Sakunthala (Died) and Aswathy v. Biju M.S., K.B. Sunir Puttingal Parambil House and National Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 ``` ## **`MACA NO. 701 OF 2013`** ``` AGAINST THE AWARD DATED 09.07.2012 IN OP(MV) 1436/2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS:`** ``` *1SAKUNTHALA *[DIED] W/O DAMODARAN, AGED 47 YEARS MAVADA HOUSE, WEST KANDANADU JUNCTION, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT ``` ``` *2ASWATHY AGED 28 YEARS D/O.DAMODARAN, MAVADA HOUSE, WEST KANDANADU JUNCTION, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT ``` ``` *[DEATH OF THE APPELLANT NO.1 IS RECORDED AND APPELLANT NO.2 IS DECLARED AS THE LEGAL HEIR OF THE DECEASED 1ST APPELLANT, AS PER ORDER DATED 09/02/2024 IN MEMO DATED 02/02/2024 IN MACA 701/2013] ``` ``` BY ADVS. MATHEWS K.PHILIP T.MANASY ``` ## **`RESPONDENTS:`** ``` 1BAIJU.M.S S/O. XAVIER, MECHERY HOUSE, H NO.15/2 VETTILAPARAKARA P.O., PARIYARAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` 2K.B.SUNIR PUTTINGAL PARAMBIL HOUSE PADAMUGHAL, KAKKANADU WEST P.O., ERNAKULAM DISTRICT. ``` ``` 3NATIONAL INSURANCE COMPANY LIMITED II FLOOR, DAMODAR CHAMBERS, STATUE JUNCTION, THRIPPUNITHURA. ``` ``` 2 ``` ## **`MACA NO. 701 OF 2013`** ``` BY ADVS. SRI.E.M.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 701 OF 2013 ``` ``` 3 ``` ## **`JUDGMENT`** The claim petition was initially filed by one Pramod M.D as the sole claimant seeking compensation for the injuries sustained to him in a motor accident that occurred on 30.04.2008. While the application was pending consideration, the claimant committed suicide and the additional 2nd and 3rd petitioners were impleaded in the party array. The claim petition was amended by converting the application as the one seeking compensation for the death as it was the specific case of the additional petitioners that, the original claimant committed suicide due to the physical disabilities and the depression developed due to the injuries sustained in the accident. 2. The accident occurred on 30.04.2008 when the original claimant attempted to step into a stage carriage bearing Registration No.KL 7BC 5859, the 1st respondent driver, suddenly took the bus forward, and as a consequence, he fell down, thereby sustaining serious injuries. Immediately, he was taken to Lakeshore Hospital and underwent treatment. The death of the deceased was on 25.08.2009, and according to the petitioners, he ``` MACA NO. 701 OF 2013 ``` ``` 4 ``` was under continuous treatment in the said hospital as an inpatient as well as an outpatient until he died. He was aged 24 years and working as a painter with a monthly income of Rs.6,000/-. The claim petition was submitted in such circumstances. 3. The 2[nd] respondent, the owner of the bus, filed a written statement denying negligence on the part of the 1st respondent, and according to him, it was due to the negligence of the original claimant himself that the accident occurred. The 3rd respondent filed a written statement admitting the insurance coverage for the bus but denied negligence on the part of 1st respondent. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of oral testimony of PW1, and as documentary evidence, Exts.A1 to A22 was marked. After appreciating the materials placed on record, the Tribunal found that the death of the original claimant was a consequence of the injuries sustained in the accident and it was also found that the said accident occurred due to the negligence of the 1st ``` MACA NO. 701 OF 2013 ``` ``` 5 ``` respondent in driving the bus. Being the insurer, the liability to pay compensation was imposed upon the 3rd respondent. The quantum of compensation was fixed as Rs.5,24,626/- and the said amount was directed to be deposited by the 3rd respondent with interest @ 9% per annum from the date of petition till realisation. This appeal was submitted by the additional 2nd and 3rd petitioners in such circumstances seeking enhancement of compensation. During the pendency of this appeal, the 1st appellant passed away and the 2nd appellant is the sole legal heir of the deceased 1st appellant. 5. Heard Smt.Manasy T., learned counsel appearing for the appellants and Sri.E.M. Joseph, learned counsel appearing for the 3rd respondent. 6. The learned counsel for the appellants submits that the amounts awarded by the Tribunal under various heads are extremely on the lower side, whereas the learned counsel for the 3rd respondent would oppose the said contention. 7. After carefully going through the observations made in the award and the materials placed on record, I find that the ``` MACA NO. 701 OF 2013 ``` ``` 6 ``` amount awarded by the Tribunal under certain heads are on the lower side. Even though an amount of Rs.6,000/- was claimed as the monthly income, the Tribunal took the same as Rs.4,000/-, which appears to be on the lower side. Considering the fact that the accident occurred in the year 2008, Rs.6,000/- claimed by the appellants cannot be treated as unreasonable. It is to be noted in this regard that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236],** the Honourable Supreme Court was pleased to take the monthly income of an ordinary worker as Rs.4,500/- for the year 2004 even in the absence of any evidence. Therefore, the monthly income of Rs.6,000/- is accepted. 8. From the award, it is seen that, besides the monthly income, there are two mistakes committed while assessing the compensation, namely (1) no future prospects was considered and (2) the multiplier applied was that of the age of the mother of the victim, since the deceased was a bachelor. The position of law in this regard is already settled as per the decisions rendered by the Honourable Supreme Court in **Sarla Verma & Ors. v. Delhi** ``` MACA NO. 701 OF 2013 ``` ``` 7 ``` ## **Transport Corporation [(2009) 6 SCC 121] and National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680].** As per the same, the multiplier that is applicable even in respect of the bachelor, is with reference to the age of the deceased himself and as far as the future prospects is concerned, an addition of 40% is to be made if the deceased was aged below 40 years. Considering the age of the deceased, the multiplier applicable is 18. Therefore, the compensation has to be reassessed with the above criteria. Thus, while reworking the compensation in the manner as above, the amount of compensation would come to Rs.9,07,200/- [(6,000 + 40%) x 12 x 18 x ½]. The amount already awarded by the Tribunal under this head is Rs.3,36,000/- and thus, the additional compensation comes to Rs.5,71,200/-. The Tribunal awarded Rs.5,000/- each towards loss of estate and funeral expenses, whereas in the light of **Pranay Sethi (supra)** an amount of Rs.15,000/- each has to be granted under both the said heads. Accordingly, Rs.10,000/- each is awarded under the said heads. 9. The next head which requires consideration is the loss ``` MACA NO. 701 OF 2013 ``` ``` 8 ``` of consortium. The amount already awarded by the Tribunal is Rs.5,000/-. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130] and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760],** the 2nd claimant being the mother was entitled for a compensation of Rs.40,000/- under this head. Of course, it is true that the said claimant is no more. However, since she accrued the right to get that compensation the moment her son died, the compensation has to be awarded for the said purpose, even after her death. This is particularly because, since she accrued the right to get the said amount, the said amount will form part of her estate, and her legal heir can inherit the same. In such circumstances, a further sum of Rs.35,000/- is awarded as the additional compensation under the head of loss of consortium. 10. The learned counsel for the 3rd respondent points out that the Tribunal awarded Rs.10,000/- towards pain and suffering of the victim and a further sum of Rs.25,000/- awarded again for the said head. So it was pointed out that there was duplication ``` MACA NO. 701 OF 2013 ``` ``` 9 ``` and the same has to be rectified. However, on going through the records, it is evident that the injuries sustained by the victim in the accident that occurred on 30.04.2008 were very serious in nature as they included injuries to his pelvis fracture of right acetabulum urethral injury and blunt troma abdomen. It is also seen that, as part of treatment, he was admitted to the hospital on various occasions at particular intervals. PW1, the Doctor who treated the victim, was examined, and during the course of his examination, it was stated that the deceased sustained multiple fractures of the pelvic bone and urethral injury. He was repeatedly admitted to the hospital due to further complications and puss formation. A tube was put for removing urine. The victim was subjected to surgical procedures on various occasions as well. This ultimately led to the commission of suicide by the victim. Thus, it is evident that the serious nature of the injuries and the prolonged treatment which he availed until he died on 25.08.2009 should be taken into consideration while assessing the compensation for pain and suffering. It is to be noted that, even if both the said amounts awarded by the Tribunal towards pain and suffering are taken ``` MACA NO. 701 OF 2013 ``` ``` 10 ``` together, the amount would come to Rs.35,000/- and considering the nature of the sufferings of the victim as referred to above, the said amount appears to be reasonable. Therefore, I do not find any scope for interference in the said head. Thus, the total additional compensation is determined as Rs.6,26,200/- (5,71,200 + 10,000 + 10,000 + 35,000). In the result, this appeal is allowed. The award dated 09.07.2012 passed by the Motor Accident Claims Tribunal, Ernakulam in O.P.(M.V.) No.1436/2008 is hereby modified by granting an additional compensation of Rs.6,26,200/- (Rupees six lakh twenty-six thousand and two hundred only) and the said amount shall be deposited by the 3rd respondent with interest @ 8% per annum from the date of petition till realisation, and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the 2[nd] appellant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above within a period of two months from the date of receipt of a copy of this judgment. In case, she fails to ``` MACA NO. 701 OF 2013 ``` ``` 11 ``` furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs