P.T. William and Others v. John and Nandanan Rohini and United India 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 WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939 MACA.No. 331 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 814/2006 of ADDL.M.A.C.T, ALAPPUZHA DATED 31-10-2011 ## APPELLANTS/PETITIONERS: ------------------------------ ## 1. P.T. WILLIAM - S/O.P.P.THOMAS, AGED 69 YEARS, CSI COMPOUND, POWER HOUSE WARD, ALAPPUZHA. 2. THOMAS WILLIAM, S/O.P.T. WILLIAM, AGED 41 YEARS CSI COMPOUND, POWER HOUSE WARD, ALAPPUZHA. 3. ALICE WILLIAM, D/O.P.T. WILLIAM, AGED 31 YEARS, CSI COMPOUND, POWER HOUSE WARD, ALAPPUZHA. 4. ANNI WILLIAM, D/O.P.T. WILLIAM, AGED 21 YEARS, CSI COMPOUND, POWER HOUSE WARD, ALAPPUZHA. 5. SOPHIYA WILLIAM, W/O.THOMAS, AGED 41 YEARS, OORIYATHARA HOUSE, THYMALA, MANJALI P.O., THIRUVALLA-5. BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. JOHN, S/O.MATHAI, PERUMBILLICHAMMUDU VEETTIL, M.P.WARD 4, MULAVUKAD, ERNAKULAM - 682 504. 2. NANDANAN, ROHINI, 63/63, CHITOOR ROAD, PACHALAM, ERNAKULAM - 682 012. 3. UNITED INDIA INSURANCE CO.LTD., HOSPITAL ROAD, ERNAKULAM REP. BY ITS MANAGER, PIN- 682 012. R3 BY ADV. SRI.A.R.GEORGE R BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** ------------------------------- M.A.C.A.No.331 of 2012 -------------------------------Dated 5[th] July, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Additional Motor Accidents Claims Tribunal, Alappuzha dated 31.10.2011 in O.P. (M.V)No.814 of 2006, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Samuel William, son of the first appellant and sibling of appellants 2 to 5, in a motor accident which occurred on 10.1.2006. While the deceased was travelling as a pillion rider in a motorcycle bearing Reg.No.KL-4/R-8826, it was hit by a container lorry bearing Reg.No.KL-7/AD-327 driven and owned by respondents 1 and 2 and insured with the third respondent. As a result of the accident, the deceased sustained serious injuries, who succumbed to the injuries on 16.1.2006, while undergoing inpatient treatment at Medical Trust Hospital, Ernakulam. Alleging that the accident occurred due to the rash and negligent driving of the lorry by the first respondent driver, claim petition was filed before the Tribunal claiming a total compensation of ₹10,06,000/-, under different heads. 2. Before the Tribunal, Exts.A1 to A14 were marked on the side of M.A.C.A.No.331/2012 2 the appellants/claimants and PW1 was examined on their side. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the evidence and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the lorry by the first respondent driver. Since the said vehicle was having a valid insurance coverage at the time of the accident, the third respondent insurer was held liable to indemnify the second respondent owner. Under different heads, the Tribunal awarded a total compensation of 4,69,090/- and directed the₹ third respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 7.5% per annum from the date of petition, i.e., 28.7.2006 till realisation, with proportionate costs. On a finding that the additional 5[th] respondent is not a blood relation of the deceased, the Tribunal awarded the compensation only to appellants 1 to 4, who were found entitled to get equal shares of the amount of compensation. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads and also challenging the denial of compensation to the 5[th] respondent, the appellants/claimants are before this Court in this appeal. M.A.C.A.No.331/2012 3 5. We heard the arguments of the learned counsel for the appellants/claimants and also the learned counsel for the third respondent insurer. 6. The accident is of the year 2006 and at the time of the accident the deceased was a bachelor aged 35 years. The appellants claimed that the deceased was having a monthly income of 6,000/- as a watch₹ repairer. In order to substantiate the said contention, PW1 was examined and Ext.A13 salary certificate was produced. However, the Tribunal fixed the monthly income of the deceased notionally at ₹4,000/-, in the absence of any reliable materials. The Tribunal adopted such a course mainly for the reason that the oral evidence of PW1 was found to be untrustworthy. ## 7. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((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 at 4,500/-. In the instant case,₹ the accident is of the year 2006 and at the time of the accident the deceased was an able bodied person aged 35 years. Taking note of the economic conditions prevailing as on the date of accident we deem it appropriate to re-fix the monthly income of the deceased notionally at ₹5,500/-, for assessing compensation under different heads. M.A.C.A.No.331/2012 4 8. Ext.A6 wound certificate would show that as a result of the accident the deceased sustained severe injuries. Ext.A10 is the discharge summary. Ext.A11 treatment certificate would show that the deceased had undergone inpatient treatment for a period of 6 days. 9. The compensation awarded by the Tribunal under different heads are as follows:- |are as follows:-||| |---|---|---| |**_Head of claim_**|**_Claimed_**<br>**_amount_**|**_Amount awarded_**<br>**_(in Rupees)_**| |Transport to hospital|10,000/-|2,000/-| |Medicine, treatment etc.|1,00,000/-|69,090/-| |Funeral Expenses|20,000/-|2,000/-| |Compensation for pain and<br>suffering|50,000/-|10,000/-| |Compensation for loss of estate<br>of the deceased.|8,16,000/-|3,84,000/-| |Compensation for love and<br>affection|10,000/-|2,000/-| |Total|10,06,000/-|4,69,090/-| 10. The fact that the fifth appellant is one of the sisters of the deceased is discernible from the pleadings on record. The said fact is also not seriously disputed by the learned counsel for the third respondent insurer. However, the learned counsel would point out that, as on the date of the accident, the fifth appellant has already been married and as such she cannot be treated as a dependent of the deceased. After considering the rival submissions, we find that though M.A.C.A.No.331/2012 5 the fifth appellant cannot be treated as a dependent of the deceased, she is entitled for payment of compensation to certain extent under the head loss of love and affection. The findings in the impugned award as to the entitlement of the fifth appellant for the amount of compensation is modified to the above extent. 11. Towards transportation to hospital, the Tribunal awarded a sum of 2,000/-. Considering the nature of treatment the deceased₹ had undergone, we find that the compensation awarded by the Tribunal represents just and reasonable compensation, which warrants no interference. 12. It is stated in the appeal that, though the deceased had undergone inpatient treatment for a period of six days, which is discernible from the medical records, the Tribunal has not granted any compensation under the heads bystander's expenses and extra nourishment. Since the accident is of the year 2006, we deem it appropriate to grant a sum of **₹ 1,200/-** (200x6) as compensation towards bystander's expenses and a further sum **₹ 600/-** (100x6) towards extra nourishment. 13. Towards funeral expenses, the Tribunal awarded only a meagre a sum of 2,000/-. In ₹ **Rajesh v. Rajbir Singh (2013(3) KLT 89(SC))** the Apex Court granted a sum of 25,000/- as compensation₹ M.A.C.A.No.331/2012 6 under this head. In the said case, the accident was of the year 2007. In the instant case, the accident is of the year 2006. In such circumstances, we deem it appropriate to re-fix the compensation under the head funeral expenses as ₹20,000/-, resulting an additional compensation of **₹ 18,000/-** . 14. The Tribunal awarded a sum of 10,000/- towards pain and₹ suffering. Considering the nature of injuries sustained and also the fact that the deceased had undergone inpatient treatment for a period of six days before he succumbed to the injuries, we deem it appropriate to refix the compensation under this head as 15,000/-, resulting an₹ additional compensation of **₹ 5,000/-** . 15. Towards loss of love and affection, the Tribunal awarded awarded only a meagre sum of 2,000/-. In ₹ **Rajesh's** case (supra) the Apex Court awarded a sum of 1,00,000/- under this head. But, that₹ was a case in which the deceased was aged 33 years, who was survived by three minor children. In the instant case, the deceased is survived by his father aged 64 years and siblings aged 36, 26, 16 and 36 years respectively. Considering the facts of the case, we deem it appropriate to re-fix the compensation under the head loss of love and affection as ₹50,000/-, resulting an additional compensation of **₹ 48,000/-.** M.A.C.A.No.331/2012 7 16. The Tribunal awarded a sum of 3,84,000/- under the head₹ loss of estate (loss of dependency), taking 4,000/- as the notional₹ monthly income and deducting ½ of the said sum towards personal and living expenses of the deceased, who was a bachelor, and applying the multiplier of `16'. Since the deceased was aged 35 years, appropriate multiplier applicable is `15', going by the decision of the Apex Court in _**Sarla Verma** v._ _**Delhi Transport Corporation (2010 (2) KLT 802**_ _**(SC)).**_ Since we have already re-fixed the notional monthly income of the deceased as 5,500/-, the compensation payable under the head₹ loss of dependency is reassessed as 4,95,000/- (5,500x12x15x1/2).₹ After deducing 3,84,000/- awarded by the Tribunal, the additional₹ compensation payable comes to **₹ 1,11,000/** -. 17. In the result, the appellants/claimants will be entitled for an additional compensation of **₹ 1,83,800/-** (1,200+600+18,000+ 5000+48,000+1,11,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. Out of the aforesaid amount, a sum of 20,000/- shall be paid to the fifth₹ appellant and the balance amount shall be apportioned between appellants 1 to 4 equally. 18. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the additional M.A.C.A.No.331/2012 8 compensation awarded in this appeal before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **ANIL K. NARENDRAN Judge** TKS