VARGSE and others v. Branch Manager, ICICI Lombard Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` FRIDAY, THE 3[RD]DAY OF MARCH 2023 / 12TH PHALGUNA,1944 ``` ## **`MACA NO. 43 OF 2015`** ``` OPMV 279/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 VARGESE, AGED 58 YEARS, S/O. THOMAS, CHAKKUMMOOTIL HOUSE, PASUKKADAVU P.O., MARUTHONKARA, KUTTIADI.`** - **`2 MOLLY VARGESE, AGED 50 YEARS, W/O. VARGESE, CHAKKUMMOOTIL HOUSE, PASUKKADAVU P.O., MARUTHONKARA, KUTTIADI.`** - **`3 ABRAHAM C.V., AGED 34 YEARS, S/O. VARGESE, CHAKKUMMOOTIL HOUSE, PASUKKADAVU P.O., MARUTHONKARA, KUTTIADI.`** - **`4 JOLLY VARGESE, AGED 34 YEARS, D/O. VARGESE, CHAKKUMMOOTIL HOUSE, PASUKKADAVU P.O., MARUTHONKARA, KUTTIADI.`** - **`5 SOLLY VARGESE, AGED 28 YEARS, D/O. VARGESE, CHAKKUMMOOTIL HOUSE, PASUKKADAVU P.O., MARUTHONKARA, KUTTIADI.`** ## **`BY ADV SMT.K.DEEPA (PAYYANUR)`** MACA 43 of 2015 2 ## **`RESPONDENT/RESPONDENT NO.3:`** ``` THE BRANCH MANAGER, ICICI LOMBARD CO. LTD., KOCHI-682 035. ``` ``` BY ADV SRI.R.AJITH KUMAR (128/84) ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON28.02.2023,THECOURTON03.03.2023DELIVEREDTHE FOLLOWING: ``` MACA 43 of 2015 3 ## **J U D G M E N T** The claimants in OP(MV) No.279 of 2009 on the file of the Motor Accidents Claims Tribunal, Vatakara are the appellants herein impugning the impugned award on the ground of inadequacy of compensation. 2. Appellants 1 and 2 are the parents and appellants 3 to 5 are the siblings of the deceased Jain @ Thomas. On 06.12.2008, around 9.30 p.m., while the deceased was walking through the side of the road, in front of Casino Theater, Aluva, KL-7/S-2680 auto rickshaw, driven by the 2[nd] respondent, in a rash and negligent manner, knocked him down, and he sustained fatal head injury. Though the 2[nd] respondent took the injured in his auto rickshaw to the hospital, on the way, he abandoned the deceased at the road margin at Pipe Line road. Though the public took him to Medical College Hospital, Kottayam, he succumbed to the injuries on 07.12.2008 morning. Though the appellants, who are the legal heirs of the deceased, approached the Tribunal, claiming compensation of Rs.7,00,000/-. The Tribunal awarded only Rs.4,59,900/-. Hence this appeal. MACA 43 of 2015 4 3. The 1[st] respondent was the owner, the 2[nd] respondent was the driver and the 3[rd] respondent was the Insurer of the offending vehicle. They opposed the involvement of KL-7/S-2680 auto rickshaw in the accident. Their case is that the deceased travelled in the auto rickshaw, driven by the 2[nd] respondent, in a drunken state, and he jumped out from the moving auto rickshaw and sustained the injuries. The 3[rd] respondent admitted the Policy of the offending vehicle. But according to them, the 2[nd] respondent had no valid driving licence to drive the auto rickshaw and the 1[st] respondent permitted the 2[nd] respondent to drive the auto rickshaw, without a valid driving licence. Moreover, the 2[nd] respondent was acquitted of the criminal charges laid against him under Section 304 of IPC, and so his negligence was not proved so as to make the Insurer vicariously liable to compensate the victim. 4. Before the Tribunal, no oral evidence was adduced from either side. Exts.A1 to A8, B1 and B2 were marked. 5. Heard learned counsel Smt.K.Deepa appearing for the appellants and learned Standing Counsel Sri.Ajith Kumar appearing for the 3[rd] respondent-Insurer. MACA 43 of 2015 5 6. Let us see whether there is any illegality or impropriety in the impugned award warranting interference. 7. Learned Tribunal found that the deceased was a 47 year old man at the time of accident, relying on Ext. A5 extract of School Admission Register. But on going through Ext. A5 document, it could be seen that it was the extract of the School Admission Register of one Mr.Vargese, who is the father of the deceased. Ext.A6 extract of School Admission Register also is not of the deceased, as the name of the pupil is not mentioned therein. Ext.A3 Death Certificate of the deceased is not showing the Date of Birth of the deceased. So no documents were produced by the appellants to prove the exact age of the deceased at the time of his death. But Ext.A1 FIR and Ext.A2 Post Mortem Certificate will show his age as 28, though the date of birth of the deceased is not mentioned therein. In the original claim petition, the Date of Birth of the deceased is stated as 31 years. In the absence of any documents to prove the age of the deceased, the age stated by his parents and siblings in the claim petition is liable to be accepted, even when the Post Mortem Certificate and the FIR show his approximate age. So this Court is taking the age of the deceased as 31 at the time of his MACA 43 of 2015 6 death. 8. According to the appellants, the deceased was a welder by occupation, attached to V.Tech Engineering, Aluve, earning monthly income of Rs.10,000/-. But no documents were produced by the appellants to prove his occupation or income, except Ext.A7 certificate, showing that the deceased had attended a short term course on welding conducted by Indian Society for Technical Education. Ext.A7 shows that he was qualified to do welding works. The Tribunal took his notional income @ Rs.3,500/- per month, which according to the appellants, is on the lower side. Going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , as the accident occurred in the year 2008 and the deceased was a 31 year old man, he was eligible to get his notional income fixed @ Rs.6,500/- per month. Since he was a skilled labourer, we could fix his notional income as Rs.7,000/-. Since he was self employed and aged below 40 years, going by the decision **National Insurance** **Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680]** **`,`** 40% enhancement can be given towards future prospects. So his monthly income could be fixed @ Rs.9,800/- (7000 + 40%), MACA 43 of 2015 7 which this Court is inclined to round as Rs.10,000/-. Since he was a bachelor, 50% has to be deducted towards his personal expenses. So his income has to be taken as Rs.5,000/- (10000 X 50%). The multiplier applicable is 16 as he was aged 31. So the compensation for loss of dependency can be assessed as Rs.9,60,000/(5,000x12x16). The appellants were already awarded Rs.3,54,900/- under the head ‘loss of dependency’. So they are eligible to get the balance Rs.6,05,100/- under the head ‘loss of dependency’. 9. Towards funeral expenses, the Tribunal awarded Rs.25,000/-. But the appellants were eligible to get Rs.15,000/only. So they are liable to refund Rs.10,000/- under the head ‘funeral expenses’. 10. Towards loss of estate, no amount was awarded by the Tribunal. As per **Pranay Sethi’s case** cited ( _Supra_ ), the appellants are eligible to get Rs.15,000/-. 11. Towards loss of love and affection, the Tribunal awarded Rs.75,000. Appellants 1 and 2, who are the parents of the deceased, were eligible to get Rs.40,000/each totalling MACA 43 of 2015 8 Rs.80,000/- towards loss of consortium due to death of their son, though appellants 3 to 5 were not eligible for that amount. So the appellants are entitled to get Rs.5,000/- more, after adjusting Rs.75,000/- awarded for loss of love and affection. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|Rs.3,54,900/-|Rs.9,60,000/<br>-||Rs.6,05,100/-| |Funeral<br>expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-|| |Loss of estate|….|Rs.15,000/-||Rs.15,000/-| |Loss of love<br>and affection /<br>Loss of<br>consortium|Rs.75,000/-|Rs.80,000/-||Rs.5,000/-| |Total|||Rs.10,000/-|Rs.6,25,100/-| |Enhanced compensation is Rs.**6,15,100/-** (6,25,100 - 10,000)||||| |||||| 12. So the appellants are entitled to get Rs.6,15,100/- as enhanced compensation. 13. The Tribunal found that, though the offending vehicle was MACA 43 of 2015 9 duly insured with the 3[rd] respondent as per Ext.B1 Policy, the 2[nd] respondent was not having valid Driving Licence and Badge at the time of accident, and so the Insurer was directed to pay the compensation initially, and to recover the same from respondents 1 and 2. There is no challenge against that finding by respondents 1 and 2. So regarding the enhanced compensation also, the 3[rd] respondent has to make the payment initially, and they can recover the same from respondents 1 and 2. 14. Appellants 1 and 2 are the parents of the deceased and in fact, they are the only dependents of the deceased. Appellants 3 to 5 are the siblings of the deceased, who are all major. Though they are not dependents, they lost the love and affection of their brother, for ever. Considering that fact, they can be given Rs.25,000/- each from the award amount enhanced by this Court. The remaining amount, and interest accrued on the full amount, will be shared equally by appellants 1 and 2. 15. In the result, the 3[rd] respondent is directed to deposit Rs.25,000/- each in the account of appellants 3, 4 and 5, and the balance amount with interest on the full amount awarded, at the MACA 43 of 2015 10 rate of 7.5% per annum, from the date of petition till the date of deposit, (excluding the period of delay of 201 days in filing the appeal), to be deposited in the bank account of appellants 1 and 2, in the proportion 50:50, within a period of two moths from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/02.03.2023.