Radha Ramachandran and others v. Binukumar and others

MACA.No.628/2016 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945_ ## _MACA NO. 628 OF 2016_ _AGAINST THE ORDER/JUDGMENT OPMV 1974/2005 OF ADDITIONAL_ _DISTRICT COURT & SESSIONS COURT - III/ ADDITIONAL MOTOR_ _ACCIDENT CLAIMS TRIBUNAL-II, MAVELIKKARA_ ## _APPELLANTS/PETITIONERS:_ - _1 RADHA RAMACHANDRAN,_ _KUTTIYILTHEKKATHIL, THATHAMMUNA, PADANILAM P.O, PANDANILAM._ - _2 RAMACHANDRAN,_ _KUTTIYILTHEKKATHIL, THATHAMMUNA, PADANILAM P.O, PANDANILAM._ - _3 VIVEK,_ _KUTTIYILTHEKKATHIL, THATHAMMUNA, PADANILAM P.O, PANDANILAM._ - _4 AISWARYA RANACHANDRAN,_ _KUTTIYILTHEKKATHIL, THATHAMMUNA, PADANILAM P.O, PANDANILAM._ - _5 ANASWARA RAMACHANDRAN (MINOR), KUTTIYILTHEKKATHIL, THATHAMMUNA, PADANILAM P.O, PANDANILAM._ _BY ADVS._ _SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN_ MACA.No.628/2016 2 ## _RESPONDENTS/RESPONDENTS:_ - _1 BINUKUMAR, BINU BHAVANAM, KARIMULACKAL, KOMALLOOR P.O, 690 505._ - _2 HARIKUMAR,_ _LETHA BHAVANAM, KADUVINAL, VALLIKKUNNAM P.O, MAVELIKKARA-690 501._ - _3 A.POOKUNJU,_ _SIJINA MANZIL, PATTANIPARAMBIL, KOTTUKULANGARA, KAYAMKULAM-690 502._ - _4 THE BRANCH MANAGER, NEW INDIA ASSURANCE CO.LTD, KAYAMKULAM-690 502._ _BY ADVS. SRI.ARUN AJAY SHANKAR SRI.JIKKU SEBAN GEORGE SRI.K.C.SANTHOSHKUMAR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.628/2016 3 ## **JUDGMENT** The appellants are the petitioners in O.P.(MV).No.1974 of 2005 on the file of the Motor Accidents Claims Tribunal, Mavelikkara. The said claim petition was submitted by them seeking compensation for the death of one Vishnu due to the injuries sustained to him in a motor accident that occurred on 05.11.2005. 2. The 1[st] and 2[nd] appellants are the parents and the appellants 3 to 5 are siblings of the deceased. The accident occurred when the motorcycle ridden by the deceased, along with a pillion rider, collided with a tempo van bearing registration No.KL4E-4474 driven by the 1[st] respondent in a rash and negligent manner. The 2[nd] respondent was the registered owner. The 3[rd] respondent was the insured and the 4[th] respondent was the insurer of the said vehicle. According to the appellants, the deceased was aged 20 years at the time of the accident and he was a student of Bachelor of Fine Arts at Raja Ravi Varma College of Fine Arts, Mavelikkara. The claim petition was submitted in such circumstances. 3. The 4[th] respondent/Insurance company filed a written statement admitting the coverage of policy in respect of the tempo MACA.No.628/2016 4 van but raised a contention of violation of policy conditions at the instance of the registered owner of the said vehicle. They also disputed the negligence as well as the quantum of compensation. The said claim petition was tried along with O.P.No.419 of 2006 which arose from the very same accident. 4. The evidence in this case consists of Ext.A1 to A25 from the side of the claimants and Ext.B1 and B2 were marked from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the tempo van and being the insurer of the said vehicle, the 4[th] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.5,66,950/-, and the said amount was directed to be deposited by the 4[th] respondent with interest at the rate of 9% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.P.J.Joe Paul, learned counsel for the appellant and Sri.K.C.Santhosh Kumar, learned counsel for the Insurance Company. MACA.No.628/2016 5 6. The specific contention put forward by the learned counsel for the appellant is with regard to the inadequacy of compensation under various heads. It was pointed out by the learned counsel that the monthly income taken by the Tribunal was only Rs.4,000/-, which was grossly inadequate. According to him, he was a very bright student and a person with skills in painting. The learned counsel places reliance upon Ext.A9, A10 and A11, etc., which would indicate that he was engaged in extracurricular activities and was a good painter. He was successful in many painting competitions. The learned counsel also places reliance upon the decision rendered by this Court in **National Insurance Co.Ltd. v. Fathimath Zuhara [2016(3) KLT 459]** , wherein the monthly income of an engineering student was fixed as Rs.12,000/in respect of an accident occurred in the year 2005. 7. After carefully going through the materials placed on record, I find some force in the said contention. It is evident from the records that he was a person who got prizes and recognition in various painting competitions. The fact that he was studying the course of Bachelor of Fine Arts in Raja Ravi Varma College of Fine Arts, itself shows his talents. The deceased was aged 20 years at MACA.No.628/2016 6 the time of the accident. As rightly pointed out by the learned counsel for the appellant, this Court, in **Fathimath Zuhara’s** case, referred to above, accepted the monthly income of an engineering student as Rs.12,000/- in respect of an accident in the year 2005. In this case also, the accident occurred in the year 2005. However, the said amount cannot be accepted, as the prospects of an engineering student is likely to be higher when compared to a normal student. Even if that be so, in the facts and circumstances of the case, taking note of the abilities of the deceased in extracurricular activities particularly the ability of painting, I deem it appropriate to fix the monthly income as Rs.9,000/-. As the deceased was 20 years old, the future prospects of 40% have to be taken into account. Since he died as a bachelor, the deduction towards personal expenses should be 50%. Thus, while re-assessing the compensation for loss of dependency with the above-revised criteria, the amount would come to Rs.13,60,800/- [(9000+40%) x 12x 18x ½]. The amount already awarded by the Tribunal under this head is Rs.4,32,000/-; thus, additional compensation would come to **Rs.9,28,800/-** . MACA.No.628/2016 7 8. The next head which requires consideration is loss of consortium. In the light of the **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760],** 1[st] and 2[nd] appellants being the parents of the deceased, are entitled to compensation under the said head at the rate of Rs.40,000/- each, thereby making a total amount of Rs.80,000/-. However, in this case it is pointed out by the learned counsel for the Insurance Company that the Tribunal has already awarded an amount of Rs.50,000/- towards loss of love and affection, which is not warranted, as the compensation is awarded for loss of consortium. Such contention is to be accepted in the light of the observations made in **Satinder Kaur (supra)** and therefore, the amount of Rs.50,000/- already awarded for loss of love and affection is set off against additional amount determined by this Court for loss of consortium. Thus, the additional amount would come to **Rs. 30,000/-.** At the same time, it is also to be noted that the Tribunal has awarded excess compensation under the head of funeral expenses and loss of estate. The amounts payable as per **National Insurance Co. Ltd v. Pranay Sethi** MACA.No.628/2016 8 **[2017 (4) KLT 662 (SC)]** under these heads are Rs.15,000/- each, whereas, the compensation awarded was Rs.25,000/- and 20,000/respectively. Therefore, the amounts of **Rs.10,000/-** and **Rs. 5000/-** are directed to be deducted in respect of the said heads respectively. Thus, the total additional compensation is determined as Rs.9,43,800/- [(9,28,800+30000)-(5000+10000)]. In the light of the aforesaid observations and findings this appeal is allowed. Award dated 31.07.2015 passed by the Motor Accidents Claims Tribunal, Mavelikkara in O.P.(MV).No.1974 of 2005 is hereby modified by granting an additional compensation of Rs.9,43,800/- (Rupees nine lakhs forty three thousand and eight hundred only) and the said amount shall be deposited by the 4[th] respondent/Insurance Company with interest at the rate as ordered by the Tribunal from the date of petition till realization with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. _Sd/-_ **ZIYAD RAHMAN A.A. JUDGE** DG/13.12.23