Prameela and others v. Vinod Vijayan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 MACA NO. 3259 OF 2014 AGAINST THE ORDER/JUDGMENTOPMV 1432/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANTS/PETITIONERS 1 TO 3 AND ADDITIONAL PETITIONERS 5 TO 8:** 1 PRAMEELA, W/O.PURUSHOTHAMAN, KAVIL VEEDU, KANATHARKUNNAM MURI, WEST KALLADA VILLAGE, KOLLAM DISTRICT. 2 NITHYA, D/O.PURUSHOTHAMAN, KAVIL VEEDU, KANATHARKUNNAM MURI, WEST KALLADA VILLAGE, KOLLAM DISTRICT. 3 NITHIN, S/O.PURUSHOTHAMAN, KAVIL VEEDU, KANATHARKUNNAM MURI, WEST KALLADA VILLAGE, KOLLAM DISTRICT. 4 BHARATHY, KAVIL VEEDU, KANATHARKUNNAM MURI, WEST KALLADA VILLAGE, KOLLAM DISTRICT. 5 SUSEELA, D/O.KRISHNANKUTTY, KAVIL VEEDU, KANATHARKUNNAM MURI, WEST KALLADA VILLAGE, KOLLAM DISTRICT. 6 SULAJA, D/O.KRISHNANKUTTY, KAVIL VEEDU, KANATHARKUNNAM MURI, WEST KALLADA VILLAGE, KOLLAM DISTRICT. 7 NANI, KAVIL VEEDU, KANATHARKUNNAM MURI, WEST KALLADA VILLAGE, KOLLAM DISTRICT. BY ADV SRI.ANCHAL C.VIJAYAN ## **RESPONDENTS/RESPONDENTS:** 1 VINOD VIJAYAN, VINEETHA LAND, ARINALLOOR P.O., THEVALAKKARA, KOLLAM DISTRICT, PIN: 690 538. 2 ANSAR, THANDANMARAYATHU THEKKATHIL, PADINJATTEKKARA P.O., MACA NO. 3259 OF 2014 -2- THEVALAKKARA VILLAGE, KOLLAM DISTRICT, PIN: 690 524. 3 H.D.F.C., ERGO INSURANCE COMPANY LTD., TRIVANDRUM, PIN : 695 001. 4 PUSHPARAJAN, S/O.KRISHNANKUTTY, KAVIL VEEDU, KANATHARKUNNAM MURI, WEST KALLADA VILLAGE, KOLLAM DISTRICT, PIN: 691 502. BY ADV SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 3259 OF 2014 -3- ## **JUDGMENT** The appellants are the petitioners in O.P.(MV) No.1432/2009 on the files of the Motor Accident Claims Tribunal, Kollam. The claim is filed under Section 166 of the Motor Vehicles Act for the death of one Purushothaman. 2. On 23.08.2009 at 4 p.m. the deceased was riding a bicycle from east to west through Kadapuzha Karali junction public road. His son was pillion rider. When the bicycle reached south to Kadapuzha junction a tipper lorry bearing registration No.KL-23/6576 driven by the first respondent came in a rash and negligent manner and hit on the bicycle of the deceased. The deceased fell down and the lorry ran over him. Though he was taken to a nearby hospital he succumbed to the injuries. The accident occurred due to the negligence of the first respondent. Second respondent being the owner and the third respondent being the insurer are MACA NO. 3259 OF 2014 -4- liable to pay the compensation jointly and severally. The deceased was a mason aged 39 years and earning monthly income of Rs.9,000/-. 3. First and second respondents entered appearance, but no written statement was filed. Third respondent alone filed a written statement. He was contended that the lorry bearing registration No.KL-23/ 6576 was not involved in the accident. The cause of the accident as stated in the petition is not correct. The policy of the offending lorry was admitted. There is violation of policy condition. As the first respondent did not have any driving license the compensation claimed is highly excessive and prays for dismissal of the petition. The fourth respondent, father of the deceased died during the pendancy of the Original Petition before the Tribunal and his legal heirs were subsequently impleaded as 6, 7 and 8. The Tribunal in appreciation of the facts and circumstances of the case and the oral evidence of PW1 and Exhibits A1 to A10 awarded MACA NO. 3259 OF 2014 -5- compensation of Rs.6,70,000/- with 7.5% interest from the date of petition till realisation. 4. The counsel for the appellants Sri.Anchal C.Vijayan submits that the deceased was a mason and he was earning a sum of Rs.9,000/- per month as income. But the Tribunal has taken only Rs.5,000/- as monthly income for calculating as loss of dependency. He also submits that since the deceased had not completed the age of 40 years, the proper multiplier to be taken was 15 but the Tribunal has taken the multiplier as 14, for the reason that he has completed 40 years. On other various heads the compensation awarded is not just and reasonable and prays for enhancement of the same. 5. The apex Court in **Ramachandrappa Vs. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)** held that a person, coolie, who was met with an accident in the year 2009, the monthly income to be taken as Rs.7,000/-. MACA NO. 3259 OF 2014 -6- Though the appellant has claimed that he was a mason no evidence was reckoning to prove that he was earning more income than Rs.7,000/-. In the absence relying on the decision mentioned above the monthly income is fixed as Rs.7,000/-. 1/4th is deducted as personal expenses since the number of dependence is between 4 to 5. Relying the decision of the Apex Court in **Shashikala and others V. Gangalakshmamma and another** ( **2015) 9 SCC 150,** which held as follows: “16. Insofar as appropriate multiplier, the date of birth of the deceased as per driving licence was 16-6-1961. On the date of accident i.e. 1412-2006, the deceased was aged 45 years 5 months and 28 days and the Tribunal has taken the age as 46 years. Since the deceased has completed only 45 years, the High Court has rightly taken the age of the deceased as 45 years and adopted multiplier of 14 which is the appropriate multiplier and the same is maintained. Total loss of dependency is calculated at Rs.16,82,310 (Rs.1,20,165 X 14).” 6. In view of such decision proper multiplier to be MACA NO. 3259 OF 2014 -7- taken as 15 since the deceased was completed the age of 40 years. Since the deceased was aged 40 years and was self employed 25% has to be awarded towards future prospects. Hence the monthly income after disbursing his expenses is come to Rs.5,250/- and 25% is added to that the monthly income to be taken for calculating loss and dependency would be Rs.6562.5 So the loss of dependency computed as 6562.5x12x15= Rs.11,81,250/-. 7. As far as the compensation for loss of consortium is concerned the Tribunal has awarded only Rs.10,000/-. The appellants 1,2,3,4 and 5 are entitled to loss of consortium. Hence they are entitled to Rs.40,000/- each plus Rs.10% escalation relying on **National Insurance Company Ltd. v. Pranay Sethi [2017 (16) SCC 680]** . 8. As far as loss of estate is concerned the Tribunal has awarded only Rs.5,000/-. The minimum amount under the head of loss of estate relying on the decision report **Pranay Sethi(** _**supra**_ **)** as Rs.15,000/- plus MACA NO. 3259 OF 2014 -8- 10% which comes to Rs.16,500/- less Rs.5,000/- i.e., Rs.11,500/-. 9. When consortium is awarded loss of love and affection cannot be awarded in addition to that. Hence Rs.5,000/- awarded under the head loss of love and affection is set aside. For funeral expenses also the appellants are entitled to Rs.15,000/- plus 10% increase in every escalating three years, as per decision **Pranay Sethi** _**(supra)**_ , less what is awarded by the Tribunal. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.No.|Head of Claim|Amt.Awarded<br>by<br>Tribunal<br>(Rs.)|Amt.Enhanced<br>in appeal (Rs.)| |---|---|---|---| |1|Loss of dependency|6,30,000/-|11,81,250/-| |2|Loss of consortium|10,000/-|2,20,000/-| |3|Loss of estate|5,000/-|16,500/-| |4|Funeral expenses|10,000/-|16,500/-| |5|Loss of love and affection|5,000/-|-----| ||TOTAL|6,60,000/-|14,34,250/-| |Total amount enhanced 14,34,250 – 6,60,000 = 7,74,250/-|||| MACA NO. 3259 OF 2014 -9- In the result, the appeal is allowed and the appellants are entitled to an amount of Rs.7,74,250/(Rupees Seven lakh seventy four thousand two hundred and fifty only). The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of petition. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to MACA NO. 3259 OF 2014 -10- deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of petition. sd **BASANT BALAJI JUDGE** vv