Kerala High Court
Mathew S/O Chacko vs Abdul Kthir on 9 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 9TH DAY OF DECEMBER 2022/18TH AGRAHAYANA, 1944
MACA NO. 227 OF 2015
OP(MV) 393/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,
PERUMBAVOOR
APPELLANTS/PETITIONERS:
1 MATHEW, S/O CHACKO
THANNIKKAL HOUSE, ALAKKODU KARA, THODUPUZHA.
2 PHILOMINA
W/O MATHEW, RESIDING DO.
3 AMAL MATHEW
D/O MATHEW, RESIDING DO.
4 ARUL MATHEW, AGED 21 YEARS, D/O MATHEW
RESIDING DO.
5 AMBIL MATHEW
AGE 18 YEARS,
D/O MATHEW, RESIDING DO.
BY ADV SRI.UNNIKRISHNAN.V.ALAPATT
RESPONDENTS/RESPONDENTS:
1 ABDUL KATHIR
POTHIYIL HOUSE,
KIZHAKKAMBALAM, PERUMBAVOOR-682042.
2 RIYASH P.A.
S/O ABDUL KHATHAR, RESIDING DO.
3 THE ORIENTAL INSURANCE CO. LTD.
BRANCH OFFICE, JOYTHI SUPER BAZAR,
THODUPUZHA-685584.
BY ADV SRI.N.S.NAJEEB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING
COME UP FOR ADMISSION ON 01.11.2022, THE COURT
ON 09.12.2022 DELIVERED THE FOLLOWING:
M.A.C.A.No.227 of 2015
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C.JAYACHANDRAN, J.
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M.A.C.A.No.227 of 2015
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Dated this the 9th day of December, 2022
JUDGMENT
1. This appeal is preferred by the appellants,
who are the petitioners in OP (MV) No. 393/2008
of the Motor Accidents Claim Tribunal
Perumbavoor. The accident occurred on 19.11.2007,
when the lorry driven by R2 in a rash and
negligent manner hit the motor cycle driven by a
19 year old boy,resulting in grievous injuries,
to which he succumbed later. The Award is
challenged alleging that the compensation granted
by the tribunal is grossly insufficient.
2. Heard Sri. Unnikrishran v Alappat, learned
counsel for the appellants and Smt. K.S Santhi,
learned counsel for the respondent. Perused the
records.
M.A.C.A.No.227 of 2015
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3. Learned counsel for the appellant contended
that the deceased was a student, at the time of
accident. Even though the petitioners claimed an
expected monthly income of Rs.50,000/-, the
tribunal had adopted second schedule method of
calculating the notional income and fixed the
annual income at Rs. 10,000. This course adopted
by the tribunal is wrong is the contention of
learned counsel for the appellants. Even going by
the notional income pertaining to the year 2007,
going by the judgment in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurane Company
Limited [(2011) 13 SCC 236] the notional income
to be taken is Rs.6000 per month. This court
finds merit in the above said contention and
therefore enhances the notional monthly income to
Rs.6000.
M.A.C.A.No.227 of 2015
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4. Having fixed the notional income, the next
issue is the eligibility for grant of future
prospects. Learned counsel for the appellant
submitted that the claimants are entitled to an
addition of 40% of the income fixed towards
future prospects. The deceased being an above
average student, as could be witnessed from the
mark lists produced as Ext: A8 to A11, future
prospects at the rate of 40% is to be reckoned,
going by the judgment of the Hon'ble Supreme
Court in National Insurance Company Ltd. v.
Pranay Sethi [2017 (4) KLT 662 (SC)] is the
submission of the learned counsel. This
contention is liable to be accepted and it is
directed to reckon 'future prospects' at the rate
of 40% of the income.
5. Learned counsel for the respondent contended
that the tribunal went wrong in deducting 1/3 of
M.A.C.A.No.227 of 2015
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the income towards personal expenses, whereas 1/4
is only liable to be deducted. This contention is
liable to be accepted as there are 5 dependents
of the deceased.
6. The next head is with respect to
'consortium'. Petitioners 1 and 2 before the
Tribunal are the father and mother respectively
of the deceased and other petitioner's are his
siblings. The parents alone are entitled to
consortium at the rate of Rs.40,000/- each.
Therefore, the consortium payable to the
claimants is Rs.88,000/-, simultaneous with
obliterating Rs.1,00,000/- granted towards loss
on account of love and affection. Likewise, a sum
of Rs.5,000/- granted under the head 'pain and
suffering' is also not allowable, in terms of the
judgment in Oriental Insurance Company v. Kahlon
[AIR 2021 SC 3913].Under the head loss of estate,
M.A.C.A.No.227 of 2015
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all what is seen granted is Rs.5,000/- as against
the entitlement of Rs.15,000/- as per the
judgment in National Insurance Co. Ltd. v. Pranay
Sethi [2017(4) KLT 662 (SC)]. Learned counsel
also pointed out that, enhancement @10% as
contemplated in Pranay Sethi supra is also liable
to be allowed. However, under the head funeral
expenses, a sum of Rs.25,000/- is seen granted
which is impermissible. As per Pranay Sethi ,
permissible amount is Rs.15,000/-.
7. The multiplier has been wrongly applied as 16
as agreed to by both the counsel. Correct
multiplier is 18. The compensation amount payable
to the appellants is therefore re-worked as
indicated in the tabular statement shown here
below.
M.A.C.A.No.227 of 2015
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Sl.N Head of Claim Amount Total amount
o awarded by after
the tribunal enhancement
in appeal
1 Funeral expenses 25,000 16,500
2 Transport to 3,000 3,000
hospital
etc
4 Medical expenses Nil Nil
5 Loss of estate 2,500 16,500
6 Pain and suffering 5000 Nil
7 Loss of dependency 1,60,000 13,60,800
8 Love and affection 1,00,000 Nil
9 Future prospects 1,00,000 Nil
10 Loss of consortium Nil 88,000
Total 3,96,000 14,85,300
Amount enhanced =Rs.10,89,300/- (Rupees Ten
lakhs eighty nine thousand three hundred only)
*(6000 + 2400)x12x18x3/4
8. The Insurance Company shall pay interest for
the amounts awarded by the Tribunal at the rate
directed in the impugned award and for the
enhanced amount, at the rate of 5% from the date
of petition. If any amount has already been paid,
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the same shall be granted set off.
Since there was a delay of 120 days in filing the
appeal, the interest for the enhanced quantum
shall not run for the said period as directed in
order dated 20.12.2015 in C.M.A.No.1/2015 in
M.A.C.A.227/2015.
9. The claimant shall produce the details of the
Bank account before the Insurance
Company/Tribunal within two months from the date
of receipt of a certified copy of this judgment
and amount shall be transferred to the Bank
account directly through NEFT/RTGS mode, within a
period of one month thereafter. If the Bank
account is not given within the time stipulated,
it is made clear that, no interest shall run on
the enhanced amount after the period stipulated
by this Court. However, if the Insurance Company
fails to deposit the amount, as directed,
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interest on the enhanced amount shall also run at
the rate ordered by the Tribunal from the date of
petition.
The appeal is allowed to the above extent.
Sd/-
C.JAYACHANDRAN, JUDGE
skj
