Kerala High Court
Shamla vs K.J.Poulose on 17 February, 2025
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. 841 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 12.01.2018 IN OPMV NO.425 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANTS/PETITIONERS:
1 SHAMLA, AGED 43 YEARS, W/O. LATE HAMSA,
THOPPIYIL HOUSE, NEAR PANCHAYATH OFFICE,
NELLIKUZHY P.O., ERAMALLOOR VILLAGE,
KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.
2 SHAHINA, AGED 20 YEARS, D/O. LATE HAMSA,
THOPPIYIL HOUSE, NEAR PANCHAYATH OFFICE,
NELLIKUZHY P.O., ERAMALLOOR VILLAGE,
KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.
3 SHESMIN HAMSA, AGED 17 YEARS, D/O. LATE HAMSA,
THOPPIYIL HOUSE, NEAR PANCHAYATH OFFICE,
NELLIKUZHY P.O., ERAMALLOOR VILLAGE,
KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.
4 SHISWANA HAMSA, AGED 17 YEARS, D/O. LATE HAMSA,
THOPPIYIL HOUSE, NEAR PANCHAYATH OFFICE,
NELLIKUZHY P.O., ERAMALLOOR VILLAGE,
KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.
5 HALEEMA, AGED 76 YEARS, M/O. LATE HAMSA,
THOPPIYIL HOUSE, NEAR PANCHAYATH OFFICE,
NELLIKUZHY P.O., ERAMALLOOR VILLAGE,
KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.
(APPELLANTS 3 & 4 ARE MINORS AND THEY ARE
REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN
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1ST APPELLANT)
BY ADV SRI.K.K.MOHAMED RAVUF
RESPONDENTS/RESPONDENTS:
1 K.J.POULOSE, S/O. JOSEPH,
KANNAPPILLIKUZHIYIL HOUSE, POOTRIKKA P.O.,
AIKARANADU SOUTH - 682 308, ERNAKULAM DISTRICT.
2 PAILY K.V., S/O. VARGHESE,
KANNAPPILLYKUZHIYIL HOUSE, PALACKAMATTOM,
KINGINIMATTOM P.O.- 682 311.
3 NATIONAL INSURANCE CO.LTD.
BRANCH OFFICE, 1ST FLOOR, ELLORA TOWERS,
KOLENCHERRY - 682 311.
BY ADV SRI.E.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 17.02.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
This appeal has been filed by the claimants in OP(MV)
No.425/2017 on the file of the Motor Accidents Claims Tribunal,
Muvattupuzha, seeking enhancement of compensation awarded by
the tribunal on account of the death of one Hamsa who died in a
motor accident that occurred on 04.04.2017.
2. The case of the petitioner is that on 04.04.2017 at 5.10
p.m., while the deceased Hamsa was riding a motorcycle bearing
registration No.KL-44D-8994, a mini lorry bearing registration
No.KL-2V-2554 driven by the 2nd respondent in a rash and negligent
manner, negligently overtook the motorcycle. The lorry was then
loaded with timber logs which were tied using a rope. The rope was
then precluded outside the lorry and hence while overtaking, the
rope got entangled with the motorcycle and the motorcycle turned
upside down. Hence Hamsa, the rider of the motorcycle fell down to
the road and sustained fatal injuries. Immediately after the accident,
though the injured was taken to hospital, he succumbed to the
injuries on the same day.
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3. The owner and driver of the offending lorry bearing
registration No.KL-2V-2554 were arrayed as the 1st and 2nd
respondent respectively, whereas, the insurer of the said lorry was
arrayed as the 3rd respondent. The 3rd respondent contested the
claim by filing a written statement mainly disputing the quantum of
compensation claimed despite admitting the insurance coverage for
the offending lorry.
4. The evidence in this case consists of Exts.A1 to A13.
From the side of the respondent, a copy of the insurance policy
issued by the 3rd respondent was marked as Ext.B1. Apart from the
documentary evidence adduced two witnesses were examined from
the side of the petitioners as PW1 and PW2.
5. After the trial, the tribunal came to the conclusion that
the accident occurred solely due to the rash and negligent driving of
the lorry bearing registration No.KL-2V-2554 by the 2nd respondent
and being the insurer, the 3rd respondent was held liable to pay the
compensation. The compensation was quantified at Rs.19,48,900/-
with 9% interest per annum from the date of the claim petition till
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realisation and with proportionate costs. Feeling dissatisfied by the
compensation awarded, the claimants have come up with this appeal.
6. Heard Sri. K.K. Mohamed Ravuf, the learned counsel for
the appellants and Sri. E.M. Joseph, the learned counsel for the
respondent insurance company.
7. The learned counsel for the appellants would submit that
the compensation awarded by the tribunal under various heads is too
meager and does not commensurate with the loss suffered by the
bereaved family members of the deceased. According to the counsel,
the tribunal erred in assessing the income of the petitioner
reasonably and undermined the oral and documentary evidence
adduced by the petitioners to prove the actual occupation and
income of the deceased.
8. Per contra, the counsel for the insurance company would
submit that the compensation awarded by the tribunal under various
heads is reasonable and warrants no interference. However, from a
perusal of the award and the evidence adduced in this case, I am of
the view that there is some merit in the contention of the learned
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counsel for the appellants that the lower court erred in assessing the
income of the deceased reasonably. For the purpose of determining
the compensation under the head of loss of dependency the tribunal
assessed the income of the petitioner at Rs.17,000/-. While
considering the question whether any interference is required on the
said finding, it is to be noted that, the petitioner had made all the
endeavour to prove his income by adducing oral as well as
documentary evidence. In the petition it is specifically averred that
at the time of the accident, the petitioner was working as a
Supervisor in a private concern. The salary certificate issued from the
said concern is marked in evidence as Ext.A10. In order to prove the
salary, apart from producing the salary certificate, the employer of
the deceased was also examined as PW2. On examination before the
court referring to Ext.A10 salary certificate he categorically deposed
that the monthly salary of the deceased was Rs.19,500/-. Though
PW2 was subjected to roving cross-examination by the learned
counsel for the insurance company, he withstood the same
successfully and consistently deposed that the deceased was having
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a monthly salary of Rs.19,500/-. However, undermining the said
evidence the tribunal scaled down the salary to Rs.17,000/-. No
convincing reason is seen assigned by the tribunal for not acting
upon the evidence adduced by the petitioner to prove his actual
occupation and income. Therefore, I am of the view that there is no
justification for scaling down the salary of the petitioner. Considering
the evidence adduced the monthly income of the deceased can be
assessed at Rs.19,500/-.
10. In view of the decision in National Insurance
Company Ltd. v. Pranay Sethi [2017(4) KLT 662], an
addition towards future prospects has to be made. The deceased
was aged 55 at the time of the accident. Hence I am of the view
that 10% addition has to be made to the income of the deceased
towards future prospects. Hence income of the deceased can
reasonably and legally be assessed at Rs.21,450/-. The age of the
deceased at the time of the accident was 55 and applying the
principle in Sarla Verma v. Delhi Transport Corporation
[2010 (2) KLT 802 (SC)], the multiplier applicable is 11.
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Consequently, the amount receivable by the petitioner under the
head of loss of dependency will come to Rs.28,31,400/- (21,450 x 12
x 11). As the total number of dependants is five, ¼ of the same
amount has to be deducted towards his personal expenses. After
deducting the said amount the total amount under the head of loss
of dependency is Rs.21,23,550/- Moreover, after deducting the
already awarded amount of Rs.18,51,300/- the additional
compensation awardable under the head of loss of dependency will
come to Rs.2,72,250/-
11. The impugned award further reveals that the
compensation under the head of loss of consortium was awarded
only to the wife, the 1st petitioner. Evidently, the petitioners Nos.2 to
5 are the minor children and aged mother of the deceased. All of
them are entitled to get Rs.40,000/- each under the head of loss of
consortium. Therefore, the claimants are entitled to get an amount of
Rs.1,60,000/- as additional compensation under the head of loss of
consortium.
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In the light of the aforesaid observations and findings, the
appeal is allowed by enhancing the compensation by a further
amount of Rs.4,32,250/- (Rupees four lakhs thirty-two thousand two
hundred and fifty only) [2,72,250 + 1,60,000] with interest at the
rate of 7% per annum on the enhanced compensation from the date
of claim petition till the date of deposit. The respondent insurance
company is ordered to deposit the enhanced 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
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