Mini Varghese and others v. Rajendra Prasad Kadam and others (MACA 2654 of 2012)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 MACA NO. 2654 OF 2012 ``` ``` OPMV 1530/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`MUVATTUPUZHA`** ## **`APPELLANTS/PETITIONERS:`** ``` 1MINI VARGHESE, AGED 42 YEARS W/O. LATE VARGHESE @ BABY, PULICKAKUDY HOUSE, KOTHAMANGALAM KARA, KUTHUKUZHY P.O., KOTHAMANGALAM VILLAGE. 2MITHRA P. VARGHESE, AGED 21 YEARS D/O. LATE VARGHESE @ BABY, PULICKAKUDY HOUSE, KOTHAMANGALAM KARA, KUTHUKUZHY P.O., KOTHAMANGALAM VILLAGE. 3BASIL VARGHESE, AGED 15 YEARS (MINOR), S/O. LATE VARGHESE @ BABY, PULICKAKUDY HOUSE, KOTHAMANGALAM KARA, KUTHUKUZHY P.O., KOTHAMANGALAM VILLAGE REPRESENTED BY HIS NEXT FRIEND AND MOTHER MINI VARGHESE. 4BESTIN VARGHESE, AGED 11 YEARS (MINOR), S/O. LATE VARGHESE @ BABY, PULICKAKUDY HOUSE, KOTHAMANGALAM KARA, KUTHUKUZHY P.O., KOTHAMANGALAM VILLAGE REPRESENTED BY HIS NEXT FRIEND AND MOTHER MINI VARGHESE. 5ALIYAS, AGED 75 YEARS S/O. VARGHESE, PULICKAKUDY HOUSE, KOTHAMANGALAM KARA, KUTHUKUZHY P.O., KOTHAMANGALAM VILLAGE. * (DECEASED) 6MARY MARIYAMMA PULICKAKUDY HOUSE, KOTHAMANGALAM KARA, KUTHUKUZHY P.O., KOTHAMANGALAM VILLAGE (DIED ON 9-12-2009). * LEGAL HEIRS RECORDED MEMO DATED 22.12.2021 REPORTING DEATH OF THE 5TH APPELLANT AND THAT THE OTHER APPELLANTS ARE HIS LEGAL REPRESENTATIVES IS RECORDED AS PER ORDER DATED 23.12.2021 IN MACA 2654/2012. ``` ``` BY ADV SRI.SABU FRANCIS ``` M.A.C.A. No.2654/2012 : 2 : ## **`RESPONDENTS/RESPONDENTS:`** - `1 RAJENDRA PRASAD KADAM, AP PIMPODE BUDRUKTAL KOREGAON DIST, SATARA, MAHARASHTRA-415501 (REGD. OWNER OF LORRY BEARING REG. NO.MH-11/F 5263) EX-PARTE).` - `2 SUNIL SANKAR GADS S/O. SANKAR, LALGUM HOUSE, KATTAVU TALUK, SATHARA DIST. MAHARASHTRA-415501 (DRIVER OF LOFFY BEARING REG.NO. MH-11/F 5263 (EX-PARTE).` - `3 BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD. 'SOHAM' SANTHI NAGAR, RAHIMATPUR ROAD, KOREGAON-415501, DIST., SATARA KOREGAON (INSURER OF LORRY BEARING REG.NO. MH-11/F 5263).` - `4 A.R.SANTHOSHKUMAR ATHIPPILLIL HOUSE, KUTHUKUZHY P.O., PIN-686691, KOTHAMANGALAM (RIDER AND REGISTERED OWNER OF MOTOR CYCLE BEARING REG.NO. KL-7/AB 8064).` - `5 BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD., MUVATTUPUZHA BRANCH, MADAPARAMBIL CHAMBERS, MUVATTUPUZHA, PIN-686661 (INSURER OF MOTOR CYCLE BEARING REG.NO KL-7/AB 8064). BY ADVS. P.K.MANOJKUMAR VPK.PANICKER` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2654/2012 : 3 : ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1530/2003 on the files of the Motor Accident Claims Tribunal, Muvattupuzha. 2. The said claim petition was submitted by them seeking compensation for the death of one Varghese @ Baby due to the injuries sustained to him in a motor accident that occurred on 21.02.2003. The 1[st] appellant is the wife, appellants 2, 3 and 4 are the children of the deceased. The 5[th] and 6[th] appellants were the parents of the deceased who passed away during the pendency of this appeal. The appellants 1 to 4 were declared as the legal representatives of the deceased 5[th] and 6[th] appellants. 3. The accident occurred, when the motorcycle on which the deceased was pillion riding, was hit by a lorry bearing registration No.MH-11F-5263. The lorry was being driven by the 2[nd] respondent, owned by the 1[st] respondent and was insured with the 3[rd] respondent. The 4[th] respondent was the rider and registered owner of the motorcycle on which the deceased was travelling, and it was insured with the 5[th] respondent. The deceased was a ‘B’ class Contractor with a monthly income of Rs.10,000/-. He was M.A.C.A. No.2654/2012 : 4 : aged 38 years at the time of the accident. The claim petition was submitted in such circumstances. 4. The 3[rd] respondent filed a written statement, admitting the coverage of policy for the lorry. However, they disputed the liability and the quantum of compensation. The 5[th] respondent, the insurer of the motorcycle, also filed a written statement admitting the coverage of policy for the motorcycle, but denied the negligence on the part of the 4[th] respondent driver. The quantum of compensation was also challenged. 5. The evidence in this case consists of the oral testimony of PW1 and as documentary evidence, Exts,A1 to A8 were marked from the side of the appellants. The case diary in connection with the crime No.114/2003 of Perumbavur Police Station was marked as Ext.X1. From the side of the respondents Exts.B1 and B2 were marked. 6. After the trial, the tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the lorry as well as the rider of the motorcycle who were responsible for the accident and their contributions to the accident were determined at the ratio 60:40, respectively. The quantum of M.A.C.A. No.2654/2012 : 5 : compensation was fixed as Rs.4,77,500/- and the said amount was directed to be deposited by the 3[rd] and 5[th] respondents at the ratio as referred to above, with interest at the rate of 8% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted in such circumstances seeking enhancement of compensation. 7. Heard Sri. Sabu Francis, the learned counsel appearing for the appellants, Sri. P.K. Manoj Kumar, the learned counsel appearing for the 3[rd] respondent and Sri. V.P.K. Panicker the learned counsel appearing for the 5[th] respondent. 8. The only dispute in this case relates to the quantum of compensation. The learned counsel for the appellant points out that, even though a monthly income of Rs.10,000/- was claimed, a meagre amount of Rs.3,000/- was taken by the tribunal. The learned counsel further pointed out that to substantiate the monthly income, the appellant produced Ext.A8 series of income tax clearance certificates. It is discernible therefrom that, the said certificates were pertaining to the period 2000-01, 2001-02, 2002- 03. The highest among the same, was for the year 2000-01 and the amount of annual income shown therein was Rs.57,990/-. It M.A.C.A. No.2654/2012 : 6 : was contended that despite the same, the tribunal adopted only Rs.3,000/- which is grossly inadequate. 9. After perusing the records, I find some force in the said contention. This is an accident occurred in the year 2003. Therefore, the monthly income of Rs.3,000/- appears to be too low. As is discernible from Annexure A8, he declared a monthly income Rs.57,990/- for the year 2000-01. It is to be noted in this regard that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236],the Hon’ble Supreme Court pleased to take the monthly income for an ordinary worker without any evidence as Rs.4,500/- for the year 2004. In such circumstances, I deem it appropriate to take Rs.4,500/- as the monthly income of the appellant. 10. Another aspect highlighted by the learned counsel for the appellants is that no addition was made by the tribunal towards future prospects while calculating the compensation. The said contention has to be accepted in the light of **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. Since the deceased was aged 38 years, an addition of 40% of the monthly income ought to have been made. Similarly, the deceased left M.A.C.A. No.2654/2012 : 7 : behind 6 dependents, the deduction towards personal expenses should have been ¼. Thus while reassessing the compensation with the above revised criteria, the amount of compensation for loss of dependency would come to Rs.8,50,500/- [(4500+40%)x12 x15x3/4]. The amount already awarded by this Court under the said head is Rs.4,05,000/- and thus the additional compensation under this head would come to Rs.4,45,500/-. 11. The amount awarded by the tribunal towards funeral expenses was Rs.5,000/- whereas the proper amount that should have been awarded by the tribunal in the light of **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] was Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is awarded. Similarly, the amount awarded towards loss of estate by the tribunal was only Rs.2,500/- and hence, a further sum of Rs.12,500/- is awarded. 12. The next aspect to be considered is compensation for loss of consortium. 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] all the claimants being wife, M.A.C.A. No.2654/2012 : 8 : three children and the parents were entitled for compensation under this head at the rate of Rs.40,000/- each, thereby making the total amount under this head as Rs.2,40,000/-. The tribunal has awarded only an amount of Rs.15,000/- under this head for the 1[st] petitioner. Besides the same, under the head of loss of love and affection, a further sum of Rs.45,000/- was also granted. Since it is categorically held in **Satinder Kaur’s** case (supra) that when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection, the said amount of Rs.45,000/- can be adjusted against the compensation now determined by this Court under the head of loss of consortium. Thus the additional compensation for loss of consortium would come to Rs.1,80,000/-. Thus the total additional compensation is determined as Rs.6,48,000/- (4,45,500+10000+ 12500+1,80,000). 13. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 30.05.2012 passed by the Motor Accident Claims Tribunal, Muvattupuzha in OP(MV) No.1530/2003 is hereby modified by granting an additional compensation of Rs.6,48,000/- (Rupees Six lakhs forty eight M.A.C.A. No.2654/2012 : 9 : thousand only) and the said amount shall be deposited by the 3[rd] and 5[th] respondent at the ratio of 60:40 and with interest as ordered by the tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. It is ordered that the claimants shall furnish the details of the PAN card Aadhar card and bank details within a period of two months from the date of receipt of the copy of this judgment to enable the respondents to make the deposit as ordered above. In case, they fail to furnish the said details it shall be open for the insurance company to deposit the same amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/