Molly @ Annamma John and others v. Branch Manager, New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 29TH DAY OF JUNE 2017/8TH ASHADHA, 1939 MACA.No. 240 of 2011 ( ) ------------------------- AGAINST THE AWARD IN OPMV 301/2006 of MACT, KALPETTA DATED 25-02-2010 APPELLANT(S)/PETITIONERS: ------------------------ 1. MOLLY @ ANNAMMA JOHN, AGED 44 YEARS - W/O.LATE JOHN.M.D,MANGALAPPALLIL HOUSE, MEENANGADI 54, MEENANGADI POST, SULTHAN BATHERY TALUK,WAYANAD DISTRICT. 2. GAYOS,M.JOHN, AGED 23 YEARS, - S/O.LATE JOHN.M.D, MANGALAPPALLIL HOUSE, MEENANGADI-54, MEENANGADI POST, SULTHAN BATHERY TALUK,WAYANAD DISTRICT. 3. KESIYA JOHN, AGED 18 YEARS, D/O.LATE JOHN.M.D, MANGALAPPALLIL HOUSE, MEENANGADI-54,, MEENANGADI POST, SULTHAN BATHERY TALUK,WAYANAD DISTRICT. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S)/RESPONDENT NO.3: ------------------------------ THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., M.G.T.BUILDINGS, KALPETTA 673 121, (INSURER OF KL-12-A-1710 JEEP). ## BY ADV. SRI.RENI ANTO KANDAMKULATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** ## **========================== M.A.C.A. No.240 OF 2011 ==========================** Dated this the 29[th] day of June, 2017 ## **JUDGMENT** ## _Anil K. Narendran, J._ This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Kalpetta dated 25.2.2010 in O.P.(MV). No.301 of 2006, an application filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one John M.D, aged 49 years, husband of the first appellant and father of appellants 2 and 3, who died in a motor accident occurred on 25.4.2006 while riding his motor cycle bearing Reg.No.KL-12/A8542. At the place of accident, the motorcycle was hit by a jeep bearing Reg.No.KL-12/A-1710, driven and owned by respondents 1 and 2 before the Tribunal and insured with the respondent herein (third respondent before the Tribunal). The deceased who sustained **M.A.C.A.240/2011** 2 fatal injuries succumbed to the injuries on the very same day itself. Alleging that the accident occurred due to the rash and negligent driving of the jeep by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.7,00,000/- under different heads. 2. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellants/claimants. The first appellant was examined as PW1 and one V.T.Abraham, who is stated to be a person associated with Malabar District Council of the South India Assemblies of God, was examined as PW2. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the jeep by its driver. Since the vehicle was covered by a valid insurance policy, the respondent insurer was held liable to indemnify owner of the jeep. Under different heads, the Tribunal awarded a total compensation of Rs.3,87,500/-. The **M.A.C.A.240/2011** 3 respondent insurer was directed to deposit the said amount before the Tribunal less the amount paid u/s.140 of the M.V.Act, together with interest at the rate of 7.5% per annum from the date of the petition till payment. The Tribunal has also awarded proportionate cost. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants are before this Court in this appeal. 5. Heard arguments. 6. The sole issue that arises for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7 **.** The accident is of the year 2006 and at the time of the accident, the deceased was aged 49 years. The appellants/claimants claimed that the deceased was a Pastor earning Rs.10,800/- per month. In order to prove the claim regarding monthly income, one V.T.Abraham was examined as PW2. However, during the cross examination of PW2, it has come out in evidence that there is no **M.A.C.A.240/2011** 4 records evidencing payment of salary of Rs.10,800/- alleged to have been paid to the deceased, as stated in Ext.A8 salary certificate. In the absence of any reliable materials, the Tribunal reckoned the monthly income of the deceased notionally at Rs.4,000/- for the purpose of calculating compensation under different heads. 8. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Apex Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 as Rs.4,500/-. Considering the fact that the accident in the instant case is of the year 2006 and at the time of the accident, the deceased was an able bodied person aged 49 years, we deem it appropriate to re-fix his monthly income notionally at Rs.6,000/- for assessing compensation under different heads. 9. The compensation awarded by the Tribunal under different heads reads thus:- |**_Name of head_**|**_Amount awarded_**| |---|---| |Loss of dependency|352000| |Loss of consortium|10000| **M.A.C.A.240/2011** 5 |Loss of love and affection|10000| |---|---| |Funeral expenses|5000| |Pain and suffering|5000| |Transportation<br>to<br>hospital|5000| |Damage to clothingand articles|500| 10. Since the appellant has crossed the age of 50 years, applying the multiplier of '11', reckoning the notional monthly income as Rs.4,000/- and deducting ⅓ towards the personal and living expenses of the deceased, the Tribunal awarded a sum of Rs.3,51,999.9/- (4000x12x11x2/3) as dependency compensation, which was rounded to Rs.3,52,000/-. Taking the monthly income of the deceased as Rs.6,000/-, deducting ⅓ towards his personal and living expenses and applying the multiplier of '11', the compensation is re-worked as Rs.5,28,000/- (6000x12x11x2/3), resulting an additional compensation of **Rs.1,76,000/-.** 11. Towards loss of consortium, the Tribunal awarded only a sum of Rs.10,000/-. In **Rajesh v. Rajbir Singh [2013 (3) KLT 89],** the Apex Court awarded a sum of Rs.1,00,000/- as compensation **M.A.C.A.240/2011** 6 towards loss of consortium. In that case, the accident was of the year 2007 and the deceased was aged 33 years and his wife was still younger. In the instant case, the accident is of the year 2006 and at the time of the accident, the deceased was aged 49 years and his wife was aged 40 years. In **Valsamma v. Binu Jose [2014 (1) KLT 10],** a Division Bench of this Court, after referring to the decision of the Apex Court in **Rajesh's case** (supra), held that, the age of the widow and the deceased are relevant factors while considering the question of compensation to be awarded for loss of consortium. Considering the facts and circumstances of the case, we deem it appropriate to re-fix Rs.90,000/- as the compensation for loss of consortium. In the result, the first appellant will be entitled for an additional compensation of **Rs.80,000/-** under the said head. 12. Towards loss of love and affection, the Tribunal awarded a sum of Rs.10,000/-. In **Rajesh's case** , the Apex Court granted a sum of Rs.1,00,000/- under this head. In the said case, the accident was of the year 2007 and the deceased was survived by minor children. In **M.A.C.A.240/2011** 7 the instant case, the deceased was survived by his two children aged 19 and 13 years respectively. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as Rs.75,000/-, resulting an additional compensation of **Rs.65,000/-** payable to the second and third appellants. 13. Towards funeral expenses, the Tribunal awarded a sum of ' Rs.5,000/-. In **Rajesh s case** (supra), the Apex Court awarded a sum of Rs.25,000/- as compensation under the said head. Since in the instant case, the accident is of the year 2006, we deem it appropriate to re-fix the compensation under this head as Rs.20,000/- resulting an additional compensation of **Rs.15,000/-** . 14. Towards pain and suffering, the Tribunal awarded a sum of Rs.5,000/-. Considering the fact that the deceased sustained fatal injuries in the accident, we deem it appropriate to re-fix the compensation under this head as Rs.10,000/- resulting an additional compensation of **Rs.5,000/-** . 15. Towards transportation to hospital and damage to clothing **M.A.C.A.240/2011** 8 and articles, the Tribunal awarded a sum of Rs.5,000/- and Rs.500/respectively which represent just and reasonable compensation which warrants no interference in this appeal. 16. No amount was awarded by the Tribunal as compensation for loss of estate. Considering the facts and circumstances of the case, we deem it appropriate to grant a sum of **Rs.10,000/-** under this head. 17. In the result, the appellants are entitled for an additional compensation of **Rs.3,51,000/-** (1,76,000 + 80,000 + 65,000 + 15,000 + 5000 + 10,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation, excluding the period of 210 days delay in fling this appeal, which was condoned by order dated 29.8.2016 in C.M.Appln.No.378 of 2011, subject to the condition that the appellants will not be entitled to get interest for the aforesaid period of delay in case they are found entitled for enhanced compensation in this appeal. 18. Since the insurance coverage of the offending vehicle is not in dispute, the respondent insurer (third respondent before the **M.A.C.A.240/2011** 9 Tribunal) shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/** **M.A.C.A.240/2011** 10 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.240/2011** 11