Kerala High Court
V.Pavithran vs Rajith A on 17 February, 2025
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MACA NO. 208 OF 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
MACA NO. 208 OF 2018
AGAINST THE COMMON AWARD DATED 20.03.2017 IN
OP(MV) NO.192 OF 2013 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, THALASSERY
APPELLANTS/CLAIMANTS IN OP(MV) NO. 192/2013:
1 V.PAVITHRAN
AGED 51 YEARS
S/O BALAN,
"VECHIYOTTU HOUSE,"KANNADIPPARAMBA AMSOM,
MALOTT DESOM, KANNADIPPARAMBA PO,
KANNUR DISTRICT.
2 V. KEERTHANA
D/O V. PAVITHRAN,
S/O BALAN, AGED 20 YEARS,
"VECHIYOTTU HOUSE", KANNADIPPARAMBA AMSOM,
MALOTT DESOM, KANNADIPPARAMBA PO,
KANNUR DISTRICT.
BY ADVS.
SRI.K.MOHANAKANNAN
SRI.MOHANAN VALIYAPURAYIL
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2
RESPONDENTS/RESPONDENTS:
1 RAJITH A.
S/O GANGADHARAN, PUTHUKKUDY HOUSE, CHAMBAD PO,
PATHIRIYAD, THALASSERY TALUK, KANNUR DISTRICT.
(RC OWNER CUM DRIVER OF THE TIPPER LORRY BEARING
REGISTRATION NO.KL-58/G 9398.
2 THE ORIENTAL INSURANCE COMPANY LTD
DIVISIONAL OFFICE, JYOTHI SUPER BAZAR, P.B NO.8,
THODUPUZHA, IDUKKI DISTRICT.
(INSURER OF THE TIPPER LORRY TIPPER LORRY BEARING
REGISTRATION NO.KL-58/G 9398) POLICY COVER NO.97235,
POLICY NO.2103/2012)
3 KORAMBETH VIJAYAN
S/O GOVINDAN, AGED 55 YEARS, PALAKUNNU HOUSE,
MERUVAMBAYI PO, NEERVELI, THALASSERI TALUK,
KANNUR DISTRICT.
(DRIVER OF THE AUTORICKSHAW BEARING REGN. NO.KL -58D
8636)
4 BABUMON K
S/O VIJAYAN, PALAKUNNU HOUSE, MERUVAMBAYI PO,
NEERVELI, THALASSERI TALUK, KANNUR DISTRICT.
(RC OWNER OF THE AUTORICKSHAW BEARING REGN.NO.KL 58D
8636)
5 UNITED INDIA INSURANCE COMPANY LTD
ASHIQUE TOWERS, NARANGAPURAM, THALASSERI PO, KANNUR
DISTRICT, (INSURER OF THE AUTORICKSHAWBEARING
REGN.NO.KL 58 D 8636) POLICY NO.1008023112P 000835796)
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BY ADVS.
R2 BY DEEPA GEORGE
R3 & R4 BY SRI.ASHWIN SATHYANATH
R5 BY SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 17.02.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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4
JUDGMENT
This appeal has been filed by the petitioners in O.P.(MV)
No.192/2013 on the file of the Motor Accident Claims Tribunal,
Thalassery, seeking enhancement of compensation awarded
by the tribunal, on account of the death of Smt. Bindu, who
died in a motor accident that occurred on 21.11.2012.
2. The case of the petitioners, in brief, is that on
21.11.2012, at about 3.30 p.m., while the deceased Bindu
was travelling in an autorickshaw bearing registration No.
KL-58-D-8636 from Meruvambayi to Chattukappara and when
the said autorickshaw reached Edayannur, a tipper lorry
bearing registration No. KL-58-G-9398 came from the
opposite direction driven by the first respondent, in a rash and
negligent manner hit on the autorickshaw in which the
deceased and some other passengers were travelling. Due to
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the impact of the hit, the autorickshaw was capsized and the
deceased Bindu as well as the other passengers sustained
serious injuries. Immediately after the accident, though the
injured Bindu was rushed to the Hospital, she succumbed to
the injuries, on the way to the hospital.
3. The owner cum driver of the tipper lorry bearing
registration No. KL-58-G-9398 was arrayed as the 1st
respondent, whereas, the insurer of the said lorry was arrayed
as the 2nd respondent. The 2nd respondent insurer contested
the petition and filed a written statement mainly disputing the
quantum of compensation claimed in the petition. However,
the 2nd respondent admitted the insurance coverage for the
offending lorry. Petitioner's evidence consists of Exts. A1 to
A18. From the side of the fifth respondent, Ext.B1 was
marked.
4. After trial, the Tribunal came to a conclusion that
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the accident occurred solely due to the rash and negligent
driving of the first respondent, the owner cum driver of the
offending lorry. The 2nd respondent, being the insurer was
held liable to pay the compensation. The quantum of
compensation was fixed at Rs.11,30,000/-, with interest at
the rate of 9% per annum from the date of petition till
realisation and with proportionate costs. Aggrieved by the
compensation awarded, the petitioners have come up with
this appeal.
5. Heard Sri. V. P. Mohanan, the learned counsel
appearing for the appellants, Smt. Deepa George, the learned
counsel appearing for the second respondent Insurance
Company and Sri.P. Jacob Mathew, the learned counsel
appearing for the fifth respondent Insurance Company.
6. From the rival contentions raised from either side,
it is gatherable that the main dispute that revolves around in
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this appeal is with respect to the quantum of compensation
awarded by the tribunal. The learned Counsel for the
appellants urged that the compensation awarded by the
tribunal under various heads is too meager and not in
consonance with the hardships and the loss suffered by the
bereaved family of the deceased due to her untimely death.
From a perusal of the award, it is gatherable that for the
purpose of awarding compensation, the Tribunal assessed the
monthly income of the deceased at Rs. 5,000/-. After making
an addition of 50% to the said income towards future
prospects, the tribunal finally assessed the income of the
deceased at Rs. 7,500/-. The case of the petitioners was that,
during the period when the accident occurred, the deceased
was working as a Sales Assistant in a Maveli Store and was
getting a daily wage of Rs. 200/-. Anyhow, irrespective of the
pleadings of the parties, it was incumbent upon the part of
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the tribunal to ensure that the compensation awarded is just,
fair, and reasonable. In this regard, I am fortified by the
decision in Rajesh & others v. Rajbir Singh & Others
[2013 (3) KLT 89 (SC)]. Evidently, the accident occurred in
the year 2012. Therefore, in view of the principles laid down
in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Ltd.[( 2011) 13 SCC 236],
the tribunal ought to have assessed the monthly income of
the deceased at Rs.8,500/- However, the finding of the
Tribunal that 50% of addition has to be made towards the
future prospects is against the principle laid down in National
Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT
662]. In view of the principle enumerated in the above said
decision, the Tribunal ought to have limited the addition
towards future prospects at 40%. Hence the income of the
deceased can reasonably and legally be assessed at
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Rs. 11,900/-. The age of the deceased at the time of the
accident was 37 years and applying the principle laid down in
Sarla Verma v. Delhi Transport Corporation [2010 (2)
KLT 802 (SC)], the multiplier applicable is 15. In view of that
matter, the compensation to be awarded under the head of
loss of dependency would come to Rs. 21,42,000/- [11,900 x
12 x 15]. As the total number of dependents is two, 1/3rd of
the said amount has to be deducted towards the deceased's
personal expenses. After deducting the said amount, the total
amount awardable under the head of loss of dependency will
come to Rs.14,28,000/- (Rs.21,42,000 - Rs. 7,14,000/-).
Already an amount of Rs.9,00,000/- has been awarded under
the head of loss of dependency. Therefore, the additional
compensation for which the appellants are entitled under the
head of loss of dependency will come to Rs.5,28,000/-
(Rupees Five Lakhs and Twenty Eight Thousand only) (Rs.
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14,28,000 - Rs. 9,00,000).
7. The petitioners are none other than the husband
and daughter of the deceased. Their close relationship with
the deceased would definitely entitle them to get
compensation under the head of loss of consortium. But the
learned Tribunal omitted to award any amount under the said
head. In view of the decision in Pranay Sethi (supra), both
the petitioners are found entitled to get an award of Rs.
40,000/- each under the head of loss of consortium.
Resultantly, the petitioners are entitled to get an additional
compensation of Rs. 80,000/- (Rupees Eighty Thousand Only)
(Rs.40,000/- x 2) under the said head. However, a perusal of
the award reveals that the Tribunal awarded an amount of
Rs.2,00,000/- under the head of love and affection. When a
reasonable amount is awarded under the head of loss of
consortium, the petitioners are not entitled to get any amount
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under the head of love and affection. Therefore, an amount of
Rs. 2,00,000/- (Rupees Two Lakhs only) has to be deducted
from the total compensation awarded by the tribunal.
8. Under the head of funeral expenses an amount of
Rs.25,000/- is seen awarded by the Tribunal. In view of the
decision in Pranay Sethi (supra), the petitioners are entitled
only for an amount of Rs.15,000/-, under the head of funeral
expenses. Hence, an amount of Rs.10,000/- (Rupees Ten
Thousand only)has to be deducted from the amount already
awarded under the said head.
9. Moreover, the Tribunal has omitted to award any
amount under the head of loss of estate. In view of the law
laid down in Pranay Sethi (supra), I am inclined to award an
amount of Rs.15,000/- (Rupees Fifteen Thousand only) as
additional compensation under the head of loss of estate.
10. Therefore, an amount of Rs.2,10,000/- (Rupees
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Two Lakhs Ten Thousand only) (Rs.2,00,000/- + Rs.10,000/-)
has to be deducted from the total compensation awarded by
the Tribunal and Rs.6,23,000/- (Rupees Six Lakh Twenty
Three Thousand Only) (Rs.5,28,000/- + Rs.80,000/- +
Rs.15,000/-) is to be added towards the total compensation
awarded.
In the light of the aforesaid observations and findings,
the appeal is allowed by enhancing the compensation by a
further amount of Rs. 4,13,000/- (Rupees Four Lakhs Thirteen
Thousand only) (Rs.6,23,000 - Rs.2,10,000) with interest at
the rate of 7% per annum on the enhanced compensation
from the date of claim petition till the date of deposit, after
deducting interest for a period of 84 days, i.e., the period of
delay in preferring this appeal and as directed by this Court
on 22.12.2021 in C.M.Appln.No.1/2018. The 2nd respondent
insurance company is ordered to deposit the enhanced
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compensation with interest before the tribunal with
proportionate costs within a period of three months from the
date of receipt of a certified copy of the judgment.
sd/-
JOBIN SEBASTIAN
JUDGE
DCS
