Shanthamma & Prasanna v. Anish, Salijacob, Oriental Insurance Co. Ltd., Thankappan Johny & Anilash

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944`** ## **`MACA NO. 65 OF 2013`** ``` AGAINST THE AWARD DATED 08.05.2012 IN O.P(M.V) NO.1364/2008 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL, KOTTAYAM.`** ## **`APPELLANTS/PETITIONERS:`** ``` 1SHANTHAMMA, VAVOLICKAL HOUSE, MANTHURUTHI BHAGOM, CHAMBAKARA, KARUKACHAL NOW RESIDING AT PALLICKACHIRA KALATHIL, PALLICKACHIRA KAVALA P.O., PAIPPADU. 2PRASANNA, VAVOLICKAL HOUSE, MANTHURUTHI BHAGOM, CHAMBAKARA, KARUKACHAL NOW RESIDING AT PALLICKACHIRA KALATHIL, PALLICKACHIRA KAVALA P.O., PAIPPADU. BY ADVS. SRI.K.A.HASHIM SRI.M.I.ISMAIL ``` ## **`RESPONDENTS/RESPONDENTS & ADDITIONAL 5TH RESPONDENT:`** ``` 1ANISH, VALLICKATTU, 569(7/1288), ERAVUCHIRA, VAKATHANAM, NOW RESIDING AT PUTHENKULAM VEEDU, PUTHENPALLI SALVATION ARMY CHURCH, VAKATHANAM, PIN-686 538. 2SALI JACOB, EDAMURIYIL, VAIPUR, KALLANGAL, PATHANAMTHITTA, PIN-689 588. 3THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, THIRUVALLA, PIN-689 101. 4THANKAPPAN JOHNY, VAVOLICKAL HOUSE, MANTHURUTHI BHAGOM, CHAMBAKARA, KARUKACHAL, PIN-686 540. 5ANILASH, NO.569/7/288, VELICKAKATHU, 6, ERAVUCHIRA, VAKATHANAM, PIN-686 538. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.T.K.RADHAKRISHNAN SMT.K.L.SREEDEVI ``` ## **`OTHER PRESENT:`** ``` ADV SRI MATHEWS JACOB (SR) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 65 OF 2013 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 15[th] day of February, 2023. This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Kottayam (for short, 'the Tribunal') on 08.05.2012 in O.P.(M.V) No.1364/2008. The appellants are the legal representatives and dependents of one Mr.Pradeep, who died in a motor accident occurred at 3 p.m on 15.06.2008. He was driving an autorickshaw bearing Registration No.KL5/T 2657 through Changanassery-Vazhoor road and when reached on the eastern side of Manthuruthi junction, a car bearing Registration No.KL 3/E 2338 driven by the 1[st] respondent dashed against and thereby he sustained serious injuries. He was taken to Medical College Hospital, Kottayam for treatment and while undergoing treatment, he succumbed to the injuries on 18.06.2008. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 and 2 and respondents 1 to 5 in accordance with their status in the Original Petition. ``` MACA NO. 65 OF 2013 ``` ``` 3 ``` 3. The motor accident was allegedly occurred due to the rash and negligent driving of the car by it’s driver, who was arrayed as the 1[st] respondent. The registered owner and the insurer of the car were arrayed as respondents 2 and 3 in the Original Petition. `10,00,000/- was claimed as compensation. In the Original Petition, the father of the deceased was also arrayed as the 4[th] respondent for the reason of his stay with another lady. 4. Respondent Nos.1 and 2 though served with notice, did not turn up to constest the Original Petition and accordingly were declared ex parte. The 3[rd] respondent had filed written statement admitting insurance coverage for the autorickshaw as on date of the motor accident and contended that it was occurred due to the negligence of the driver of the car, who was arrayed as the 1[st] respondent. The age, the occupation and the monthly income of the deceased were denied. Compensation claimed is also disputed for the reason of its exorbitant nature. 5. The 4[th] respondent also filed written statement contending that he was a dependent of the deceased and was living at the care of the deceased. According to him, he had incurred ``` MACA NO. 65 OF 2013 ``` ``` 4 ``` funeral expenses of the deceased as well as expenses for the marriage of the 2[nd] petitioner. Accordingly, he claimed to confine grant of compensation to him alone. 6. Before the Tribunal, oral evidence was not adduced by the petitioners. Exts.A1 to A9 were marked. On the side of the respondents, 4[th] respondent was examined as RW1 and Exts.B1 and B2 were marked. The Tribunal on the basis of the evidence adduced as above, found that the motor accident in question was occurred due to the rash and negligent driving of the car by its driver, who was the 1[st] respondent in the Original Petition. The Tribunal also found that the petitioners are entitled to get compensation for the death of Mr.Pradeep. The compensation payable is arrived at as `3,55,600/-. The 3[rd] respondent being the insurer of the car was directed to deposit the same with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 7. According to Sri.K.A Hashim, the learned counsel, the petitioners had pleaded in the Original Petition that the deceased was a driver by profession earning `7,000/- as the monthly income. ``` MACA NO. 65 OF 2013 ``` ``` 5 ``` According to him, the driving licence of the deceased and his salary certificate were produced before the Tribunal but overlooking those, it fixed the monthly income as `4,000/- on a notional basis. According to him, fixation of monthly income falls on the lower side and the same needs to be modified. The learned counsel has also pointed out that since the monthly income was taken as `4,000/and future prospects of the deceased was not considered, the compensation arrived at for loss of dependency is inadequate. 8. According to the learned counsel, the Tribunal failed to award just and reasonable compensation under the conventional heads. It is pointed out by the learned counsel on the basis of the direction of the Constitution Bench of the Apex Court in National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)] , that the petitioners are entitled to get `16,500/- each as compensation towards funeral expenses and loss of estate and `44,000/- per head as compensation towards loss of consortium. According to him, this Court is liable to to grant the compensation in accordance with the direction in Pranay sethi supra. ``` MACA NO. 65 OF 2013 ``` ``` 6 ``` 9. This Court re-fixes the monthly income as `6,500/-, the motor accident being occurred in the year 2008. The deceased was aged 25 years at the relevant time and therefore the correct multiplier liable to be adopted is 18. But the Tribunal had taken 13 as the multiplier and compensation for loss of dependency was calculated on it’s basis. The deceased was a bachelor at the relevant time and therefore, half of the monthly income is liable to be deducted in consideration of the personal expenditure, the deceased would have met, had he been alive. When `6,500/- was fixed as the monthly income and 40% is added to that, `9,100/- is arrived at. Compensation for dependency when re-assessed, `9,82,800/(`9,100/- x 12 x 18 x ½) is arrived at. The Tribunal has awarded `3,12,000/- as compensation under the head and that when deducted, the petitioners will get `6,70,800/- as additional compensation under that head. Towards funeral expenses and loss of estate, the Tribunal has awarded `5,000/- each but the petitioners are entitled to get `16,500/- each. Therefore, they will get `11,500/- each as additional compensation under those heads. Towards loss of consortium, the 1[st] petitioner and the 4[th] respondent ``` MACA NO. 65 OF 2013 ``` ``` 7 ``` are entitled to get `44,000/- each. Thus, `7,81,800/- (`6,70,800/+ `11,500/- + `11,500/- + `88,000/-) is arrived. It is found that `15,000/- each was awarded by the Tribunal as compensation towards loss of love and affection and pain and suffering. The petitioners being dis-entitled for that, `30,000/- is deducted from `7,81,800/- now arrived at as additional compensation, the petitioners as well as the 4[th] respondent will get Rs.7,51,800/(Rupees Fifty One Thousand Eight Hundred only) (`7,81,800/- - (`15,000/- + `15,000/-) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 131 days being the delay occurred in filing the appeal on hand. 10. The 3[rd] respondent has admitted insurance coverage of the offending vehicle at the relevant time of the motor accident and accordingly, the Tribunal has fixed liability upon it to pay the compensation arrived at in favour of the petitioners and thereby to indemnify the insured. This Court is inclined to maintain the said finding of the Tribunal and accordingly, the 3[rd] respondent is ``` MACA NO. 65 OF 2013 ``` ``` 8 ``` directed to pay the additional compensation now arrived at with interest fixed on it in favour of petitioners 1 and 2 and respondent No.4 within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions in Circular No.03/2019 issued by this Court on 06.09.2019. M.A.C.A stands allowed accordingly. MARY JOSEPH JUDGE JJ