Pennamma Subhagan and others v. Asokan P.R. and The Oriental Insurance 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 TUESDAY, THE 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939 MACA.No. 1060 of 2010 ( ) -------------------------AGAINST THE AWARD IN OPMV 599/2004 of ADDL.MACT, ALAPPUZHA APPELLANT(S)/PETITIONERS:: ------------------------- 1. PENNAMMA SUBHAGAN, MOOPPAN VELIYIL, PUNNAPRA P.O., ALAPPUZHA. 2. SINIMOL.M.S., D/O.SUBHAGAN, DO. DO. 3. SREEJA. M.S., D/O. DO. DO. ## BY ADV. SRI.R.AZAD BABU RESPONDENT(S):RESPONDENTS ------------------------------------ 1. ASOKAN.P.R, S/O.RAGHAVAN, VILAS COTTAGE, (PURATHECHIRA VELI), WARD NO.4, PUNNAPRA SOUTH PANCHAYATH, ALAPPUZHA. 2. THE ORIENTAL INSURANCE CO.LTD., ALAPPUZHA BRANCH, REPRESENTED BY ITS MANAGER. R2 BY ADV. SRI.P.JACOB MATHEW R2 BY ADV. SRI.MATHEWS JACOB (SR.) R1 BY ADV. SRI.SUNIL S. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.1060 OF 2010 ==========================** Dated this the 13[th] day of June, 2017 ## **JUDGMENT** Anil K. Narendran, J. This appeal arises out of the award passed by the Additional Motor Accidents Claims Tribunal, Alappuzha in O.P.(MV).No.599 of 2004, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Subhagan, aged 62 years, husband of the first appellant and father of appellants 2 and 3, who died in a motor accident on 15.10.2003 while riding his bicycle. At the place of accident, a motorcycle bearing Reg.No.KL-4/C 7317, owned and ridden by the first respondent and insured with the second respondent, came in a rash and negligent manner and hit the bicycle in which the deceased was travelling. The deceased sustained serious injuries and succumbed to the injuries on **M.A.C.A.1060/2010** 2 22.10.2003 while undergoing treatment at Medical College Hospital, Alappuzha. Claiming a total compensation of Rs.3,00,000/-, claim petition was filed before the Tribunal. 2. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellants. Both sides have not chosen to adduce any oral evidence. 3. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle by the first respondent owner cum rider. Since the vehicle was covered by a valid insurance policy, the second respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.1,70,000/-. The second respondent insurer was directed to deposit the said amount together with interest at the rate of 6% per annum from the date of the petition till realisation and the appellants were permitted to apportion the compensation amount in the ratio 60:20:20. **M.A.C.A.1060/2010** 3 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants are before this Court in this appeal. 5. Heard arguments. 6. The accident occurred on 15.10.2003 while the deceased, who was aged 62 years, was riding his bicycle. The appellants claimed that the deceased was a retired Village Man earning a monthly income of Rs.5,000/-. In the absence of any reliable materials, the Tribunal reckoned the monthly income of the deceased notionally at Rs.3,000/- for the purpose of calculating compensation under different heads. Considering the fact that the accident is of the year 2003 and at the time of the accident, the deceased was earning some income by way of survey work, we deem it appropriate to re-fix his monthly income notionally at Rs.4,000/-. 7. The Tribunal awarded a sum of Rs.1,20,000/- as dependency compensation reckoning the monthly income of the deceased as Rs.3000/-, deducting ⅓ towards his personal expenses and applying the multiplier of '5'. In view of the decision of the Apex Court in **M.A.C.A.1060/2010** 4 ## **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802],** the proper multiplier applicable is '7'. Since at the time of accident, the deceased was maintaining his wife and two children, ⅓ of the notional monthly income will have to be deducted towards personal expenses of the deceased and remaining ⅔ alone can be reckoned for calculating dependency compensation. Taking the notional monthly income of the deceased as Rs.4,000/- and applying the multiplier of '7', the compensation payable under the head loss of dependency comes to Rs.2,24,000/- (4000x12x7x⅔). The Tribunal awarded a sum of Rs.1,20,000/- under the said head. In the result, the appellant will be entitled for an additional compensation of **Rs.1,04,000/-** under that head. 8. Towards loss of consortium, the Tribunal awarded only a meagre sum of Rs.5,000/-. In **Rajesh v. Rajbir Singh [2013 (3) KLT 89],** the Apex Court awarded a sum of Rs.1,00,000/- as compensation towards loss of consortium. In that case, the accident was of the year 2007 and the deceased was aged 33 years. In the **M.A.C.A.1060/2010** 5 instant case, the accident occurred in the year 2003 and at the time of the accident, the deceased was aged 62 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. In such circumstances, considering the age of the first appellant and the deceased at the time of accident, we deem it appropriate to re-fix Rs.50,000/- as the compensation for loss of consortium, which would represent a just and reasonable compensation under that head. In the result, the first appellant will be entitled for an additional compensation of **Rs.45,000/-** under the said head. 9. Towards loss of love and affection, the Tribunal awarded a sum of Rs.20,000/-. 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 two minor children. **M.A.C.A.1060/2010** 6 In the instant case, the deceased was aged 62 years and his two daughters were major. In such circumstances, we deem it appropriate to re-fix the compensation under this head as Rs.50,000/-, resulting an additional compensation of **Rs.30,000/-** payable to the second and third appellants. 10. Towards transportation and 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 2003, we deem it appropriate to re-fix the compensation under this head as Rs.15,000/- resulting an additional compensation of **Rs.10,000/-** . 11. Towards loss of estate, no amount was granted by the Tribunal. Considering the facts and circumstances of the case, we deem it appropriate to grant a sum of **Rs.5,000/-** under this head. 12. Towards pain and suffering, the Tribunal granted a sum of Rs.15,000/-. Considering the nature of the injuries, we find that the compensation awarded by the Tribunal under above head represents **M.A.C.A.1060/2010** 7 just and reasonable compensation which warrants no enhancement in this appeal. 13. In the result, the appellant will be entitled for an additional compensation of **Rs.1,94,000/-** (1,04,000+45,000+30,000+10,000+5000) in this appeal which will carry interest at the rate of 8% per annum from the date of the petition till realisation. 14. Since the insurance coverage of the offending vehicle is not in dispute, the second respondent insurer 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.1060/2010** 8 **M.A.C.A.1060/2010** 9 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1060/2010** 10