Kerala High Court

Bindu vs Samuel on 1 August, 2024

MACA NO. 2796 OF 2019

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               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

     THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946

                        MACA NO. 2796 OF 2019

        AGAINST THE AWARD DATED 23.08.2017 IN OPMV NO.1889 OF 2012

OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT

CASES, THRISSUR

APPELLANTS/PETITIONERS:

    1       BINDU
            AGED 38 YEARS
            W/O LATE SURESH BABU, NEDUNDHARAMKUNNATH HOUSE,
            MANJURISSI P.O.

    2       ATHULSH (MINOR)
            AGED 10 YEARS
            S/O LATE SURESH BABU,REP BY MOTHER BINDU)-DO-

    3       MINOR SOORAJ
            AGED 9 YEARS
            REP.BY BINDU, S/O. SURESH BABU ,MANKURRISSI

    4       SUIRA (MINOR)
            AGED 8 YEARS
            REP.BY BINDU, S/O. SURESH BABU ,MANKURRISSI


            BY ADV SHEJI P.ABRAHAM
 MACA NO. 2796 OF 2019

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RESPONDENTS/RESPONDENTS:

    1     SAMUEL
          MULLUKATIL POOTHANOOR, MUNDOOR, PALAKKAD-678 592

    2     NASSEB
          S/O. KASIM, PUTHIYAPARAMBIL HOUSE, 8/590,PATTIPARAMBU,
          THIRVILLWAMALA P.O., THRISSUR-680 588

    3     THE NEW INDIA ASSURANCE CO.LTD,
          2ND FLOOR JRJ COMPLEX, MAIN ROAD, OTTAPALAM-679 101

    4     N.GOVINDAN,
          NEDUNDHARAMKUNNATH HOUSE, P.O.MAYANNUR,
          THRISSUR,PIN-679 05

    5     PANJALI,
          W/O. GOVINDAN, NEDUNDHARAMKUNNATH HOUSE, P.O.MAYANNUR,
          THRISSUR,PIN-679 05

    6     NAVAS,
          S/O. KASIM, PUTHIYAPARAMBIL HOUSE, PATTIPARAMBU P.O.,
          THIRUVILWAMALA,PIN -680 588


          BY ADVS.
          SRI.T.K.SANDEEP
          SRI.PREMCHAND M.
          SRI.A.R.NIMOD
          SRI.M.A.AUGUSTINE


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2796 OF 2019

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                          SOPHY THOMAS, J.
                        =====================

                          MACA No.2796 of 2019

                       ========================

                          JUDGMENT

Dated this the 01st day of August, 2024 This appeal is at the instance of the claimants in OP (MV)

No.1889 of 2012 on the file of Motor Accidents Claims Tribunal,

Trichur.

2. On 02.04.2012 at 3.30 pm, while deceased Suresh Babu

was riding a motorcycle, KL-09-N-941 motorcycle ridden by the

6th respondent in a rash and negligent manner, knocked him down

and he sustained fatal injuries to which he succumbed. He was a

34-year-old mason, earning monthly income of Rs.15,000/-. His

wife and 3 minor children approached the Tribunal claiming

compensation of Rs.25,00,000/-, and learned Tribunal awarded

only Rs.14,91,000/-. Hence this appeal. MACA NO. 2796 OF 2019

2024:KER:61461

3. 6th respondent was the rider of the offending motorcycle,

2nd respondent was its owner, and 3rd respondent was its insurer.

Respondents 4 and 5 are the parents of the deceased, who are

also the legal heirs of the deceased Suresh Babu.

4. On analyzing the facts and evidence, learned tribunal

found that the accident occurred due to the rash and negligent

driving of KL-09-N-941 motorcycle by the 6th respondent, and that

vehicle was duly insured with the insurance company. But since

there was violation of the policy conditions, while fixing the primary

liability to compensate the claimants, on the insurance company

recovery right was ordered against the 2nd respondent/owner.

5. Learned counsel for the 3rd respondent contended that

the compensation awarded by the Tribunal is just and reasonable

and so it need not be modified.

6. Now this Court is called upon to answer whether there is

any illegality, irregularity or impropriety, in the impugned award

warranting interference by this Court.

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7. Heard learned counsel for the appellant and learned

counsel for the 3rd respondent insurer.

8. Learned counsel for the appellant would submit that the

deceased Suresh Babu was a mason earning monthly income of

Rs.15,000/-, but learned tribunal fixed his notional income

@ Rs.5,500/- only. He would rely on the decision

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Limited [AIR 2011 SC 2951], to say that his

income could have been fixed @ Rs.8,500/- notionally, as the

accident was in the year 2012. Accepting that argument, the

notional income of the deceased can be fixed @ Rs.8,500/- per

month. Since he was self-employed, and aged below 40, 40%

addition can be given towards his future prospects based on the

decision National Insurance Company Ltd. v. Pranay Sethi and

Others, [(2017) 16 SCC 680]. So his income could be fixed as

Rs.11,900/- (8,500 + 40%). Since he was having 6 dependents, ¼

was liable to be deducted towards his personal expenses. So, the

balance income would be Rs.8,925/-. Accordingly, the loss of MACA NO. 2796 OF 2019

2024:KER:61461

dependency could be assessed as Rs.17,13,600/- (8,925 x 12 x

16). After deducting Rs.11,88,000/- awarded by the Tribunal, the

balance entitled is Rs.5,25,600/-.

9. Towards loss of consortium, the wife, children, and

parents are entitled to get Rs.40,000/- each amounting to Rs. 2

lakh (40,000 x 5) in total, based on the decision Pranay Sethi's

case cited supra. But learned tribunal awarded Rs.1,00,000/-

towards loss of consortium, and Rs.1,25,000/- towards loss of

love and affection. So there is excess amount of Rs.25,000/-

awarded by the Tribunal, and that is liable to be deducted.

10. Towards loss of estate, learned tribunal awarded

Rs.30,000/- instead of Rs.15,000/- eligible as per the decision

Pranay Sethi's case cited supra. So the excess amount of

Rs.15,000/- awarded under that head is liable to be deducted.

11. Towards funeral expenses, learned tribunal awarded

Rs.25,000/- and there also, the amount is in excess by Rs.10,000/-

based on the decision Pranay Sethi's case cited supra. So, that

amount is liable to be deducted.

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12. The compensation awarded by the Tribunal under all other

heads seems to be reasonable, and hence it needs no modification.



      Head of claim         Amount       Amount            Amount Difference
                         awarded by the awarded in        deducted to be drawn
                            Tribunal      appeal          in appeal     as
                                                                     enhanced
                                                                    compensati
                                                                        on

         Loss of          11,88,000/-       17,13,600/-     ....       5,25,600/-
       dependency

    Loss of consortium     1,00,000/-

     Loss of love and      1,25,000/-
        affection                             .........         25,000/-         ....

      Loss of estate        30,000/-           .....        15,000/-         ....

     Funeral expense        25,000/-           ......         10,000/-         ...

                                                          50,000/-    5,25,600/-
                          Total

Enhancement eligilbe: 4,75,600/- (5,25,600 - 50,000)

13. So the appellants and respondents 4 and 5 are entitled to

get enhanced compensation of Rs.4,75,600/-. MACA NO. 2796 OF 2019

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14. The 3rd respondent insurer is directed to deposit the

enhanced compensation of Rs.4,75,600/- with 9% interest per

annum from the date of petition till the date of deposit before the

Motor Accidents Claims Tribunal, Trichur, within a period of two

months from the date of receipt of a copy of this judgment.

Learned tribunal shall disburse that amount to the appellants and

respondents 4 and 5 in the ratio 5:1:1:1:1:1, after deducting the

liabilities, if any, towards Tax, balance court fee, and legal benefit