Pushpavathy and Others v. Saril P.R., Ravichandran and United India Insurance Company Ltd. (MACA No. 1747 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 MACA NO. 1747 OF 2014** ## **OPMV 408/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM APPELLANT/S:** - 1 PUSHPAVATHY, AGED 45 YEARS,D/O. LATE SETHUMADHAVAN, VELLOOR KURUPPAMVEETTIL HOUSE, KOLAZHY P.O., THRISSUR DISTRICT (D/O LATE BROTHER OF DECEASED). - 2 SHEELA, AGED 43 YEARS, W/O. VENUGOPAL, S-26, CHENNAMKATTU HOUSE, KOLAZHY P.O., (D/O LATE BROTHER DECEASED). - 3 MANOJ,AGED 41 YEARS,D/O. LATE SETHUMADHAVAN, VELLOOR KURUPPAMVEETTIL HOUSE, KOLAZHY P.O., THRISSUR (S/O LATE BROTHER OF DECEASED). - 4 SATHEESH,AGED 37 YEARS,S/O. LATE SETHUMADHAVAN, VELLOOR, KURUPPAMVEETTIL HOUSE, KOLAZHY, THRISSUR (SON OF LATE BROTHER OF DECEASED). - 5 SARASWATHY, AGED 66 YEARS, W/O. LATE SETHUMADHAVAN, VELLOOR, KURUPPAMVEETTIL HOUSE, KOLAZHY, THRISSUR. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENT/S:** - 1 SARIL P.R.,AGED 30 YEARS, S/O. RAVINDRAN, PATTILAPARAMBIL HOUSE, KUMBLANGADU DESOM, KANJIRAKKODE P.O., WADAKKANCHERRY, THRISSUR (DRIVER OF REG.NO. KL 48-9419 MOTOR CYCLE)-680582. - 2 RAVICHANDRAN, PATTILAPARAMBIL HOUSE, KUMBLANGADU DESOM, KANJIRAKKODE P.O., WADAKKANCHERRY, THRISSUR (DRIVER OF REG.NO. KL 48-9419 MOTOR CYCLE)-680582. **MACA NO. 1747 OF 2014** -2- 3 UNITED INDIA INSURANCE COMPANY, BRANCH OFFICE, "FAIZAL BUILDING", OTTAPALAM, POLICY NO. 100681/ 31/09/01/00007237 VALID FROM 5-3-2010 TO 4-3-2011. BY ADVS. SRI.V.BINOY RAM SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.7.22, THE COURT ON 5.8.22 DELIVERED THE FOLLOWING: **MACA NO. 1747 OF 2014** -3- ## **JUDGMENT** (Dated this the 5[th] day of August 2022) The petitioners in O.P.(M.V.) No.408 of 2010 on the files of the Motor Accidents Claims Tribunal, Ottapalam are the appellants in this appeal, which is filed aggrieved by the compensation awarded for the death of Chandravathy, who is the aunt of petitioner Nos.1 to 4 and sister in law of 5[th] petitioner. 2. Brief facts of the case is as follows: - On 12.4.2010 at 12.30 p.m., while the deceased was standing on the eastern side of Thrissur-Shornur road, a motor cycle bearing reg.No.KL 48 9419 driven by the first respondent, in a rash and negligent manner, knocked her down and she **MACA NO. 1747 OF 2014** sustained serious injuries. Though she was immediately taken to Daya General Hospital, she succumbed to the injuries while undergoing treatment. The accident happened solely due to the negligence of the first respondent/ driver of the motor cycle. 3. Respondent Nos.1 and 2 filed joint statement denying the negligence attributed to them. They contended that the accident happened due to the careless walking of the deceased on the road. The age, income and occupation of the deceased were disputed. At the time of the accident, the vehicle was insured with the 3[rd] respondent and if at all the petitioners are entitled to any amount, it must be recovered from the 3[rd] respondent company. **MACA NO. 1747 OF 2014** -5- 4. The 3[rd] respondent filed a written statement denying the negligence attributed to the first respondent. The policy coverage was admitted, but disputed the age, income, and occupation of the deceased. The Tribunal passed an award for an amount of Rs.1.61,400/- and directed the third respondent to produce a cheque for the award amount. Aggrieved by the quantum of compensation awarded, this appeal is filed. 5. Heard. 6. The learned counsel for the appellant, Adv.Sheji P Abraham submitted that the Tribunal failed to take the monthly income of the deceased as Rs.4,000- and fixed the compensation for loss of dependency taking the monthly income only at Rs.2,500/-. Going by the decision reported **MACA NO. 1747 OF 2014** -6- in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co** . Ltd [(2011) 13 SCC 236], for an accident which happened in the year 2010, the monthly notional income of a person has to be taken as Rs.7,500/-. The claim of the appellants is that the deceased was aged 63 years, being a cooli, was earning a sum of Rs.4,000/- per month. Since the claim is only Rs.4,000/per month, I am taking the monthly notional income of the deceased as Rs.4,000/- per month. Since the age of the deceased was 63 years, going by the decision reported in **Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another [(2009) 6 SCC 121],** the multiplier to be taken is 7. The compensation for permanent disability can be worked out as 4,000x12x7/2 = 1,68,000/-. The Tribunal has awarded an amount of **MACA NO. 1747 OF 2014** -7- Rs.1,05,000/- under the head. 7. As far as loss of consortium is concerned, the Tribunal did not award any amount. The learned counsel for the appellant relying on the decision of the honourable Apex Court in **N Jayasree and others v.** **Cholamandalam Ms.General Insurance Company Ltd.** **[2021(6) KLT (SN) 16],** contended that the appellants are also entitled for loss of consortium. In the abovementioned decision, the Apex Court was considering the question as to whether the mother-in-law of the deceased is precluded from filing the application for compensation as the legal representative of the deceased. The Apex Court, after an elaborate consideration, held that the mother-in-law is a legal **MACA NO. 1747 OF 2014** -8- representative under Section 166 of the Motor Vehicles Act and she is entitled to maintain a claim petition. It has to be noted that the said case was filed by the wife of the deceased and two daughters along with the mother-in-law. While computing the loss of consortium, the Apex Court has awarded only spousal consortium and parental consortium and the mother-in-law was not awarded any amount on the head of loss of consortium. Hence, the said judgment will not help the appellants. The Tribunal was right in not awarding any amount under the head loss of consortium to the appellants. Though loss of consortium was not awarded, loss of love and affection was awarded at the rate of Rs.3,000/- each to appellants. As against the claim of Rs.1,00,000/- only an amount of Rs.15,000/- **MACA NO. 1747 OF 2014** awarded, which according to me, is on the lower side. Hence, I am inclined to grant a further amount of Rs.15,000/- under the head. 8. Towards loss of estate, though the appellants claimed Rs.1,00,000/-, nothing was granted. Relying on . the decision reported in _**National Insurance Company Ltd**_ v. _**Pranay Sethi**_ **[2017 (16) SCC 680],** an amount of Rs.15,000 + 10% escalation for three years, which comes to Rs.16,500/-, is granted towards for loss of estate. 9. Towards funeral expenses, Rs.2,000/- was granted by the Tribunal. Going by the decision reported in **Pranay Sethi (supra)** , an amount of Rs.15,000+10% escalation for three years can be awarded under the head funeral expenses. Thus, Rs.16,500/- is granted towards **MACA NO. 1747 OF 2014** -10- ## funeral expenses. Accordingly, the following enhancements are made to the award passed by the Tribunal: |S.N.|Head of Claim|Amt.awardd by<br>Tribunal(Rs)|Amt.enhanced in<br>appeal(Rs.)| |---|---|---|---| |1|Loss of dependency|1,05,000|1,68,000| |2|Loss of love and<br>affection|15,000|30,000| |3|Loss of estate|--|16,500| |4|Funeral expenses|2,000|16,500| ||Total|1,22,000|2,31,000| ||Amount enhanced ..2,31,000-1,22,000=Rs.**1,09,000/-**||| In the result, the appeal is allowed and the appellants are entitled to an amount of **Rs.1,09,000/- (Rupees one lakh and nine thousand only)** as enhanced compensation **MACA NO. 1747 OF 2014** with interest at the rate of 8% from the date of petition. The enhanced compensation shall be released to the appellants in the proportion as ordered by the Tribunal. 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 deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of petition. ## **sd BASANT BALAJI, JUDGE** _dl/_