Syamala and others v Bathisha and Manojkumar M and The Oriental Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944`** ## **`MACA NO. 308 OF 2013`** ``` AGAINST THE AWARD DATED 03.07.2012 IN O.P(M.V) NO. 7/2009 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL, PUNALUR`** ## **`APPELLANT/1ST PETITIONER:`** ``` *1SYAMALA, RATHISH BHAVANAM, THURAVOOR SOUTH, KADAMBANADU VILLAGE, ADOOR TALUK, PRESENTLY RESIDING AT UTHRADAM, 10, PERINGANADU, PALLICKAL PANCHAYATH - 691 551, ADOOR, PATHANAMTHITTA. *(PETITIONERS 2 TO 4 ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 IN THE PARTY ARRAY AS PER ORDER DATED 01.11.2022 IN I.A NO.01/2022) 2RATHEESH, AGED 32 YEARS, S/O.DECEASED THULSEEDHARAN UTHRADAM, 10, PERINGANADU PALLICKAL PO- 691551. ADOOR TALUK (FROM RATHISH BHAVANAM, THUVAYOOR SOUTH) 3REJANEESH, AGED 26 YEARS, S/O. DECEASED THULSEEDHARAN UTHRADAM,10, PERINGANADU PALLICKAL P.O.-691551. ADOOR TALUK (FROM RATHISH BHAVANAM, THUVAYOOR SOUTH) 4MEENAKSHI, AGED 73 YEARS, M/O DECEAASED THULASEEDHARAN, KOIPPALLY KUZHIYIL MELATHIL, VYALA P.O, PIN 691554, ERATH VILLAGE, ADOOR TALUK (FROM RATHEESH BHAVANAM, THUVAYOOR SOUTH) BY ADVS. SRI.THULASEEDHARAN PACHEN PILLAI SRI.N.SASANKAN PILLAI ``` ## **`RESPONDENTS / RESPONDENTS:`** ``` 1BATHISHA, VALIYAVILA VEEDU, CHERANADU, VADAMON P.O., ANCHAL, KOCHIN - 691 306. 2MANOJ @ MANOJKUMAR M THAIVILAYIL, THRIKKUNNAPUZHA (MURI), NEAR, PRATHIBHA JUNCTION, KAKKAKUNNU P.O.,KOLLAM-690 522 3THE ORIENTAL INSURANCE COMPANY LTD., KOLLAM - 691 001. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 308/2013 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 14[th] day of March, 2023. The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Punalur (for short, ‘the Tribunal’) on 03.07.2012 in O.P.(M.V) No.07 of 2009. The appellants are the petitioners before the Tribunal and legal representatives of one Mr.Thulaseedharan, who died in a motor accident occurred at about 7.30 p.m on 31.08.2008. Mr. Thulaseedharan while walking from south to north through the western road margin of Bharanicavu-Sasthamcottah public road was hit by an Autorickshaw bearing Registration No.KL02-L 3684 near Padmavathy Hospital and sustained serious injuries. He was taken to Medical College Hospital, TVM. and there, he succumbed to the injuries. The petitioners claimed him to be a coolie worker aged 40 years and earning `6,000/per month. The legal representatives of the deceased filed the ``` MACA NO. 308/2013 ``` ``` 3 ``` above Original Petition seeking for a sum of `6,00,000/- as compensation. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 4 and respondents 1 to 3 in accordance with their status in the Original Petition. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition. 3[rd] respondent appeared and filed written statement. 3. The owner, the driver and the insurer of the offending vehicle were arrayed as respondents 1 to 3 in the Original Petition on hand. Before the Tribunal, evidence adduced by the petitioners consists of Exts.A1 to A9. The respondents did not adduce any evidence. 4. On appreciation of the evidence on record, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Autorickshaw bearing Registration No. KL-02-L 3684 by its ``` MACA NO. 308/2013 ``` ``` 4 ``` driver, who was arrayed as the 2[nd] respondent in the Original Petition. The Tribunal also found that Mr. Thulaseedharan succumbed to the fatal injuries sustained by him at Medical College Hospital, Thiruvananthapuram. The Tribunal also found that the petitioners in their capacity as the legal representatives of the deceased are entitled to get compensation and arrived at `3,99,500/- as the sum payable. 3[rd] respondent, the insurer of the offending vehicle was directed by the Tribunal to deposit the compensation 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. Proportionate cost was also awarded. Aggrieved by the quantum of compensation stood awarded by the Tribunal, petitioners are now before this Court as appellants. 5. It is contended by Sri.Thulaseedharan Pachan Pillai, the learned counsel for the petitioners that `3,000/- fixed by the Tribunal as the monthly income of the deceased on a ``` MACA NO. 308/2013 ``` ``` 5 ``` notional basis is too low and therefore, re-consideration is warranted to fix a higher sum. According to the learned vs. counsel, the Apex Court in Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] had fixed `4,500/- as the monthly income in the case of a Coolie worker, who died in a motor accident occurred in the year 2004 and therefore, there is every justification for fixing a higher sum with reference to 2008, the year in which the motor accident was occurred. 6. The deceased being a Coolie worker, may not be able to substantiate his exact monthly income. He may not also be able to get his monthly income certified by an authority. In the backdrop, `6,500/- being a reasonable sum is fixed as the monthly income of the deceased. The victim of the motor accident was aged 40 years at the relevant time of the motor accident and 15 is adopted by the Tribunal as the multiplier applicable. It being correct is maintained. The victim died at ``` MACA NO. 308/2013 ``` ``` 6 ``` his age of 40 years and the death being an accidental and untimely one, 25% is also added to the monthly income fixed in consideration of loss of his future prospects. Thus, `8,125/(`6,500/- + 25% of `6,500/-) is arrived at. 1/4[th] is deducted in consideration of personal expenditure, the victim would have to meet, had he been alive. When compensation is calculated with the factors modified as well as those maintained, `10,96,875/(`8,125/- x 12 x15 x ¾) is arrived at as the compensation payable. `3,60,000/- stood awarded by the Tribunal when adjusted against the sum now arrived at, petitioners will get `7,36,875/- (`10,96,875/- - `3,60,000/- ) as additional compensation towards loss of dependency. 7. As compensation towards loss of estate and funeral expenses, petitioners are entitled to get `16,500/- each as directed by the Apex Court in National Insurance Company Ltd. v. Pranay Sethi and others [2017 (4) KLT 662 (SC)] , `2,500/and `5,000/- respectively stood awarded by the Tribunal under ``` MACA NO. 308/2013 ``` ``` 7 ``` the above heads when adjusted against the sum payable as above, petitioners will get `14,000/- and `11,500/- respectively as additional compensation. 8. It is noticed from the cause title of the Original Petition that the deceased was survived by his wife, minor sons and aged parents. As per Pranay Sethi supra, legal representatives coming within the category of spouse, parents and children are entitled to get `44,000/- each as compensation towards loss of consortium. It is noticed that at the time when the award was passed, the father of the deceased was alive. It is also noticed that at the time of filing of the appeal, the father was alive but the appeal was filed only by the wife of the deceased. In the year 2022, the other legal representatives, who were parties in the Original Petition before the Tribunal were also brought on record as additional appellants. But, due to death of the father of the deceased in the meantime, he was not brought on record in the appeal on ``` MACA NO. 308/2013 ``` ``` 8 ``` hand. Since the victim was survived by his wife, two children and parents at the relevant time of his death due to the motor accident, they are entitled to get `44,000/- each as compensation for loss of consortium. Thus, `2,20,000/(`44,000/- x 5) is arrived at as the total compensation payable towards loss of consortium. `12,000/- was found already awarded by the Tribunal infavour of the 1[st] petitioner and that when adjusted against the total sum now arrived at, petitioners will get `2,08,000/- (`2,20,000/- - `12,000/-) as additional compensation under that head. 9. The Tribunal has awarded `20,000/- as compensation towards loss of love and affection. Petitioners being disentitled for that, the same is deducted from the total sum arrived at. Thus, the petitioners will get `9,50,375/- (Rupees Nine Lakhs Fifty Thousand Three Hundred and Seventy Five only) [(`7,36,875/- + `14,000/- + `11,500/- + `2,08,000/-) - (`20,000/-)] as total additional compensation, which will also ``` MACA NO. 308/2013 ``` ``` 9 ``` carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent being the insurer shall pay the above sum 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. 10. The appeal was filed with a delay of 121 days and therefore, the 3[rd] respondent is exonerated from paying interest for that period. The learned counsel requested furthermore that since the appeal on hand was originally filed by the wife alone and the other legal representatives having been brought on record by way of impleadment only on 01.11.2022 as per direction issued by this Court on 16.08.2022, the 3[rd] respondent cannot be made liable to pay interest for that period. The request being reasonable is allowed and the 3[rd] respondent is exonerated from paying interest for the period from 16.08.2022 till 01.11.2022. ``` MACA NO. 308/2013 ``` ``` 10 ``` 11. Since the total compensation now awarded infavour of the petitioners exceeds the claim made by the petitioners in the Original Petition, the Tribunal shall see that court fee proportionate to the excess sum is realised from the petitioners. M.A.C.A stands allowed accordingly. **`Sd/-`** MARY JOSEPH JUDGE JJ