## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH**
**TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937**
## **MACA.No. 2698 of 2012 ()**
**------------------------IN OPMV 1233/2007 of MACT, IRINJALAKUDA DATED 01-11-2012**
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## **APPELLANT(S)/APPELLANT/PETITIONERS:**
**--------------------------------------------------------------------**
## **1. SAJU SEBASTIAN**
**S/O.DEVASSYKUTTY, CHAKKALAMATTATH CHEMBOTTY HOUSE KORATTY EAST P.O., MUKUNDAPURAM TALUK THRISSUR DISTRICT.**
## **2. BINDHU JEESON**
**D/O.DVASSYKUTTY, -DO- -DO-.**
**BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH**
## **RESPONDENT(S)/RESPONDENTS:**
**----------------------------------------------------**
## **1. SHIJU SEBASTIAN**
**CHAKKALAMATTATH CHEMBOTTY HOUSE KORATTY EAST P.O. MUKUNDAPURAM TALUK THRISSUR DISTRICT 680308.**
## **2. BIJU SEBASTIAN**
**CHAKKALAMATTATH CHEMBOTTY HOUSE KORATTY EAST P.O. MUKUNDAPURAM TALUK THRISSUR DISTRICT 680308.**
## **3. THE ORIENTAL INSURANCE CO.LTD. CHALAKKUDY 680307.**
**R1 & 2 BY SRI.GEORGE CHERIAN (THIRUVALLA) R3 BY ADV. SRI.A.R.GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **VS**
## **C.T.RAVIKUMAR & MARY JOSEPH, JJ. --------------------------------------------------M.A.C.A. No.2698 of 2012**
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Dated this the 12[th] day of January, 2016
## **JUDGMENT**
## **C.T.RAVIKUMAR, J.**
Claimants in O.P.(M.V.)No.1233/2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda who are the appellants herein filed this appeal on being dissatisfied with the quantum of compensation fixed as per the award passed thereon.
2. The claimants are the children of one Annie Devasykutty, who died in a motor accident. She was the pillion rider on a motor cycle bearing Reg.No.KL-45-A-3741 driven by the second respondent who is also her son. The first respondent who is yet another son of the deceased is the owner of the motor cycle and the third respondent is the insurer of the said vehicle. The accident occurred on
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28.07.2007 at about 8.30 pm when the second respondent in a rash and negligent manner drove the vehicle along Koratty-Pulikkakadavu road. When the said vehicle reached Koratty Railway Gate it ran over a bump and consequently Annie Devasykutty fell down and sustained injuries. She was taken to St.James Hosptial, Chalakkudy and from there she breathed her last on 06.08.2007. In the said circumstances the claim petition has been filed for an amount of Rs.6,23,000/- and limiting it to Rs.4,00,000/-.
3. No oral evidence was adduced by both sides. On the side of the appellants Exts.A1 to A9 were marked and on the side of the third respondent Ext.B1 policy was marked. After a careful scanning of the evidence on record and appreciating the rival contentions the Tribunal found that the accident occurred due to the negligence on the part of the second respondent and there was a valid insurance policy in respect of the vehicle in question belonging to the first respondent. The third respondent, the insurer was therefore made liable to indemnify the first respondent. The
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Tribunal passed an award for an amount of Rs.2,18,280/with interest at the rate of 7.5% per annum from 07.11.12 till realisation. As noticed hereinbefore, dissatisfied with the quantum of compensation awarded by the Tribunal, the claimants filed this appeal seeking enhancement of the amount of compensation.
4. We have heard the learned counsel for the appellants and also the learned counsel appearing for the third respondent, the insurer.
5. It is firstly contended that though no amount was specifically claimed under the head of funeral expenses, in terms of the decision of the Honourable Apex Court in _**Rajesh v. Rajbir Singh**_ reported in _**2013 (3) KLT 89**_ at least an amount of Rs.25,000/- ought to have been granted by the Tribunal. However, the Tribunal granted only a meagre amount of Rs.2000/- under the said head. The factum of death of Annie Devasykutty in the motor accident and also the fact that the appellants/claimants are her children, are not in dispute. In such circumstances they
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must have incurred some expenses for her funeral. In the light of the decision in _**Rajesh** 's case(supra)_ certainly the appellants are therefore entitled to get Rs.25,000/- as they had not produced any evidence of incurrence of more amount. Taking into account the fact that the appellants have already been granted Rs.2000/- under the said head, we are inclined to hold that the appellants are entitled to get an amount of Rs.23,000/- additionally under the head of funeral expenses. It is seen from the impugned award that the entire amount claimed under the heads 'Medical and miscellaneous' and 'transportation expenses' were granted by the Tribunal. Under the head 'pain and sufferings' the appellants claimed Rs.25,000/-, but the Tribunal granted only an amount of Rs.10,000/-. The accident occurred on 28.07.2007, and Annie Devasykutty, the mother of the appellants was then aged 56 years and she breathed her last
on 06.08.2007. Thus, evidently the death was not instantaneous and she had been inpatient for 9 days before succumbing to the injuries on 06.08.2007. Exts.A4, A5, A6
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and A7 would reveal the fact that she suffered head injury and there is no case for the respondents that she became unconscious immediately and remained as such till her death. Taking note of these facts and the nature of the injuries we are of the view that the amount granted under the head 'pain and suffering' is inadequate and taking note of such aspects we are of the view that the entire claim under the said head ought to have been granted. In other words under the head of 'pain and sufferings' the appellants are entitled to get an amount of Rs.15,000/- additionally. The impugned award would reveal that under the head 'loss of dependency' the appellants claimed an amount of Rs.3,00,000/- and the Tribunal granted an amount of Rs.1,44,000/-. The question is whether the appellants are entitled to an escalation of the amount under the said head.
6. The learned counsel appearing for the 3[rd] respondent contended that the appellants have crossed adolescence much before the date of accident. We are of the view that the deceased being the mother the invaluable
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service which rendered to her children has to be valued and to be equated in terms of money and treated as her contribution to the family income. Though the appellants claimed that the deceased was a tailor by profession no evidence, either oral or documentary has been produced by the appellants and in such circumstances the deceased has to be treated only as a housewife. In such circumstances even if it is taken that she is a housewife a monthly income of Rs.3,000/- ought to have been taken. The formula followed by the learned Tribunal for arriving at the amount of compensation for loss of dependency cannot be said to be faulty. We have already found that the monthly income of the deceased ought to have been taken as Rs.3,000/- for the purpose of computing compensation under the said head. Therefore, following the same formula with change in the multiplicand the amount under the said head would become Rs.2,16,000/-. After deducting the amount already awarded viz., Rs.1,44,000/- the appellants are entitled to get a further amount of Rs.72,000/- under the said head. Towards loss of
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damage to clothing an amount of Rs.1,000/- was claimed. However no amount was seen granted by the Tribunal. We are inclined to grant the entire amount claimed viz., Rs.1,000/- under the said head. Towards 'loss of estate' an amount of Rs.50,000/- was claimed and only an amount of Rs.2,500/- was granted. Considering the circumstances we are of the view that the appellants are entitled to get an amount of Rs.10,000/- under the head of loss of estate and after deducting the amount already awarded they are entitled to get an additional amount of Rs.7,500/-. The appellants are the children of the deceased and the deceased was only aged 56 years at the time of her death. The appellants claimed an amount of Rs.50,000/- under the head loss of love and affection. Evidently, no amount was granted under the said head by the Tribunal. As the appellants being the children of the deceased we have no hesitation to hold that the appellants are entitled to get the amount claimed under the head of loss of love and affection, therefore we fixed as Rs.50,000/- as the amount to be
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awarded under the said head. In the light of the above discussions and taking into account of the enhancement made by us the appellants are entitled to get an amount of _**Rs.1,68,500/-**_ (Rupees One lakh sixty eight thousand and five hundred only) in addition to the amount already awarded as per the impugned award. In other words, the total compensation comes to _**Rs.3,86,780/-**_ (Rupees Three lakhs eighty six thousand seven hundred and eighty only). The enhanced compensation of Rs.1,68,500/- will carry interest at the rate of 8% from the date of petition till realisation. The third respondent is directed to deposit the said amount within a period of 3 months from the date of receipt of a copy of this judgment, failing which the amount awarded will carry interest at the rate of 8.5%.
M.A.C.A is allowed.
Sd/-
## **C.T.RAVIKUMAR, JUDGE**
Sd/-
## **MARY JOSEPH, JUDGE**
vs
