Mini Chacko and Alen Jude (Minor) v. Ahammed Kutty M., Aswin Damodharan and United India Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945 ``` ## `MACA NO. 2454 OF 2012` ``` [AGAINST THE AWARD DATED 30.11.2010 IN O.P.(MV) NO.1295/2009 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE] ``` ## `APPELLANTS/PETITIONERS:` ``` 1MINI CHACKO, AGED 30 YEARS, W/O. LATE VARKEY GEORGE, THADATHIL HOUSE, KODENCHERY, CHEMBUKADAVU, KOZHIKODE. 2ALEN JUDE (MINOR) AGED 9 YEARS, REP. BY MOTHER MINI CHACKO, THADATHIL HOUSE, KODENCHERY CHEMBUKADAVU, KOZHIKODE. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1AHAMMED KUTTY M., S/O.ABDURAHIMAN HAJI, EDOTH HOUSE, KARUVANNUR P.O., NADUVANNUR, KOZHIKODE 2ASWIN DAMODHARAN AGED 28 YEARS, AREEPURATH HOUSE, KINALOOR P.O., BALUSSERY (VIA), KOZHIKODE. 3UNITED INDIA INSURANCE CO. LTD. VETTUKATTIL BUILDING, M.G. ROAD, KOZHIKODE R3 BY ADV SRI.P.K.MANOJKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2454 OF 2012 2 ``` ## `JUDGMENT` The appellants were the petitioners in O.P (MV) No. 1295 of 2009 on the files of Principle Motor Accident Claims Tribunal, Kozhikode. The said claim petition was filed by them seeking compensation for the death of one Varkey George due to the injuries sustained in a Motor Accident that occurred on 30.08.2008. According to the appellants, the accident occurred when the Motor Cycle ridden by the deceased was hit by the bus bearing Registration No. KL-56-9235, driven by the 2[nd] respondent. The 1[st] respondent was the owner of the bus and it was insured with the 3[rd] respondent. The deceased was a Collection Agent of one Emerald Associates, with a monthly income of Rs.10,000/-. He was aged 36 years. The claim petition was submitted in the said circumstances. 2. The 3[rd] respondent submitted a written statement, admitting the coverage of policy however they denied the negligence on the part of the 2[nd] respondent and also disputed the quantum of compensation. To substantiate the contentions, the appellants examined PW1 and marked Exts. A1 to A12. 3. After the trial, the tribunal came to the conclusion that the ``` MACA NO. 2454 OF 2012 3 ``` accident occurred due to the negligence on the part of the 2[nd] respondent and being the insurer of the vehicle the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs. 5,07,000/- and the said amount was directed to be deposited by the 3[rd] respondent with interest @7% per annum from the date of petition till realization with a cost of Rs.2,000/-. This appeal is submitted by the appellant in said circumstance seeking enhancement of compensation. 4. Heard Sri. George Mathew, learned counsel appearing for the appellant and Sri. P.K Manoj Kumar, learned counsel appearing for the 3[rd] respondent -Insurance Company. 5. The only challenge in this case relates to the quantum of compensation, particularly under the head of loss of dependency. According to the learned counsel for the appellant, the monthly income taken by the Tribunal was grossly inadequate. Besides the same, no addition was made towards future prospects as well. 6. It is seen from the records that, even though a monthly income of Rs.10,000/- was claimed, the Tribunal took the monthly income as Rs. 4,000/-. Ext. A6 was produced by the appellants and to ``` MACA NO. 2454 OF 2012 4 ``` prove the monthly income, PW1, the proprietor of M/s Emerald Associates, where the appellant was working, was also examined. Besides his evidence, Ext.A8 – I.T.C certificate was produced to show that the deceased was a certificate holder in Refrigeration and A.C Mechanic. Exhibit A9 certificate would go to show that he was a certified wire man capable to do electrical wiring for high voltage and extra voltage cable. PW1 deposed that, he employed the deceased as a collection agent, and his employment was to collect the arrears of loan due to ICICI Bank. According to PW1, the deceased was being paid an amount of Rs.10,000/- per month. However, the tribunal did not accept the said monthly income as the evidence of PW1 was not convincing since no documents to substantiate the same was produced. He also submitted that he was not maintaining any register in connection with the payment of wages to the deceased. 7. On going through the materials placed on record, I find that the view taken by the Tribunal for not placing reliance upon the PW1 cannot be found fault with. However, the monthly income of Rs.4,000/-, appears to be on the lower side. The accident occurred in the year 2008. When the method of computation of monthly income involved from the principles laid down in the **Ramachandrappa v.** `MACA NO. 2454 OF 2012 5` **Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011)** **13 SCC 236]** , and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, in respect of an ordinary worker without any qualification and skills, the monthly income could be fixed as Rs.4,500/- in respect of an accident occurred in the year 2004. The usual method that is adopted to determine the monthly income for the subsequent months is to add Rs.500/- per year. When such a computation is made, the monthly income for the year 2008 could be fixed as Rs. 6,500/- for an ordinary worker without any skills. In this case, there is evidence to show that, he was a qualified mechanic for Refrigeration and Air condition and he was also a qualified wireman as well. Besides the same, PW1 also states that the deceased was employed by him in his establishment. When all the aforesaid aspects are taken in the consideration, I am of the view that, a slightly higher income than the one usually taken for an ordinary worker can be adopted in this case. Therefore, Rs. 7,500/- is fixed as the monthly income. 8. As the deceased was aged 36 years, an addition of 40% have to be made towards the future prospects in the light of the observations in the **National Insurance Company Ltd. v.** `MACA NO. 2454 OF 2012 6` **Pranay Sethi** [(2017) 16 SCC 680]. When reassessing the compensation for loss of dependency with the above revised criteria, the amount would come to Rs. 12,60,000/(7,500+40%)x12x15x2/3. The amount already awarded by the Tribunal under this said head Rs.4,80,000/- and thus the additional amount would come to Rs. 7,80,000/- 9. The amounts awarded under the head of funeral expenses and loss of estate were Rs. 5,000/- each, whereas, the amounts payable under those heads are Rs.15,000/- each, in the light of **Pranay Sethi’s** case (supra). Therefore, a further sum of Rs.10,000/- each is granted under the said heads. As far as the loss of consortium is concerned, the amount awarded by the tribunal was only Rs.10,000/-. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130],** and **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760] **, the** appellants, being wife and the child of the deceased, are entitled to compensation for loss of consortium @ Rs.40,000/- each, thereby making out a total amount of Rs. 80,000/-. As the Tribunal has already awarded an amount of Rs.10,000/- under this head, the appellants are entitled only Rs.70,000/-. However, the Tribunal awarded an amount of `MACA NO. 2454 OF 2012 7` Rs.5,000/- under the head of loss of love and affection. In **Satinder Kaur’** s case (super) **,** it was categorically observed that when compensation for loss of consortium is awarded, no further amount needs to be granted for loss of love and affection. Therefore, the said amount can be adjusted towards the amount awarded by this Court for loss of consortium, thus the additional compensation under the said head would come to Rs.65,000/-. Accordingly, the total additional compensation is determined as Rs.8,65,000/(7,80,000+10,000+10,000+65,000). In the result, this appeal is allowed. The award dated 30.11.2010 in O.P(MV) No.1295 of 2009 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode is hereby modified by granting an additional compensation of Rs.8,65,000/- [Rupees Eight Lakhs Sixty five thousand only]. The said amount shall be deposited by the 3[rd] respondentInsurance Company with interest at the rate as ordered by the tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, as the delay of 581 days in filing the appeal was condoned by this Court on condition that, the appellants shall not be entitled to claim interest for the additional compensation `MACA NO. 2454 OF 2012 8` pertaining to this said period, the 3[rd] respondent- insurance Company shall be entitled to exclude the said period while computing the interest on the additional compensation. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. ``` ``` JUDGE ``` Asw/pkk