Sarojini P.K & four others v. Dennis Raphel Vathiyath House, H. Faisal, United India Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944 ``` ``` MACA NO. 2115 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 2438/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1SAROJINI P.K AGED 55 YEARS, W/O.LATE SRI.GOPALAKRISHNA PILLAI, RESIDING AT PARVATHI NIVAS, MAYITHARA MARKET P.O. CHARAMANGALAM VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT ``` ``` 2SABITHA GOPALAN AGED 28 YEARS, D/O.LATE SRI.GOPALAKRISHNA PILLAI, RESIDING AT PARVATHI NIVAS, MAYITHARA MARKET P.O. CHARAMANGALAM VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT ``` ``` 3KAVITHA GOPALAN, AGED 27 YEARS D/O.LATE SRI.GOPALAKRISHNA PILLAI, RESIDING AT PARVATHI NIVAS, MAYITHARA MARKET P.O. CHARAMANGALAM VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT ``` ``` 4SARITHA GOPALAN, AGED 25 YEARS D/O.LATE SRI.GOPALAKRISHNA PILLAI, RESIDING AT PARVATHI NIVAS, MAYITHARA MARKET P.O. CHARAMANGALAM VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT ``` ``` BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI ``` ``` MACA NO. 2115 OF 2010 ``` ``` 2 ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 DENNIS RAPHEL VATHIYATH HOUSE VALUMMEL ROAD, THOPPUMPADY, KOCHI-682 005.`** - **`2 H.FAISAL S/O.SRI.HAMEED, GCDA COLONY PALLURUTHY, KOCHI-682 006, ERNAKULAM DISTRICT.`** - **`3 UNITED INDIA INSURANCE COMPANY LIMITED DIVISIONAL OFFICE NO.3, ERNAKULAM, KOCHI 682 035.`** ``` BY ADVS. SRI.ABRAHAM P.GEORGE SRI.P.K.MANOJKUMAR SMT.SOUMINI JAMES ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2115 OF 2010 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 12[th] day of July, 2022 This appeal arises out of award in O.P.(MV) No.2438 of 2005 dated 15.12.2009 on the files of the Motor Accidents Claims Tribunal, Ernakulam. Appellants are the original petitioners before the Tribunal. Respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellants and the learned Standing Counsel for the third respondentInsurance Company. 3. Brief facts of the case are as follows:- Consequent to death of one ‘Gopalakrishna Pillai’ in a motor accident occurred on 22.06.2005, the appellants lodged claim petition under Section 166 of the Motor Vehicles Act and canvassed compensation to the tune of `5,00,000/- from respondents 1 to 3, who are the respective owner, driver and insurer of the car involved in ``` MACA NO. 2115 OF 2010 ``` ``` 4 ``` the accident. The specific case put up by the appellants before the Tribunal is that the accident is the contribution of negligence on the part of the second respondent, who had driven car bearing registration No. KL-7 AK 9339, which knocked down ‘Gopalakrishna Pillai’ while he was walking along the side of the road. 4. The first respondent-owner filed written statement denying accident and negligence as alleged by the appellants while disputing the quantum. 5. Respondents 2 and 3 (driver and insurer) were declared ex parte by the Tribunal. 6. The Tribunal tried the matter. PW1 examined and Exts.A1 to A9 marked on the side of the appellants. No evidence let in by the respondents. Thereafter, the Tribunal adjudicated the claim and granted `2,51,000/along with interest at the rate of 7.5% per annum. 7. The above award is under challenge before this Court on the ground of inadequacy. ``` MACA NO. 2115 OF 2010 ``` ``` 5 ``` 8. The learned counsel for the appellants would submit that the Tribunal fixed the monthly income of the appellant at `3,000/- as against claim of `5,000/-. Similarly, the Tribunal wrongly applied ‘9’ as the multiplier instead of ‘11’ since the deceased was aged 53 at the time of accident, which was not disputed. 9. In this matter, the appellants claimed income of the deceased at `5,000/-. Following the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** `5,000/- is the monthly income in cases involving accident of the year 2006. Therefore, the monthly income is re-fixed at `5,000/-. 10. Similarly, the multiplier also shall be ‘11’ in stead of ‘9’ applied by the Tribunal following the ratio in **Sarla Verma (Smt) & Ors v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** . ``` MACA NO. 2115 OF 2010 ``` ``` 6 ``` 11. Apart from that, following the ratio in **National Insurance Company Limited v. Pranay Sethi and Ors** **(2017 (4) KLT 662),** 10% addition is permissible in this case towards future prospects. Thus, the monthly income for the purpose of calculating ‘loss of dependency’ is fixed at `5,500/- (5000 + 500). Accordingly, loss of dependency income is re-calculated as under:- 5500 x 12 x 11 x 3/4 = 5,44,500/- Out of which, `2,16,000/- was granted by the Tribunal. Thus, ` **3,28,500/-** (5,44,500 – 2,16,000) is granted as enhanced compensation under the head ‘loss of dependency’. 12. Since the learned counsel for the appellants canvassed increase as regards to the amount granted under the conventional and tradition heads, following the ratio in **Pranay Sethi’s** case (Supra), the same also is considered. ``` MACA NO. 2115 OF 2010 ``` ``` 7 ``` 13. Towards ‘loss of estate’, the Tribunal granted only `5,000/-. Therefore, ` **10,000/-** more is granted under the head ‘loss of estate’. Similarly, towards ‘transportation and funeral expenses’, the Tribunal granted `5,000/-. Therefore, treating the amount granted towards ‘funeral expenses’ at `3,000/-, I am inclined to grant ` **12,000** more under the head ‘loss of funeral expenses’. 14. Towards ‘loss of consortium’, the Tribunal granted only `15,000/-. Therefore, the appellants are entitled to get ‘loss of consortium’ to the tune of `1,60,000/- (40,000 x 4). Out of which, `15,000/- was granted by the Tribunal. Reducing the same, ` **1,45,000/-** more is granted under the head ‘loss of consortium’. 15. It is noticed that the Tribunal granted ` **10,000/-** under the head ‘pain and suffering’. The same is liable to be reduced as per the ratio in **United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and** ``` MACA NO. 2115 OF 2010 ``` ``` 8 ``` ## **Others [2020 (3) KHC 760].** 16. Since the appellants claimed only `5,00,000/-, the appellants are liable to pay court fee for the compensation granted in excess of `5,00,000/-. Hence, the grant of enhanced compensation is subject to payment of court fee for additional sum of `2,36,500/-. In the result, this appeal stands allowed. It is held that the appellant is entitled to get `7,36,500/- as compensation out of which `2,51,000/- was granted by the Tribunal and the balance amount of `4,85,500/- (Rupees four lakh eighty five thousand and five hundred only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the Insurance Company, from the date of petition till the date of deposit or realisation. The Insurance Company is directed to deposit `2,365/- in the name of the Motor Accidents Claims ``` 9 ``` ## **`MACA NO. 2115 OF 2010`** Tribunal being the additional court fee and the remaining amount in the name of the appellants in the proportion fixed by the Tribunal within two months from today. On deposit, the appellants can release the same. **Sd/A. BADHARUDEEN JUDGE** nkr