Valliyammal and others v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944** **MACA NO. 2164 OF 2009** **AGAINST THE AWARD DATED 06/11/2008 IN O.P.(MV)NO.918/2004** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/PETITIONER :** **1 VALLIYAMMAL, W/O.CHAMIKUTTY ACHARI, VELAM PARAMBIL HOUSE, METHALA, KODUNGALLOOR.** - **2 V.C.GEETHA, W/O. MANIYAN T.A., VELAM PARAMBIL HOUSE, METHALA, KODUNGALLOOR.** **3 V.C.AMBILI, W/O. SURESH BABU, VELAM PARAMBIL HOUSE, METHALA, KODUNGALLOOR.** **BY ADV SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS :** - **1 P.V.VASANTHI, W/O.RADHAKRISHNAN, KALATHIL PARAMBIL HOUSE, JANAKI VILASAM, KEDAMANGALAM, N. PARAVUR.** - **2 RAJMOHAN, S/O.RAGHAVAN, VALLYKKAL HOUSE, KUNJITHAI, VADAKKEKARA.** - **3 UNITED INDIA INSURANCE CO. LTD., MUNCIPAL BUILDING, N. PARAVUR. BY SRI.P.K.MANOJ KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2164 of 2009 **==> picture [27 x 8] intentionally omitted <==** ## **MACA No.2164 of 2009** **-----------------------------------------** ## **J U D G M E N T** This appeal arises out of award dated 06.11.2008 in O.P.(MV)No.918 of 2004 on the file of the Motor Accidents Claims Tribunal, North Paravur. The appellants herein are the petitioners before the Tribunal. Respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellants as well as the learned Standing Counsel appearing for the insurance company. 3. Brief facts of the case are as follows; The allegation of the appellants is that on MACA No.2164 of 2009 **==> picture [27 x 8] intentionally omitted <==** 31.05.2004, one Girish while travelling as a pillion rider on a motorcycle bearing registration No.KL 8/F-9623 along the Vypeen-Munambam road and when he reached at Kodungassery, a mini lorry bearing registration No.KL 7/AC 4404 driven by the second respondent hit on the said motorcycle. Due to the impact of hit, Girish sustained fatal injuries and he died on the same day. 4. R3 filed written statement disputing the accident and negligence. At the same time, quantum of compensation also was disputed, while admitting policy to the vehicle involved in the accident. 5. The Tribunal examined PW1 and marked Exts.A1 to A6 on the side of the petitioners. No evidence let in by the respondents. Thereafter, as MACA No.2164 of 2009 **==> picture [27 x 8] intentionally omitted <==** against claim of Rs.8,00,000/-, Rs.1,05,040/- was granted by the Tribunal along with interest at the rate of 7%. 6. In this case, on perusal of the lower court records, the index forwarded from the Tribunal would indicate that part three records including documents in this case were destructed during 2016. It seems that destruction of part three records in this case where, appeal has been filed during 2009 itself, is a matter of serious concern and therefore, the said aspect is seriously taken note of and persons responsible for the same should be traced out and disciplinary action shall be proceeded. Therefore, the Motor Accidents Claims Tribunal, North Paravur is directed to initiate proceedings against the persons MACA No.2164 of 2009 ..5.. responsible for destruction of part three records in this case and report compliance of the same within a period of six weeks from today to the Registry of this Court. 7. Coming to the merits of this case, since this is a case of death, calculation based on the monthly income following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** , where the age of the deceased is not disputed, alone is sufficient to decide this appeal. Therefore, appeal can be disposed of even without part three records. Accordingly, this appeal being considered on merits. 8. It is argued by the learned counsel for the appellants that the Tribunal fixed the monthly income of the deceased at Rs.2,000/-, though the MACA No.2164 of 2009 **==> picture [27 x 8] intentionally omitted <==** appellants claimed the same at Rs.5,000/-. It is not in dispute that following the ratio in **Ramachandrappa'** s case (supra), Rs.4,500+40% addition in the case of the deceased, who was aged 27 years (below 30 years) at the time of the accident to be taken for calculating the loss of disability income. The multiplier applied by the Tribunal relying on the age of the deceased is not the law now prevailing and therefore, the multiplier also shall be 17. No doubt, deduction is 50%. Therefore, the loss of dependency income is recalculated as under; 4500+40%=6,300/- 6,300x12x17/2=6,42,600/- Out of which, Rs.80,040/- was granted by the Tribunal. Rs.6,42,600-80,040= **5,62,560/-** more is MACA No.2164 of 2009 ..7.. granted under the head loss of dependency income. 9. Traditional and conventional heads following the ratio in [2017 16 SCC 650], **National Insurance Company Ltd. v. Pranay Sethi & Ors.** also must be granted in this case. In this matter, the first appellant, the mother is entitled to get loss of consortium amounting to Rs.40,000/-. Hence, **Rs.40,000/-** is granted towards loss of consortium. In this matter, towards loss of estate **Rs.15,000/-** is granted, since no amount granted by the Tribunal under this head. Only Rs.5,000/- is granted by the Tribunal under the head postmortem, transportation and funeral expenses. Therefore, **Rs.12,000/-** more is granted under the head funeral expenses, treating Rs.3,000/- out of Rs.5,000/- towards funeral expenses. MACA No.2164 of 2009 **==> picture [27 x 8] intentionally omitted <==** 10. In this context, the learned counsel for the insurance company submitted that Rs.7,500/granted by the Tribunal under the head loss of love and affection and Rs.5,000/- granted under the head pain and sufferings are liable to be reduced, since the same are impermissible in view of the decision in [AIR 2020 SC 3076], **United India Insurance Co.Ltd. v. Satinder Kaur** . Therefore, Rs.12,500/-(7,500+5,000) stands reduced. In the result, this appeal is allowed. It is ordered that the appellants are entitled to get enhanced compensation to the tune of **Rs.6,17,060/-** (Rupees Six lakh Seventeen Thousand and Sixty only) at the rate of 7% interest granted by the Tribunal from the date of petition till the date of deposit or realisation MACA No.2164 of 2009 **==> picture [27 x 8] intentionally omitted <==** excluding the period of 162 days wherein, grant of interest was specifically disallowed by the order in C.M.Application No.1 of 2009(2529/2009) dated 08.11.2021. The insurance company is directed to deposit the same in the name of the appellants in the ratio 50:25:25(among appellants 1 to 3) within two months from today. On deposit, the appellants can release the same. Sd/- **A.BADHARUDEEN, JUDGE** rkj