Kerala High Court

Thankamma Raju vs Sudheesh K.B on 25 March, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

                          MACA.No.982 OF 2010

AGAINST THE AWARD IN OPMV 9/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL
                            THALASSERY


APPELLANTS:

               THANKAMMA RAJU
               AGED 40 YEARS
               W/O DECEASED RAJU, M/O DECEASED PRAVEEN RAJ,
               GOVT.AYURVEDIC DISPENSARY,PAYAM P.O.,
               IRITTY,KANNUR.

               BY ADV. SRI.GRASHIOUS KURIAKOSE

RESPONDENTS:

      1        SUDHEESH K.B
               S/O BALAN, KOCHUVAZHAYIL HOUSE,
               PAYYANNUR, AMSOM DESOM,
               KANJIRAMKOLLI P.O.,KANNUR DISTRICT

      2        JAISON THOMAS
               S/O THOMAS, PAYYANNUR AMSOM DESOM,
               KANJIRAMKOLLI P.O., KANNUR DISTRICT

      3        NEW INDIA ASSURANCE COMPANY LTD.
               ARISTO COMPLEX,MAIN ROAD,MAHE-673010

      4        P.G. RAJU
               FATHER OF DECEASED PRAVEEN RAJ,
               S/O GOPALAN, PLAMIDAMOOLAYIL HOUSE,
               VYTHIRI TALUK, PALLIKUNNU P.O.,KAMBLAKKAD

               R1 BY ADV. SRI.M.JACOB MURICKAN
               R3 BY ADV. M.JACOB MURICKAN
               R4 BY ADV. PRATHEESH.P

OTHER PRESENT:

               SR.ADV.SRI.GRASHIOUS KURIAKOSE AND SMT.CELINE JOSEPH
               FOR APPELLANT

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
24-03-2021, ALONG WITH MACA.838/2010, THE COURT ON 25-03-2021
DELIVERED THE FOLLOWING:
 M.A.C.A.Nos.838 & 982 of 2010
                                   2




               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

                          MACA.No.838 OF 2010

  AGAINST THE AWARD IN OPMV 1193/2004 DATED 03-10-2009 OF MOTOR
              ACCIDENT CLAIMS TRIBUNAL, THALASSERY


APPELLANT:

               THANKAMMA V.P.
               D/O NARAYANAN, 45 YEARS,
               PLAMIDAMOLAYIL, KEEZHUR AMSOM,
               PLANCHERI DESOM, IRITTY,KANNUR.

               BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.)

RESPONDENTS:

       1       JAISON THOMAS
               PAYYANNUR AMSOM DESOM,
               KANJIRAMKOLLI P.O.,
               KANNUR DISTRICT.

       2       SUDHEESH.K.B SO.BALAN
               KOCHUVAZHAYIL HOUSE, PAYYAVUR AMSOM,
               KANJIRAMKOLLI P.O., KANNUR DISTRICT.

       3       THE NEW INDIA ASSURANCE CO.LTD
               ARISTO COMPLEX,MAIN ROAD,MAHE.

       4       P.G.RAJAN AGED 41 YEARS FO. DECEASED
               PRAVEEN RAJ, S/O. GOPALAN,
               PLAMIDAMOOLAYIL HOUSE,, VALLACHIMOOLA,
               PALLIKKUNNU P.O, KALPETTA, WAYANAD DISTRICT.
               R3 BY ADV. P.MURALEEDHARAN

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 24-03-2021, ALONG WITH MACA.982/2010, THE COURT ON 25-03-2021
DELIVERED THE FOLLOWING:
 M.A.C.A.Nos.838 & 982 of 2010
                                      3




                       P.V.KUNHIKRISHNAN, J
               =========================
                 M.A.C.A.Nos.838 & 982 of 2010
               =========================
               Dated this the 25th day of March, 2021


                            JUDGMENT

These two appeals are connected cases and

therefore, I am disposing of these two appeals by a

common judgment. A boy aged 18 died in a motor

vehicle accident. The petitioner in O.P.(MV)

No.1193/2004 is the mother of the deceased boy and

the petitioner in O.P.(MV) No.9/2008 is the father of

the deceased boy. The Tribunal considered these two

claim petitions together and passed a common

judgment. Aggrieved by the award in O.P.(MV) Nos.

1193/2004 and 9/2008, the mother of the deceased

boy filed these two appeals. The mother of the boy is

the fourth respondent in O.P.(MV) No.9/2008.

2. The short facts are like this: On 2.8.2004, M.A.C.A.Nos.838 & 982 of 2010

the deceased boy Praveen Raj was travelling in a

motor cycle bearing Registration No. KL-13 C -9645

along with his friend Afnas and when they reached at

Kappacheri, a jeep with registration No.KL-13 B 6489

driven by second respondent in a rash and negligent

manner hit against the motor cycle. As a result of the

accident, the above said Praveen Raj died on the

spot. The father and mother of the deceased Praveen

Raj, filed two separate claim petitions. (Hereinafter,

the parties are mentioned in accordance to their rank

before the Tribunal).

3. Both claim petitions were tried together.

Exts.A1 to A10 were marked on the side of the

claimants. Ext.B1 is the copy of the scene mahazar.

After going through the evidence and documents, the

Tribunal passed compensation of Rs.3,35,000/- in O.P.

(MV) No.1193/2004 and O.P.(MV) No.9/08 together

and from the said compensation amount, only 60% of M.A.C.A.Nos.838 & 982 of 2010

the amount is given to the claimants because, the

Tribunal found that there is contributory negligence on

the part of the deceased. Moreover, the compensation

amount was distributed among the father and mother

of the deceased in the ratio of 60:40. Aggrieved by the

above award, the petitioner in O.P.(MV) No.1193/2004

who is the mother of the deceased filed M.A.C.A.

No.838/2010. The mother of the deceased was

arrayed as fourth respondent in O.P.(MV) No.9/08

which was filed by the father of the deceased.

M.A.C.A.No.982/2010 is filed by the fourth respondent

mother against O.P.(MV) No.9/2008.

4. Heard the counsel for the appellant and

standing counsel for the respondents.

5. Senior counsel Sri. Gracious Kuriakose, as

instructed, appeared for the respondents. He fairly

submitted before me that the appeal filed against the

award in O.P.(MV) No.1271/2004 which was filed by M.A.C.A.Nos.838 & 982 of 2010

the pillion rider of the motorcycle considered by this

Court and this Court as per judgment dated

24.10.2013 in MACA No.1183/2010 confirmed the

contributory negligence attributed to the deceased by

the Tribunal. In such circumstances, no interference

is necessary as far as the finding of the Tribunal

regarding contributory negligence attributed to the

deceased in the light of the judgment dated

24.10.2013 in MACA No. 1183/2010.

6. The next question to be considered is about the

claim of the appellant for enhanced compensation. The

first submission made by the learned counsel is that, the

deceased was working as saleman and he was getting an

amount of Rs.3,500/- per month. But the tribunal without

considering the claim fixed a notional monthly income as

Rs.2,500/-. The learned senior counsel submitted that, the

accident occurred in the year 2004. The learned counsel

relied the judgment of Apex Court in Ramachandrappa

v. The Manager, Royal Sundaram [2011(13) SCC M.A.C.A.Nos.838 & 982 of 2010

236], and submitted that even a coolie will get more

than Rs.3,500/- in the year 2004 and the claim of the

appellant is only Rs.3,500/- per month. There is some

force in the argument of the learned counsel for the

appellant. Therefore, the claim of the petitioner that the

deceased was getting Rs.3,500/- per month can be

accepted in the light of the decision in Ramachandrappa'

case (Supra). Moreover, in the light of the decision of the

Apex Court in National Insurance Co. Ltd v. Pranay

sethi [2017(4) KLT 662], 40% increase is necessary

for future prospectus. Then the amount will be

Rs.4,900/-. The multiplier used by the tribunal is '15'.

Admittedly, the correct multiplier applicable in this case is

'18', because the deceased was aged 18 years at the time

of accident. The tribunal deducted 1/3 from the

compensation amount towards the personal expense of

the deceased. Admittedly, the deceased was bachelor and

the tribunal ought to have deducted 50%. Therefore, the

dependency compensation is to be re assessed in the

following manner;

M.A.C.A.Nos.838 & 982 of 2010

Rs.4,900 X 12 X 18 X 1/2 = Rs.5,29,200/-

7. An amount of Rs. 3,00,000/- is already granted

by the tribunal and that is to be deducted from the above

amount. Then the enhanced amount entitled by the

appellant is for Rs,5,29,200-3,00,000 = Rs. 2,29,200/-.

8. As far as the loss of love and affection only an

amount of Rs.20,000/- is awarded. The father and mother

of the deceased are before the tribunal and they are

entitled an amount of Rs.40,000/- each as per the

decision in Magma General Insurance Co. Ltd. v. Nanu

Ram Alias Chuhru Ram & Others.[(2018) 18 SCC

130]. Then the total amount will be Rs.80,000/-. The

tribunal awarded an amount of Rs.20,000/-.

Therefore, the balance amount will be Rs.80,000-20,000 =

Rs. 60,000/-.

9. Towards funeral expense the tribunal awarded

only Rs.10,000/-. The appellant is entitled Rs.5,000/-

more in that head. Similarly the loss of estate, the

appellants are entitled another amount of Rs.10,000/-. M.A.C.A.Nos.838 & 982 of 2010

10. In the light of the above discussions, the

enhanced compensation entitled by the petitioners can be

summarized like this:

1. Loss of dependency - Rs.2,29,200/-

2. Loss of love and affection - Rs.60,000/-

          3. Funeral expense                -      Rs.5,000/-

          4. Loss of estate                 -      Rs.10,000/-

                                                ------------------

                                Total             Rs.3,04,200/-

                                                === ========

11. From the above amount the appellant is entitled

only 60% because the tribunal found that, there is 40%

contributory negligence on the part of the deceased. Then

the balance amount Rs.1,82,520/-. Then the learned

Senior counsel argued that, the tribunal erred in

distributing the compensation amount at the rate of 60%

and 40% to the mother and father respectively. The

learned counsel submitted that, the father left the

company of the mother and the deceased son and was M.A.C.A.Nos.838 & 982 of 2010

living with the mother. The learned counsel submitted

that, even as per legal heir ship certificate produced

before the tribunal, the mother alone is shown as the

dependent. Even before the tribunal the father has not

appeared and contested the case.