A.S.Sheeba vs T.H.Santhosh
2022 Latest Caselaw 6999 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                          MACA NO. 58 OF 2012
  AGAINST THE AWARD IN OPMV 1345/2004 OF SPECIAL C SPE/CBI-I & 3
   ADDITIONAL DISTRICT COURT/I ADDITIONAL MOTOR ACCIDENT CLAIMS
                          TRIBUNAL, ERNAKULAM
APPELLANTS/PETITIONERS:

    1        A.S.SHEEBA
             AGED 39, W/O.LATE SRI.AJITH KUMAR,
             PUTHUPARAMBATH HOUSE, AROOR,
             CHERTHALA TALUK.
    2        JITHU.P.AJITH (MINOR)
             AGED 16, S/O.LATE SRI.AJITH KUMAR,
             PUTHUPARAMBATH HOUSE, AROOR,
             CHERTHALA TALUK, (REPRESENTED BY HIS NEXT FRIEND AND
             MOTHER IST CLAIMANT MRS.SHEEBA AJITH).
             BY ADV SRI.T.K.RADHAKRISHNAN


RESPONDENTS/RESPONDENTS:

    1        T.H.SANTHOSH
             S/O.HARIKRISHNAN, THOPPIL HOUSE,
             THRIKKAKARA POST, ERNAKULAM, PIN-682 028.
    2        MR.KABEER
             S/O.ABDUL.M.A, MANGATTU HOUSE,
             MANJALI, KUNNUMPURAM, NEAR L.P.SCHOOL,
             KARUMALLUR VILLAGE, PIN-683 511.
    3        THE BAJAJ ALLIANZ INSURANCE CO.LTD.
             M.G.ROAD, ERNAKULAM, KOCHI-682 016.
             BY ADV SRI.P.S.RAMU


     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO.58 OF 2012
                               2




                         JUDGMENT

Dated this the 17th day of June, 2022

Petitioners in O.P.(MV) No.1345/04 on the files of the

Motor Accidents Claims Tribunal, Ernakulam, who are wife

and son of deceased Ajith Kumar, have preferred this

appeal under Section 173 of the Motor Vehicles Act, 1988

(hereinafter referred to as 'the MV Act'), challenging

award dated 20.01.2011 in the above case. Respondents

herein are the respondents before the Tribunal.

2. Heard the learned counsel for the appellants and

the learned Standing Counsel for 3 rd respondent-Insurance

Company.

3. Brief facts of the case are as follows:-

Consequent on the death of one Ajith Kumar in a

motor accident occurred on 27.03.2004, the legal heirs of

the deceased put up claim petition under Section 166 of

the MV Act on the ground that the accident and the MACA NO.58 OF 2012

consequential death of the said Ajith Kumar was the

outcome of negligence on the part of the second

respondent, who had driven car bearing registration No.

KL-4G 765. The appellants claimed compensation to the

tune of Rs.12,20,500/-.

4. The first and second respondents were declared

ex parte by the Tribunal.

5. The third respondent Insurance Company filed

written statement by denying accident and negligence.

The quantum of compensation challenged, while admitting

policy.

6. The Tribunal ventured the matter. PW1

examined and Exts.A1 to A16 marked on the side of the

appellants. No evidence let in by the respondents.

7. On evaluation of the evidence, the Tribunal

granted Rs.5,41,249/- along with interest at the rate of

7.5% per annum.

MACA NO.58 OF 2012

8. It is submitted by the learned counsel for the

appellants that the monthly income fixed by the Tribunal is

on lower side, in a case, where the appellants claimed the

monthly income of the deceased as Rs.7,000/- per month,

being an accountant in Saroj Steels. Though Ext.A12 salary

certificate showing the said income was produced before

the Tribunal and the author of Ext.A12 also was examined,

the Tribunal fixed the same at Rs.4,000/-.

9. The learned counsel for the Insurance Company

would submit that the evidence adduced by PW1 and

Ext.A12 is quite insufficient to accept the income as

claimed since PW1 could not justify Rs.7,000/- as the

income of the said Ajith Kumar when he was subjected to

cross-examination.

10. I have gone through Ext.A12. Ext.A12 would

suggest that a person under the title 'partner' had signed

in Ext.A12 with title Saroj Steels. No details regarding

registration under any of the Act or Rules could be MACA NO.58 OF 2012

gathered therefrom. While examining PW1 - the author,

though he admitted the authenticity of Ext.A12 as his own,

his evidence during cross-examination to the effect that he

did not know when Ajith Kumar joined this institution and

there was no deduction towards PF and the certificate did

not suggest the basic pay, DA, batta etc. in particular.

Therefore, Ext.A12 cannot be accepted as such. The

Tribunal rightly rejected the same and I endorse the said

finding. However, following the ration in

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Ltd. [(2011) 13 SCC

236], the monthly of Ajith Kumar is liable to be fixed at

Rs.4,500/- as against Rs.4,000/- fixed by the Tribunal.

The Tribunal applied '15' as the multiplier. No dispute

raised as regards to the multiplier applied by the Tribunal.

Similarly, since the deceased is in the age group between

40 - 50 years, 25% addition also is entitled, following the

ratio in National Insurance Company Limited v. MACA NO.58 OF 2012

Pranay Sethi and Ors (2017 (4) KLT 662). Thus,

'loss of dependency income' requires re-calculation on

that basis (4500 + 4500 x 25% = 5625). Accordingly, loss

of 'dependency income' is re-calculated as under:-

5625 x 12 x 15 x 2/3 = 6,75,000/-

Out of which, Rs.4,80,000/- was granted by the

Tribunal. Thus, Rs.1,95,000/- (6,75,000 - 4,80,000) is

granted as enhanced compensation under the head 'loss

of dependency'.

11. Apart from that, the appellants, who are wife

and son, are entitled to get compensation under

conventional and traditional heads following the ratio in

Pranay Sethi' case (supra). Thus, the appellants together

are entitled to get 'loss of consortium' to the tune of

Rs.80,000/- (Rs.40,000 x 2). Out of which, the Tribunal

granted Rs.15,000/-. Deducting the same, Rs.65,000/-

more is granted under the head 'loss of consortium'.

Towards 'loss of estate', the Tribunal granted only 5,000/-. MACA NO.58 OF 2012

Hence, Rs.10,000/- more is granted following the ration in

Pranay Sethi' case (supra).

12. Similarly, towards 'funeral expense', the Tribunal

granted Rs.3,000/- only. Therefore, the same is increased

by Rs.12,000/- more.

13. It is pointed out by the learned Standing Counsel

for the third respondent/Insurance Company that

Rs.10,000/- granted under the head 'loss of love and

affection' is liable to be reduced as per the ratio in United

India Insurance Co.Ltd. v. Satinder Kaur @

Satwinder Kaur and Others [2020(3) KHC 760]. Thus,

Rs.10,000/- is reduced under the said head.

In the result, this appeal stands allowed. It is held

that the appellants are entitled to get Rs.8,13,349/- as

compensation out of which Rs.5,41,349/- was granted by

the Tribunal and the balance amount of Rs.2,72,000/-

(Rupees two lakh seventy two thousand only) is granted as

enhanced compensation with the same rate of interest MACA NO.58 OF 2012

awarded by the Tribunal, excluding interest for a period of

25 days specifically excluded by this Court while allowing

the delay petition - C.M.Application No.1 of 2012 as per

order dated 19.11.2021, payable by the Insurance

Company, from the date of petition till the date of deposit

or realisation.

The Insurance Company is directed to deposit the

amount in equal proportion in the name of the appellants

within two months from today. On deposit, the appellants

can release the same.

Sd/-

A. BADHARUDEEN JUDGE nkr