Prema and others v. M.K. Kesavan, Kuriyan and The Oriental Insurance Company Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942** ## **MACA.No.811 OF 2012** ## **AGAINST THE AWARD IN OPMV 3309/2005 DATED 20-09-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANTS:** |**1**|**SMT.PREMA**| |---|---| ||**AGED 43 YEARS**| ||**W/O.LATE SASI**| ||**KALLAYIL HOUSE,**| ||**P.O.PERUMBILAVU,**| ||**THRISSUR DISTRICT.**| |**2**|**SAMILI**| ||**D/O.LATE SASI**| ||**KALLAYIL HOUSE,**| ||**P.O.PERUMBILAVU,**| ||**THRISSUR DISTRICT..**| |**3**|**SRUTHY**| ||**D/O.LATE SASI**| ||**KALLAYIL HOUSE,**| ||**P.O.PERUMBILAVU,**| ||**THRISSUR DISTRICT..**| |**4**|**SARANYA**| ||**D/O.LATE SASI**| ||**KALLAYIL HOUSE,**| ||**P.O.PERUMBILAVU,**| ||**THRISSUR DISTRICT.**| |**5**|**SARATH (MINOR)**| ||**S/O.LATE SASI**| ||**KALLAYIL HOUSE,**| ||**P.O.PERUMBILAVU,**| ||**THRISSUR DISTRICT.**| ||**(REPRESENTED HEREIN BY HIS**| ||**GUARDIAN MOTHER THE 1ST APPELLANT)**| |**6**|**MEENAKSHI**| ||**W/O.KUMARAN**| ||**KALLAYIL HOUSE,**| ||**P.O.PERUMBILAVU,**| ||**THRISSUR DISTRICT.**| MACA.No.811 OF 2012 2 **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS:** **1 SRI.M.K.KESAVAN S/O.KRISHNAN, RESIDING AT MARAKATH HOUSE, P.O.PERAKAM, CHAVAKKAD, THRISSUR - 680 506. 2 SRI.KURIYAN S/O.THOMAS, RESIDING AT MULAKKAL HOUSE, MATTAM,CHELLUR, THRISSUR - 680 602. 3 M/S.THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH M.G.ROAD, THRISSUR - 680 001. BY ADV. SRI.GEORGE CHERIAN BY SMT.K.S.SANTHI, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.811 OF 2012 3 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- M.A.C.A. No. 811 of 2012 ------------------------------------------ Dated this the 16[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellants are the legal heirs of deceased Sasi. They filed O.P(M.V). No. 3309/2005 before Motor Accidents Claims Tribunal, Thrissur, claiming compensation under Section 166 of the Motor Vehicles Act. O.P(M.V). No. 3309/2005 was tried along with O.P(M.V). No. 3308/2005 by the Tribunal. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). ``` ``` 2. The short facts are like this:- On 18.05.2005 at about 11.15 a.m., deceased Sasi was travelling in an Auto-Rickshaw bearing Registration No. KL-08/E-4271 from Perumbilavu to Kunnamkulam. When the Auto- ``` MACA.No.811 OF 2012 4 ``` Rickshaw reached at Mazhuvanchery, a bus bearing Registration No. KL-08/P-9363 came from the opposite direction in a rash and negligent manner and hit on the auto rickshaw while the bus was overtaking a lorry proceeding ahead of the bus. The driver of the Auto- Rickshaw and passengers including the deceased sustained serious injuries. Deceased while undergoing treatment, succumbed to the injuries on 27.05.2005. Petitioners are the wife, children and mother of the deceased Sasi. According to the petitioners, the accident occurred due to the rash and negligent driving of the driver of the bus bearing Registration No. KL-08/P-9363. Hence, the petitioners claimed an amount of Rs.7,00,000/- (Rupees Seven Lakhs Only) as compensation from the respondents. ``` `3. To substantiate the case, Exhibits A1 to A95` `were marked on the side of the petitioners. After` MACA.No.811 OF 2012 5 ``` going through the evidence and documents, the Tribunal found that the appellants are entitled an amount of Rs.4,76,000/- (Rupees Four Lakhs Seventy Six Thousand Only) as compensation. Aggrieved by the quantum of compensation, this appeal is filed. ``` `4. Heard the learned counsel for the appellants` `and the learned counsel for the 3[rd] respondent.` ``` 5. The learned counsel for the appellants submitted that the monthly income fixed by the Tribunal is Rs.3,000/- when the claim is Rs.6,000/-. According to the learned counsel for the appellants, the deceased was a registered head load worker and he was getting Rs.6,000/- per month. The deceased was aged only 42 years. ``` `6. Considering the entire facts and circumstances` `of the case, and also considering the dictum laid down` ``` inRamachandrappa v. The Manager, Royal ``` MACA.No.811 OF 2012 6 ``` Sundaram [2011(13) SCC 236],an amount of Rs.5,000/- can be taken as the monthly income of the deceased. Moreover, towards future prospects, 25% of the monthly income is to be added in the light of the decision of Apex Court inNational Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT 662]. Based on the above, the monthly income will come to Rs.6250/-. If that is the case, loss of dependency is to be recalculated like this:- ``` ``` 6250x12x14x3/4=Rs.7,87,500/- ``` ``` The Tribunal awarded an amount of Rs. 3,78,000/- and that is to be deducted. Therefore the appellants are entitled an additional amount of Rs.4,09,500/- (Rupees Four Lakhs Nine Thousand and Five Hundred Only) towards loss of dependency. ``` `7. The Tribunal awarded an amount of Rs.15,000/-` `towards consortium and an amount of Rs. 15,000/-` MACA.No.811 OF 2012 7 ``` towards love and affection. Claimants are the wife, four children and mother of the deceased. They are entitled consortium in the light of the dictum laid down inMagma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130],. The wife is entitled Rs.40,000/- towards spousal consortium, minor children entitled Rs.40,000/- each towards parental consortium and the mother is entitled Rs.40,000/- towards flal consortium. ``` ``` Spousal Consortium: Rs.40,000/- Parental Consortium: Rs.1,60,000/- (4x40,000) Filial Consortium: Rs.40,000/- ------------------------ Rs.2,40,000/- ========== ``` ``` The Tribunal already awarded an amount of Rs.30,000/- towards consortium and loss of love and affection and that is to be deducted from the above ``` MACA.No.811 OF 2012 8 ``` amount. Therefore, the appellants are entitled an additional amount of Rs. 2,10,000/- (Rupees Two Lakhs Ten Thousand Only) towards loss of consortium. ``` `8. As far as funeral expenses is concerned, an` `amount of Rs. 3,000/- is allowed by the Tribunal. In the light of the decision of the Apex Court in` **`National`** ``` Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT 662],the appellants are entitled Rs.12,000/- (Rupees Twelve Thousand Only) more towards funeral expenses. ``` `9. For extra nourishment no amount is allowed by` `the Tribunal. The appellants are entitled an amount of Rs. 2,000/- (Rupees Two Thousand Only) towards extra nourishment.` `10. Considering the period of treatment of the` `deceased as inpatient, the appellants are entitled an amount of Rs.2,000/- towards bystanders’ expenses.` MACA.No.811 OF 2012 9 ## `11. The enhanced compensation entitled by the` ``` appellant can be summarized like this:- ``` ``` HeadAmount Loss of dependency Rs. 4,09,500/- Funeral Expenses Rs. 12,000 /- Loss of Consortium Rs. 2,10,000/- Extra nourishment Rs. 2,000/- Bystanders expenses Rs. 2,000/- Total Rs.6,35,500/- ``` ``` Therefore, this appeal is allowed in part. The impugned award is modified and the appellants are entitled an enhanced compensation of Rs.6,35,500/- (Rupees Six Lakhs Thirty Five Thousand and Five Hundred Only) with interest at the rate of 8% p.a, from the date of petition till realisation. Respondent No.3 is ``` MACA.No.811 OF 2012 10 ``` directed to pay the enhanced compensation with ``` ``` interest. ``` **Sd/-** ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` avs ```