Umaiba V.A. and others v. K.R.Roshi and others

``` MACA NO. 1950 OF 2009 ``` -1- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944 ``` ## **`MACA NO. 1950 OF 2009`** ``` OPMV 828/2004 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL, NORTH PARAVUR ``` ## **`APPELLANT/S:`** ``` 1 UMAIBA V.A., W/o.Hamsa…DIED THUNDIPARAMBIL HOUSE, THAIKKATTUKARA P.O., ALUVA TALUK, ERNAKULAM DISTRICT. 2 SAJITHA WO ABDUL KHADER DO. DO. 3 AJITHA WO BAKKER DO. DO. 4 M.H.NAJEEB SO HAMSA DO. DO. 5 M.H.MUJEEB SO HAMSA DO. DO. (APPELLANT NOS.2 TO 5 ARE RECORDED AS THE LEGAL HEIRS OF 1[ST] APPELLANT AS PER ORDER DATED 5.7.23 IN IA 1 OF 2023 IN MACA 1950/2009) BY ADVS.SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.N.T.NANDAKUMAR PARAVUR ``` ## **`RESPONDENT/S:`** - `1 K.R.ROSHI S/O.Ramakrishnan,ANITHA BHAVAN, KARIKKAMURI CROSS ROAD, KOCHI-11.` ``` 2 P.S.ANIL SO.SATHYAN,PADATHUVEETTIL HOUSE, CHERIYAPPILLY, KAITHARAM,, PARAVUR TALUK, ERNAKULAM DISTRICT. ``` - `3 UNITED INDIA INSURANCE CO.LTD.,BRANCH OFFICE, BANK OF BARODA BUILDINGS, PALACE ROAD, MATTANCHERRY, KOCHI-02, ERNAKULAM DISTRICT.` ``` BY ADV SRI.P.MURALEEDHARAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` MACA NO. 1950 OF 2009 ``` -2- ``` 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **JUDGMENT** (Dated this the 20[th] day of January 2023) The appellants are the petitioners in O.P.(M.V.) No.828 of 2004 on the files of the MACT, N. Paravur. 2. On 19.1.2004, the deceased was riding a motor cycle along Edappally – Vyttila National Highway. A lorry bearing registration No.KL 7 H/3357 driven by the 2[nd] respondent, hit the motorcycle, thereby he sustained serious injuries and he succumbed to the death on the next day. The appellants/petitioners are the wife and the 4 children of the deceased. They claimed Rs.3 lakhs as compensation for the death of the deceased. 3. The 2[nd] respondent filed a written statement contending that the accident happened due to the negligence ``` MACA NO. 1950 OF 2009 ``` -3- of the deceased and the compensation claimed is excessive. It was contended in the written statement filed by the 3[rd] respondent that there was no negligence on the part of the 2[nd] respondent and the amount claimed is excessive. 4. The Tribunal, relying on Ext.Nos.A1 to A6 and the oral evidence of PW1, awarded a total compensation of Rs.1,95,564/- with interest at 7% interest per annum from 10.9.2004 till realisation from respondent Nos.1 to 3. Aggrieved by the compensation awarded in various heads, this appeal is filed. 5. The learned counsel for the appellants submits that the deceased was earning a monthly income of Rs.3,000/- as catering worker. He was aged 58 years at the time of accident. The Tribunal took the monthly income at Rs.2,000/- and one third was deducted towards personal expenses, and therefore, the monthly income was fixed at ``` MACA NO. 1950 OF 2009 ``` -4- Rs.1,334/- and the annual income was fixed at Rs.16,008/-. Taking the multiplier as 8, compensation for loss of dependency was calculated as Rs.1,28,064/-. The Tribunal took the monthly income only as Rs.2,000/- as there was no evidence to substantiate that he was earning Rs.3,000/- per month. By the dictum in **Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236],** the notional income of the deceased is to be taken as Rs.4,500/-. In the absence of any evidence, the amount claimed by the appellants is taken, which is Rs.3,000/- per month. Relying on the dictum relied in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], as the deceased was self employed and between the age group of 50 to 60, 10% can be added towards future prospects. Thus the monthly income will come to Rs.3000 + 300 (10% of 3000) = 3,300/-. ``` MACA NO. 1950 OF 2009 ``` -5- Since the dependents of the deceased are 5 in number, 1/4[th] of the income has to deducted towards personal and living expenses. The proper multiplier to be adopted as per the decision reported in **Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another [(2009) 6 SCC** **121],** is 9. Hence, the loss of dependency is calculated as Rs.3,300 x 12 x 9 x 3/4 = Rs.2,67,300/-. 6. Towards loss of consortium the Tribunal awarded Rs.5,000/- only. The appellants, being the wife and children, are entitled to Rs.40,000/-, plus 10% escalation in every three years as per the decision reported in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680** ]. Accordingly an amount of Rs.2,20,000/- is awarded to the appellants under the head. 7. When compensation is awarded under the head loss of consortium, no amount can be awarded towards ``` MACA NO. 1950 OF 2009 ``` -6- compensation for love and affection. Hence the amount of Rs.7,500/- awarded under love and affection is set aside. 8. For loss of estate the Tribunal has awarded only Rs.5,000/-. The minimum amount that is to be awarded under the head of loss of estate relying on Pranay Sethi (supra), Rs.15,000/- plus 10% escalation in every three years. Hence the appellants are entitled to a sum of Rs.11,500/- more on the said head. 9 **.** Amount of Rs.5,000/- awarded under funeral expenses is enhanced to Rs.15,000/-, plus 10% escalation in every three years which comes to Rs. 16,500/-, accepting the principles in the decision reported in Pranay Sethi (supra). 10. Accordingly, the following enhancements/ deductions are made to the award passed by the Tribunal: ``` MACA NO. 1950 OF 2009 ``` -7- |Sl.<br>No.|The compensation claimed<br>under different heads|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt. Enhanced<br>in appeal (Rs.)| |---|---|---|---| |1|Loss of dependency|1,28,064|2,67,300| |2|Loss of consortium|5,000|2,20,000| |3|Loss of love and affection|7,500|-| |4|Loss of estate|5,000|16,500| |5|Funeral expenses|5,000|16,500| ||TOTAL|1,50,564|5,20,300| ||Amount enhanced – 5,20,300 – 1,50,564=**Rs. 3,69,736/-**||| In the result, the appeal is allowed and the appellants are entitled for enhanced compensation of Rs.3,69,736/(Rupees three lakh sixty nine thousand seven hundred and thirty six only). All other findings entered by the Tribunal stand ``` MACA NO. 1950 OF 2009 ``` -8- confirmed. The Insurance Company shall pay interest for the enhanced amounts @7% from the date of petition till realisation. The claimants will have to pay court fee for the total amount awarded, which will be recovered by the Tribunal before disbursing the amount deposited. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. **Sd/BASANT BALAJI, JUDGE** _dl/_