Mathew Ninan and Rachel Mathew v. P.V. Thomas (died) and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 ``` ## **`MACA NO. 143 OF 2014`** ``` AGAINST THE AWARD IN OP(MV) No.1149 OF 2001 OF MOTOR ACCIDENTS CLAIMS ``` ## **`TRIBUNAL, PATHANAMTHITTA, DATED 29/01/2023`** ## **`APPELLANTS/PETITIONERS:`** ``` 1MATHEW NINAN, AGED 33 YEARS S/O.P.N. NIAN, PUTHETHU HOUSE,PUNNAKKADU P.O. MALLAPUZHASSERY, KOZHENCHERRY TALUK 2RACHEL MATHEW, W/O.MATHEW PUTHETHU HOUSE,PUNNAKKADU P.O. MALLAPUZHASSERY, KOZHENCHERRY TALUK AGED 29 YEARS BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 P.V.THOMAS (DIED),S/O.VARGHESE,PALAKKASSERIL,NEAR RAILWAY STATION, COLLECTORATE P.O, KOTTAYAM 686 001` - `2 T.K.SREEKUMAR @ SAJAN, S/O.KUMARAN, THOTTUMKAL, MARIAPPALLIL, NATTAKAM VILLAGE, KOTTAYAM 686 013` - `3 THE MANAGER, NEW INDIA INSURANCE CO.LTD., PATHANAMTHITTA 689 645 4 SOSAMMAA THOMAS, D/O.LATE P.V THOMAS, PALACKASSERIL, NEAR RAILWAY STATION, KOTTAYAM 686 001` - `5 BINDHU THOMAS, D/O.LATE P.V THOMAS, CHOORAKKATTIL VEEDU,VALANJAVATTOM P.O., THIRUVALLA 689 101` - `6 SINDHU THOMAS, D/O.LATE P.V THOMAS, PALACKASSERIL, NEAR RAILWAY STATION, KOTTAYAM 686 001` - `7 INDU THOMAS, D/O.LATE P.V THOMAS, PALACKASSERIL, NEAR RAILWAY STATION, KOTTAYAM 686 001` - `8 SHAMPU THOMAS, S/O.LATE P.V THOMAS, PALACKASSERIL, NEAR RAILWAY STATION, KOTTAYAM 686 001 BY ADVS.SMT.ACHU SUBHA ABRAHAM SRI.LAL GEORGE SMT.K.R.MONISHA SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.SEBASTIAN VARGHESE(K/141/2000)` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON ``` ``` 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 143/2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 17[th] day of March, 2023.** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Pathanamthitta (For short, ‘the Tribunal’) on 29.01.2013 in O.P(M.V) No.1149 of 2001. The appellants before this Court are the petitioners before the Tribunal, who are the legal representatives of one Master Amal P Mathew, who died due to the fatal injuries sustained by him in a motor accident occurred at about 2.30 p.m, on 08.05.2001. A Lorry bearing Registration No. KRK/6177, driven by the 2[nd] respondent in a rash and negligent manner through MC road collided with a Jeep bearing Registration No. KL-3/C 4321, wherein the petitioners and deceased respectively were travelling and thus they sustained serious injuries. Master Amal P Mathew succumbed to the injuries sustained ``` MACA NO. 143/2014 ``` ``` 3 ``` in the motor accident. Seeking for a sum of `3,31,000/- as compensation and alleging that the driver of the Lorry was totally liable for causing the motor accident by his rash and negligent driving, the Original Petition on hand was moved. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 and 2 and respondents 1 to 3 and additional respondents 4 to 8, in accordance with their status in the Original Petition. 3. During the pendency of the Original Petition, the 1[st] respondent, the registered owner of the offending vehicle died and therefore, his legal heirs were brought on record as additional respondents 4 to 8. All of them were served with notice. Additional respondents 4 to 8 did not turn up to contest the Original Petition and therefore, declared by the Tribunal as _ex parte_ . ``` MACA NO. 143/2014 ``` ``` 4 ``` 4. 2[nd] respondent in it’s written statement denied particulars of the motor accident as stated in the Original Petition and contended that the driver of the Jeep bearing Registration No.KL-3/C 4321 has caused the motor accident in question by his rash and negligent driving. 5. The 3[rd] respondent has contended in it’s written statement that the 2[nd] respondent was driving the Lorry with due care and caution, that the driver of the Jeep was driving it in a rash and negligent manner and that the 2[nd] respondent was not holding a valid driving licence and badge to drive the Lorry at the relevant time when it was involved in the motor accident. 6. Petitioners marked Exts.A1 to A22 in evidence. Respondents did not adduce any evidence. 7. On the basis of the evidence on record, the Tribunal found that the motor accident in question was ``` MACA NO. 143/2014 ``` ``` 5 ``` occurred due to the rash and negligent driving of the Lorry bearing Registration No.KRK/6177, by it's driver stood arrayed as the 2[nd] respondent in the Original Petition. The Tribunal also found that Master Amal P Mathew, succumbed to the fatal injuries sustained by him in the motor accident and therefore, petitioners as his legal representatives are entitled to get compensation. A sum of `45,600/- was arrived at as the compensation payable and the 3[rd] respondent insurer was directed to deposit the sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate cost of `2,750/-. Aggrieved by the quantum stood awarded by the Tribunal as compensation infavour of the petitioners by the impugned award, petitioners approached this Court in the appeal on hand. ``` MACA NO. 143/2014 ``` ``` 6 ``` 8. The contention of Sri.T.R Harikumar, the learned counsel for the petitioners was that `15,000/-, was fixed by the Tribunal as the annual income of the deceased strictly based on the Second Schedule of the Motor Vehicles Act, 1988 (For short, ‘the M.V Act). The dictum of the Apex Court in **Kurvan Ansari Alias Kurvan Ali and Another Vs. Shyam Kishore Murmu and Another [2022 (1) SCC 317]** , was also relied on to contend that Second Schedule being introduced in the Act in the year 1994 and amendments having not been brought out in the Second Schedule thereafter, it cannot be taken as basis for granting compensation under Section 163A of the MV Act. 9. It is contended by the learned counsel that `25,000/- has been considered by the Apex Court in the case cited as the annual income of the deceased, who was aged below 15 years at the relevant time of the motor ``` MACA NO. 143/2014 ``` ``` 7 ``` accident. The learned counsel canvassed for calculation of compensation based on the annual income fixed by the Apex Court in **Kurvan Ansari** supra. 10. The learned counsel for the 3[rd] respondent contended on the contrary that the monthly income having been considered by the Tribunal correctly, interference is totally unwarranted. According to him, the claim having been made under Section 163A M.V Act, petitioners are not entitled to get a sum above that is fixed in the Second Schedule to the M.V Act as compensation. The learned counsel seeks for maintaining the impugned award for the reasons. 11. The learned counsel for additional respondents 4 to 8 contended that the offending vehicle being insured with the 3[rd] respondent, the Tribunal has fixed liability on them to indemnify the insured and exonerated additional ``` MACA NO. 143/2014 ``` ``` 8 ``` respondents 4 to 8 from the liability. According to him, the said finding of the Tribunal itself is required to be maintained. 12. The victim in the case on hand was aged only four years at the relevant time of the motor accident and was survived by his father and mother. The age of the deceased being 4 years, the Tribunal has adopted 15 as the multiplier. The Second Schedule being incorporated in the M.V Act in the year 1994, and amendments having not been brought in to, bring any addition to the quantum of compensation shown therein even after passage of 29 years, this Court finds justification in considering `25,000/- as the annual income, the victim would have earned, had he been alive. It is also reasonable to add 50% to the annual income in consideration of loss of future prospects. Thus, `37,500/- (`25,000/- + 50% of `25,000/-) is arrived at. ``` MACA NO. 143/2014 ``` ``` 9 ``` The deceased minor boy was survived only by his father and mother and when he would start to earn any income, there is every likelihood for some amount to be kept apart for meeting his personal expenditure and therefore there is every reason to deduct 1/3[rd] from the annual income fixed as above on that count. When compensation for loss of dependency is calculated on the basis of the above modified factors, `3,75,000/- (`37,500/- x 15 x 2/3) is arrived at. `40,000/- stood awarded by the Tribunal when deducted therefrom, `3,35,000/- (`3,75,000/- - `40,000/-) is arrived at as the additional compensation payable towards loss of dependency. 13. In **Kurvan Ansari** supra, the Apex Court has awarded `40,000/- as compensation towards loss of consortium. The Constitution Bench of the Apex Court has directed in **National Insurance Company Ltd. v. Pranay** ``` MACA NO. 143/2014 ``` ``` 10 ``` **Sethi & Ors. [2017 (4) KLT 662 (SC)]** that each of the legal representatives coming within the category of parents, spouse and children are entitled to get `40,000/- as compensation towards loss of consortium and 10% more for every three years succeeding thereto. Therefore, this Court finds justification in awarding `88,000/- (`44,000/- x 2) to petitioners, being parents of the deceased. This Court on the basis of the direction of the Constitution Bench of the Apex Court in **Pranay Sethi** supra also awards `16,500/-, each as compensation towards loss of estate and funeral expenses. `2,000/- stood awarded by the Tribunal as compensation towards funeral expenses, when adjusted against `16,500/- payable, petitioners will get `14,500/- as additional compensation towards funeral expenses. 14. In **Kurvan Ansari** supra no amount has been awarded as compensation towards loss of estate but under ``` MACA NO. 143/2014 ``` ``` 11 ``` the Second Schedule, the legal representatives of a minor boy are also entitled to get compensation towards loss of estate. Under Section 166 M.V Act also, compensation is awarded towards loss of estate. Having due regard to the direction of the Apex Court in **Pranay Sethi** supra `16,500/- is also awarded as compensation for loss of estate. `3,600/- stood awarded by the Tribunal when deducted therefrom, petitioners will get `12,900/- as additional compensation. 15. In the above manner of calculation, petitioners will get `4,50,400/- (Rupees Four Lakh Fifty Thousand Four Hundred only) [`3,35,000/- + `88,000/- + `14,500/+ `12,900/-] as total additional compensation. 16. The 3[rd] respondent being the insurer shall pay the sum arrived at as additional compensation with interest at the rate of 7.5% per annum from the date of filing of the ``` MACA NO. 143/2014 ``` ``` 12 ``` Original Petition till the date of realisation, within two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. ``` Sd/- ``` **MARY JOSEPH JUDGE** JJ