Parameswaran and Others v. Sumesh V.S. and Others

MACA.NO.1543/2013 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ ## _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 3[RD] DAY OF JANUARY 2024 / 13TH POUSHA, 1945_ ## _MACA NO. 1543 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 385/2007 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA_ ## _APPELLANTS/CLAIMANTS:_ _1 PARAMESWARAN, AGED 58 YEARS, S/O.AYYAPPAN, PALLATHUKATTIL (HOUSE)MOOLANKAVU P O, SULTHAN BATHERY TALUK, WAYANAD DIST._ _2 KUMARY, AGED 52 YEARS, W/O.PARAMESWARAN, PALLATHUKATTIL (HOUSE)MOOLANKAVU P.O, SULTHAN BATHERY TALUK, WAYANAD DIST_ _3 SHINU P.P, AGED 31 YEARS, S/O.PARAMESWARAN,PALLATHUKATTIL (HOUSE), MOOLANKAVU P O, SULTHAN BATHERY TALUK, WAYANAD DIST._ _4 ANU MOLE P.P, AGED 28 YEARS, D/O.PRAMESWARAN,PALLATHUKATTIL (HOUSE)MOOLANKAVU P O, SULTHAN BATHERY TALUK, WAYANAD DIST._ _BY ADVS. SRI.ABRAHAM P.GEORGE SMT.M.SANTHY SRI.K.VINODKUMAR 70789_ ## _RESPONDENTS/RESPONDENTS:_ _1 SUMESH V.S., AGED 38 YEARS, S/O.SAMUEL, VAZHEL HOUSE, CHETHALAYAM P.O, SULTHAN_ MACA.NO.1543/2013 2 _BETHERY TALUK, WAYANAD DIST-678 001._ - _2 N.S.VIJAYAN, S/O.SUBRAMANIAN,612/NAMBIARKUNNU HOUSE,NAMBIARKUNNU P.O, SULTHAN BATHERY, WAYANAD DIST, PIN-678 001._ - _3 THE BRANCH MANAGER, UNITED INDIA INSURANCE CO LTD, NOORNAL BUILDING, CHUNGAM, SULTHAN BAGHERY, WAYANAD DIST._ _BY ADVS. SRI.T.V.AJAYAKUMAR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.NO.1543/2013 3 ## **JUDGMENT** The appellants are the petitioners in O.P.(MV).No.385 of 2007 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The said claim petition was submitted by them seeking compensation for the death of one Binu, due to the injuries sustained in the accident that occurred on 15.02.2007. The 1[st] and 2[nd] appellants are the parents, whereas the 3[rd] and 4[th] appellants are the siblings of the deceased. The accident occurred when the motorcycle on which the deceased was travelling was hit by another motorcycle bearing registration No.KL-12/A 7661 driven by the 1[st] respondent in a rash and negligent manner. The said motorcycle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. 2. The deceased was 31 years old at the time of the accident, and he was working as a diesel mechanic in K.S.R.T.C. on daily wages. The monthly income claimed by the claimant was Rs.5,000/-. The claim petition was submitted in such circumstances. 3. The 3rd respondent Insurance Company alone contested the matter by filing a written statement, wherein they admitted the insurance coverage of the aforesaid motorcycle. However, they disputed the liability on various grounds. They also disputed negligence as well as the quantum of compensation. MACA.NO.1543/2013 4 4. The evidence in this case consists of oral evidence of PW1 and as documentary evidence, Exts.A1 to A11 were marked from the side of the appellants. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1st respondent in riding the motorcycle bearing registration No.KL-12/A 7661 and being the insurer of the said vehicle, the 3rd respondent was held liable to pay the compensation. The amount of compensation was fixed at Rs.3,90,500/-, and the said amount was directed to be deposited with interest at the rate of 7.5% per annum from the date of petition till realization with proportionate costs. This appeal is submitted by the appellants seeking enhancement of compensation. 5. Heard Smt.M.Santhy, learned counsel for the appellants and Sri.T.V.Ajayakumar, learned counsel for the 3[rd] respondent Insurance Company. 6. The only dispute in this case pertains to the quantum of compensation, particularly under the head of loss of dependency. It is seen from the records that the Tribunal took the monthly income as Rs.3,500/- which appears to be on the lower side. Besides the same, the Tribunal also committed an error in taking the multiplier MACA.NO.1543/2013 5 that applies to the age of the mother and no addition towards future prospects was also made. The position of law in this regard is settled in the light of the observations made by the Honourable Supreme Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (S.C.)].** As per the said decision, in the case of the death of a bachelor, the multiplier that has to be adopted is one applicable to the age of the deceased and not of his dependents. Similarly, in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (S.C.)]** , it was categorically observed that, with respect to the claim for the death of the persons who come within the age group of below 40 years, 40% of the monthly income has to be added towards future prospects. Therefore, the re-assessment has to be made by adopting the said principles. 7. Another crucial aspect to be noticed in this regard is with respect to the monthly income. As referred above, Rs.3,500/- was on the lower side. To substantiate the contention of the monthly income, Ext.A7 salary certificate issued by the Assistant Transport Officer, K.S.R.T.C was produced, wherein it was mentioned that the deceased had worked as an Empanelled Mechanic on daily wage at the rate of Rs.170/- per day. Since it is a document issued by a Government establishment, I do not find any reason to discard the MACA.NO.1543/2013 6 same. In the light of the same, I deem it appropriate to fix the monthly income as Rs.4,500/-. Therefore, the calculation of compensation has to be made by taking the said monthly income with an addition of 40% and by applying the multiplier of 16. When such assessment is made, the amount of compensation would come to Rs.6,04,800/- [(4500 + 40%)x12x16x1/2]. The amount already awarded by the Tribunal is Rs.3,64,000/- and the additional compensation under the head of loss of dependency would come to Rs.2,40,800/-. 8. It is also seen that the Tribunal awarded Rs.5,000/- under the head of funeral expenses, which is against the principles laid down in **Pranay Sethi (supra)** , wherein it was held that the proper amount under the said head should be Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is awarded under the head. The tribunal did not award any amount towards loss of estate, and in the light of the observations made in **Pranay Sethi (supra),** Rs.15,000/- can be awarded under the said head, and it is ordered accordingly. 9. The next head which requires to be considered is compensation for loss of consortium. In the light of the **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v.** MACA.NO.1543/2013 7 **Satinder Kaur [2020 (3) KHC 760],** appellants 1 and 2 being the parents are entitled to compensation for loss of consortium at the rate of Rs.40,000/- each and thus, the said amount is fixed as Rs.80,000/-. However, the learned counsel for the Insurance Company would point out that the Tribunal awarded an amount of Rs.10,000/- towards loss of love and affection and in **Satinder Kaur (supra),** it was categorically observed by the Honourable Supreme Court that when compensation is awarded for loss of consortium, no separate amount is to be granted towards loss of love and affection. In such circumstances, Rs.10,000/- awarded by the Tribunal is adjusted against the amount awarded towards loss of consortium. Thus, the additional compensation under the head of loss of consortium would come to Rs.70,000/-. Thus, the total compensation receivable by the appellants is determined as Rs.3,35,800/[240800+70000+10000+15000]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 23.02.2010 in O.P.(MV).No.385 of 2007 passed by the Motor Accidents Claims Tribunal, Kalpetta is hereby modified by granting an additional compensation of Rs.3,35,800/- (Rupees three laks thirty five thousand and eight hundred only) and the said amount shall be deposited by the 3[rd] MACA.NO.1543/2013 8 respondent with interest at the rate as ordered by the Tribunal with 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 1156 days in filing the appeal was condoned on condition that the appellants shall be dis-entitled to get interest for the said period, the 3[rd] respondent Insurance Company shall be at liberty to exclude the said period while computing the interest on the additional compensation. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/6.1.24