Sudina (W/o Late Jyothi Basu) v. P.J. Xavier & Ors. (MACA Nos. 2111 & 2355 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 MACA NO. 2111 OF 2012** **OP(MV) 456/2011 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **ERNAKULAM** ## **APPELLANT/PETITIONER:** **SUDINA, W/O. LATE JYOTHI BASU M.S., METHASSERY HOUSE, PONNARIMANGALAM, MULAVUKAD P.O., ERNAKULAM.** **BY ADVS. SRI.A.S.P. KURUP SRI.SADCHITH.P.KURUP** ## **RESPONDENTS/RESPONDENTS:** - **1 MR.P.J.XAVIER, S/O. JOSEPH, PADIYARAMPARAMBIL HOUSE, ANDIKKADAVU P.O., KANDAKKADAVU, COCHIN8, PIN-682008.** - **2 MR. P.J.JOMON, S/O. JOSEPH P.A., RESIDING AT PADIYARAMPARAMBIL HOUSE, ANDIKKADAVU P.O., KANDAKKADAVU, COCHIN-8, PIN-682008.** - **3 ARUN NAINAN, MUKKUNGAL HOUSE, PALARIVATTOM P.O., COCHI-25, PIN-682025.** - **4 NATIONAL INSURANCE CO. LTD., COCHIN DIVISIONAL OFFICE, 1ST FLOOR, AJAY VIHAR, M.G.ROAD, ERNAKULAM, COCHIN-16, PIN-682016.** **R1 & R2 BY ADV.SRI.N.SAJAN ANTONY R4 BY SRI.P.G.GANAPPAN SMT.D.LEEMA ROSY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 28.10.2022, ALONG WITH MACA.2355/2012, THE COURT ON 04.11.2022 DELIVERED THE FOLLOWING:** **MACA Nos.2111 & 2355 of 2012** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** **MACA NO. 2355 OF 2012** **OP(MV) 457/2011 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **ERNAKULAM** ## **APPELLANTS/PETITIONERS:** - **1 SUDINA, W/O.LATE JYOTHI BASU M.S., METHASSERY HOUSE, PONNARIMANGALAM, MULAVUKAD P.O., ERNAKULAM.** - **2 MINOR HARIKRISHNA, REP.BY HIS NEXT FRIEND AND MOTHER SUDINA, RESIDING AT METHASSERY HOUSE, PONNARIMANGALAM, MULAVUKAD P.O., ERNAKULAM. BY ADVS. SRI.A.S.P.KURUP** - **SRI.SADCHITH.P.KURUP** ## **RESPONDENTS/RESPONDENTS:** - **1 MR.P.J.XAVIER, S/O.JOSEPH, PADIYARAMPARAMBIL HOUSE, ANDIKKADAVU P.O., KANDAKKADAVU, COCHIN-8.** - **2 MR.P.J.JOMON, S/O.JOSEPH P.A., RESIDING AT PADIYARAMPARAMBIL HOUSE, ANDIKKADAVU P.O., KUNDAKKADAVU, COCHIN-8.** - **3 ARUN NAINAN, MUKKUNGAL HOUSE, PALARIVATTOM P.O., COCHIN-25.** - **4 NATIONAL INSURANCE CO.LTD., COCHIN DIVISIONAL OFFICE, 1ST FLOOR, AJAY VIHAR, M.G.ROAD, ERNAKULAM, COCHIN-16. R4 BY ADV SRI.P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2022, ALONG WITH MACA.2111/2012, THE COURT ON 04.11.2022 DELIVERED THE FOLLOWING:** **MACA Nos.2111 & 2355 of 2012** **3** ## **SOPHY THOMAS, J.** ----------------------------------------- MACA Nos.2111 & 2355 of 2012 ----------------------------------------- Dated this the 4[th] day of November, 2022 ## **J U D G M E N T** These appeals have been preferred by the claimants in OP (MV) Nos.456 of 2011 and 457 of 2011 on the file of Motor Accidents Claims Tribunal, Ernakulam, assailing the impugned awards on the ground of inadequacy of compensation. 2. On 10.10.2010 at about 9.30 p.m, while Sri.Jyothi Basu was riding his motorcycle carrying his wife and child on its pillion seat through Kacheripady junction, Ernakulam, KL7/AD 6705 motorcycle ridden by the 2[nd] respondent in a rash and negligent manner dashed against their motorcycle and they were thrown down on the road and they suffered serious injuries. The husband Sri.Jyothi Basu succumbed to the injuries on his way to the hospital. The wife Smt.Sudina, who was carrying for two months, sustained injuries in the accident and she had to abort her pregnancy because of the injuries suffered in the accident. **MACA Nos.2111 & 2355 of 2012** **4** 3. The 1[st] respondent is the owner, 2[nd] respondent is the rider, 3[rd] respondent is the insured and 4[th] respondent is the insurer of the offending motorcycle. The accident and policy of the offending motorcycle are not in dispute. ## **MACA No.2355 of 2012** 4. The wife and child of the deceased Sri.Jyothi Basu are the appellants herein and according to them, the learned Tribunal grossly erred in awarding only Rs.6,24,500/- against their claim of Rs.10 lakh. 5. According to the appellants, Sri.Jyothi Basu was 40 years old, working as a Supervisor in M/s.Roofco Builders and Developers, Kaloor, earning monthly income of Rs.10,000/- as on the date of accident. PW1, the Accounts Manager of that firm deposed that, Sri.Jyothi Basu was a permanent employee earning monthly income of Rs.7,700/- + weekly petrol allowance of Rs.500/-. Learned Tribunal fixed his notional income @ Rs.5,000/- finding that, Exts.A8 and A9 documents produced by PW1 were not acceptable. But, even going by the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), **MACA Nos.2111 & 2355 of 2012** **5** as a 40 year old man, in the year 2010, he was eligible to get his notional income fixed @ Rs.7,500/-. Going by the decision **National Insurance Company Ltd.** vs. **Pranay Sethi and Others** (AIR 2017 SC 5157), towards future prospects, he was eligible for 25% addition as he was in the age group of 40-50, employed in private sector. So, his monthly income could have been taken as Rs.9,375/- for the purpose of assessing loss of dependency. Since he was having two dependents, 1/3[rd] had to be deducted towards his personal expenses. So, the balance income to be taken into account was Rs.6,250/-. The multiplier applicable was 15 as he was in the age group of 3640. So, loss of dependency could have been assessed as Rs.11,25,000/-(6250x12x15). The appellants were already awarded Rs.5,60,000/- under the head 'loss of dependency'. So, they are eligible to get the difference of Rs.5,65,000/- as enhanced compensation under the head 'loss of dependency'. 6. Towards funeral expenses, the appellants were awarded only Rs.7,500/-. Going by _**Pranay Sethi's**_ case cited supra, they are eligible to get Rs.15,000/-. So, the appellants are entitled to get the balance Rs.7,500/- as enhanced **MACA Nos.2111 & 2355 of 2012** **6** compensation towards funeral expenses. 7. Towards loss of estate, nothing was given by the Tribunal. Going by _**Pranay Sethi's**_ case cited supra , they are entitled to get Rs.15,000/- and that has to be awarded. 8. Towards loss of consortium, the appellants, who are the wife and child, are eligible to get Rs.44,000/- each amounting to Rs.88,000/- in total going by _**Pranay Sethi's**_ case cited supra. In that event, Rs.50,000/- awarded by the Tribunal towards loss of love and affection and consortium has to be deducted. So, the appellants are entitled to get the difference of Rs.38,000/- as enhanced compensation for loss of consortium. 9. The appellants were awarded Rs.5,000/- as compensation for pain and suffering. This being a death case, the claimants are not entitled to get any amount as compensation for pain and suffering and so, Rs.5,000/awarded by the Tribunal is liable to be deducted. 10. The compensation awarded under all other heads seems to be reasonable and so, it is not to be interfered with. **MACA Nos.2111 & 2355 of 2012** **7** |Head of<br>claim<br>(1)|Amount<br>awarded by<br>the Tribunal<br>(2)|Amount<br>awarded in<br>appeal<br>(3)|Amounts<br>deducted<br>in appeal<br>(4)|Difference to<br>be drawn as<br>enhanced<br>compensation<br>(5)| |---|---|---|---|---| |Loss of<br>dependency|Rs.5,60,000/-|Rs.11,25,000/-|-|Rs.5,65,000/-| |Funeral<br>expenses|Rs.7,500/-|Rs.15,000/-|-|Rs.7,500/-| |Loss of<br>estate|-|Rs.15,000/-|-|Rs.15,000/-| |Loss of love<br>& affection<br>&<br>consortium|Rs.50,000/-|Rs.88,000/-|-|Rs.38,000/-| |Pain &<br>suffering|Rs.5,000/-|-|Rs.5,000/-|-| ||Total||Rs.5,000/-|Rs.6,25,500/-| |Enhanced compensation (625500-5000)||||Rs.6,20,500/-| 11. In the result, the claimants are entitled to get enhanced compensation of Rs.6,20,500/- (565000+7500+ 15000+38000-5000). ## **MACA No.2111 of 2012** 12. The sole appellant in this appeal is the wife of deceased Sri.Jyothi Basu who was travelling in the pillion seat of the motorcycle ridden by her husband. She suffered injuries in the accident which was borne out from Ext.A12 wound certificate. She was admitted and treated for eight **MACA Nos.2111 & 2355 of 2012** **8** days in Medical Trust Hospital, Ernakulam. She was a Tailor by profession earning monthly income of Rs.7,000/-. At the time of accident, she was carrying for two months and MTP was conducted on 18.10.2010 as evidenced by Ext.A13 discharge summary. She suffered severe mental shock due to the death of her husband and medical termination of her pregnancy. She approached the Tribunal claiming compensation of Rs.6,87,000/-. But, the Tribunal awarded only a meager sum of Rs.1,08,622/-, which is under challenge in this appeal. 13. It is true that the claimant could not prove her income as a Tailor. Learned Tribunal fixed her notional income at Rs.3,000/- as she was aged only 34. Even if we take her as a housewife aged only 34, her notional income fixed by the Tribunal seems to be unjustifiable. Going by the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), since the accident was in the year 2010, she was eligible to get her notional income fixed @ Rs.7,500/-, treating her at par with a casual labourer. A woman doing multitasking at a time is eligible to get parity at least with that of a casual labourer and **MACA Nos.2111 & 2355 of 2012** **9** so, this Court has no hesitation to fix her notional income @ Rs.7,500/- per month. 14. The appellant had suffered contused abrasion on the occipital region with anterior inter-hemispheric bleeding and the Tribunal assessed loss of earning for three months @ Rs.3,000/- per month. Now we have fixed her notional income @ Rs.7,500/-. So, she is eligible to get Rs.22,500/- under the head ‘loss of earning’. After deducting Rs.9000/- already given, she is eligible to get Rs.13,500/- as enhanced compensation for loss of earning. 15. For pain and suffering, the appellant was awarded Rs.25,000/-. She suffered head injury and she was hospitalised for eight days. Considering that fact, this Court is inclined to award Rs.5,000/- more towards pain and suffering. 16. Against the claim of the appellant for Rs.3 lakh for the death of a two months old baby in the womb, the Tribunal awarded Rs.25,000/-. Except Ext.A13 discharge summary, no other documents are there to show her pregnancy or abortion. The discharge summary shows that, her LMP (Last Menstrual Period) was on 25.08.2010 and in September, she **MACA Nos.2111 & 2355 of 2012** **10** had taken 'Mala D' for eight days to postpone the periods. That certificate shows that, she had undergone MTP under IV sedation. That certificate further shows that, the patient requested for MTP. There is nothing to show that, because of the injuries suffered by her in the accident, it was not possible for her to continue her pregnancy. There is no certificate from the doctor to show any circumstance which necessitated an MTP. Since the certificate clearly shows that, the patient requested for MTP and it was not advised by the doctor due to any medical/health condition of the appellant, it is not fair from her part to claim enhanced compensation for the death of her baby in the womb. According to Ext.A13 discharge summary, her LMP was on 25[th] August, 2010. The accident occurred on 10.10.2010. So, her pregnancy was only six weeks old. At that stage, her pregnancy was not even in foetal stage, which begins with ten weeks. Her pregnancy was only in an embryonic stage by six weeks. So, she was not eligible to get compensation as if a baby in the womb died, and moreover, since MTP was done on her own request, she is not eligible to get any amount as enhanced compensation. **MACA Nos.2111 & 2355 of 2012** **11** 17. The learned Tribunal went wrong in finding that the appellant was reluctant for MTP even though Ext.A13 document clearly shows that, the patient requested for MTP. This Court is not deducting the amount already awarded by the Tribunal under the head 'compensation for the death of two month old baby in the womb', as the death of her husband in the accident, might have prompted her to terminate her pregnancy. 18. Towards loss of amenities, this Court is inclined to award Rs.5,000/- more, as the appellant had suffered head injury and underwent hospitalisation for eight days. 19. The compensation awarded under all other heads seems to be reasonable and so, it is not to be interfered with. |**Head of claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Amount**<br>**awarded in**<br>**appeal**|**Difference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**| |---|---|---|---| |Loss of earning|Rs.9,000/-|Rs.22,500/-|Rs.13,500/-| |Pain and<br>suffering|Rs.25,000/-|Rs.30,000/-|Rs.5,000/-| |Loss of<br>amenities|Rs.20,000/-|Rs.25,000/-|Rs.5,000/-| |**Total**|**Rs.54,000/-**|**Rs.77,500/-**|**Rs.23,500/-**| **MACA Nos.2111 & 2355 of 2012** **12** 20. In the result, the appellant is entitled to get enhanced compensation of Rs.23,500/- (13500+5000+5000). 21. The accident occurred due to the rash and negligent riding of the offending motorcycle by the 2[nd] respondent which was owned by the 1[st] respondent and duly insured with the 4[th] respondent. So, the 1[st] respondent is vicariously liable to compensate the victims of the accident, and the 4[th] respondent/insurer to indemnify the owner as there was valid policy for the offending vehicle covering the period of accident. 22. The 4[th] respondent is directed to deposit the enhanced compensation in MACA No.2355 of 2012 in the Bank Account of the appellants with interest @ 8% per annum from the date of petition till the date of deposit in the proportion 50:50 within a period of two months from the date of receipt of a copy of this judgment. Since the 2[nd] appellant is a minor, the amount due to the minor shall be deposited in Fixed Deposit in the name of the minor in a nationalised bank till he attains majority. 23. The 4[th] respondent shall deposit the enhanced **MACA Nos.2111 & 2355 of 2012** **13** compensation in MACA No.2111 of 2012 in the Bank Account of the appellant with interest @ 8% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposits in both the cases must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. The appeals are allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp