Kerala High Court
Valsala vs Vishnu Shaji on 13 November, 2024
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M.A.C.A. No. 1034/2016 :1:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA, 1946
MACA NO. 1034 OF 2016
AWARD DATED 30.11.2015 IN OP(MV) NO.495 OF 2014 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,THODUPUZHA
APPELLANTS/PETITIONERS:
1 VALSALA
AGED 55 YEARS, W/O.LATE RAVI, ELAVUMKACHALIL HOUSE,
NEDUMMATTOM KARA, KODIKULAM PO, KODUKULAM VILLAGE
2 AJEESH
AGED 26 YEARS, S/O.LATE RAVI, ELAVUMKACHALIL HOUSE,
NEDUMMATTOM KARA, KODIKULAM P.O., KODUKULAM VILLAGE
3 ANJANA
AGED 20 YEARS, D/O. LATE RAVI, ELAVUMKACHALIL HOUSE,
NEDUMMATTOM KARA, KODIKULAM PO, KODUKULAM VILLAGE.
BY ADVS.
SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SEBASTIAN
RESPONDENTS/RESPONDENTS:
1 VISHNU SHAJI
S/O.SHAJI, AGED 16 YEARS, KANATTUMALAYIL HOUSE,
PUTHUPARIYARAM KARA, MYLADUMPARA BHAGOM, MANAKADU
VILLAGE, REPRESENTED BY HIS FATHER AND NEXT FRIEND SHAJI K.V,
KANATTUMALAYIL HOUSE, PUTHUPARAIYARAM KARA, MYLADUMPARA
BHAGOM, MANAKADU VILLAGE, 695 009.
2 LALU SHAJI
S/O.SHAJI K.V, KANATTUMALAYIL HOUSE, PUTHUPARIYARAM P.O,
THODUPUZHA 678 733.
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3 PRIYAN P PARAYIL
PAREPUTHANPURARYIL HOUSE, EAST KALOOR P.O,
THODUPUZHA - 685 584.
4 M/s.. NATIONAL INSURANCE CO. LTD.
1ST FLOOR, PULIMOOTTIL SHOPPING ARCADE, THODUPUZHA,
REPRESENTED BY ITS BRNACH MANAGER 685 584.
R4 BY ADV SRI.E.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
11.11.2024, THE COURT ON 13.11.2024 DELIVERED THE FOLLOWING:
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JOHNSON JOHN, J.
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M.A.C.A No. 1034 of 2016
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Dated this the 13th day of November, 2024.
JUDGMENT
The petitioners in O.P.(MV) No. 495 of 2014 on the file of the Motor
Accident Claims Tribunal, Thodupuzha are the appellants and they are
challenging the quantum of compensation awarded by the Tribunal under
various heads.
2. The appellants are the legal heirs of the deceased Ravi who
died in a motor vehicle accident. According to the appellants, on
13.06.2014 at about 7 p.m., while the deceased was standing on the
side of the road at Thodupuzha, autorickshaw bearing registration No.
KL.6C/9483 driven by the 1st respondent in a rash and negligent manner
hit him and the deceased who sustained grievous injuries, died on the
same day at about 10.30 p.m. Respondents 2 and 3 are the owners and
the 4th respondent is the insurer of the offending vehicle.
3. Before the Tribunal, Exhibits A1 to A10 were marked from the
side of the petitioners and Exhibit B1 was marked from the side of the 4 th
respondent.
4. After trial and hearing both sides, the Tribunal came to the
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conclusion that the accident occurred due to the negligence on the part
of the 1st respondent and awarded a total compensation of Rs.9,09,205/-
to the petitioners. The Tribunal also allowed the 4 th respondent insurer
to recover the amount from the owner of the vehicle after payment to
the petitioners, as the 1st respondent was not having a valid driving
licence at the time of the accident.
5. The appellants are challenging the amount of compensation
fixed by the Tribunal under various heads on the ground that the same is
too meagre and inadequate.
6. Heard both sides and perused the records.
7. According to the appellants, the deceased was aged 61 years
and he was working as a Postman. The salary certificate of the deceased
issued by the Postmaster, Thodupuzha is marked as Exhibit A7. From
Exhibit A7, it can be seen that his basic pay is Rs.7200/- and DA is also
Rs.7,200/-. But, in Exhibit A7, the total of the same is mistakenly
calculated as Rs.14,200/-. The learned counsel for the appellants pointed
out that without noticing the said mistake, the Tribunal fixed the monthly
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income as Rs.14,200/-. The fact that there is a clerical mistake in
calculating the total amount in Exhibit A7 is not disputed and since it is
an error apparent on the face of the record, I find that the monthly
salary of the deceased can be reckoned as Rs.14,400/-.
8. The age of the deceased at the time of the accident is 61 years.
But the Tribunal took the multiplier of 5 for calculating the loss of
dependency on the ground that his age of retirement is 65 years. Taking
note of the fact that this is a case of death, I find that the said approach
of the Tribunal is not legally sustainable and that the multiplier
applicable is 7 as per column No.4 in the decision of the Honourable
Supreme Court in Sarla Verma v. Delhi Transport Corporation and
another [(2009) 6 SCC 121 = 2010 (2) KLT 802 (SC)]. Thus while re-
assessing the compensation for loss of dependency as per the revised
criteria, the amount would come to Rs.8,06,400/- (Rupees Eight Lakhs
Six Thousand and Four Hundred only) [14,400 x 12 x 7 - 1/3].
9. The learned counsel for the appellants pointed out that the
deceased died after 3½ hours of the accident and in view of the Kerala
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Torts (Miscellaneous Provisions) Act, 1976, the appellants are entitled
for compensation under the head of pain and suffering of the deceased.
It is brought to my notice that the Tribunal has not granted any
compensation towards pain and sufferings of the deceased. Therefore,
considering the facts and circumstances, Rs.5,000/- is granted to the
appellants towards pain and sufferings of the deceased. The Tribunal has
not granted any amount towards damage to clothing, even though
Rs.500/- was claimed. Considering the circumstances, I find that
Rs.500/- can be allowed as compensation towards damage to clothing.
10. The decision of the Hon'ble Supreme Court in National
Insurance Co.Ltd. v Pranay Sethi [(2017) 16 SCC 680 = 2017 (4)
KLT 662] 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 Sahoo (2024 KHC Online 8300) by adopting the above
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metric awarded a compensation of Rs.48,400/- towards loss of
consortium and Rs.18,150/- each towards funeral expenses and loss of
estate. Therefore, the amount awarded by the Tribunal towards funeral
expenses will be modified to Rs.18,150/-.
11. The Tribunal has not granted any amount towards loss of
estate. Therefore, Rs. 18,150/- is allowed to the appellants towards loss
of estate. The appellants are also entitled for Rs.48,400/- each towards
loss of consortium. Since compensation is granted towards loss of
consortium, the appellants are not entitled for a separate amount
towards loss of love and affection.
12. 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
No awarded by the Payable
Tribunal (Rs.) (Rs.)
1 Compensation for loss of 5,68,000/- 8,06,400/-
dependency
2 Pain and sufferings NIL 5000/-
3 Damage to clothing NIL 500/-
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4 Funeral Expenses 25,000/- 18,150/-
5 Loss of estate NIL 18,150/-
6 Loss of consortium 1,00,000/- 1,45,200/-
7 Transportation Expenses 10,000/- 10,000/-
8 Treatment expenses 6,205/- 6205/-
9 Loss of love and affection 2,00,000/- NIL
Total amount Payable 9,09,205/- 10,09,605/-
13. Accordingly, the total amount of compensation payable to the
appellants/petitioners is determined as Rs.10,09,605/- (Rupees Ten
Lakhs Nine Thousand Six Hundred and Five only).
In the result, this appeal is allowed and the appellants/petitioners
are allowed to recover the compensation amount of Rs.10,09,605/- with
interest at the rate of 9% per annum from the date of the claim petition
till the date of realization with proportionate costs from the respondents.
The fourth respondent insurance company shall deposit the said amount
together with interest and costs before the Tribunal within a period of
three months from the date of receipt of a certified copy of this
judgment. The 4th respondent is entitled to recover the said amount
from the 2nd respondent after payment to the appellants/petitioners.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
