Kerala High Court
Gracy Thankappan vs Untied India Insurance Co.Ltd on 23 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943
MACA.No.883 OF 2009
AGAINST THE AWARD IN OPMV 304/2005 DATED 03-12-2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR
APPELLANTS/PETITIONER IN OP(MV) NO.304/2005:
1 GRACY THANKAPPAN,
AGED 39 YEARS,
K.THANKAPPAN, MATTAPPILLY VEEDU,
THDIYITTAPARAMBU P.O.,
VAZHATHOPPU, THODUPUZHA.
2 TIJIN THANKAPPAN,
(MINOR) 19 YEARS
S/O.DECEASED K.THANKAPPAN, MATTAPPILLY VEEDU,
THDIYITTAPARAMBU P.O., VAZHATHOPPU,
THODUPUZHA.
REPRESENTED BY 1ST APPELLANT
3 GITHIN THANKAPPAN,
(MINOR) 13 YEARS,
DOB:28/04/1995, S/O.DECEASED K.THANKAPPAN,,
MATTAPPILLY VEEDU, THDIYITTAPARAMBU P.O.,,
VAZHATHOPPU,THODUPUZHA.
BY ADV. SMT.ANUPAMA JOHNY
RESPONDENT/RESPONDENT NO.3 IN O.P.(MV)NO.304/2005:
UNTIED INDIA INSURANCE CO.LTD.
DIVISIONAL OFFICE, PALAKKAD PIN-678 614.
R1 BY ADV. SRI.P.V.JYOTHI PRASAD
SMT.RAJI.T.BHASKAR FOR RESPONDENT(BY COURT ORDER)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA.No.883 OF 2009
2
JUDGMENT
Dated this the 23rd day of March 2021
This appeal is filed by the petitioners in O.P.
(MV)No.304/2005 on the files of Motor Accidents Claims
Tribunal, Perumbavoor. It is a claim petition filed under 166 of
the Motor Vehicles Act. The petitioners are the legal heirs of
deceased Thankappan, who died in a motor vehicle accident.
(Hereinafter the parties are mentioned in accordance to their
rank before the Tribunal).
2. Short facts are like this:- On 13.11.2004 at about
7.55 p.m., the deceased Thankappan was walking through
the Angamaly - Aluva road from north to south. When he
reaches St.Joseph's School, a lorry bearing Reg.No.KL-9/B-
5857 owned and driven by the first respondent came in an
rash and negligent manner from north to south direction and
hit against the petitioner causing serious injuries to him. He
was taken to hospital and he succumbed to the injuries.
According to the petitioners the accident occurs because of the
rash and negligent driving of the 1 st respondent. According to
claimants, the respondents are jointly an severally liable to
MACA.No.883 OF 2009
pay compensation to the petitioners.
3. To substantiate the case Exts.A1 to A9 were
marked on the side of the petitioners. Ext.X1 salary certificate
is also marked. After going through the evidence and
documents, the Tribunal found that the appellants are entitled
an amount of Rs.7,11,409/- with interest at the rate of 7.5%
per annum from the date of application till realization.
Aggrieved by the quantum of compensation this appeal is
filed.
4. Heard the counsel for the appellants and the
learned counsel for the respondent.
5. The learned counsel for the appellants submitted
that the Tribunal without adding future prospects, fixed the
monthly income of the deceased as Rs.16,519/-. The learned
counsel relied the judgment of the Apex Court in National
Insurance Co. Ltd v. Pranay sethi [2017(4) KLT 662]. The
deceased was aged 55 years at the time of accident. He was
in Food Corporation of India and his job was permanent in
nature. In such situation 15% is to be added towards future
prospects while assessing the monthly income. That amount
MACA.No.883 OF 2009
will be Rs.2,477/-. Then the monthly income is to be
reassessed as : 16,519 + 2,477 = Rs.18,996/-. In this case,
loss of dependency is to be calculated for the post retirement
and before retirement period separately. The deceased was
aged 55 at the time of accident. Therefore the dependency
compensation is to be assessed for five years taking the
monthly income of Rs.18,996/-. Thereafter for the remaining
period of four years notional income is to be taken and the
same can be fixed as Rs.7,000/-. I took this notional income
for the post retirement period based on the decision in
Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC
236]. Therefore the dependency compensation before
retirement and after retirement can be assessed in the
following manner :
Before retirement = 18,996 x 12 x 5 x 2/3
= Rs.7,59,840/-
After retirement = 7,000 x 12 x 4 x 2/3
= Rs.2,24,000/-
Total = 7,59,840 + 2,24,000
= Rs.9,83,840/-
MACA.No.883 OF 2009
From the above amount the amount already granted is to be
deducted. Then the balance amount will be:
9,83,840 - 6,48,659 = Rs.3,35,181/-
Then the learned counsel for the appellant submitted
that the appellants are entitled loss of consortium, in the light
of the decision of the Apex Court in Magma General Insurance
Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC
130]. The appellants are the wife and minor children of the
deceased. They are entitled 40,000/- each towards
consortium. The Tribunal already awarded an amount of
Rs.20,000/- towards loss of love and affection and
Rs.15,000/- towards loss of consortium. Therefore,
Rs.35,000/- is to be deducted from the above amount. Then
the balance amount entitled by the appellants towards loss of
consortium is Rs.85,000/-. As far as loss of estate and funeral
expense is concerned only Rs.2,500/- each is awarded. The
appellants are entitled another amount of Rs.12,500/- each on
those two heads. Therefore, the enhanced amount entitled by
the appellants can be summerized like this:
MACA.No.883 OF 2009
Loss of dependency = Rs.3,35,181/-
Loss of consortium = Rs. 85,000/-
Loss of estate = Rs.12,500/-
Funeral expenses = Rs.12,500/-
_____________
Total Rs.4,45,181/-
The appellants are entitled interest at the rate of 7.5%
per annum from the date of application till realization.
Therefore, this appeal is allowed in part. The impugned
award is modified. Appellants are entitled an enhanced
amount of Rs.4,45,181/- with interest at the rate of 7.5% per
annum from the date of application till realization. The
respondent is directed to pay the enhanced compensation with
interest.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
VPK
