Sujamma and others v. Subhash, Biju Krishnankutty and The New India Assurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 MACA NO. 1988 OF 2013 ``` ``` AGAINST THE AWARD IN OPMV 693/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA DATED 28/02/2013 ``` ``` .......... ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1SUJAMMA W/O. LATE BABU, VALUPARAMBIL HOUSE, THURUTHY.P.O., VAZHAPPALLY VILLAGE, CHANGANASSERY TALUK, NOW RESIDING AT PATHUCHALIL HOUSE, KOOVAPPALLY.P.O., KOOVAPPALLY VILLAGE, KANJIRAPPALLY, KOTTAYAM DISTRICT. 2SREEKUTTY (MINOR) REP. BY NEXT FRIEND SUJAMMA, D/O.LATE BABU, VALUPARAMBIL HOUSE, THURUTHY.P.O., VAZHAPPALLY VILLAGE, CHANGANASSERY TALUK, NOW RESIDING AT PATHUCHALIL HOUSE, KOOVAPPALLY.P.O., KOOVAPPALLY VILLAGE, KANJIRAPPALLY, KOTTAYAM DISTRICT. 3JITHUMON (MINOR), REP. BY NEXT FRIEND SUJAMMA, S/O.LATE BABU, VALUPARAMBIL HOUSE, THURUTHY.P.O., VAZHAPPALLY VILLAGE, CHANGANASSERY TALUK, NOW RESIDING AT PATHUCHALIL HOUSE, KOOVAPPALLY.P.O., KOOVAPPALLY VILLAGE, KANJIRAPPALLY, KOTTAYAM DISTRICT. ``` ``` BY ADV SRI.ABRAHAM MATHEW (VETTOOR) ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SUBHASH S/O. CHELLAPPAN, SUDHIN NIVAS HOUSE, NEAR AC ROAD, MOONNAM PALAM, POOVAM KARA, CHANGANASSERY VILLAGE, KOTTAYAM DISTRICT-686 001. 2BIJU KRISHNANKUTTY PUTHUPARAMBIL HOUSE, THRIKODITHANAM, CHENGANASSERY, KOTTAYAM DISTRICT. PIN-686 001. ``` ## **`MACA NO. 1988 OF 2013`** ``` 2 ``` ``` 3THE NEW INDIA ASSURANCE COMPANY CO. LTD. REP. BY ITS DIVISIONAL MANAGER, KOTTAYAM-686001. BY ADVS.SMT.M.MEENA JOHN SRI.VIJU THOMAS ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1988 OF 2013 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 12[th] day of April, 2023 The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Pala, on 28.02.2013 in O.P.(M.V) No.693/2010. 2. Appellants are petitioners before the Tribunal. They are none other than the legal representatives of one Mr.Babu who died as a victim of a Motor Accident occurred at about 4 pm on 23.02.2010. Mr.Babu, while standing by the side of the road was knocked down by an Autorikshaw bearing Registration No.KL-5/M-4223 which was driven by it’ driver in a rash and negligent manner. He sustained injuries and was transported to Government Hospital, Changanassery and shifted therefrom to Medical College Hospital, Kottayam. He succumbed to the injuries on 20.03.2010. Alleging that ``` MACA NO. 1988 OF 2013 ``` ``` 4 ``` the Motor Accident in question was occurred due to the rash and negligent driving of the Autorickshaw by its driver and claiming for a compensation of `12,00,000/-, the above Original Petition was filed by his legal representatives before the Tribunal. 3. The driver, the registered owner and the insurer of the Autorickshaw were arrayed as respondents 1 to 3 in the above Original Petition. Summons was served on all respondents in the Original Petition. 1[st] and 2[nd] respondents did not turn up to contest the . Original Petition and therefore, declared as _ex parte_ Written statement was filed by the 3[rd] respondent admitting issuance of a valid policy for the Autorickshaw bearing Registration No. KL-5/M-4223 covering the date of accident but denying negligence of the 1[st] respondent in driving the Autorickshaw and possession of a valid and effective driving licence by him at the relevant time ## **`MACA NO. 1988 OF 2013`** ``` 5 ``` of the motor accident. Victim was contended as standing by the side of road carelessly. The compensation claimed is also disputed for being exorbitant. 4. The 1[st] petitioner, the widow of the deceased was examined as PW1 and Exts.A1 to A9 were marked. On the side of the respondents, Exts.B1 and B2 were marked. The Tribunal appreciated the entire evidence and found the driver of the Autorickshaw responsible for causing the motor accident in question. The Tribunal also found that the petitioners as the legal representatives of the victim of the motor accident are entitled to get compensation. `5,33,185/- was arrived at as the total compensation payable and the impugned award was passed. The 3[rd] respondent was directed to deposit the compensation arrived at with interest at the rate of 7.5% per annum from the date of filing of the Original ``` MACA NO. 1988 OF 2013 ``` ``` 6 ``` Petition till the date of realization alongwith proportionate costs. 5. Aggrieved by the quantum of compensation stood awarded by the Tribunal, the petitioners are now before this Court in the appeal on hand. 6. According to Sri.Abraham Mathew (Vettoor), the learned counsel for the appellants, petitioners had raised a claim in the Original Petition that Mr.Babu was conducting a 'Thattukada' and earning `10,000/monthly, but, the Tribunal took only `4,500/- as his monthly income on a notional basis. According to him, the fixation of the monthly income being too low, refixation is warranted. 7. It is contended by the learned counsel that following the injuries sustained in the motor accident, the victim was hospitalized for one month but the Tribunal ``` MACA NO. 1988 OF 2013 ``` ``` 7 ``` failed to award compensation towards bystander expenses and extra nourishment. According to him, the Tribunal is unjustified in doing so. 8. The learned counsel has pointed out that compensation as directed by the Constitution Bench of the Apex Court towards loss of estate, funeral expenses and loss of consortium was not awarded by the Tribunal. According to him, though claims for `40,000/- and `50,000/- were raised as compensation towards funeral expenses and loss of consortium in favour of the 1[st] petitioner, the Tribunal awarded only `5,000/- and `15,000/- respectively. Therefore, the learned counsel seeks for modification of the compensation stood awarded under the respective heads. 9. It was urged by the learned counsel that against a claim of `50,000/- as compensation towards loss of estate, the Tribunal has awarded only `5,000/-. ``` MACA NO. 1988 OF 2013 ``` ``` 8 ``` The learned counsel seeks for modification of the compensation stood awarded under that head also. 10. The learned counsel for the 3[rd] respondent, canvassed on the contrary to maintain the monthly income fixed by the Tribunal. According to him, the Tribunal was constrained to fix the monthly income notionally in a situation when evidence of any nature to strengthen the claim of the petitioners on monthly income was not forthcoming and therefore, is justified. According to him, the petitioners are not entitled to get compensation under the head pain and suffering and loss of love and affection and therefore, `15,000/- and `10,000/- stood awarded by the Tribunal is required to be deducted from the total compensation that would be arrived at as additionally payable. 11. The learned counsel also sought for ``` MACA NO. 1988 OF 2013 ``` maintaining the compensation stood awarded by the Tribunal under the head loss of dependency, it being a reasonable sum. 12. A glance at the impugned award would establish that evidence of any nature is not forthcoming from the petitioners to establish that the victim was conducting a ‘Thattukada’ at the relevant time of the motor accident and earning `10,000/- monthly. Such being the context, the Tribunal was constrained to fix `4,500/- as his monthly income. In the view of this Court the fixation of monthly income as `4,500/- in the year 2010 is too low. Therefore, this Court refixes it as `6,000/-. The victim was aged 46 years at the relevant time of his death and being self employed is also entitled to have 25% addition to the monthly income in consideration of loss of future prospects. Accordingly `7,500/- (`6,000/- + `1,500/-) is arrived at. The ``` MACA NO. 1988 OF 2013 ``` ``` 10 ``` multiplier was adopted by the Tribunal as 13 and deduction towards personal expenditure as 1/3[rd] correctly and therefore are not interferred with. 13. Compensation for loss of dependency, when recalculated on the basis of the modified monthly income, `7,80,000/- (`7,500/- x 12 x 13 x 2/3) is arrived at. `4,68,000/- stood awarded by the Tribunal as compensation when adjusted against the the sum now arrived at, the petitioners will get `3,12,000/(`7,80,000/- - `4,68,000/-) as additional compensation. 14. `1,000/- was found claimed by the petitioners as compensation towards damages to clothing and other articles but, the Tribunal has awarded only `500/- and therefore, `500/- more is awarded. 15. The victim of the motor accident had undergone treatment in the hospital for one month. ``` MACA NO. 1988 OF 2013 ``` Therefore, undoubtedly the petitioners must have availed the service of a bystander and spent money towards extra nourishment. In that backdrop, it is reasonable to award `3,000/- and `2,000/- respectively as compensation towards bystander expenses and extra nourishment and this Court do so. 16. The petitioners confined their claim of compensation towards loss of consortium only to the 1[st] petitioner. The Apex Court in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)],** directed grant of `44,000/- to the legal representatives of the deceased coming within the category of parents, children and spouse, with reference their relationship with the victim. The deceased in the case on hand is survived by his wife and two minor children and therefore, each of them are entitled to get `44,000/- and thus `1,32,000/- (`44,000/- x 3) is ``` MACA NO. 1988 OF 2013 ``` arrived at. `15,000/- stood awarded by the Tribunal when adjusted against the above sum, petitioners will get `1,17,000/- (`1,32,000/- - `15,000/-) as compensation towards loss of consortium. 17. As compensation towards loss of estate and funeral expenses only `5,000/- each was awarded by the Tribunal. In view of **Prany Sethi** supra, the petitioners are entitled to get `16,500/- each under those heads. `5,000/- stood awarded by the Tribunal under each of the above heads when adjusted against the sum for which the petitioners are entitled to, they will get `11,500/- each as additional compensation. 18. `15,000/- was found awarded by the Tribunal towards pain and suffering and `10,000/-, towards loss of love and affection. Petitioners are have no entitlement to receive those and therefore those are deducted from the total additional compensation found as payable. ``` MACA NO. 1988 OF 2013 ``` ``` 13 ``` 19. In the above manner of calculation afresh, petitioners will get `4,32,500/- (Rupees Four Lakh Thirty Two Thousand Five Hundred only) [(`3,12,000/- + `500/- + `3,000/- + `2,000/- + `1,17,000/- + `11,500/- + `11,500/-) - (`15,000/- + `10,000/-)] as additional compensation and 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 realization, excluding 23 days being the delay occurred in filing the appeal on hand and 60 days being the delay occurred in re-presenting the appeal after curing defects. 20. The 3[rd] respondent being the insurer shall pay the additional compensation with interest fixed as above within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. ``` MACA NO. 1988 OF 2013 ``` ``` 14 ``` 21. In view of the finding arrived at by the Tribunal that the 1[st] respondent has driven the Autorickshaw without a valid and effective driving licence, right of recovery has been ordered by it infavour of the 3[rd] respondent. The same is maintained and the 3[rd] respondent is permitted to have recovery of the additional compensation alongwith interest due on it and costs after depositing it in favour of the petitioners, from the 1[st] and 2[nd] respondents. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** saap