Kunjumol vs Johnson Mathew
2022 Latest Caselaw 7004 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
        FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                         MACA NO. 2528 OF 2016

 AGAINST THE AWARD DATED 30.01.2016 IN OPMV 147/2010 OF THE MOTOR
              ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA
APPELLANT/PETITIONER:

    1       KUNJUMOL, SREERAJ BHAVAN, KAPPIL EAST,
            KRISHNAPURAM P.O.

    2       RAJAN, SREERAJ BHAVANAM, KAPPIL EAST,
            KRISHNAPURAM P.O.

    3       SYAM RAJ, SREERAJ BHAVANAM, KAPPIL EAST,
            KRISHNAPURAM P.O.

            BY ADVS.
            SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
            SRI.A.R.DILEEP
            SRI.P.J.JOE PAUL
            SRI.MANU SEBASTIAN



RESPONDENT/S:

    1       JOHNSON MATHEW
            MONIPPALLY HOUSE, MEVADA-686 620.

    2       T.M.ALEY, MONIPPALLY HOUSE,
            MEDICAL COLLEGE P.O., CALICUT-673 017.

    3       NATIONAL INSURANCE COMPANY LIMITED
            REPRESENTED BY ITS DIVISIONAL MANAGER,
            DIVISIONAL OFFICE, KAYAMKULAM-690 502.

            BY ADVS.
            SRI.VARGHESE C.KURIAKOSE
            SMT.RAJI T.BHASKAR

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2528 OF 2016             ..2..

                            JUDGMENT

The appeal is filed against the award dated 30.01.2016 in O.P.

(MV)No.147/2010 on the files of the Motor Accidents Claims

Tribunal, Mavelikkara. The parties are referred to as per their status

in the claim petition.

2. The petitioners are the legal heirs of late Sreeraj, who died

in a motor vehicle accident on 19.01.2010. The 1st petitioner is the

mother, 2nd petitioner is the father and the 3rd petitioner is the

brother, of the deceased. According to the petitioners, while

deceased Sreeraj was riding a motor cycle, a car bearing

Reg.No.KL/11T-3637, driven by the 1st respondent in a rash and

negligent manner, hit against the motor cycle and the deceased

sustained serious injuries. He succumbed to the injuries on the way

to the hospital. The 2nd respondent is the owner of the car and the 3rd

respondent is its insurer. The petitioners claimed an amount of

Rs.10,00,000/- as compensation for the death of Sreeraj.

3. Before the Tribunal, the 1st petitioner was examined as

PW1 and Exts.A1 to A8 documents were marked on the side of the MACA NO. 2528 OF 2016 ..3..

petitioners. No evidence was adduced by the respondents. The 3rd

respondent filed a written statement admitting that the offending

vehicle was insured with them and that the 1 st respondent was not

having a valid driving licence at the time of the accident and as

such, there is violation of conditions of policy. It was also

contended that the accident happened due to the negligence of the

deceased and the amount of compensation claimed is excessive and

exorbitant.

4. The Tribunal found that the accident happened due to the

negligence on the part of the 1st respondent-driver and awarded an

amount of Rs.7,52,500/- as compensation with 9% interest per

annum from the date of the petition till realisation with cost of

Rs.10,000/-. The compensation awarded by the Tribunal under

different heads is as follows:

         Head of claim (Rs)        Amount          Amount
                                   claimed (Rs.)   awarded
                                                   (Rs.)

    1    Funeral expenses and 14,000               25,000
         miscellaneous expenses
 MACA NO. 2528 OF 2016             ..4..

    2    Transportation    charges 4,000                4,000
         and abulance



    4    Pain and suffering         25,000              25,000

    5    Loss of expectation of 20,000                  20,000
         life and prospects of the
         family and loss of estate

    6    Loss of dependency         9,50,000            6,48,000

    7    Loss of       love    and 30,000               30,000
         affection

         Total                      10,44,000           7,52,500
                                    limited        to
                                    10,00,000

5. Aggrieved by the quantum of compensation awarded by the

Tribunal, the petitioners have preferred this appeal.

6. According to the petitioners, the deceased was aged 24

years at the time of the accident and was a mason by profession.

The Tribunal fixed the notional income of the deceased as

Rs.4,000/- per month. Going by the decision of the Hon'ble

Supreme Court in Ramachandrappa v. Manager, Royal MACA NO. 2528 OF 2016 ..5..

Sundaram Alliance Insurance Company Limited [2011 (13)

SCC 236 : AIR 2011 SC 2951], since the deceased was a casual

worker at the time of his death in the year 2010, the notional

income of the deceased can be taken as Rs.7,500/- per month.

Therefore, I take the notional monthly income of the deceased as

Rs.7,500/- for the purpose of computation of compensation. The

Tribunal has added 50% of the income towards future prospects. In

the light of the decision of the Hon'ble Supreme Court in National

Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662 SC],

only 40% of the notional income can be added towards future

prospects. Therefore, the notional income comes to Rs.10,500/-

[7,500+3,000]. Since the deceased was a bachelor, 50% of the

income has to be deducted towards his personal and living

expenses. The multiplier applicable is '18'. Accordingly, the

compensation for loss of dependency is re-calculated as

Rs.11,34,000/- [10,500x12x18x50/100]. The Tribunal has already

awarded an amount of Rs.6,48,000/- under the said head. After

deducting the said amount, the petitioners are entitled for an MACA NO. 2528 OF 2016 ..6..

amount of Rs.4,86,000/- [11,34,000-6,48,000] as enhanced

compensation for loss of dependency.

7. The Tribunal has awarded an amount of Rs.30,000/- under

the head compensation for loss of love and affection. The parents

of the deceased ie., petitioners 1 and 2, are entitled for Rs.44,000/-

each (40,000+10% hike for every three years) towards loss of

consortium following the decision in Pranay Sethi. Therefore, an

amount of Rs.88,000/- is awarded under the said head. The Hon'ble

Supreme Court has held in United India Insurance Co.Ltd. v.

Satinder Kaur [AIR 2020 SC 3076] that, when compensation is

awarded under the head loss of consortium, there is no justification

in awarding compensation for loss of love and affection as a

separate head. Therefore, the petitioners are not entitled for any

amount under the head loss of love and affection and the amount of

Rs.30,000/- awarded under the said head has to be deducted from

the total compensation.

8. Towards funeral expenses, the Tribunal has awarded an

amount of Rs.25,000/- . In the light of the decision Pranay Sethi MACA NO. 2528 OF 2016 ..7..

(supra), the petitioners are entitled only for an amount of

Rs.16,500/- [15,000+10% hike for every three years]. Therefore,

an amount of Rs.8,500/- [25,000-16,500] has to be deducted under

the said head.

9. An amount of Rs.20,000/- was awarded by the Tribunal

towards loss of estate. Going by the decision in Pranay Sethi

(supra), the petitioners are entitled only for an amount of

Rs.16,500/- [15,000 + 10% hike for every three years]. Therefore,

Rs.3,500/- [20,000-16,500] has to be deducted from the

compensation awarded under the said count.

10. The Tribunal has awarded just and reasonable

compensation under other heads.

Accordingly, the petitioners are entitled for a total enhanced

compensation of Rs.5,32,000/- (Rupees five lakhs thirty two

thousand only)[4,86,000+58,000-8,500-3,500]. The 3rd respondent

insurance company shall deposit the said amount before the

Tribunal with 9% interest per annum along with cost of Rs.5,000/-

within a period of two months from the date of receipt of copy of MACA NO. 2528 OF 2016 ..8..

this judgment.

The appeal is disposed of.

Sd/-

MURALI PURUSHOTHAMAN JUDGE SB/17/06/2022