Menaka w/o late Ravi and Lakshmi T.R and Vishnu Ravi (minor) through mother Menaka v. A. D. Aby, Managing Partner, Sakthi Metals; P. V. Shaju; Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943 MACA NO. 2710 OF 2012** **AGAINST THE ORDER/JUDGMENT IN O.P(MV)No.666/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA, THRISSUR** ## **APPELLANTS/PETITIONERS:** 1 MENAKA W/O.LATE RAVI, THUPRAN HOUSE,KUTTICHIRA DESOM, VILLAGE AND P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2 LAKSHMI.T.R AGED 19 YEARS D/O. D/O.LATE RAVI,-DO- , -DO3 VISHNU RAVI AGED 17 YEARS S/O.LATE RAVI,-DO- -DO-, MINOR REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER,MENAKA. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** 1 A.D.ABY MANAGING PARTNER, SAKTHI METALS, ALOOR.P.O,PIN-680683. 2 P.V.SHAJU S/O.VELAYUDHAN, PUTHIYEDAN HOUSE, PARIYARAM.P.O,MUKUNDAPURAM TALUK,PIN-686021. 3 THE ORIENTAL INSURANCE CO.LTD CHALAKKUDY-680307. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB, SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2710 of 2012** 2 ## **JUDGMENT** The award dated 24.09.2012 in O.P.(MV) No.666/2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, is under challenge at the instance of petitioners 1 to 3 before the Tribunal. Originally there were 5 petitioners out of which, petitioners 4 and 5 are no more. 2. The respondents herein are the owner, driver and insurer of the vehicle bearing registration no.KL-08-P-576 alleged to be driven by the 2[nd] respondent in a rash and negligent manner on 20.05.2006 at about 7 A.M. 3. The petitioners being legal representatives claimed Rs.10,00,000/- as compensation. The Tribunal examined PWs 1 and 2 and marked Ext.A1 to A7 on the part of petitioners and Ext.B1 marked on the side of ## **M.A.C.A No.2710 of 2012** 3 respondents. On appraisal of the evidence, the Tribunal granted Rs.6,48,436/-. The above award is under challenge. 4. It is argued by the learned counsel for the appellants that the appellants claimed income of the deceased at Rs.10,000/- per month as head load worker in Railway Goods Shed, Alwaye. He submitted further that Ext.A7 series documents produced by examining PW2 categorically established the income at Rs.11,000/- per month. However, the Tribunal fixed Rs.5,000/- alone as the monthly income, eschewing evidence of PW2 and A7 series. The learned counsel for the appellants pressed to fix the monthly income at Rs.10,000/-. 5. Per contra, the learned counsel for the Insurance Company urged that, the evidence of PW2, who is the President of Head Load Workers' Association, who issued Ext.A7 series showing the average income of the deceased as ## **M.A.C.A No.2710 of 2012** 4 Rs.11,000/- per month to support the appellants' case, as such cannot be given emphasis to fix the monthly income at Rs.10,000/- claimed by the appellants, as PW2 is an interested witness. According to the learned counsel for the Insurance Company, following the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance**_ _**Company Ltd.**_ : **(2011) 13 SCC 236** , the monthly income of the deceased can be fixed at Rs.5,500/-. 6. The crucial question herein is whether the appellants are entitled to get compensation by fixing Rs.10,000/- as monthly income of the deceased, who was a head load worker. First of all, it has to be observed that the monthly income of the deceased was stated as Rs.10,000/- in the petition. But PW2, the President of the Head Load Workers' Association in Alwaye Railway Goods Shed, who ## **M.A.C.A No.2710 of 2012** ## 5 issued Ext.A7 series, had deposed by supporting Ext.A7 that the average income of the deceased was Rs.11,000/-. Some calculations for each month varying between Rs.5,000/- to Rs.15,000/- could be gathered from Ext.A7 series. That itself would show that the income of the deceased from loading and unloading works was not stable and the income had been fluctuating in every month. That apart, it is not a permanent job also. It is interesting to note that when a person doing the job of head load worker, cannot produce exact evidence to prove his monthly income. Therefore, some credence to be given to the evidence of PW2 as well as Ext.A7 series, taking note of the fact that the deceased proved to be a head load worker in Railway Goods Shed at the time of accident as borne out from Ext.A7 series. However, the income stated in Ext.A7 series issued by PW2 ## **M.A.C.A No.2710 of 2012** 6 as such cannot be taken into consideration. Therefore, I am of the view that, considering the nature of the deceased as a person having head loading work in Railway Goods Shed at Alwaye, the income fixed by the Tribunal as Rs.5,000/- is to be modified. Thus the income of the deceased in this case can be fixed at Rs.7,000/- per month. Apart from that, 40% addition as per the ratio in _**National Insurance Company Ltd. v. Pranay Sethi :**_ **(2017) 16 SCC 680** , also to be taken into consideration. Thus, the same is recalculated as; 7,000+40% = 9,800x12x15x⅔ = 11,76,000/-. Out of which, Rs.6,00,000/- was granted by the Tribunal and the remaining viz., Rs.5,76,000/- more is granted under the head 'loss of dependency'. 7. Coming to the other heads also, the ## **M.A.C.A No.2710 of 2012** 7 compensation granted by the Tribunal is on lower side. Towards, 'funeral expenses', only Rs.2,000/- is granted by the Tribunal though the appellants are entitled to Rs.15,000/-. Similarly, towards 'loss of estate' also, Rs.5,000/- alone was granted though the petitioners entitled to get Rs.15,000/-. Thus, Rs.23,000/- is more granted under the heads 'funeral expenses' and 'loss of estate' following the ratio in _**Pranay Sethi's**_ case (supra). Coming to 'loss of consortium', the Tribunal granted only Rs.5,000/- though the petitioners together are entitled to get Rs.1,20,000/- @ Rs.40,000/- each, by following the ratio in _**Pranay Sethi's**_ case (supra). Thus, Rs.1,15,000/- more is granted under this head. Coming to 'pain and suffering', Rs.10,000/- was granted by the Tribunal and it cannot be granted in view of the decision in _**United India Insurance Co. Ltd v. Satinder**_ ## **M.A.C.A No.2710 of 2012** 8 _**Kaur**_ **@ Satwinder Kaur and others : 2020 (3)** **KHC 760.** Thus, Rs.10,000/- granted under the said head is reduced. Therefore, the appellants are entitled to get Rs.7,04,000/more as compensation in addition to the amount of Rs.6,48,436/- granted by the Tribunal. Thus the total amount of compensation would be 7,04,000 + 6,48,436 = 13,52,436/-. 8. In the result, this appeal is allowed in part. It is held that the appellants are entitled to get Rs.13,52,436/- as compensation out of which Rs.6,48,436/- was granted by the Tribunal and the balance amount of Rs.7,04,000/- is granted as enhanced compensation with the same rate of interest awarded by the Tribunal payable by the 3[rd] respondent Insurance Company from the date of petition till the date of deposit or realisation. 9. The appellants valued the claim at ## **M.A.C.A No.2710 of 2012** 9 Rs.10,00,000/- and court fee payable is calculated as Rs.9,373/-. In view of grant of Rs.7,04,000/- in excess of the claim, the appellants are bound to deposit Rs.7,040/- as additional court fee. The Insurance Company is directed to deposit Rs.7,040/- as additional court fee by a separate cheque in favour of M.A.C.T. The remaining amount shall be deposited in the name of appellants in the proportion fixed by the Tribunal within two months. On deposit, the appellants are entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww