Sajitha Vijayan & Others v. Babu T.V. & Baiju V. & National Insurance Company Limited & Jepsa Babu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944 MACA NO. 1158 OF 2012** **AGAINST THE AWARD IN OP(MV)NO.1868/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS/PETITIONERS :** **1 SAJITHA VIJAYAN, AGED 42 YEARS, W/O.LATE VIJAYAN, 2/104, VAISYAMPARAMBIL HOUSE, MULANTHURUTHY.P.O., MULANTHURUTHY VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **2 VISHNU VIJAYAN, S/O.LATE VIJAYAN, AGED 21 YEARS, 2/104, VAISYAMPARAMBIL HOUSE, MULANTHURUTHY.P.O., MULANTHURUTHY VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **3 ANANDU VIJAYAN, S/O.LATE VIJAYAN, AGED 18 YEARS, 2/104, VAISYAMPARAMBIL HOUSE, MULANTHURUTHY.P.O., MULANTHURUTHY VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.MATHEWS K.PHILIP SMT.T.MANASY** MACA No.1158 of 2012 ..2.. ## **RESPONDENTS/RESPONDENTS :** - **1 BABU T.V., S/O.VARGHESE, THEKKEKUNNEL HOUSE, MURIKKASSERY.P.O., IDUKKI DISTRICT-685 602.** - **2 BAIJU.V., S/O.VARGHESE, 4/252, MANADAN HOUSE, POOVATHINKAL.P.O., PARIYARAM-686 021.** - **3 NATIONAL INSURANCE COMPANY LIMITED, OMANA ARCADE, MARINE DRIVE, ERNAKULAM, KOCHI682 031.** - **4 JEPSA BABU, W/O LATE BABU T.V., THEKKEKUNNEL HOUSE, MURIKKASSERY P.O., IDUKKI DISTRICT685604 ( SOUGHT TO BE IMPLEADED )** **BY ADVS. P.SIVARAJ SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1158 of 2012 ..3.. ## **MACA No.1158 of 2012** **--------------------------------------------------** ## **J U D G M E N T** The appellants herein are the petitioners in O.P. (MV)No.1868 of 2009 on the file of the Motor Accidents Claims Tribunal, Ernakulam. They assail award dated 15.09.2011 in the above case on the ground of inadequacy. The respondents herein are the respondents before the Tribunal. 2. Heard Adv.Smt.T.Manasy, the learned counsel appearing for the appellants, Adv.Smt.Mahar Farzana appearing for the second respondent and Adv.Sri.E.M.Joseph, the learned appearing for the insurance company. MACA No.1158 of 2012 ..4.. 3. Brief facts of the case are as follows; The allegation of the appellants is that on 19.5.2009 at about 2.00 p.m., one Vijayan, the husband of the first appellant and father of the other appellants while riding on his motorcycle bearing Registration No.KL-39-8084 through the Puthiyakavu-Thrippunithura Road towards south and when he reached south of Choorakkad junction, a Tanker Lorry bearing Registration No.KL-3A-4314, which was driven, rashly and negligently, by the first respondent, through the same road hit on him and thereby he sustained serious injuries. Later he died in consequence of the accidental injuries. On the above facts, the appellants lodged petition under Section 166 of Motor Vehicles Act and claimed compensation to the tune of Rs.5,50,000/-. MACA No.1158 of 2012 ..5.. 4. R3 filed written statement and disputed the accident, quantum and liability, while admitting policy to the Tanker Lorry. Absence of driving licence to the driver was alleged, while disputing liability. 5. The learned counsel for the appellants would urge that the monthly income fixed by the Tribunal for assessing the loss of dependency is insufficient. According to the learned counsel, the appellants claimed Rs.15,000/- as the monthly income of the deceased and Ext.A8 salary certificate issued by the Proprietor of “Builders and Developers”, Kochi has been placed before the Tribunal in this regard. But the Tribunal negatived Ext.A8 on the finding that the author of the document was not examined to prove Ext.A8. Accordingly, the Tribunal not given credence to Ext.A8. MACA No.1158 of 2012 **==> picture [27 x 8] intentionally omitted <==** 6. Though the learned counsel for the appellants pressed for income as canvassed in Ext.A8, the learned counsel for the respondents zealously opposed the same on the ground that, in the absence of proof as regards the income claimed as Rs.15,000/- by examining author of Ext.A8, the same cannot be considered. 7. On perusal of Ext.A8, it could be noticed that it was a certificate issued on 06.04.2009 by the signatory under the head proprietor for 'Builders and Developers'. In Ext.A8, even the name of the person who issued the certificate not shown. As per Ext.A8, what has been stated is that Sri.Vijayan (deceased) had been working in the firm as a supervisor of flats from 01.06.2008 till 30.03.2009. The accident was on 15.09.2009. Therefore, as per Ext.A8, it could not be MACA No.1158 of 2012 **==> picture [27 x 8] intentionally omitted <==** found that, even at the time of accident, the above said Vijayan was working as a supervisor, relying on Ext.A8. In such view of the matter, I am of the view that the Tribunal rightly disowned Ext.A8. Therefore, I am not inclined to re-visit the said finding. However, the monthly income fixed by the Tribunal at Rs.4,000/- requires reconsideration following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** , therein, the income of a coolie was fixed at Rs.4,500/- in the year 2004 and therefore, Rs.7,000/- is the monthly income to be fixed in this case involving accident of the year 2009. 25% is liable to be granted, since the Tribunal included the deceased in the age group between 40 to 50 by applying the multiplier as '13'. Thus, the amount would come to MACA No.1158 of 2012 **==> picture [27 x 8] intentionally omitted <==** Rs.7,000+25%=8,750/-. 8. The Tribunal applied 1/4[th] deduction, though the number of claimants are 3. Therefore, the deduction is incorrect and the actual deduction shall be 1/3[rd] , since the number of claimants are three. Therefore, the loss of dependency income is as under; 8,750x12x13/3x2=9,10,000/- Out of which, Rs.4,68,000/- was granted by the Tribunal. Rs.9,10,000-4,68,000= **Rs.4,42,000/-** more is granted under the head loss of dependency income. 9. Apart from the above, the appellants are entitled to get compensation under the head conventional and traditional heads following the ratio in [2017 16 SCC 650], **National Insurance Company Ltd. v. Pranay Sethi & Ors.** Therefore, **Rs.7,500/-** more is granted MACA No.1158 of 2012 ..9.. under the head funeral expenses after deducting Rs.7,500/- granted by the Tribunal. Towards loss of estate, **Rs.15,000/-** is granted, since no amount is granted by the Tribunal under this head. Towards loss of consortium, the Tribunal granted Rs,10,000/-. In fact, the petitioners together are entitled to get Rs.1,20,000/under the head loss of consortium at the rate of Rs.40,000/- each. Therefore, **Rs.1,10,000/-** more is granted under the head loss of consortium after deducting Rs.10,000/- granted by the Tribunal. The Tribunal granted Rs.5,000/- under the head pain and sufferings and Rs.20,000/ under the head loss of love and affection. The same are impermissible in view of the decision in [AIR 2020 SC 3076], **United India Insurance Co.Ltd. v. Satinder Kaur.** Therefore, Rs.25,000/- stands disallowed. MACA No.1158 of 2012 ..10.. 10. As per the award impugned, the Tribunal granted recovery right in favour of the third respondent after depositing the award amount in the name of the appellants, on the finding that the driver of the offending vehicle did not possess a valid driving licence at the time of accident. In paragraph 7 of the award, charge under Section 181 of the Motor Vehicles Act and reluctance on the part of the first respondent to produce the driving licence as directed in view of the order in I.A.No.9183 of 2010 were given emphasis to find absence of driving license to the driver of the lorry. Though the first respondent appeared before this Court through the learned counsel, as I have already pointed out, the learned counsel also not produced any driving licence to hold otherwise. Even the first respondent has no MACA No.1158 of 2012 **==> picture [34 x 8] intentionally omitted <==** contention that the driver was having licence at the time of accident. Therefore, the finding of the Tribunal by giving recovery right is liable to be confirmed and in consequence thereof, the insurer shall be given reimbursement in respect of the enhanced compensation also, after deposit of the same. In the result, this appeal is allowed. It is ordered that the appellants are entitled to get enhanced compensation to the tune of Rs.5,49,500/- (Rupees Five lakh Forty Nine Thousand Five Hundred only) at the rate of 8% interest granted by the Tribunal excluding the amount already granted by the Tribunal from the date of petition till the date of deposit or realisation. Since the appellants valued the claim at Rs.5,50,000/-, they are liable to pay additional court fee amounting to Rs.5,120/- MACA No.1158 of 2012 **==> picture [34 x 8] intentionally omitted <==** for Rs.5,12,000/- for which court fee was not paid by the appellants. Therefore, insurance company is directed to deposit Rs.5,120/- as additional court fee in the name of MACT by a separate cheque and deposit the remaining amount in the name of the appellants in equal proportion, within two months from today and on deposit, the appellants are at liberty to release the same. The insurer is entitled to get recovery of the amount granted as additional compensation also along with the interest thereof from the second respondent, the owner of the vehicle, on depositing the same in the name of the appellants as directed. Sd/- **A.BADHARUDEEN, JUDGE** rkj