VIJAYALAKSHMI & THUSHARA v M.R.DAVIES, GIREESH KUMAR & ORIENTAL INSURANCE COMPANY LTD.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MRS. JUSTICE MARY JOSEPH` ``` TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 ``` ## `MACA NO. 634 OF 2013` ``` AGAINST THE AWARD DATED 04.10.2012 IN OP(MV) NO.1011/2008 OF MOTOR ``` ``` ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## `APPELLANTS/PETITIONERS:` ``` 1VIJAYALAKSHMI, AGED 54 YEARS, W/O.LATE MANOHARAN, KOTTARATH HOUSE, PALAZHY P.O., PUDUKKAD VIA, THRISSUR DISTRICT. 2THUSHARA, AGED 25 YEARS, D/O.LATE MANOHARAN, KOTTARATH HOUSE, PALAZHY P.O., PUDUKKAD VIA, THRISSUR DISTRICT. BY ADV SRI.T.N.MANOJ ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1M.R.DAVIES, 6/440, CHERAYATH HOUSE, CHEETTUPUZHA P.O., THRISSUR, PIN-686001. 2GIREESH KUMAR, S/O.NARAYANAN, PADAPADATH HOUSE, AYILOOR, NENMARA, PALAKKAD. PIN-678001 3THE MANAGER, ORIENTAL INSURANCE COMPANY LTD., JYOTHI SUPER BAZAR, THODUPUZHA.PIN-696 301 R3 BY ADV SRI.A.R.GEORGE, STANDING COUNSEL SRI.GEORGE CHERIAN (THIRUVALLA) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA.No.634 of 2013 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 18[th] day of October, 2022`** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Irinjalakuda (for short ‘the Tribunal’) on 04.10.2012 in O.P.(MV)No.1011/2008. 2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the Petitioners and respondents 1 to 3 in accordance with their status before the Tribunal. 3. The appellants are petitioners before the Tribunal. They claimed a sum of Rs.7,00,000/- as compensation for the death of the husband of the 1[st] petitioner and father of the 2[nd] petitioner in a motor accident occurred at 12.05 p.m. on 22.06.2007 with the involvement of a bus bearing Registration No.KL-8/G 5005. The bus was proceeding from Shornur to Thrissur and Mr.Manoharan was standing inside the bus near the back door. The driver while negotiating a sharp curve at Koonamukku, turned the bus with full speed, thereby the bus was shaken and in the impact, lost his grip ``` MACA.No.634 of 2013 ``` ``` 3 ``` and balance and thereby was thrown out of the bus. He sustained serious injuries and succumbed to those on 03.07.2007. Alleging that the accident was occurred due to the rash and negligent driving of the bus by its driver and contending that all the respondents are jointly and severally liable to pay the compensation to the petitioners the Original Petition was filed before the Tribunal. 4. The owner, driver and insurer of the bus were arrayed as respondents 1 to 3 in the Original Petition. Respondents 1 and 2 were served with notice but they did not turn up to contest the Original Petition and therefore declared as exparte. The 3[rd] respondent had filed written statement admitting insurance coverage for the bus at the relevant time. The age, occupation and income of the deceased are disputed. The dependency of the petitioners was also disputed. The compensation payable was disputed for the reason that it is exorbitant. A further contention was also raised that the 2[nd] respondent was driving the bus at the relevant time without holding a valid driving license and badge. 5. Before the Tribunal Exts.A1 to A6 and Ext.B1 were marked. On the basis of the evidence adduced, the Tribunal found ``` MACA.No.634 of 2013 ``` ``` 4 ``` negligence on the part of the driver of the bus and accordingly found him liable for the accident. The Tribunal has also found that the petitioners being the legal heirs of the deceased are entitled to get compensation and arrived at Rs.3,07,780/- as the amount payable. The 3[rd] respondent insurer was directed to pay the amount arrived at with interest at the rate of 7.5% per annnum from 17.10.2008, the date of filing of the Original Petition till the date of realisation. The award was challenged by the petitioners before the Tribunal for the reason that the amount arrived at as compensation under various heads are inadequate and unjust. 6. It is contended by Sri.Manoj T. N., the learned counsel for the petitioners that the deceased was working as accountant in a company at Mumbai and in the salary certificate produced by him it is certified that he was getting Rs.5,500/- as salary and Rs.4,000/- as incentive. According to him the salary certificate was not marked in evidence in the case on hand. In that context, the Tribunal had fixed the monthly income as Rs.3,000/- notionally. According to the learned counsel the fixation of monthly income as Rs.3,000/- for the purpose of computation of compensation is on the lower side and interference is warranted. ``` MACA.No.634 of 2013 ``` ``` 5 ``` 7. The accident was occurred in the year 2007. The learned counsel for the appellants canvassed for a fixation of monthly income on the basis of Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236] , wherein Rs.4,500/- was fixed as the monthly income of a coolie worker who had met with a motor accident in the year 2004. According to him the accident in the case on hand being occurred in the year 2007, it is appropriate to fix Rs.6,000/- as the monthly income. 8. The learned counsel for the 3[rd] respondent has pointed out that Rs.5,500/- was claimed in the Original Petition as the monthly income of the petitioner and therefore, there cannot be a fixation beyond Rs.5,500/-. This Court finds no force in the argument and feels it appropriate and reasonable to fix Rs.6,000/as the monthly income notionally and to have an addition of 10% to it in consideration of future prospects as the deceased being aged 54 years at the time of his death in the motor accident. Thus Rs.6,600/- is arrived at. 11 was taken by the Tribunal as the multiplier and it being correct is maintained. 1/3[rd] needs to be deducted in consideration of the personal expenditure liable to be ``` MACA.No.634 of 2013 ``` ``` 6 ``` met with by the deceased, had he been alive. When compensation for loss of dependency is reassessed on the basis of the monthly income fixed now as Rs.6,600/-, 1/3[rd] deducted therefrom and multiplied by 11, Rs.5,80,800/- (Rs.6,600x12x11x2/3) is arrived at as the compensation payable. Rs.2,64,000/- being the sum stands awarded by the Tribunal. Rs.3,16,800/- will be payable as additional compensation under the head loss of dependency. The petitioners are entitled to get Rs.15,000/- each under the conventional heads funeral expenses and loss of estate and Rs.40,000/- under the head loss of consortium as per the direction of the constitutional bench of the Apex Court in National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)] . It is found that the Tribunal has awarded Rs.5,000/- under the head loss of love and affection and Rs.15,000/- under the head pain and sufferings, for which the petitioners are not entitled to. Therefore, Rs.20,000/- (Rs.15,000 + 5,000) will have to be adjusted in the additional compensation now arrived at as payable. Under the head loss of consortium, the petitioners are entitled to get Rs.40,000/- each and therefore Rs.80,000/- (Rs.40,000x2) is payable. Rs.5,000/- stands awarded by the Tribunal and therefore Rs.75,000/- is payable as additional compensation. The petitioners ``` MACA.No.634 of 2013 ``` ``` 7 ``` are also entitled to get Rs.15,000/- under the head funeral expenses, and that amount having not been awarded, the petitioners will get Rs.13,000/- more. The petitioners are also entitled to get Rs.15,000/- under the head loss of estate. Compensation cannot be awarded under both the heads loss of love and affection and loss of consortium. Therefore, Rs.5,000/stands awarded under the head love and affection needs to be adjusted in the additional compensation arrived at as payable. When re-assessed in the above manner, petitioners are entitled to get Rs.3,99,800/- (Rupees Three Lakhs Ninety Nine Thousand and Eight Hundred only) [(Rs.3,16,800/-+ Rs.13,000/-+Rs.75,000/+Rs.15,000/-) - (Rs.15,000/-+Rs.5,000/-)] as additional compensation which would carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 9. The appeal on hand was filed with a delay of 70 days and this Court by order dated 21.12.2021 has exonerated the insurer from payment of interest for the period of delay occurred. Therefore the 3[rd] respondent is exempted from paying interest for the period. ``` MACA.No.634 of 2013 ``` ``` 8 ``` 10. The 3[rd] respondent insurer shall deposit the additional amount with interest fixed on it as well as the original compensation as per the impugned award (if not already paid) within a period of two months from the date on which a certified copy of this judgment is received. MACA stands allowed accordingly. Sd/- MARY JOSEPH JUDGE ``` MJL ```