Kerala High Court

Suharabhi & Others vs Tomy Joseph And Others on 6 June, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
      THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
                        MACA NO. 1442 OF 2011
AGAINST THE ORDER/JUDGMENT DATED 28.01.2011 IN OPMV NO.2590 OF
2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL THRISSUR

APPELLANTS/PETITIONERS:
     1     SUHARABHI & OTHERS
           KAVUMPURAKKAL HOUSE, P.O.PAZHAYANNUR,, THRISSUR.
     2     SHAHANA MINOR
           REPRESENTED BY GUARDIAN MOTHER,, 1ST PETITIONER
           SUHARABI.
     3     HASSANKUTTY (NO MORE)* LHS RECORDED
           KAVUMPURAKKAL HOUSE, P.O.PAZHAYANNUR, THRISSUR.
     4     RAZEENA DO.HASSANKUTTY
           KAVUMPURAKKAL HOUSE, P.O.PAZHAYANUR, THRISSUR.
     5     ABDUL RAHMAN SO.HASSANKUTTY
           KAVUMPURAKKAL HOUSE, P.O.PAZHAYANNUR, THRISSUR.
     6     SALMA DO.HASSANKUTTY
           KAVUMPURAKKAL HOUSE, P.O.PAZHAYANNUR, THRISSUR.
     7     LAILA DO.HASSANKUTTY
           KAVUMPURAKKAL HOUSE, P.O.PAZHAYANNUR, THRISSUR.
           *(APPELLANT NO.3 IS NO MORE AND APPELLANTS 4 TO 7 ARE
           RECORDED AS LEGAL HEIRS OF THE APPELLANT NO.3 AS PER
           ORDER DATED 21.02.2024 IN MEMO DTD 12.02.2024 IN
           MACA.1442/11)
           BY ADV SRI.T.C.SURESH MENON

RESPONDENTS/RESPONDENTS:
     1     TOMY JOSEPH AND OTHERS
           P.O.PAZHAYANNUR, THRISSUR DISTRICT.
     2     SULTHAN MOHAMMED PARAKKAL HOUSE
           PARAKKAL DESOM, P.O.PAZHAYANNUR,, THRISSUR DISTRICT.
     3     THE ORIENTAL INSURANCE CO.LTD.
           ROUND WEST, THRISSUR.
           BY ADVS.
           SRI.GEORGE CHERIAN (SR.)
           SRI.ALEXY AUGUSTINE
 MACA NO. 1442 OF 2011            2


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 1442 OF 2011                          3


                                   JUDGMENT

This appeal is at the instance of the

claimants in OP(MV)No.2590 of 2004 on the file

of Motor Accidents Claims Tribunal, Thrissur

impugning the award on the ground of inadequacy

of compensation.

2. On 20/6/2004 at about 7.30 pm one

Mr.Shaji met with a road traffic accident while

he was riding his motorcycle. KEZ-1077

Ambassador car driven by the 2nd respondent in

a rash and negligent manner dashed against his

motorcycle, and he was thrown down and he

sustained fatal injuries. He was rushed to

hospital for treatment. But on the very next

day he succumbed to the injuries. He was

survived by his wife, minor daughter, parents

and sister. He was a 30 year old leather worker

earning monthly income of Rs.6,000/-. His legal

heirs approached the Tribunal claiming

compensation of Rs.8 Lakh, but learned Tribunal

awarded only Rs.3,78,200/- and hence this

appeal.

3. The 1st respondent was the owner of the

offending Ambassador car, the 2nd respondent

was its driver and the 3rd respondent was its

insurer.

4. Respondents 1 and 2 remained ex-parte

before the tribunal. The 3rd respondent-insurer

admitted the policy. But according to them

there was violation of the policy conditions as

the offending vehicle had no valid fitness

certificate as on the date of accident.

5. On analyzing the facts and evidence,

learned Tribunal found that Sri.Shaji died due

to the injuries suffered in the accident, which

occurred due to the rash and negligent driving

of the ambassador car by the 2nd respondent,

and the insurer has to indemnify the insured as

the offending vehicle was having valid

insurance policy as on the date of accident.

But recovery was ordered against the owner of

the ambassador car, as there was violation of

the policy conditions for want of valid fitness

certificate.

6. Pending OP the 4th claimant Fathima died

and her legal heirs were impleaded as

additional claimants 6 to 8. Pending appeal

the 3rd appellant(3rd claimant) also passed away

and appellants 4 to 7 were recorded as his

legal heirs.

7. In the appeal, though service was

complete on respondents 1 and 2, they opted

to remain absent. The 3rd respondent insurer

entered appearance through counsel and

according to them the compensation awarded by

the tribunal is just and reasonable and it

needs no modification.

8. 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.

9. Heard learned counsel for the appellants

and learned counsel for the 3rd

respondent-insurer.

10. Learned counsel for the appellants would

submit that the deceased was a 30 year old

leather worker earning monthly income of

Rs.6,000/-. But learned Tribunal arbitrarily

fixed his notional income @ Rs.2,500/-. He

would rely on the decision Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance

Company Limited [AIR 2011 SC 2951], to say

that, even a coolie worker was eligible to get

his notional income fixed @ Rs.4,500/- in the

year 2004. Placing reliance on that decision

this Court is inclined to fix his monthly

income @ Rs.4,500/-. Since he was aged below 40

and self employed 40% addition could be given

towards future prospects. So his income could

be assessed as Rs.6,300/- (4500+40%). He had 5

dependents including his unmarried sister. So

1/4th had to be deducted towards his personal

expenses. So the balance income for computing

compensation for loss of dependency is taken

as Rs.4,725/-. The multiplier applicable is 17.

So the compensation for loss of dependency

could be assessed as Rs.9,63,900/-

[4725x12x17]. After deducting Rs.3,20,000/-

already awarded by the tribunal, they are

entitled to get the balance amount of

Rs.6,43,900/- as enhanced compensation under

the head loss of dependency.

11. Towards transportation expenses, no

amount was awarded by the tribunal, though

Rs.3,000/- was claimed. Immediately after the

accident the deceased was taken to hospital and

after his death on the next day, his body was

taken back to his house. So this court is

inclined to award Rs.2,000/- under the head

transportation expenses.

12. Towards funeral expenses, the Tribunal

awarded only Rs.5,000/-. As per the decision

National Insurance Company Ltd. v. Pranay Sethi

and Others, [(2017) 16 SCC 680], the appellants

are eligible to get Rs.15,000/- under the head

funeral expenses. So they will get the

difference of Rs.10,000/- as enhancement under

the head funeral expenses.

13. Towards damages to clothing, no amount

was awarded by the tribunal. This Court is

inclined to award Rs.500/- under the head

damage to clothing, as claimed by them.

14. Towards loss of estate only Rs.10,000/-

was awarded by the tribunal. Going by the

Pranay Sethi's case cited supra, they are

eligible to get Rs.15,000/- and so they will

get the balance amount of Rs.5,000/- as

enhancement under the head loss of estate.

15. Learned Tribunal awarded Rs.25,000/- in

total, towards love and affection and loss of

consortium. Based on Pranay Sethi's case cited

supra, wife, child and parents of the deceased

are entitled to get Rs.40,000/- each towards

loss of consortium, which will come to

Rs.1,60,000/- in total. After deducting

Rs.25,000/- already awarded, they will get the

balance amount of Rs.1,35,000/-.

16. The compensation awarded under all other

heads seems to be reasonable, and hence it

needs no modification.

17. The enhanced compensation awarded in

this appeal is stated in the table given

below:-

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

      Loss of                            9,63,900/-
                        3,20,000/-                                6,43,900/-
      dependency                        4725x12x17]
      Towards
      transportation          -                 2,000/-             2,000/-
      expenses
      Funeral
                          5,000/-               15,000/-           10,000/-
      expenses
      Damages to
                              -                  500/-               500/-
      clothing
      Loss of estate     10,000/-               15,000/-            5,000/-
      Love and
      affection &                          1,60,000/-
                         25,000/-                                 1,35,000/-
      Loss of                              [40,000x4]
      consortium
                                           TOTAL                  7,96,400/-

18. In the result, the appellant is entitled

to get enhanced compensation of Rs.7,96,400/-

which will be shared by appellants 1,2 and 4 to

7 in the ratio 40:40:20 (appellants 4 to 7

together will get 20%.).

19. The 3rd respondent-Insurer is directed

to deposit the enhanced compensation of

Rs.7,96,400/- with 8% interest per annum, from

the date of petition till the date of deposit

before the Motor Accidents Claims Tribunal,

Thrissur, within a period of two months, from

the date of receipt of a copy of this judgment.