Thushara v. A. Chandran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **MACA.No.294 OF 2013** **AGAINST THE AWARD IN OPMV 935/2008 DATED 03-04-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT:** **THUSHARA AGED 25 YEARS W/O.LATE M.C.VINOD, D/O.SUBRAMANIAN ALLAS KATTI,KARNAKI NAGAR, MOOTHANTHARA,VADAKKANTHARA POST, PALAKKAD** **BY ADVS. SRI.JACOB SEBASTIAN SMT.SHAMSEERA. C.ASHRAF** ## **RESPONDENTS:** |**1**|**A.CHANDRAN**| |---|---| ||**AGED 58 YEARS**| ||**S/O.ACHUTHA MOOTHAN,KANJIRAMKATTU KALAM KUNISSERY,**| ||**ALATHUR TALUK, NOW RESIDING AT MOOCHIKKAL HOUSE,**| ||**ETHANUR POST, CHITTUR TALUK, PALAKKAD DISTRICT,PIN**| ||**678 502.**| |**2**|**KASTHURBA**| ||**AGED 45 YEARS**| ||**W/O.A.CHANDRAN,KANJIRAMKATTU KALAM, KUNISSERY,**| ||**ALATHUR TALUK,NOW RESIDING AT MOOCHIKKAL HOUSE,**| ||**ETHANUR POST, CHITTUR TALUK, PALAKKAD DISTRICT,PIN**| ||**678 541.**| |**3**|**K.R.RAJESHMON**| ||**S/O.K.V.RAMACHANDRAN PILLA, AGE NOT KNOWN ,**| ||**KIHZAKKEPARAKKATTU VEEDU,**| ||**MALAYILPOTHUVAL,KOCHUMKARUNTHARUVI, PEERUMEDU TALUK,**| ||**UPPUTHARA, IDUKKI (DRIVER OF LORRY BEARING**| ||**REGN.NO.KL-41/9948) PIN 685 505.**| |**4**|**M/S.ASSOCIATED AGENCIES**| ||**M.C.ROAD,KALADI, ERNAKULAM DISTRICT, REP.BY ITS**| ||**MANAGING PARTNER(OWNER OF LORRY BEARING REGN.KL-**| ||**41/9948) PIN 683 574.**| MACA.No.294 OF 2013 2 **5 M/S.RELIANCE GENERAL INSURANCE CO.LTD XL/3599, IVTH FLOOR, ELIZABETH ALEXANDER BUILDING, SHANMUGHAM ROAD, MARINE DRIVE, KOCHI 682 031 (INSURER OF LORRY BEARING REGN.NI.KL-41/9948).** **R1-2 BY ADV. SRI.BINOY VASUDEVAN R1 BY ADV. SMT.P.G.BABITHA R1-2 BY ADV. SMT.INDHU BALAKRISHNAN R5 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.294 OF 2013 3 ## **JUDGMENT** Dated this the 1st day of October 2020 The appellant was the 1[st] respondent in OP(MV).No.935/2008 on the file of the Motor Accident Claims Tribunal, Palakkad. The respondents 1 and 2 were the petitioners before the Tribunal. The respondents 3 to 5 are the driver, owner and insurer of the offending vehicle, respectively. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of their son Vinod on 16.6.2007. 3. The case of the petitioners, in brief, was that the deceased was aged 28 years at the time of MACA.No.294 OF 2013 4 accident. The deceased, while he was riding motor cycle bearing registration No.KL-49/3381, the lorry bearing registration No.KL-41/9948 driven by the 2[nd] respondent, in rash and negligent manner, hit the motor cycle. The deceased died instantaneously. Accordingly, the petitioners sought a compensation of Rs.6,50,000/-. 4. The 1[st] respondent/ appellant, wife of the deceased, filed a written statement, inter alia, contending that the income of the deceased was Rs.15,000/- and not Rs.5,000/- as alleged in the claim petition. She being the wife of the deceased, was also entitled for compensation. 5. The 4[th] respondent filed a written statement, inter alia, contending that the accident occurred due to the negligence on the part of the deceased. The amounts claimed in the claim petition were excessive. Hence, the claim petition MACA.No.294 OF 2013 5 may be dismissed. 6. Neither party adduced any oral evidence. Exts.A1 to A8 were marked in evidence on the side of the petitioners. 7. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by holding that the respondents 2 to 4 are jointly and severally liable to pay the petitioners an amount of Rs.4,65,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization along with Rs.1,500/- as costs. However, the Tribunal refused to grant compensation to the 1[st] respondent, on the ground that she had remarried in August, 2008, therefore, she was not a dependent of the deceased. 8. Aggrieved by the rejection of compensation to the appellant, this appeal is filed. MACA.No.294 OF 2013 6 9. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the respondents 1 and 2 and the learned counsel appearing for the 5[th] respondent- insurance company. 10. The learned counsel appearing for the appellant argued that the finding of the Tribunal that the appellant was not entitled to compensation as she got remarried is erroneous and unsustainable in law. The learned counsel relied on the decision of this court in **Veerappan V. Muthamma [1994 KHC 397], Valsamma and another V. Binu Jose and others [2014(1) KHC 207] and Vimala V. Dinesh Kumar Sharma and others [2007 KHC 7411]** . He also contended that the multiplier adopted by the Tribunal at 14 is wrong, in view of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation [2010(2)KLT 802(SC)], National Insurance** MACA.No.294 OF 2013 7 **Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 SC]** and **United India Insurance Co.Ltd V. Satinder Kaur @ Satwinder Kaur and others [2020(3)KHC 760]** . The learned counsel argued that it is an undisputed fact that the appellant was the wife of the deceased as on the date of accident. Merely, for the reason that she got remarried subsequently, in August, 2008, does not disentitle her from claiming compensation as settled in the afore cited decisions. It was also contended that the Tribunal has wrongly quantified the income of the deceased and failed to calculate the future prospects of the deceased. Hence, the learned counsel prayed that the impugned award may be set aside and the Tribunal may be directed to reconsider the matter afresh. 11. The contentions of the learned counsel for the appellant, so far as it denied compensation to the appellant, was supported by the learned MACA.No.294 OF 2013 8 counsel for the 5[th] respondent. The learned counsel for the respondents 1 and 2 contended that the findings of the Tribunal were correct and warranted no interference by this court. 12. The sole question that emerges for consideration in this appeal is whether the finding of the Tribunal, holding that the appellant was not entitled to compensation as she got remarried subsequent to the death of her husband, is erroneous or not. 13. The fact that the appellant was the wife of the deceased is not disputed by any party. The sole reason for denying compensation to the appellant was that she got remarried in August, 2008, subsequent to the death of Vinod on 16.6.2007. The Tribunal placed reliance on the ratio decidendi in **Sarla Verma** (supra), for arriving at the conclusion. MACA.No.294 OF 2013 9 14. **Sarla Verma** (supra) was a case decided by the Hon'ble Supreme Court, where the deceased was a bachelor. It was held that, in case of death of bachelor, 50% of the compensation has to be deducted towards personal expenses. 15. In the case on hand, undisputedly the appellant is not a bachelor, but a widow. The appellant became a widow on 16.6.2007, on the death of Vinod, which was the date on which the cause of action for filing the claim petition arose, the most relevant and crucial aspect. Whether the appellant subsequently got remarried is totally immaterial. 16. The question whether a widow is entitled the compensation is no longer res integra in view of the decision of this court in **Veerappan** and **Valsamma** (supra) and that of the High court of Madhya Pradesh in **Vimala** (supra). MACA.No.294 OF 2013 10 17. On an overall re-appreciation of the facts and the law, I am of the considered opinion that the Tribunal is to be directed to reconsider the case afresh taking note of the law laid down in the above cited decisions. Similarly, the Tribunal has erroneously adopted multiplier 14 which is against the law laid down in **Pranay Sethi** and **Sarla Verma** (supra), and has failed to award future prospects as laid down in **Satwinder Kaur** (supra). 18. In the result this appeal is allowed. The impugned award dated 3.4.2012 in OP(MV).No.935/2008 is set aside. The parties are directed to appear before the Tribunal on 27.10.2020. The Tribunal shall re-consider the claim petition afresh, after affording all the parties an opportunity to adduce additional evidence. The Tribunal shall keeping in mind the principles laid down in the decisions relied on in this judgment consider the case afresh and pass a fresh award in MACA.No.294 OF 2013 11 accordance with law. In view of the fact that the claim petition was filed in the year, 2008, I direct the Tribunal to make every endeavor to dispose OP(MV).No.935/2008, as expeditiously as possible and at any rate within a period of four months from the date of appearance of the parties. It is made clear that, as the 5[th] respondent has admitted the insurance policy, and that the respondents 3 and 4 were earlier set ex parte, there is no necessity to issue fresh notice to respondents 3 and 4. Sd/- **C.S.DIAS JUDGE** ska