Kerala High Court

Sumathi vs Noreeta on 30 September, 2024

MACA NO. 2907 OF 2021

                                    -1-

                                                     2024:KER:72961
               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MR. JUSTICE EASWARAN S.

    MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946

                          MACA NO. 2907 OF 2021

        AGAINST    THE   ORDER/JUDGMENT    DATED   12.10.2018   IN   OPMV

NO.1533 OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM

APPELLANTS:

    1       SUMATHI
            AGED 59 YEARS
            W/O. CHANDRAN POIYKAYIL VEEDU, KOCHUKOTTUMONPARA,
            ANGAMUZHI P.O., PATHANAMTHITTA ,PIN-689 662

    2       SHEEJA.P.S.
            AGED 45 YEARS
            W/O. LIJU RAJ, POIYKAYIL, EDAPPLIKOTTA, PANMANA,
            CHAVARA, KOLLAM,PIN-691 583

    3       MINI.P.S.,
            AGED 43 YEARS
            W/O.RADHAKRISHNAN, POIYKAYIL VEEDU,
            KOCHUKOTTUMONPARA, ANGAMUZHI P.O.,
            PATHANAMTHITTA ,PIN-689 662

    4       HARIKUMAR.P.S.,
            AGED 40 YEARS
            S/O. SADANANDAN,POIYKAYIL VEEDU, KOCHUKOTTUMONPARA,
            ANGAMUZHI P.O., PATHANAMTHITTA ,PIN-689 662

            BY ADVS.
            AJAYA KUMAR. G
            M.JAYAKRISHNAN
            SHEMA ELIZABETH SCARIA



RESPONDENTS:

    1       NOREETA
            JILU COTTAGE, PUNNATHALA SOUTH
            THIRUMULLAVARAM,KOLLAM-691 N012
 MACA NO. 2907 OF 2021

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                                                           2024:KER:72961

     2       RAJESH.S.
             AGED 38 YEARS
             S/O. SUGATHAN, ARATTUKULANGARA KIZHAKKETHIL,
             KOTTAKKAKAM, KOLLAM-691 012

     3       DIVISIONAL MANAGER,
             ORIENTAL INSURANCE COMPANY LTD.
             LIC BUILDING, 3RD FLOOF, RESIDENCY ROAD,
             KOLLAM PIN 691001

             BY ADV S.K.AJAY KUMAR


      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON   30.09.2024,   THE   COURT   ON     THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 MACA NO. 2907 OF 2021

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                                                            2024:KER:72961
                              JUDGMENT

Aggrieved by the award in OP (MV) No. 1533/2015

on the files of the Motor Accidents Claims Tribunal, Kollam

the appellants have approached this Court.

2. The appellants/ claimants are the legal heirs of

one deceased Santhosh Kumar. On 11.04.2015 at 3.00 p.m

while Santhosh Kumar was riding the motorcycle bearing

Registration No. KL-2-AB-8611 from south to north through

Kollam - Alappuzha NH, at Ramankulangara junction, he

was dashed down by the offending stage carriage bearing

Registration No. KL-02-S-2070 driven by the 2nd respondent

in a rash and negligent manner and the said Santhosh

Kumar died on the spot. On behalf of the claimants, Exts.

A1 to A22 were marked. PW1 and PW2 were examined. No

evidence was adduced on behalf of the respondent

Insurance Company. However, the Insurance Company

contented that the accident was caused due to the rash and

negligent driving of the 2nd respondent. The age, occupation

and income of the deceased were disputed. The MACA NO. 2907 OF 2021

2024:KER:72961 claimants/appellants contented that the deceased was a

fishing boat contractor and he used to earn Rs.30,000/- as

monthly income. However, no evidence was produced

before the Tribunal. The Tribunal fixed the notional income

at Rs.550/- per day and calculated it for 15 days and

proceeded to grant compensation as follows:-

Sl. Head of Claim Compensati Amount No on Claimed determined (Rs) (Rs.) 1 Transport to hospital 1,500 5,000 2 Funeral expenses 15,000 15,000 including religious rites 3 Medicine, Bystanders 5,000 2,000 expenses 4 Damage to clothing 1,000 NIL and articles 5 Filial consortium NIL 40,000 6 Pain and suffering 50,000 10,000 7 Compensation for loss 50,000 15,000 of estate 8 Compensation for loss 1,00,000 NIL of support 9 Compensation for loss 1,00,000 NIL of consortium 10 Compensation for loss 45,00,000 9,70,200 of dependency 11 Compensation for loss 1,00,000 NIL of mental agony 12 Compensation for loss 1,00,000 NIL MACA NO. 2907 OF 2021

2024:KER:72961 of care ad guidance 13 Total 50,22,500/- 10,57,200/-

(limited to 50,00,000)

3. I have heard Sri. Ajayakumar.G, learned counsel

appearing for the appellants and Sri. S.K Ajay Kumar,

learned counsel appearing for the Insurance company.

4. The learned counsel appearing for the appellants,

submitted that the Tribunal has not assigned any reason as

to why the income has been fixed only for 15 days.

Similarly, it is also contented that the compensation for

filial consortium has been granted only to the 1 st appellant

whereas the 3rd appellant at the time of accident was

unmarried and was dependent upon the deceased.

5. On the other hand, the learned counsel appearing

for the Insurance company pointed out that no evidence

was adduced before the Tribunal in order to enable the

Tribunal to fix the notional income at Rs.550/- per day.

Even if it is assumed that the notional income was liable to

be fixed in terms of the principles laid down by the Hon'ble

Supreme Court in, Ramachandrappa v The Manager, MACA NO. 2907 OF 2021

2024:KER:72961 Royal Sundaram Alliance Insurance Company Ltd.

[AIR 2011 SC 2951] , the income of the deceased could be

fixed only at Rs.10,500/- per month.

6. In reply, the learned counsel appearing for the

appellants contented that the Insurance Company has not

come up in appeal and hence this Court will have to

necessarily record the findings of the Tribunal by fixing the

notional income at Rs.550/- per day.

7. The further question would be whether the

appellants are entitled to have the notional income of the

deceased to be fixed for 26 days instead of 15 days. He also

pointed out that the deceased was aged 33 years at the time

of accident. Therefore, the correct multiplier to be adopted

is 16, whereas the Tribunal has only taken 14 as the

multiplier.

8. I have considered the rival submissions raised

across the Bar and perused the award.

9. It is true that going by the principles laid down

by the Hon'ble Supreme Court in Ramachandrappa v The

Manager, Royal Sundaram Alliance Insurance MACA NO. 2907 OF 2021

2024:KER:72961 Company Ltd. [AIR 2011 SC 2951] the notional income

of the deceased has to be fixed at Rs.10,500/-. However,

the Tribunal for reasons best known has fixed it at Rs. 550/-

per day. In the absence of any appeal on the side of the

Insurance Company, this Court is afraid that it cannot

interfere with the findings of the Tribunal in an appeal by

the claimants. Hence, Rs.550/- per day is taken as notional

income. No reason is assigned by the Tribunal to fix the

income at Rs.550/- per day for 15 days. Therefore, this

Court is of the view that the income has to be necessarily

for 26 days, which is the average working day per month.

In so far as the multiplier is concerned, since the age of the

deceased was at 33, the correct multiplier to be applied is

16 instead of 14.

10. Similarly, as far as filial consortium is

concerned, the Tribunal has rightly noticed that the 1 st

claimant is dependent upon the deceased. However, in so

far as 2nd and 3rd appellants are concerned, they being

married sisters of the deceased cannot be said to be

financially dependent on the deceased. However, in case of MACA NO. 2907 OF 2021

2024:KER:72961 the 4 th appellant it cannot be said so. Hence, he is also

entitled to get compensation under the head filial

consortium.

11. In the result, the appeal is allowed. The

compensation for which the appellants are entitled is

enhanced as follows:-

(i) The notional income of the deceased is taken as

Rs.14,300/-, 40% future prospects is added and thus the

total income comes to Rs. 20,020/-. Thus, additional

compensation towards the loss of dependency is

Rs.9,51,720/- (20,020x 12 x 16 x ½ = 1,921,920 - 9,70,200).