Smt. Lekha and Others v. Murukan and Others and The Reliance General Insurance Co Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 ``` ## **`MACA NO. 1699 OF 2012`** ``` AGAINST THE AWARD DATED 15.03.2012 IN O.P(M.V) NO.845/2009 OF ``` ## **`MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA`** ## **`APPELLANTS/PETITIONERS:`** ``` 1SMT.LEKHA, W/O.LATE VIJAYAN, NJARALIKOTTIL HOUSE, ETTUMANNOOR VILLAGE, ETTUMANOOR KARA, 2SREEKHA, D/O.LATE VIJAYAN,(MINOR), REP.BY NEXT FRIEND LEKHA, NJARALIKOTTIL HOUSE, ETTUMANNOOR VILLAGE, ETTUMANOOR KARA, (DATE OF BIRTH 28/9/2008) 3KUNJUKOCHU, S/O.PAPPU, NJARALIKOTTIL HOUSE, ETTUMANNOOR VILLAGE, ETTUMANOOR KARA, 4LALITHA, W/O.KUNJUKOCHU, NJARALIKOTTIL HOUSE, ETTUMANNOOR VILLAGE, ETTUMANOOR KARA, ``` ``` BY ADV SRI.ABRAHAM MATHEW ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MURUKAN, S/O.MADASWAMY, KOYILAMKULAM HOUSE, RAJAKKADU KARA, RAJAKKAD P.O., MANGATHOTTY VILLAGE, IDUKKI DIST-685 566 2SHANIKON M.K, HASSAN MANZIL, THELLAKAM P.O., KOTTAYAM, PIN-686 630 3THE RELIANCE GENERAL INSURANCE CO LTD REP.BY ITS BRANCH MANAGER, XL/3599,FOURTH FLOOR, ELIZABETH ALEXANDER MEMORIAL BUILDING, SHANMUGHAM ROAD, P.O. MARINE DRIVE, COCHIN-682031 BY ADV R3 BY SRI.K.B.RAMANAND SMT.DHANYA BABU M B ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD`** ``` ON 11.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1699 of 2012 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 11[th] day of April, 2023 A challenge is raised in the appeal on hand against an award passed by Motor Accidents Claims Tribunal, Pala (for short ‘the Tribunal’) on 15.03.2012 in O.P(M.V) No.845/2009. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The appellants are the petitioners before the Tribunal who are legal representatives of one Mr.Vijayan who died due to serious injuries sustained by him in a motor accident occurred on 12.05.2009. He was riding a Motorcycle bearing Registration No.KL-5/Y 8422 from Kallambara Bhagom to Vedagiri Bhagom and on the way was hit by a Bus bearing Registration No.KL-3/D 3189. The motor accident in question was occurred due to the rash and negligent driving of the Bus by its driver. Mr.Vijayan was rushed to Medical College Hospital, Kottayam for treatment. ``` M.A.C.A.No.1699 of 2012 ``` ``` 3 ``` Raising a claim for a sum of ₹15,00,000/- as compensation, the Original Petition on hand was moved before the Tribunal. 4. The driver, owner and the insurer of the offending Bus were arrayed as respondents 1 to 3 in the Original Petition. All the respondents were served with summons from the Tribunal, but 1[st] and 2[nd] respondents did not turn up to contest the Original Petition on hand and accordingly were declared ex parte. The 3[rd] respondent insurer entered appearance and filed written statement admitting insurance coverage for the Bus bearing Registration No.KL-3/D 3189 with them at the relevant time of the motor accident. It was contended that the 1[st] respondent was driving the Bus without holding a valid and effective driving licence, that the Bus was not holding a fitness certificate as on date of accident and that for violation of a condition of policy, they are entitled for recovery of the compensation after depositing it in favour of the petitioners. Compensation claimed was also disputed for its exorbitant nature. 5. Before the Tribunal, the 1[st] petitioner was examined as PW1 and Exts.A1 to A8 were marked. On the side of the 3[rd] respondent, Ext.B1 was marked. On ``` M.A.C.A.No.1699 of 2012 ``` ``` 4 ``` appreciation of the evidence adduced as above, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Bus by its driver who was arrayed as the 1[st] respondent in the Original Petition. The Tribunal had also found that the victim died on account of the injuries sustained in the motor accident and therefore, the petitioners are entitled to get compensation. ₹7,11,000/- was arrived at as the total compensation payable in favour of the petitioners. The 3[rd] respondent, the insurer of the offending Bus was directed to deposit the sum arrived at with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation alongwith ₹3,000/- as proportionate cost. The amount was directed to be deposited within a period of one month. Aggrieved by the quantum of compensation stands awarded by the Tribunal, the petitioners have approached this Court in the appeal on hand and sought for it’s modification. 6. It is contended by Sri.Abraham Mathew, the learned counsel for the petitioners that the Tribunal failed to fix a reasonable sum as the monthly income of the ``` M.A.C.A.No.1699 of 2012 ``` ``` 5 ``` deceased. According to him the 1[st] petitioner mounted the witness box and deposed as PW1. She had categorically deposed about the age, occupation and monthly income as per the claims made by her in the Original Petition. According to him two documents were also marked in evidence as Exts.A6 and A7. Ext.A6 is nothing but a witness statement issued by Grama Panchayath, Ettumanoor in favour of the deceased wherein it is certified that he was running a cool bar at the relevant time. Ext.A7 is nothing but a Certificate of Membership issued from Kerala Vyapari Vyavasayi Ekopana Samithy, where the deceased was certified as it’s member. True that a document was not forthcoming to establish the monthly income of the deceased. 7. However when viewed in the backdrop of Exts.A6 and A7, this Court finds that ₹5,000/- fixed by the Tribunal as the monthly income is on the lower side and therefore, is inclined to refix it as ₹8,000/-. The deceased being aged 34 years at the relevant time of his death, 40% is required to be added to his monthly income in consideration of loss of future prospects. Similarly the petitioners are also entitled ``` M.A.C.A.No.1699 of 2012 ``` ``` 6 ``` to get ₹16,500/- each as compensation under the heads, loss of estate and funeral expenses in view of the direction issued by the Constitutional Bench in National Insurance Company Limited v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]. On the basis of Pranay Sethi supra, each of the four petitioners are entitled to get ₹44,000/- as compensation towards loss of consortium. 8. It is noticed from the impugned award that the victim of the accident died while undergoing treatment at Medical College Hospital, Kottayam. He was then residing at Ettumanoor and therefore, indisputably the petitioners must have incurred expenses towards transportation. The Tribunal has awarded ₹2,000/- as compensation and it being inadequate, this Court is inclined to award ₹1,000/- more. As compensation towards damages to clothing ₹750/- stands awarded being inadequate, this Court is inclined to grant ₹250/- more. 9. As compensation towards loss of consortium ₹1,76,000/- (₹44,000/- x 4) is arrived at. ₹5,000/- stands awarded by the Tribunal when deducted therefrom, the petitioners will get ₹1,71,000/- as additional compensation under that head. ``` M.A.C.A.No.1699 of 2012 ``` ``` 7 ``` 10. ₹2,000/- and ₹5,000/- respectively stand awarded under the head funeral expenses and loss of estate when deducted from ₹16,500/-, the amount which petitioners are entitled to receive under each heads, they will get ₹14,500/- and ₹11,500/- respectively as compensation. 11. When 40% is added to the monthly income refixed as ₹8,000/- in consideration of future prospects, ₹11,200/- is arrived at. The deceased being survived by four family members, 1/4[th] has to be deducted in consideration of his personal expenditure. But, the Tribunal opted to deduct only 1/3[rd] . It being incorrect, this Court is inclined to reassess the compensation by deducting 1/4[th] . The actual multiplier applicable to the age of the deceased is ‘16’ but the Tribunal had taken ‘17’. This Court finds justification in substituting ‘16’ in the place of ‘17’ adopted by the Tribunal. In the reassessment of compensation for loss of dependency, on the basis of the modified monthly income of ₹11,200/-, multiplier as 16 and deduction as 1/4[th] , ₹16,12,800/- is arrived at. ₹6,80,000/- was already awarded by the Tribunal and that when deducted, the ``` M.A.C.A.No.1699 of 2012 ``` ``` 8 ``` petitioners will get ₹9,32,800/- as additional compensation towards loss of dependency. 12. It is noticed from the impugned award that the Tribunal has awarded ₹5,000/- towards loss of love and affection and ₹7,500/- towards pain and suffering. Position of law is settled now that the legal representatives of the deceased are not entitled to get compensation under the heads loss of love and affection and pain and suffering. Therefore ₹12,500/- stands awarded in total under the above heads is deducted from the sum arrived at as additional compensation. 13. In the above manner of reassessment, petitioners will get ₹11,18,550/- (₹9,32,800/- + ₹14,500/- + ₹11,500/+ ₹1,71,000/- + ₹1,000/- + ₹250/-) - (₹5,000/- + ₹75,00/-). Therefore the petitioners will get ₹11,18,550/(Rupees Eleven lakhs eighteen thousand five hundred and fifty only) as additional compensation, and it 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 21 days of delay occurred in filing the appeal. 14. It has been established by the 3[rd] respondent ``` M.A.C.A.No.1699 of 2012 ``` ``` 9 ``` before the Tribunal that the 1[st] respondent was driving the offending Bus without a valid and effective driving licence at the relevant time. The situation being so, the Tribunal has directed the 3[rd] respondent to deposit the compensation amount and to get recovery of the same from the 1[st] and 2[nd] respondents. In the absence of any challenge raised against the said finding, this Court is inclined to maintain that. Accordingly the 3[rd] respondent is directed to deposit the additional compensation amount with interest fixed on it as above within a period of two months from the date of receipt of a certified copy of this judgment. 15. Since the total compensation awarded in favour of the petitioners exceeds the claim of the petitioners, the petitioners are liable to pay additional court fee for the amount of compensation falls excess than the claim. M.A.C.A stands allowed accordingly. Sd/- MARY JOSEPH JUDGE NAB