Kerala High Court
Avarachan C.V vs Manojpaul on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
MACA NO. 1825 OF 2014
AGAINST THE AWARD DATED 19.08.2013 IN OPMV NO.371 OF 2010 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANTS/PETITIONERS:
1 C.V.AVARACHAN @ YOHANNAN, AGED 61
YEARS, S/O.VARGHESE, CHAKKALAKKAL
HOUSE, ELANADU P.O, POOLAKUNDU, PIN
680 586 THRISSUR DISTRICT. (HUSBAND
OF DECEASED).
2 BISY BASIL, AGED 32 YEARS,
D/O.AVARACHAN, -DO- (SON OF DECEASED)
3 ELDOSE, AGED 29 YEARS,
A/O.AVARACHAN, -DO- (SON OF
DECEASED).
4 ABRAHAM, AGED 78 YEARS,
S/O.IPE, 443, KUZHIVELIL HOUSE,
PAZHAYANNUR P.O, THRISSUR DISTRICT.
(FATHER OF DECEASED.
5 ELIYAMMA, AGED 74 YEARS,
W/O.ABRAHAM, -DO- (MOTHER OF
DECEASED)
BY ADV SRI.SHEJI P.ABRAHAM
RESPONDENTS/RESPONDENTS:
1 MANOJ PAUL, AGED 37 YEARS,
S/O.PAUL, CHAKKALAKKAL HOUSE, THRIKANYA
ELANAD P.O, THRISSUR (OWNER CUM DRIVER OF
REG.NO.KL.48B.2245 AUTO RICKSHAW)
2 SREENIVASAN, AGE NOT KNOWN
S/O.UNNIKRISHNAN, NO.13-36, BHRATHI NAGAR,
METTUPPALAYAM, TAMIL NADU (OWNER OF TN 40B
2904 LORRY)(*DELETED)
3 CHANDRAN, AGE NOT KNOWN,
MATHALYAN, I.A MANAKARAKADU, KARAMADEL ROAD,
MACA No.1825 of 2014 2
METTUPPALAYAM, POLICY HOLDER OF LORRY
REG.NO.TN 40B 2904 LORRY)(*DELETED)
4 PALANISWAMY E, AGE NOT KNOWN,
S/O.ESWARAN, 226, NEGRU NAGAR, KANNARPALAYAM,
KARAMADEL, METTUPPALAYAM, (DRIVER OF
REG.NO.TN 40B 2904 LORRY)(*DELETED)
5 UNIVERSAL SOMPO GENERAL INSURANCE CO.LTD
BRANCH OFFICE, COCHIN 682 017, POLICY NO.
2314/50484010/00/000.
6 THE NEW INDIA ASSURANCE CO.LTD
JRJ COMPLEX, OTTAPALAM, POLICY NO.
72020331090100201469 VALID FROM 11/11/2009 TO
10.11.2010.(*DELETED)
(*RESPONDENTS 2,3,4 AND 6 ARE DELETED FROM
THE PARTY ARRAY AT THE RISK OF PETITIONERS
VIDE ORDER DATED 12.08.2014 IN IA 2083/2014
IN MACA 1825/2014)
BY ADV JITHIN SAJI ISAAC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA No.1825 of 2014 3
JUDGMENT
This appeal is at the instance of the claimants in OP(MV)
No.371 of 2010 on the file of Motor Accidents Claims Tribunal,
Ottapalam, impugning the award on the ground of inadequacy of
compensation.
2. One Smt.Mary, wife of the 1st appellant and mother of
appellants 2 and 3 died in a motor accident that occurred on
03.04.2010 at 7 a.m. While she was travelling in KL 48B 2245
autorickshaw through Thrissur-Palakkad National Highway, it
collided with a lorry bearing registration No.TN 40B 2904 which
came from the opposite direction. She sustained fatal injuries and
succumbed to the same. She was a 48 year old lady running a
stitching unit earning monthly income of Rs.8,000/-. Her legal
heirs approached the Tribunal claiming compensation of
Rs.6,00,000/-. Learned Tribunal awarded Rs.5,43,000/-, against
which they have preferred this appeal.
3. 1st respondent was the driver of the offending autorickshaw
and 5th respondent was its insurer.
4. Learned Tribunal, on analysing the facts and evidence,
found that the accident occurred solely due to the negligence of the
auto driver. Since that vehicle was duly insured with the
5th respondent, learned Tribunal directed the 5th respondent to
compensate the claimants.
5. In the appeal, 5th respondent entered appearance through
counsel and admitted the policy of the offending vehicle.
According to them, the compensation awarded by the Tribunal is
just and reasonable and it needs no modification.
6. Now this Court is called upon to find out whether there is
any illegality, irregularity or impropriety in the impugned Award
warranting interference by this Court.
7. Heard learned counsel for the appellants and learned
counsel for the 5th respondent.
8. Learned counsel for the appellants would submit that,
deceased Mary was a 48 year old lady, running a stitching unit, and
she was earning monthly income of Rs.8,000/-. But, learned
Tribunal fixed her notional income @ Rs.3,000/- which is on the
lower side. Going by the decision Ramchandrappa vs. Manager,
Royal Sundaram Alliance Insurance Company Limited (AIR
2011 SC 2951), even a coolie worker was eligible to get his
notional income fixed @ Rs.7,500/- per month in the year 2010.
So, this Court is inclined to fix her notional income @ Rs.7,500/-.
Since she was below 50 and self employed, 25% addition can be
given towards future prospects. So, her notional income could be
taken as Rs.9,375/- (7,500+25%). Appellants 1 to 3 were her
dependents. Appellants 4 and 5, her parents, were living separate
and they were not dependent on her. So, taking the number of
dependents as 3, 1/3rd has to be deducted towards her personal
expenses. So, the balance income could be Rs.6,250/-
(9375-1/3rd). The multiplier applicable was 13 as she was aged
only 48. So, the compensation for loss of dependency could be
assessed as Rs.9,75,000/- (6250x12x13). Learned Tribunal
awarded Rs.3,12,000/- under the head loss of dependency. So,
the balance amount will come to Rs.6,63,000/-.
9. Learned counsel for the appellants would submit that,
appellants 1 to 5 are entitled for loss of consortium. Based on the
decision National Insurance Company Ltd. v. Pranay Sethi
and Others [(2017) 16 SCC 680], the husband, children and
parents are entitled to get compensation for loss of consortium
which will come to Rs.2 lakh in total (40000x5). But, learned
Tribunal awarded Rs.1 lakh each under the head loss of consortium
and loss of love and affection, amounting to Rs.2 lakh in total. On
adjusting that amount, no further amount has to be awarded under
the head loss of consortium.
10. Under the head loss of estate, no amount was seen
awarded by the Tribunal. Based on the decision Pranay Sethi cited
supra, the appellants are entitled to get Rs.15,000/- under the
head loss of estate.
11. For funeral expenses, learned Tribunal awarded
Rs.25,000/-. Based on the decision Pranay Sethi, the appellants
are entitled to get only Rs.15,000/-. So, the excess amount of
Rs.10,000/- awarded under funeral expenses is liable to be
deducted from the compensation amount.
12. The compensation awarded under all other heads seems
to be reasonable and so it need not be interfered with.
Head of claim Amount Amount Amounts Difference to
awarded by awarded in deducted in be drawn as
the Tribunal appeal appeal enhanced
(1) compensation
(2) (3) (4) (5)
Loss of Rs.3,12,000/- Rs.9,75,000/- - Rs.6,63,000/-
dependency
Loss of Rs.1,00,000/- - -
consortium/ Rs.2,00,000/-
Loss of love Rs.1,00,000/-
and affection
Loss of estate - Rs.15,000/- - Rs.15,000/-
Funeral Rs.25,000/- Rs.15,000/- Rs.10,000/- -
expenses
Total Rs.10,000/- Rs.6,78,000/-
Enhanced compensation (678000 - 10000) Rs.6,68,000/-
13. It is submitted by learned counsel for the appellants
that, pending appeal, 1st appellant passed away and appellants 2
and 3 are his legal heirs. So, the appellants 2 to 5 are entitled to
receive enhanced compensation of Rs.6,68,000/- (Rupees Six lakh
sixty eight thousand only).
The 5th respondent/insurer is directed to deposit the
enhanced compensation of Rs.6,68,000/- (Rupees Six lakh sixty
eight thousand only) with interest @ 9% per annum from the date
of petition till the date of deposit before the Motor Accidents Claims
Tribunal, Ottapalam, within a period of two months from the date
of receipt of a copy of this judgment. Learned Tribunal shall
disburse that amount to appellants 2 to 5 in the ratio 40:40:10:10,
after deducting their liabilities, if any, towards Tax, balance court
fee and legal benefit fund.
The appeal is allowed to the extent as above. No order as to
costs.
Sd/-
SOPHY THOMAS
JUDGE
smp
