Sheela Edwin v. Kunjappan & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939 MACA.No. 766 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 961/2010 of M.A.C.T.,ERNAKULAM DATED 14-10-2011 APPELLANT(S)/PETITIONER: ----------------------- 1. SHEELA EDWIN - W/O. LATE EDWIN, 39 YEARS, POOPANA HOUSE, NAZRETH, KOCHI -2. 2. ASHWIN @ JACOB - S/O. LATE EDWIN, 11 YEARS, POOPANA HOUSE, NAZRETH, KOCHI -2, MIN0R, REP. BY HIS MOTHER AND NATURAL GUARDIAN SHEELA EDWIN. 3. TREASA JACOB - M/O. LATE EDWIN, 70 YEARS, POOPANA HOUSE, NAZRETH, KOCHI -2. BY ADVS.SRI.KISHOR B. SRI.AJAY JOHNS SRI.K.P.ABDUL GAFOOR RESPONDENT(S)/RESPONDENTS: -------------------------- 1. KUNJAPPAN - S/O. KESAVAN, H. NO. 3/64, MANGATTUPARAMBIL, CHELLANAM, KOCHI -8. 2. THOMAS V.S (SELBAN) S/O. SEBASTIAN, VAZHAKKOOTTATHIL HOUSE, WEST OF LAGI THEATRE, S. CHELLANAM, KOCHI -8. 3. ORIENTAL INSURANCE CO. LTD., BAZAR ROAD, KOCHI -2. 4. ANTONY KADAVUMKAL HOUSE, H. NO. 3/64, CHELLANAM, KOCHI -8 R3 BY ADV. SRI.VPK.PANICKER R3 BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& ANIL K. NARENDRAN, JJ.** **========================== M.A.C.A. No.766 OF 2012 ==========================** Dated this the 30[th] day of June, 2017 ## **JUDGMENT** ## _Anil K.Narendran, J._ This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Kalpetta in O.P.(MV).No.961 of 2010, an application filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Sri.Edwin, husband of the first appellant, father of the second appellant and son of the third appellant, who died in a motor accident occurred on 20.5.2010 while riding his motor cycle. At the place of accident, the motorcycle was hit by a mini lorry bearing Reg.No.KL-56/1716, owned and driven by respondents 1 and 2 and insured with the third respondent. The deceased who sustained fatal injuries succumbed to the injuries while undergoing inpatient treatment. Claiming a total **M.A.C.A.766/2012** 2 compensation of Rs.26,57,520/-, claim petition was filed before the Tribunal. 2. The claim petition was tried along with connected matters. On the side of the claimants/appellants, Exts.A1 to A22 were marked. Exts.X1 and X2 were marked as court exhibits. One T.P.Mohammed Ali was examined as PW1. Respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the mini lorry by the second respondent driver. Since the vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.7,47,787/- and the third respondent insurer was directed to deposit the said amount before the Tribunal together with interest at the rate of 9% per annum from the date of the petition till realisation. The Tribunal ordered apportionment of the compensation **M.A.C.A.766/2012** 3 amount in the ratio 60:30:10 among appellants/claimants. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellants/claimants are before this Court in this appeal. 5. The sole issue that arises for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under different heads. 6. The compensation awarded by the Tribunal under different heads reads thus:- |**_Name of head_**|**_Amount_**<br>**_awarded_**| |---|---| |Loss of dependency|480000| |Transport and expenses|2000| |Funeral expenses|7500| |Medical expenses|198287| |Compensation for<br>pain and sufferings|25000| |Compensation for loss of love<br>and affection|20000| |Compensation for loss of<br>consortium|15000| **M.A.C.A.766/2012** 4 7. The accident is of the year 2006 and at the time of the accident, the deceased was aged 43 years. The appellants claimed that at the time of the accident, the deceased was working in the Packaging Section of a Private Company on daily wages @ Rs.346/-. In order to prove the income of the deceased, PW1 was examined and Exts.X1 and X2 were marked through him. After considering the evidence adduced by PW1, the Tribunal fixed the monthly income of the deceased notionally at Rs.4,000/-. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , the Apex Court notionally fixed the monthly income of a coolie, who met with a motor accident in the year 2004 as Rs.4,500/-. Considering the fact that in the instant case, the accident is of the year 2010 and at the time of accident, the deceased was an able bodied person aged 43 years, who was maintaining a family consisting of his wife, a minor child and aged mother, we deem it appropriate to re-fix his monthly income notionally at Rs.6,000/- for assessing compensation under different heads. **M.A.C.A.766/2012** 5 8. In view of the decision of the Apex Court in **Sarla Verma v.** **Delhi Transport Corporation [2010 (2) KLT 802],** the proper multiplier applicable is '15'. Since at the time of accident, the deceased was maintaining a family consisting of his wife, child and aged mother, ⅓ of the notional monthly income will have to be deducted towards the personal and living expenses of the deceased and remaining ⅔ alone can be reckoned for calculating dependency compensation. Taking the notional monthly income of the deceased as Rs.6,000/-, deducting ⅓ towards personal and living expenses of the deceased and applying the multiplier of '15', the compensation payable under the head loss of dependency is re-worked as Rs.7,20,000/- (6000x12x15x⅔). The Tribunal awarded a sum of Rs.4,80,000/- under this head. In the result, the appellants will be entitled for an additional compensation of **Rs.2,40,000/-** towards loss of dependency. 9. Towards funeral expenses, the Tribunal awarded a sum of Rs.7,500/-. In **Rajesh v. Rajbir Singh [2013 (3) KLT 89]** , the Apex **M.A.C.A.766/2012** 6 Court awarded a sum of Rs.25,000/- as compensation under the head funeral expenses. In such circumstances, we deem it appropriate to refix the compensation under this head as Rs.25,000/-, resulting an additional compensation of **Rs.17,500/-** . 10. Towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained by the deceased and the treatment he had undergone during the hospitalisation for a period of five days before he succumbed to the injuries, we find that the compensation awarded by the Tribunal under this head represents just and reasonable compensation which warrants no interference in this appeal. 11. Towards compensation for loss of love and affection, the Tribunal awarded a sum of Rs.20,000/-. In **Rajesh's case** (supra), the Apex Court granted a sum of Rs.1,00,000/- under this head. In the said case, the accident was of the year 2007 and the deceased was survived by three minor children. In the instant case, the deceased was survived by his minor child aged 11 years and his mother aged 70 **M.A.C.A.766/2012** 7 years. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as Rs.75,000/-, resulting an additional compensation of **Rs.55,000/-** payable to the second and third appellants. Out of the aforesaid amount of Rs.55,000/-, a sum of Rs.5,000/- shall be paid to the third appellant, the mother of the deceased and remaining Rs.50,000/- shall be paid to the second appellant namely, minor son of the deceased. 12. Towards loss of consortium, the Tribunal awarded only a meagre sum of Rs.15,000/-. In **Rajesh's case** (supra), the Apex Court awarded a sum of Rs.1,00,000/- as compensation towards loss of consortium. In that case, the accident was of the year 2007 and the deceased was aged 33 years and his wife was still younger. In the instant case, the accident occurred in the year 2010 and at the time of the accident, the deceased was aged 43 years. In **Valsamma v. Binu Jose [2014 (1) KLT 10],** a Division Bench of this Court, after referring to the decision of the Apex Court in **Rajesh's case** (supra), held that, the age of the widow and the deceased are relevant factors **M.A.C.A.766/2012** 8 while considering the question of compensation to be awarded for loss of consortium. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under the head loss of consortium as Rs.1,00,000/-. In the result, the first appellant will be entitled for an additional compensation of **Rs.85,000/-** under this head. 13. No amount was granted by the Tribunal under the head loss of estate. Considering the facts and circumstances of the case, we deem it appropriate to grant a sum of **Rs.10,000/-** as compensation under this head. 14 _._ In the result, the appellants are entitled for an additional compensation of **Rs.4,07,500/-** (2,40,000 + 17,500 + 55,000 + 85000 +10,000) in this appeal which will carry interest at the rate of 8% per annum from the date of the petition till realisation. The additional compensation granted in this appeal other than that granted under the heads loss of consortium and loss of love and affection, shall be apportioned among the appellants in the ratio 60:30:10 as ordered by **M.A.C.A.766/2012** 9 the Tribunal. 15. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN** **(JUDGE)** **spc/** **M.A.C.A.766/2012** 10 ## **C.T. RAVIKUMAR, J.** **JUDGMENT** **M.A.C.A.766/2012** 11 **September, 2010**