 2008, having due regard to the cost of living and price ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` ``` 9 ``` index prevalent then this Court finds it reasonable to fix `6,500/- as the monthly income on a notional basis. Mr.Ramaswamy died at the age of 48 years. The death being an untimely one, there is every reason to add 25% to `6,500/-, the monthly income and thus `8,125/(`6,500/- + (25% of `6,500/-)) is arrived at. Compensation for loss of dependency when calculated afresh on the basis of the modified monthly income and maintaining the factors taken by the Tribunal, `6,33,750/- (`8,125/- x 12 x 13 x ½) is arrived at. `1,95,000/- stood awarded by the Tribunal when adjusted against, petitioners will get `4,38,750/- as compensation towards loss of dependency. Petitioners are also entitled to get `15,000/- towards loss of estate and `10,000/- more towards funeral expenses. 11. `10,000/- each was found awarded by the Tribunal as compensation towards pain and suffering and loss of love and affection. Petitioners being legal ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` ``` 10 ``` representatives of the deceased are not entitled to get compensation for the pain and sufferings of the victim of the motor accident and loss of love and affection. Therefore, `20,000/- stood awarded by the Tribunal in total under the above heads is deducted from the total compensation payable. 12. When compensation is calculated afresh with the modified factors, petitioners other than the 3[rd] petitioner in O.P(M.V) No.1298/2008 will get `4,43,750/- (Rupees four lakhs forty three thousand seven hundred and fifty only) [(`4,38,750/- + `15,000/+ `10,000/-) - `20,000/- (`10,000/- + `10,000/-)] as additional compensation. The said sum 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. 4[th] respondent shall deposit the above sum with interest accrued on it at the rate ordered and the original sum stood awarded by the Tribunal with interest and costs, ``` 11 ``` ``` M.A.C.A.Nos.1002 & 1150 of 2011 ``` if not paid yet, within a period of two months from the date on which a certified copy of this judgment is received. The apportionment of the amount shall be as directed by the Tribunal and also abiding by the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. Both M.A.C.A.s are allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB