Kerala High Court

Lathika vs Ponnappan on 8 November, 2024

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M.A.C.A. No. 2517/2013                      :1:




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                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT

                 THE HONOURABLE MR. JUSTICE JOHNSON JOHN

          FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946

                            MACA NO. 2517 OF 2013

         AGAINST THE AWARD DATED 27.09.2012 IN OP(MV) NO.1249 OF 2009 OF

ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM


APPELLANTS/1ST, 2ND AND 3RD PETITIONERS:

     1       LATHIKA
             W/O.LATE SHAJIMON @ SHAJI, KALARICKAL HOUSE,
             KUDAVACHOOR P.O, VAIKOM

     2       ANANDHU SHAJI
             S/O. LATE SHAJIMON, KALARICKAL HOUSE,KUDAVACHOOR P.O,
             VAIKOM.

     3       ANJU SHAJI, D/O. LATE SHAJIMON,
             AGED 15 YEARS, KALARICKAL HOUSE, KUDAVACHOOR P.O, VAIKOM
             REPRESENTED BY MOTHER LATHIKA SHAJIMON AS NEXT FRIEND.


             BY ADVS.
             SRI.B.KRISHNA MANI
             SRI.D.KESAVAN NAIR
             SRI.RAHUL VENUGOPAL
             SMT.N.V.SANDHYA



RESPONDENTS/RESPONDENTS/4TH AND 5TH PETITIONERS:

     1       PONNAPPAN
             S/O.PADMANABHAN,KARUVALLIL HOUSE,PALAMKADAVU
             BHAGOM,THALAYOLAPARAMBU 686 605

     2       THE MANAGING DIRECTOR
             K.S.R.T.C,TRIVANDRUM 695 001.
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     3      MADHUSOODHANAN
            KALARICKAL HOUSE,KUDAVACHOOR P.O,VAIKOM,KOTTAYAM 686 144.

     4      PONNAMMA
            W/O.MADHUSOODHARAN,KALARICKAL HOUSE,KUDAVACHOOR
            P.O,VAIKOM,KOTTAYAM 686 144.


            BY ADVS.
            V.VISAL AJAYAN
            ALEX ANTONY SEBASTIAN P.A.



      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

06.11.2024, THE COURT ON 08.11.2024 DELIVERED THE FOLLOWING:
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                            JOHNSON JOHN, J.
           ---------------------------------------------------------
                        M.A.C.A No. 2517 of 2013
            --------------------------------------------------------
               Dated this the 8th day of November, 2024.

                                JUDGMENT

The appellants are the petitioners in O.P.(MV) No. 1249 of 2009 on

the file of the Motor Accident Claims Tribunal, Kottayam and the petition

was filed seeking compensation for the death of Sri. Shajimon in a motor

vehicle accident on 08.12.2006.

2. The appellants are the legal heirs of the deceased. At the time

of the accident, the deceased was riding his motorcycle through Vaikom-

Vechoor road and when the vehicle reached at Edayazham, the KSRTC

bus driven by the 1st respondent in a rash and negligent manner caused

to hit the motorcycle. The deceased, who sustained serious injuries, died

on the spot. The 2nd respondent is the owner of the offending vehicle.

3. At the time of trial, Exhibits A1 to A13 were marked from the

side of the appellants/petitioners and no evidence was adduced from the

side of the respondents.

4. After trial and hearing both sides, the Tribunal came to the

conclusion that the accident occurred due to the negligence on the part

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of the 1st respondent and awarded a total compensation of Rs.6,57,500/-

to the appellants/petitioners. The appellants are seeking enhancement

of compensation under various heads on the ground that the Tribunal

has not correctly fixed the notional income and that the amount awarded

by the Tribunal is too meagre and inadequate.

5. Heard the learned counsel for the appellants and the learned

counsel for the 2nd respondent.

6. The learned counsel for the appellants pointed out that the

Tribunal fixed only a notional income of Rs.3000/- for the deceased,

even though the appellants have a case that the deceased was earning

Rs.7000/- per month from his self employment at the time of the

accident.

7. The decision of the Hon'ble Supreme Court in

Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd.

[(2011) 13 SCC 236] and Syed Sadiq and Others v. Divisional

Manager, United India Insurance Company [(2014) 2 SCC 735 =

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2014 KHC 4027] shows that even in the absence of any evidence, the

monthly income of an ordinary worker has to be fixed as Rs.4,500/- in

respect of the accident occurred in the year 2004 and for the subsequent

years, the monthly income could be reckoned by adding Rs.500/- each

per year. If the monthly income of the deceased is calculated by

adopting the above principle, it will come to Rs.5,500/- as the accident

occurred in the year 2006.

8. The decision of the Hon'ble Supreme Court in National

Insurance Co.Ltd. v Pranay Sethi [(2017) 16 SCC 680] and Jagdish

v. Mohan [(2018) 4 SCC 571] shows that the benefit of future prospects

should not be confined only to those who have a permanent job and

would extend to self-employed individuals and in case of a self-employed

person, an addition of 40% of the established income should be made

where the age of the victim at the time of the accident was below 40

years.

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9. The deceased was aged 38 years at the time of the accident

and therefore, an addition of 40% for future prospects can be allowed.

The Tribunal has taken the multiplier as 16. But, the decision of the

Honourable Supreme Court in Sarla Verma v. DTC [(2009) 6 SCC 121

= 2010 (2) KLT 802 (SC)] shows that the multiplier to be applied for

persons aged between 36 to 40 years is 15. The number of dependents

is five and therefore, as per the decision of Sarla Verma (supra), one-

fourth is the standard deduction towards the personal and living

expenses of the deceased. Thus, while re-assesing the compensation for

loss of dependency as per the revised criteria, the amount would come

to Rs.10,39,500/- [(5500 + 40%) x ¼ x 12 x 15].

10. The decision of the Hon'ble Supreme Court in Pranay Sethi

(Supra) would show that the reasonable amount payable on conventional

heads namely loss of estate, loss of consortium and funeral expenses

should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively and

that the aforesaid amount should be enhanced by 10% in every three

years. The Hon'ble Supreme Court in Rojalini Nayak & Ors v. Ajit

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Sahoo (2024 KHC Online 8300) by adopting the above metric awarded a

compensation of Rs.48,400/- towards loss of consortium and

Rs.18,150/- each towards funeral expenses and loss of estate.

11. In this case, the Tribunal awared only Rs.30,000 towards loss

of consortium and only Rs.10,000/- for loss of estate. Therefore, I find

that a sum of Rs.48,400/- can be allowed towards loss of consortium

and Rs.18,150/- towards loss of estate. It is seen that the Tribunal has

not allowed any amount towards funeral expenses of the deceased. In

that circumstances, a sum of Rs.18,150/- (Rupees Eighteen Thousand

One Hundred and Fifty only) is allowed towards funeral expenses.

12. The decision of the Hon'ble Supreme Court in Shriram

General Ins.Co.Ltd. v. Bhagat Singh Rawat (2023 KHC Online 7244)

shows that the compensation under the heads of loss of love and

affection and loss of consortium cannot be granted to each legal

representative of the deceased and in view of the said position, the first

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appellant is not entitled for a separate amount towards loss of love and

affection.

13. In conclusion, the enhanced amount of compensation, as

modified as a result of the above discussion is encapsulated, in a tabular

format herein below:

Sl Particulars Compensation Final Amount Payable No awarded by the Tribunal (Rs.)

1 Loss of dependency Rs.5,76,000/- Rs.10,39,500/- 2 Transport to hospital Rs.1000/- Rs.1000/- 3 Damages to clothing and articles Rs.500/- Rs.500/- 4 Loss of consortium Rs.30,000/- Rs.48,400/- 5 Loss of love and affection Rs.40,000/- Nil 6 Loss of estate Rs.10,000/- Rs.18,150/- 7 Funeral expenses Nil Rs.18,150/-

Total Amount Payable Rs.6,57,500/- Rs.11,25,700/-

14. Accordingly, the total amount of compensation payable to

the appellants is determined as Rs.11,25,700/- (Rupees Eleven Lakhs

Twenty Five Thousand and Seven Hundred only)

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In the result, this appeal is allowed and the

appellants/petitioners are allowed to recover the compensation

amount of Rs.11,25,700/- (Rupees Eleven Lakhs Twenty Five

Thousand and Seven Hundred only) with interest @ 7.5% per annum

from the date of the claim petition till the date of realization

(excluding the period of dealy of 358 days in filing the appeal) with

proportionate costs from the respondents. The second respondent