Mohini vs Prajeesh.K.T
2021 Latest Caselaw 23256 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
         THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
 THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA,
                           1943
                   MACA NO. 1517 OF 2013
   AGAINST THE AWARD IN OPMV 1841/2006 OF MOTOR ACCIDENT
                 CLAIMS TRIBUNAL, THRISSUR
APPELLANTS/PETITIONERS:

    1    MOHINI, AGED 49 YEARS
         W/O.KUTTAN, ANAMPARAMBIL HOUSE, P O
         ERAVIMANGALAM, NADATHARA, THRISSUR, THRISSUR
         DISTRICT.
    2    PRIYA, AGED 32 YEARS
         D/O.KUTTAN, ANAMPARAMBIL HOUSE, P O
         ERAVIMANGALAM, NADATHARA, THRISSUR, THRISSUR
         DISTRICT.
    3    PREETHY, AGED 28 YEARS
         D/O.KUTTAN, ANAMPARAMBIL HOUSE, P O
         ERAVIMANGALAM, NADATHARA, THRISSUR, THRISSUR
         DISTRICT.
    4    PRASAD(MENTALLY RETARDED)REP. BY MOTHER AND
         GUARDIAN MOHINI, W/O.KUTTAN, ANAMPARAMBIL
         HOUSE,P.O,RAVIMANGALAM,NADATHARA,THIRSSUR,THRISSU
         R DISTRICT.
         BY ADV SRI.P.V.CHANDRA MOHAN
RESPONDENTS/RESPONDENTS:
    1     PRAJEESH.K.T., S/O.THANKAPPAN,KOOTHODIYIL HOUSE,
          P O VEMOM, MANANTHAVADY,WAYANAD-673121.
    2     ASIS, S/O.SAIDU MOHAMMED, KALLINGAL
          PADAM,PANNIYANKARA P O, ALATHUR,PALAKKAD
          DISTRICT-678001.
    3     THE NEW INDIA ASSURANCE CO LTD
          VERIKKODAN BUILDING, NILAMBUR ROAD, MANAGERI P O,
          MALAPPURAM-676505.
          BY ADV A.C.DEVY FOR R3

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.1517/2013             2


                    A. BADHARUDEEN, J.
           ================================
                    M.A.C.A No.1517 of 2013
           ================================
            Dated this the 25th day of November, 2021


                        JUDGMENT

This is an appeal filed by the original petitioners in

O.P(MV).No.1841/2006 on the file of the Motor Accident Claims

Tribunal, Thrissur challenging award dated 25.02.2013 by

arraying original respondents as respondents herein.

2. Heard both sides.

3. According to the appellants/petitioners, one Kuttan,

aged 52 years, died in consequence of a motor accident occurred

on 8.7.2006 at about 9.30 p.m while he was travelling in a Jeep

bearing Reg.No.KEK 6789 from Ollur to Kuttanellur as a result

of a collision with a mini lorry bearing Reg.No.KL-11-F 8820

came from the opposite side with the said Jeep. According to the

appellants/petitioners, the accident was the direct result of

negligence on the part of the 2nd respondent, who had driven the

mini lorry at the time of accident.

4. 1st and 2nd respondents, the owner and driver of the

vehicle, were declared exparte by the Tribunal.

5. The 3rd respondent insurance company filed written

statement admitting the policy while disputing negligence as well

as quantum under various heads.

6. The Tribunal went on trial. Exts.A1 to A12 marked on

the part of the petitioners and Exts.B1 and B2 marked on the side

of the respondents. Thereafter, the Tribunal granted

Rs.3,41,900/- as compensation as against the claim of Rs.6 lakhs.

7. The learned counsel for the appellants would urge that

the monthly income fixed by the Tribunal is on a lower side.

According to him, the appellants claimed Rs.7,500/- as the

monthly income of the deceased from doing the job of a wood

cutting labourer. The learned counsel would submit further that

the appellants produced Ext.A11 photocopy of the identity card

issued from the Kerala Building and other Construction Workers

Welfare Board, Thiruvananthapuram to prove his job. The

Tribunal fixed the monthly income at Rs.5,000/- alone.

According to the learned counsel for the appellants, Rs.7,500/-

claimed by the petitioners ought to be fixed as the monthly

income.

8. The learned counsel for the insurance company

opposed this contention and submitted that mere production of

Ext.A11 would not suffice to hold that the deceased Kuttan was

having income of Rs.7,500/- per month. This argument is having

force. In fact, in this case, no convincing evidence is available to

fix the income of the deceased. In view of the matter, following

the ratio in [(2011) 13 SCC 236], Ramachandrappa v. Manager,

Royal Sundaram Alliance and [AIR 2014 SC 1052 : (2014) 2

SCC 735], Syed Sadiq and others v. Divisional Manager, United

India Insurance Company Ltd., his income is fixed at

Rs.5,500/- considering this accident is of the year 2006, since in

the year 2004, in Ramachandrappa's case (supra) the Apex

Court fixed the monthly income of a coolie at Rs.4,500/-. It is

not in dispute that the deceased was aged 52 years and therefore

he is entitled to get 10% addition towards future prospects.

Therefore, the monthly income is refixed as : 5500 +

(5500X10/100) = Rs.6,050/- for calculating the loss of

dependency.

9. It is submitted by the learned counsel for the

appellants further that the Tribunal reduced 1/3 rd though the

number of dependents herein are 4. The submission appears to be

correct. Following the ratio in [(2017) 16 SCC 680], National

Insurance Company Limited v. Pranay Sethi & Ors., the

deduction should be ¼. Accordingly, the loss of dependency

income is calculated as under : 6050 X 12 X 11X3/4 =

Rs.5,98,950/-, out of which the Tribunal granted Rs.2,64,000/-.

Therefore, Rs.3,34,950/- more is granted under the head loss of

dependency.

10. The learned counsel for the appellants canvassed

increase under the conventional heads also highlighting the

decision reported in Pranay Sethi's case (supra). On a perusal of

the award it appears that the Tribunal granted Rs.5,000/- alone

under the head funeral expenses. Therefore, Rs.10,000/- more is

granted under the head funeral expenses. Towards loss of

estate also, the Tribunal granted Rs.5,000/- alone and Rs.10,000/-

more is granted under this head. Towards loss of consortium the

Tribunal granted Rs.25,000/-. Here petitioners 1 to 4 being the

wife and children of the deceased are entitled to get consortium

@ Rs.40,000/- each. Therefore, Rs.1,35,000/- more is granted

under the head loss of consortium.

11. Whereas the learned counsel for the insurance

company canvassed deduction under the head loss of love and

affection as the same is impermissible following the ratio in [AIR

2020 SC 3076], United India Insurance Co. Ltd. v. Satinder

Kaur. Therefore, Rs.20,000/- granted under the head loss of love

and affection Rs.20,000/- is deducted.

12. In the result, the appeal is allowed in part. It is held

that the appellants/petitioners are entitled to get Rs.4,69,950/-

(Rupees Four lakh sixty nine thousand nine hundred and fifty

only) as enhanced compensation and the award impugned is

modified as above with the same rate of interest granted by the

Tribunal from the date of petition till the date of deposit or

realisation.

Insurance company is also directed to issue cheque for

Rs.2,120/- (Rupees Two thousand one hundred and twenty only)

towards court fee for the enhanced amount of compensation in

the name of M.A.C.T, Thrissur within two months. The

insurance company is further directed to deposit the balance

amount in the name of the appellants in the proportion fixed

by the Tribunal within two months from today and the

appellants are at liberty to release the same, on deposit.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/