Vasanthikumari K.S. v. Sinu Jacob Kora and United India Insurance Co. Ltd. and Anu W/o late Rajesh Krishnavilasam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941** ## **MACA.No.2032 OF 2010** **AGAINST THE AWARD IN O.P.(MV) NO.1225/2007 DATED 22-02-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT/CLAIMANT:** **VASANTHIKUMARI.K.S W/O.LATE K.N.BALACHANDRAN NAIR, KRISHAVILASAM, VAYALA P.O., ELACKADU VILLAGE, VAYALA, MEENACHIL TALUK.** **BY ADVS. SRI.T.J.MICHAEL SRI.JOSE MATHEW (KAVALAKALAM)** ## **RESPONDENTS/RESPONDENTS:** **1 SINU JACOB KORA S/O.KORA THOMAS, PUTHENKADUPIL HOUSE, KANJIRAPPALLY VILLAGE, KANJIRAPPALLY P.O., PIN-686507. 2 THE UNITED INDIA INSURANCE CO. LTD., REP. BY DIVISION MANAGER, KOTTAYAM P.O. - 686001. 3 ANU WO.LATE RAJESH KRISHNAVILASAM, VAYALA P.O., ELACKADU VILLAGE, NOW RESIDING AT PARAMUNDAYIL(H), CHETHIMATTOM P.O., PALA-686575. R2 BY ADV. SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2032 OF 2010 2 ## JUDGMENT The present appeal is preferred against the award of the Motor Accidents Claims Tribunal, Pala, rendered in OP(MV) Nos.1225 of 2007 and 88 of 2009. The facts which culminated into the filing of the claim petition are as follows:- One Sri.Krishna kumar @ Rajesh, on 17.09.2007 10.30pm., while walking along the side of the road, was hit by a Santro car bearing registration No.KL34/23254, driven by the 1[st] respondent, and insured with the 2[nd] respondent resulting into fatal injuries and on the next day at 3.00 am. succumbed to his injuries. Since the vehicle was insured with the second respondent, two petitions, as noticed above, were filed- One by his mother named Vasanthikumari K.S., widow of late K.N.Balachandran Nair and the another by Anu W/o late Rajesh. 2. Sri.T.J.Michael, the learned counsel for the appellant/claimant asserted that the deceased was a post graduate in Computer Applications and was earning MACA.No.2032 OF 2010 3 Rs.15,000/- per month as income. The accident was a result of rash and negligent driving of the aforementioned car. 3. Before the Tribunal, the 2[nd] respondentInsurance Company contested the claim petition by raising all objections qua monthly income of the claimant, nature of injuries, period of treatment, etc. and nature of damages claimed, age, occupation, validity of the driving licence, negligence of the vehicle as well as the deceased as he was not walking on a foot path. 4. Before the Tribunal, appellant/claimant as well as the 3[rd] respondent/claimant in OP(MV) No.88 of 2009 lead in evidence in support of the claim. However, the Tribunal awarded a compensation of Rs.6,62,500/- under the following heads: |llowing heads:|| |---|---| |Part I|Rs.| |Loss of dependency|6,00,000/-| |Funeral expense|20,000/-| |Transportation to hospital|2,000/-| |Damages to clothing and articles|500/-| |Medical expense|5,000/-| |PartII|| |Pain and suffering|5,000/-| |Loss of estate|10,000/-| MACA.No.2032 OF 2010 4 |Loss of love and affection|10,000/-| |---|---| |Loss of consortium|10,000/-| |Total|6,62,500/-| The apportioned amount was to be distributed in the ratio of 40% to the appellant and 60% to the widow. 5. Mr.T.J. Michael, the learned counsel appearing on behalf of the appellant/claimant raised the following submissions in support of his claim. The Tribunal has erroneously applied the multiplier of 5 taking the age of the appellant and not of the deceased, which is contrary to the law. No compensation to wife has been awarded under various heads like future prospects, pain and sufferings and given a confined relief of consortium only to the extent of Rs.10,000/-. The compensation should have been in the ratio of 50:50 as the widow was remarried and even the compensation already awarded has not been withdrawn nor any appeal for enhancement has been filed as are set as ex-parte in the present proceedings. In support of the aforementioned contentions he relied on the judgment of a Constitution Bench of the Hon'ble Supreme Court in National MACA.No.2032 OF 2010 5 Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] for seeking enhancement of the compensation on the premise that the accident or the validity of the insurance much less the driving licence have not been disputed. 6. Per contra, Smt.Raji T. Bhaskar, the learned counsel appearing on behalf of the insurance company submitted that the award of compensation is just, fair and equitable, based upon certain proposition of law and not liable to be enhanced. The deceased was negligent and not prepared to take steps while he was admittedly found to have walking on a road meant only for vehicular movement and urged this Court for dismissal of the petition. 7. Having heard the learned counsel for both the parties and appraising the paper books, I am of the view that it is a fit case where the amount of compensation is liable to be enhanced. As per the evidence brought on record, i.e., the Birth Certificate, the deceased was, at the time of death, 28 years. As per the schedule applicable to the Tribunal, for a person between the age MACA.No.2032 OF 2010 6 of 26-30 multiplier of 17 has to be applied. The question to be decided is whether the finding of the Tribunal in awarding the compensation by taking the age of the mother can be looked into; and the answer would be 'No', as it is now settled by law, the age of the deceased has to be taken and not that of the parents claiming compensation. The aforementioned view of mine has arisen from a Division Bench judgment of this Court in Annamkutty v. Manager, United India Insurance Co. [2013(4) KHC 79]. Thus, keeping in view such circumstances and taking into consideration the schedule the multiplier as awarded by the Tribunal is refixed as '17'. 8. Coming down to the question of awarding of future prospects, the applicability of the law with regard to the same is no longer in dispute in view of the dictum in Pranay Sethi's case (supra) . It is a case where the deceased was not a self employed person, but working in a computer company, drawing a salary of Rs.15,000/-. Since there are two dependants-wife and mother, by applying the deduction of 1/3[rd] , the Tribunal has taken MACA.No.2032 OF 2010 7 the monthly income as Rs.10,000/-. In such circumstances, an addition of 50% of actual salary to the income of the deceased is to be made towards future prospects. Accordingly, the amount of compensation under the head loss of dependency would come to Rs.30,60,000/- [(10,000 + 5000) x 12 x 7], thereby giving an enhancement of Rs.24,60,000/- (30,60,000 - 6,00,000). Only a sum of Rs.10,000/- has been awarded by the Tribunal under the head consortium, which is enhanced as Rs.40,000/-, resulting in an additional compensation of Rs.30,000/- . The element of pain and sufferings would not be taken care of. The element of interest of 7.5% does not seem to be less or higher and hence the same is upheld. I do not find any substance in the argument of the learned counsel representing the appellant regarding the apportionment of the compensation to the extent of 50% vis-a-vis to the widow and the mother of the deceased. The ratio of 60:40 is most appropriate and reasonable. Thus, the finding of the Tribunal on this point is upheld. The cumulative effect of the aforementioned discussions is that the MACA.No.2032 OF 2010 8 appeal stands disposed of in the following terms:- 1. The total amount of enhanced compensation comes to Rs.24,90,000/- (24,60,000 + 30,000) 2. The claimant is entitled to 40% of the aforesaid amount, in view of the ratio fixed by the Tribunal, as upheld by this Court. 3. The insurance company is directed to deposit 40% of the enhanced compensation, i.e., Rs.9,96,000/within a period of 2 months from the date of receipt of a copy of this judgment along with interest awarded by Tribunal, failing which the amount shall entail interest @ 11%. Sd/AMIT RAWAL, JUDGE **Skk//091219**