Mathew Thomas v. M.V. James, S. Rajesh and The New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938 ## **MACA.No. 1069 of 2006 ( )** **----------------------** (AGAINST THE AWARD IN OPMV 996/1999 of M.A.C.T.,PERUMBAVOOR DATED 29-09-2005) APPELLANT/PETITIONER: -------------------------- MATHEW THOMAS, S/O.MATHAI THOMAS, PURACHUTTIL HOUSE, ADOOR VILLAGE,, ADOOR TALUK. BY ADVS. SRI.P.M.KUNJIMOIDEENKUTTY SRI.LAL K.JOSEPH SMT.SHEENA SAMUEL RESPONDENTS/RESPONDENTS: ---------------------- 1. M.V.JAMES, S/O.VARGHESE, MAMPILLIL HOUSE, KANAYANNUR TALUK,, PUNITHURA VILLAGE, MARADU DESOM. 2. S.RAJESH, NADUTHATTIL VEEDU, CHAKKERIL, THIRUVANANTHAPURAM. 3. THE NEW INDIA ASSURANCE COMPANY LTD. BRANCH II, 26/1436, GOVERNMENT PRESS ROAD,, THIRUVANANTHAPURAM. R2 BY ADV. SRI.M.M.HUSAIN R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON** ## **& ANIL K. NARENDRAN, JJ.** .............................................................................. **M.A.C.A.No.1069 OF 2006** ......................................................................... **Dated this the 22[nd] March, 2016** ## **JUDGMENT** ## **Anil K. Narendran, J.** Appellant is the claimant in O.P.(MV)No.996 of 1999 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, an application filed under Section 166 of the Motor Vehicles Act. Appellant is the legal heir of the deceased who lost his life in a road traffic accident occurred on 25.10.1998. The deceased was riding his motor cycle bearing No.KA.02/R-143. A heavy goods vehicle bearing No.KL.8/H-4458, owned, driven and insured by respondents 1 to 3 came in a rash and negligent manner and hit the motor cycle causing fatal injuries to the deceased. Claiming a total compensation of Rs.12,00,000/- under different heads claim petition was filed before the Tribunal. 2. The evidence consists of oral evidence of P.W.1, (appellant herein) and documentary evidence of Exts.A1 to A27 from the side of the appellant, Ext.B1 from the side of the **2** ## **M.A.C.A.No.1069 OF 2006** respondents. 3. After considering the pleadings and materials on record, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the heavy goods vehicle by the second respondent, driver. Under different heads, the Tribunal awarded a total compensation of Rs.2,41,250/- together with interest at the rate of 7% per annum from the date of petition till realisation. Since the offending vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was directed to deposit the amount before the Tribunal. 4. Inadequacy of the compensation awarded by the Tribunal under different heads is the subject matter of challenge in this appeal. 5. We heard the arguments of the learned Counsel for the appellant and the learned Counsel for the third respondent Insurance Company. 6. The amounts awarded by the Tribunal are as follows: ## **M.A.C.A.No.1069 OF 2006** ## **3** |**Head**|**Amount**<br>**(Rs.)**| |---|---| |Transportation|5000| |Damage to clothing|250| |Funeral expense|5000| |Loss of love and affection|30000| |Pain and suffering|5000| |Loss of estate|**20000**| |Loss of dependency|**176000**| |TOTAL|**2,41,250**| 7. At the time of the accident, the deceased was aged 22 years. The appellant contended that the deceased was earning a monthly income of Rs.7500/- by conducting his business. Various documents were also produced before the Tribunal in order to substantiate the aforesaid claim. However, the Tribunal reckoned only a notional monthly income of Rs.2000/- for the purpose of calculating compensation under different heads. 8. We notice that the accident occurred in the year 1998 and that at the time of the accident, the deceased was an able bodied person aged 22 years. The pleadings and materials on **4** ## **M.A.C.A.No.1069 OF 2006** record would indicate that at the time of the accident, the deceased was pursuing his B.Pharm Course. The materials on record would also indicate that he was earning some income from the partnership business conducted in the name and style M/s. Kalinga Auto Coats. The Tribunal noted that the mother of the deceased had a major share in the partnership and that Exts.A11 and A13 balance sheets would not show that the deceased himself was getting that much income from the partnership. In the said circumstance, we deem it appropriate to re-fix the monthly income of the appellant as Rs.4,000/- for the purpose of calculating the compensation under different heads. 9. As we have already noticed, at the time of the accident, the deceased was aged 22 years. Therefore, the appropriate multiplier applicable to the age group of the deceased is 18 and not '11' as adopted by the Tribunal. Further, since the deceased was a bachelor, 50% of his monthly income should be treated as his personal and living expenses and the remaining 50% alone could be taken for the purpose of calculating dependency compensation. **5** ## **M.A.C.A.No.1069 OF 2006** 10. The Tribunal awarded a sum of Rs.1,76,000/- towards loss of dependency. On re-working the compensation, taking Rs.4000/- as monthly income, deducting 50% towards personal and living expenses of the deceased and 18 as the multiplier, the compensation payable comes to Rs. 4,32,000/- (4000 x 12 x 18 x 50/100). In the result, the appellant will be entitled for an additional compensation of **Rs.2,56,000/-** . 11. Towards funeral expenses, the Tribunal awarded a sum of Rs.5000/-. In **Rajesh vs. Rajbir Singh (2013(3)KLT 89),** the Apex Court re-fixed compensation towards funeral expenses as Rs.25,000/-. However, the accident in that case was of the year 2007. In the instant case, the accident occurred in the year 1998. Striking a balance, we deem it appropriate to re-fix the compensation under this head as Rs.10,000/- resulting in an additional compensation of **Rs.5,000/-** . 12. Similarly, towards loss of love and affection, the Tribunal awarded a sum of Rs.30,000/-. By virtue of the law declared by the Apex Court in **Rajesh's** case (supra)and explained by another Division Bench of this Court in **Valsamma** **6** ## **M.A.C.A.No.1069 OF 2006** **vs. Binu Jose (2014(1) KLT 10** ), we deem it appropriate to refix the compensation under this head as Rs.40,000/-, resulting in an additional compensation of **Rs.10,000/-.** 13. Towards loss of estate, the Tribunal awarded Rs.20,000/- which represents just and reasonable compensation under that head, which requires no enhancement in this appeal. 14. Towards pain and suffering, the Tribunal awarded a sum of Rs.5000/-. Though the deceased died on the date of the accident itself, considering the ordeal undergone by him, we deem it appropriate to re-fix the compensation under this head as Rs.10000/-, thus resulting in a balance compensation of **Rs.5,000/** - 15. The compensation awarded by the Tribunal under other heads represent just and reasonable compensation, which require no enhancement in this appeal. 16. In the result, the appellant will be entitled for a total additional compensation of **Rs.2,76,000/-** (Rupees two lakhs seventy six thousand only), which will carry interest at the rate of 9% per annum from the date of petition till realisation. Since **7** ## **M.A.C.A.No.1069 OF 2006** policy is admitted, the third respondent Insurance Company is directed to deposit the due amount within one month from the date of receipt of a certified copy of the judgment. The appeal is disposed of as above. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk