Shantimol and Sivasankar K. Dileep (minor) represented by mother Shantimol v. Appukuttan Nair and others

## **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. 1798 OF 2013** **OPMV NO.280 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL** ## **,KOTTAYAM** ## **APPELLANT/PETITIONER:** - **1 SHANTIMOL, AGED 29 YEARS, W/O. DILEEPKUMAR, KARIYIKKATT HOUSE, THURUTHY P.O., CHANGANACHERRY, KOTTAYAM DISTRICT.** - **2 SIVASANKAR K.DILEEP (MINOR), S/O. LATE DILEEPKUMAR, KARIYIKKATT HOUSE, THURUTHY P.O., CHANGANACHERRY, REPRESENTED BY MOTHER AND NATURAL GUARDIAN, SHANTIMOL, AGED 29 YEARS, W/O. DILEEPKUMAR, KARIYIKKATT HOUSE, THURUTHY P.O., CHANGANACHERRY, KOTTAYAM DISTRICT. BY ADVS.** - **SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** - **1 APPUKUTTAN NAIR, VEZHAKATTU HOUSE, VAZHAPPALLY P.O., CHANGANACHERRY, KOTTAYAM DISTRICT-686 103.** - **2 PROF. G.RAMADEVI, AGED 56 YEARS W/O. APPUKUTTAN NAIR, VEZHAKATTU HOUSE, VAZHAPPALLY P.O., CHANGANACHERRY, KOTTAYAM DISTRICT-686 103.** - **3 THE BAJAJ ALLIAZ GENERAL INSURANCE CO. LTD. ERNAKULAM-682 031.** - **4 THANKAMMA SIVARAMAN, AGED 60 YEARS W/O. SIVARAMAN, KARIYIKKATT HOUSE, THURUTHY P.O., CHANGANACHERRY, KOTTAYAM DISTRICT-686 535.** - **BY ADVS.** **SRI.S.JAYAKRISHNAN SRI.LAL GEORGE** **SEBASTIAN VARGHESE(K/141/2000)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1798/2013 : 2 : ## **JUDGMENT** The appellants are the petitioners in O.P.(M.V) No. 280/2007 on the files of the Motor Accidents Claims Tribunal, Kottayam. The said claim petition was filed by them seeking compensation for the death of one Dileep Kumar who died due to the injuries sustained in a motor accident that occurred on 02.12.2006. The accident occurred when the motorcycle ridden by the deceased was hit by a Maruti car bearing registration KL-5Q-2566 driven by the 1[st] respondent. The said vehicle was owned by the 2[nd] respondent and it was insured with the 3[rd] respondent. The deceased was a ration shop dealer with a monthly income of Rs.9,000/-. He was 30 years old at the time of the accident. He was the husband of the 1[st] petitioner, the son of the 2[nd] petitioner and the father of the 3[rd] petitioner. The claim petition was submitted in such circumstances. 2. The 3[rd] respondent alone contested the matter by filing a written statement wherein, they disputed the negligence on the M.A.C.A. No.1798/2013 : 3 : part of the driver of the Maruti car. However, they admitted the coverage of the policy. The quantum of compensation was also disputed by them. The said claim petition was tried along with O.P(MV) No.248/2007 which arose from the very same accident. 3. The evidence in this case consists of Exts.A1 to A21 from the side of the claimants and no evidence was adduced by the respondents. After appreciating the materials produced on record, the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent in driving the Maruti car and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.6,11,665/- and the said amount was directed to be deposited with interest at the rate of 7.5% per annum from the date of petition till realisation and a cost of Rs.7,500/-. This appeal was submitted by the appellants in such circumstances seeking enhancement of compensation. 4. Heard Sri.R.Reji, the learned counsel appearing for the appellants and Sri.Sebastian Varghese, the learned counsel appearing for the 3rd respondent/insurer. 5. The only question that arises for consideration is M.A.C.A. No.1798/2013 : 4 : whether the amount awarded by the Tribunal is reasonable or not. The specific contention raised by the learned counsel for the appellants is that, the income taken by the Tribunal was extremely on the lower side. On perusal of the records, I find force in the said contention. The deceased claimed to be a ration dealer and to substantiate the same, Exts.A9 to A11 were relied on. Ext.A9, is an identity card of the deceased issued by the Kerala Ration Dealers Welfare Fund. Ext.A10, is the proceedings of the District Supply Officer appointing the deceased as the permanent licensee of ADR. Ext.A11, is the passbook of the Ration Dealers Welfare Fund. Ext.A21 is the extract of the statement showing the commission received by the deceased from the Civil Supplies Department. By placing reliance upon the same, the tribunal fixed the total annual income of the deceased as Rs.49,868/-. Considering the fact that the accident occurred in the year 2007, the said amount appears to be very meagre. It is to be noted in this regard that, when the method of computation evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and M.A.C.A. No.1798/2013 : 5 : ## **Syed Sadiq v. Divisional Manager, United India Insurance** **Company** [(2014) 2 SCC 735] is adopted, the monthly income of an ordinary worker without any specified skills could be taken as Rs.4500/- for the year 2004, even in the absence of any evidence. The usual method that is adopted by this Court to find out the monthly income for subsequent years is to add Rs.500/- per year. When the said method of computation is adopted, the monthly income of an ordinary worker could be fixed as Rs.6,000/- in respect of an accident that occurred in the year 2006. In this case, there is some evidence in the form of Exts.A9 to A11 indicating that the deceased was conducting a ration shop of his own. Therefore, a slightly higher monthly income than usually taken for an ordinary worker could be accepted and in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.7,000/-. As the deceased was aged 30 years at the time of the accident, an addition of 40% of the monthly income needs to be made towards future prospects. Considering the age of the deceased the multiplier applicable was 17. Thus, while reassessing the compensation with the above criteria, the amount M.A.C.A. No.1798/2013 : 6 : towards loss of dependency comes to Rs.13,32,800/[(7000+40%)x12x17x2/3]. The amount already awarded is Rs.5,65,165/- and thus the additional compensation would come to Rs.7,67,635/-. 6. The tribunal awarded an amount of Rs.5,000/- towards loss of estate, whereas the actual amount payable in the light of **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] is Rs.15,000/-. Accordingly a further sum of Rs.10,000/- is awarded. Similarly, the amount awarded by the tribunal towards funeral expenses was Rs.4,000/- and in the light of **Pranay Sethi** a further sum of Rs.11,000/- is awarded. The tribunal awarded an amount of Rs.20,000/- towards loss of consortium to the 1[st] petitioner and a further sum of Rs.15,000/towards loss of love and affection to the 2[nd] and 3[rd] petitioners. However, 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] all the appellants being the wife, mother and son are entitled for compensation for loss of M.A.C.A. No.1798/2013 : 7 : consortium at the rate of Rs.40,000/- each thereby making a total sum of Rs.1,20,000/-. However, since it was held in **Satinder Kaur** that when compensation for loss of consortium is granted, no separate compensation needs to be granted for loss of love and affection, the amount of Rs.15,000/- awarded under the head of loss of love and affection by the Tribunal is adjusted against the additional amount determined by this Court. Accordingly, the additional compensation for the loss of consortium is determined as Rs.85,000/. In such circumstances, the total additional compensation is determined as Rs.8,73,635/- (767635+10000+ 11000+85000). In the result, this appeal is allowed. The award dated 28.04.2011 passed by the Motor Accident Claims Tribunal, Kottayam in OP(MV) No.280/2007 is hereby modified by granting an additional compensation of Rs.8,73,635/- (Rupees eight lakhs seventy-three thousand six hundred and thirty five only) and the said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. As the delay of 740 days in filing the appeal M.A.C.A. No.1798/2013 : 8 : was condoned by this Court subject to the condition that the appellants shall not be entitled to interest for the said period, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the additional amount. It is further ordered that the claimants shall furnish the details of the PAN card, Aadhar card and bank details to enable the 3[rd] respondent 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, they fail to 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** rpk/ncd