Kerala High Court
Sunitha vs Sreekumar.M on 7 November, 2024
2024:KER:82887
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
MACA NO. 2956 OF 2021
AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.2172 OF 2015 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES,
THRISSUR
APPELLANTS/PETITIONERS:
1 SUNITHA
AGED 60 YEARS
W/O.LATE RAVEENDRAN, THAIPARAMBIL HOUSE,
GURUVAYUR MUNICIPALITY, THRISSUR - 680 103.
2 HARISHMA RAVEENDRAN
AGED 30 YEARS
D/O.LATE RAVEENDRAN, THAIPARAMBIL HOUSE,
P.O.PUTHENPALLY, THRISSUR - 680 103.
3 HARA RAVEENDRAN
AGED 29 YEARS
D/O.LATE RAVEENDRAN, THAIPARAMBIL HOUSE,
P.O.PUTHENPALLY, THRISSUR - 680 103.
BY ADVS.
A.R.NIMOD
M.A.AUGUSTINE
RESPONDENTS/RESPONDENTS:
1 SREEKUMAR.M.
ASSISTANT MANAGER, KAJAH TRADING PVT.LTD.,
PACKIG CENTRE, 132 A, P.O.CHAKKAMKANDAM,
PALUVAI, THRISSUR - 680 522.
2 BIJU K.
S/O.VELAYUDHAN, KOLAPURATH HOUSE,
MACA Nos.2956 & 2697 of 2021 2
2024:KER:82887
EAST NADA, GURUVAYUR,
THRISSUR - 680 101.
3 THE UNITED INDIA INSURANCE COMPANY LTD.
11/655, POST BOX NO.13, EAST NADA,
GURUVAYUR, THRISSUR - 680 101,
REPRESENTED BY ITS BRANCH MANAGER.
BY ADV
P.K.MANOJKUMAR
SRI.JOHN JOSEPH VETTIKAD - SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 07.11.2024, ALONG WITH MACA.2697/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA Nos.2956 & 2697 of 2021 3
2024:KER:82887
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA,
1946
MACA NO. 2697 OF 2021
AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.2171 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR
E.C. ACT CASES, THRISSUR
APPELLANTS/PETITIONERS:
1 SUNITHA
AGED 60 YEARS
W/O. LATE RAVEENDRAN, THAIPARAMBIL HOUSE,
GURUVAYUR MUNICIPALITY, THRISSUR-680103.
2 HARISHMA RAVEENDRAN,
AGED 30 YEARS
D/O. LATE RAVEENDRAN, THAIPARAMBIL HOUSE,
P.O.PUTHENPALLY, THRISSUR-680103.
3 HARA RAVEENDRAN,
AGED 29 YEARS
D/O. LATE RAVEENDRAN, THAIPARAMBIL HOUSE,
P.O.PUTHENPALLY, THRISSUR-680103.
BY ADVS.
A.R.NIMOD
M.A.AUGUSTINE
RESPONDENTS/RESPONDENTS:
1 SREEKUMAR.M.
ASSISTANT MANAGER, KAJAH TRADING PVT. LTD.,
PACKIG CENTRE, 132 A, P.O.CHAKKAMKANDAM,
MACA Nos.2956 & 2697 of 2021 4
2024:KER:82887
PALUVAI, THRISSUR-680522.
2 BIJU K.,
S/O. VELAYUDHAN, KOLAPURATH HOUSE,
EAST NADA, GURUVAYUR, THRISSUR-680101.
3 THE UNITED INDIA INSURANCE COMPANY LTD.,
II/655, POST BOX NO.13, EAST NADA,
GURUVAYUR, THRISSUR-680101,
REPRESENTED BY ITS BRANCH MANAGER.
BY ADVS.
JOHN JOSEPH VETTIKAD
C.JOSEPH JOHNY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 07.11.2024, ALONG WITH MACA.2956/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA Nos.2956 & 2697 of 2021 5
2024:KER:82887
EASWARAN S., J
--------------------------------
M.A.C.A Nos.2956 & 2697 of 2021
-----------------------------------------------------
Dated this the 7th day of November, 2024
JUDGMENT
The order of this Court shall dispose of two
appeals arising out of a common award in O.P.(MV)
Nos.2171/2015 and 2172/2015 on the files of Motor Accidents
Claims Tribunal, Thrissur. The appellants are legal heirs of
deceased Raveendran and Harish Raveendran, who died in a
motor accident on the same date.
2. On 28.05.2015 at about 01.30 p.m, the 1 st
appellant was travelling with the deceased Raveendran and his
son Harish Raveendran in an Ambulance. When the ambulance
reached Sankaraiyyer Road Junction, a lorry bearing Reg.No.
MH-12/HD-9311 came from the opposite direction in a rash and
negligent manner dashed against the ambulance. Due to the
impact, Harish Raveendran as well as Raveendran sustained
injury which resulted in their death. In the claim petition, it
was averred that, Harish Raveendran was an Ayurvedic Doctor
and graduate in BAMS. Late Raveendran was running an
Ayurvedic Medicine shop and was drawing an income of
2024:KER:82887
Rs.25,000/- per month, whereas, Harish was drawing an income
of Rs.20,000/-. The tribunal found that the claimants could not
adduce any evidence regarding the income as claimed by them
in the application and accordingly fixed the notional income of
late Harish Raveendran at Rs.15,000/- and that of late
Raveendran as Rs.20,000/- and granted the following
compensation;
Amount Amount
Sl. Head of claim claimed awarded
No. (in Rupees) (in Rupees)
1 Transport to hospital including 5,000 5,000
ambulance charges
2 Damage to clothing etc. 1,500 1,000
3 Funeral Expenses 30,000 16,500
4 Compensation for pain and 25,000 10,000
suffering
5 Compensation for loss of estate 2,00,000 16,500
6 Compensation for loss of 30,00,000 21,42,000
dependency
7 Medical Expenses 10,000 --
8 Compensation for loss of love 2,00,000 --
and affection
9 Loss of filial consortium to 1st -- 44,000
petitioner
Total 34,71,500 22,35,000
Claim limits to 32,00,000
2024:KER:82887
Amount Amount
Sl. Head of claim claimed awarded
No. (in Rupees) (in Rupees)
1 Transport to hospital including 5,000 5,000
ambulance charges
2 Damage to clothing etc. 1,500 1,000
3 Funeral Expenses 30,000 16,500
4 Compensation for pain and 35,000 10,000
suffering
5 Compensation for loss of estate 2,00,000 16,500
6 Compensation for loss of 25,00,000 15,84,000
dependency
7 Medical Expenses 5,000 --
8 Compensation for loss of love 2,00,000 --
and affection
9 Loss of consortium to 1st 1,00,000 44,000
petitioner
Loss of consortium to P2 and 80,000
P3
Total 30,76,500 17,57,000
Claim limits to 30,00,000
Aggrieved by the afore mentioned grant, appellants have
approached this Court in the present appeals.
3. Heard Shri.A.R Nimod, learned Counsel for
the appellants and Shri. John Joseph Vettikad, learned Counsel
appearing for the Insurance Company.
4. Shri.A.R Nimod, learned counsel appearing for
the appellants submitted that the tribunal could not have taken
2024:KER:82887
income of Rs.15,000/- in respect of late Harish Raveendran and
Rs.20,000/- in respect of late Raveendran. Sufficient evidence
were available before the tribunal to show that both late Harish
Raveendran and Raveendran were qualified and Harish
Raveendran was practicing as a Ayurvedic Doctor and late
Raveendran was running an Ayurvedic Medicine shop in the
name Guruvayoor Medicines. The trade licence in respect of
Guruvayoor Medicines was also produced before the tribunal as
Ext.A20 and therefore the tribunal could not have fix the
notional income like what has been done in the impugned
award. Similarly, under the head Parental Consortium, the
benefit of the judgment of the Hon'ble Supreme Court in
National Insurance Company Limited Vs. Pranay Sethi
[2017 (4) KLT 662 (SC)] has not been granted. He further
pointed out that the tribunal ought not have deducted 1/3 rd of
the amount towards personal expenses whereas there were
three dependents, the wife and three children. Though Harish,
the son also died on the same day, admittedly the time when
late Raveendran died, Harish was alive and only subsequently
due to the injury caused in the accident, Shri.Harish, also
expired.
2024:KER:82887
5. On the other hand, the learned counsel
appearing for the Insurance Company submitted that despite
the non availability of the evidence regarding the income of late
Raveendran, the tribunal has fixed the income at Rs.20,000/-
which is just and reasonable and does not call for any
interference. He would further submit that so far as the claim
of dependent is concerned, it may be true that the late
Raveendran had three dependents wife and three children, the
late Harish Raveendran cannot be considered as dependent
since he was having independent earning capacity. He further
pointed out that both late Harish Raveendran and late
Raveendran died on the same day and therefore there cannot
be any claim of dependency in so far as late Harish is
dispensive.
6. I have considered the rival contentions raised
across the Bar.
7. At first, this Court will consider whether the
appellants are entitled to have the income of late Harish
Raveendran fixed at Rs.20,000/- as claimed in the application.
It is indisputable that the late Harish Raveendran was an
Ayurvedic Doctor. Ext.A.10 is the Degree Certificate in BAMS.
2024:KER:82887
Ext.A.11 is the Registration Certificate done by late Harish
Raveendran. The cumulative reading of Exts.A10, A11 and A15
will reveal that the late Harish Raveendran was a qualified
Ayurvedic Doctor. It is beyond once comprehension that the
notional income of an Ayurvedic Doctor could be fixed at
Rs.15,000/- per month as done by the tribunal. Considering the
qualification, certainly the claimants/appellants were entitled to
have the notional income of late Harish Raveendran fixed more
than what has been now done by the tribunal. The question,
however, would be, as to what should be the income in respect
of the late Harish Raveendran. Though this Court would have
been inclined to fix a substantial amount as an income of late
Harish Raveendran, considering the fact that the claimants
have claimed only Rs.20,000/- as income, in the peculiar facts
and circumstances, this Court is inclined to fix the income of
late Harish Raveendran as Rs.20,000/- per month.
8. In so far as the claim of income at Rs.25,000/-
per month in respect of late Raveendran is concerned, this
Court finds that apart from the assertion no evidence was
produced before the tribunal. Despite the lack of evidence, the
tribunal has fixed the income at Rs.20,000/- considering the
2024:KER:82887
evidence produced before it, which clearly shows that late
Raveendran was running an Ayurvedic Medicine shop. This
Court is thus of the view that no interference is called for in so
far as the notional income of late Raveendran is fixed at
Rs.20,000/-
9. The perusal of the award impugned in the
appeal shows that in so far as the claimants in O.P.(MV)
No.2172/2015 is concerned, parental consortium has been
granted only at Rs.80,000/-. Whereas going by principles laid
down by the Hon'ble Supreme Court in Pranay Sethi (Supra),
the claimants are entitled to have 10% increase on the amount
since the award was passed on 23.02.2021. This view is
supported by the judgment of the Supreme Court in
Jayasree N. and Others Vs. Cholamandalam M S General
Insurance Company Ltd. [2021 (6) KHC 163] Therefore,
the award of the tribunal were request to be modified
accordingly.
10. Lastly, the question regarding the number of
dependents of late Raveendran is required to be addressed. The
parties are at serious variance as regards the entitlement of the
claimants to reckon the son late Harish Raveendran also as a
2024:KER:82887
dependent of late Raveendran. The learned counsel for the
Insurance Company would point out that the death occurred on
the same day in the same accident and therefore late Harish
Raveendran cannot be reckoned as the dependent of late
Raveendran. On the other hand Shri.Nimod A. R would refer to
the contends of the Final Report in Crime No.1236/2015 dated
11.11.2015 that late Raveendran died on the spot at 1.50 a.m
on the date of accident whereas late Harish Raveendran
expired subsequently. The cause of action to prefer the claim
under Section 166 of the Motor Vehicles Act, 1988 would arise
on account of the death of a claimant. This Court in M.A.C.A
Nos.1144/21 and 1161/2021 decided on 06.11.2024 had
considered a similar question and held that the cause of action
to prefer the claim is the death of the dependent. Following
the principles laid down by this Court in the above judgment,
have to be necessarily held that the right of the claimants to
prefer the claim under Section 166 would arise at the time of
accident. Viewed in above perspective, the claimants in
O.P.(MV) No.2172/2015 are definitely entitled to reckon
Shri.Harish Raveendran also as one of the dependent of late
Raveendran. The relevancy of reckoning the dependent would
2024:KER:82887
ultimately depend upon the ratio of the personal expenses to be
deducted by calculating the compensation. The tribunal in the
impugned award has deducted 1/3rd towards the personal
expenses of late Raveendran. Once late Harish Raveendran is
also reckoned as a dependent, then instead of 1/3 rd only 1/4th
can be deducted as personal expenses. This would be certainly
a substantial variation in so far as the entitlements of
compensation is concerned.
11. As an upshort of this discussions, the
appellants are entitled to succeed. Hence these appeals are
allowed, the award of the tribunal in O.P (MV) Nos.2171/2015
and 2172/2015 is modified as follows;
(1) The income of late Harish Raveendran is fixed at
Rs.20,000/- per month. The loss of dependency in
M.A.C.A No.2697/2021 is calculated as follows;
28000x17x12x1/2 = 28,56,000-21,42,000 =7,14,000
(2) Loss of parental consortium to appellants 2 and 3
in M.A.C.A No.2956/2021 is 88000-80000 =8,000 in
(3) compensation for loss of dependency reworked
as 22000x9x12x3/4=17,82,000-15,84,000=1,98000/-
2024:KER:82887
Thus, the appellants in M.A.C.A No.2697/2021 is
awarded Rs.7,14,000/- and in M.A.C.A No.2956/21 an amount of
Rs.2,06,000/- is awarded as enhanced compensation. The
aforesaid amounts shall carry interest at 8% per annum from
26.12.2015 till realization. The appellants would also be
entitled for proportionate costs in each case. The Insurance
Company shall deposit the amount before the tribunal as per
the procedure within a period of one month from the date of
receipt of a copy of this judgment.
Sd/-
EASWARAN S.,
JUDGE
MSA
