Kerala High Court
K.K.Babu vs Thomas on 18 February, 2025
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MACA No.1442 & 2030 of 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
MACA NO. 1442 OF 2015
AGAINST THE ORDER/JUDGMENT DATED 27.09.2014 IN OPMV
NO.442 OF 2009 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,PERUMBAVOOR
APPELLANT/PETITIONER IN O.P (MV) 442/2009:
1 THOMAS
AGED 48 YEARS
S/O ABRAHAM, PUTHUSERI HOUSE, MUNNAMPARAMBU,
PADUAPURAM PO, KARUKUTTY VILLAGE, ALUVA TALUK,
(HUSBAND OF THE DECEASED MOLLY)
2 ANJITHA THOMAS
D/O THOMAS, PUTHUSERI HOUSE, MUNNAMPARAMBU,
PADUAPURAM PO, KARUKUTTY VILLAGE, ALUVA TALUK,
REPRESENTED BY HER FATHER THOMAS S/O ABRAHAM,
PUTHUSERI HOUSE, MUNNAMPARAMBU, PADUAPURAM PO,
KARUKUTTY VILLAGE, ALUVA TALUK, (DAUGHTER OF THE
DECEASED MOLLY)
3 ANCEENA THOMAS
D/O THOMAS, PUTHUSERI HOUSE, MUNNAMPARAMBU,
PADUAPURAM PO, KARUKUTTY VILLAGE, ALUVA TALUK,
REPRESENTED BY HER FATHER THOMAS S/O ABRAHAM,
PUTHUSERI HOUSE, MUNNAMPARAMBU, PADUAPURAM PO,
KARUKUTTY VILLAGE, ALUVA TALUK, (DAUGHTER OF THE
DECEASED MOLLY)
4 ANSAL THOMAS
S/O THOMAS, PUTHUSERI HOUSE, MUNNAMPARAMBU,
PADUAPURAM PO, KARUKUTTY VILLAGE, ALUVA TALUK,
REPRESENTED BY HER FATHER THOMAS S/O ABRAHAM,
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PUTHUSERI HOUSE, MUNNAMPARAMBU, PADUAPURAM PO,
KARUKUTTY VILLAGE, ALUVA TALUK, (SON OF THE
DECEASED MOLLY)
BY ADV SMT.ANUPAMA JOHNY
RESPONDENTS/RESPONDENTS NO.3 IN OP(MV) 442/2009:
1 BABU K K
S/O KUMARAN, KUDIYIL HOUSE ONANPILLY, OKKAL PO,
PERUMBAVOOR 683 5560
2 PAUL K.K.
S/O KUNJIPPAVU, KURIYAKKU HOUSE, KORANDY DESAOM,
VARABDARAPPILLY VILLAGE, MUKUNDAPURAM TALUK,
THRISSUR DIST
3 ICICI LOMBARD GENERAL INSURACNE CO.LTD
ZENITH HOUSE, KESWHAVARAO KHADE MARG, MAHALAXMI,
MUMBAI 400 034
BY ADVS.
SMT.S.AMBILY
SRI.ARUN ANTONY
SRI.K.K.CHANDRAN PILLAI SR.
N.S.NAJEEB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 18.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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MACA No.1442 & 2030 of 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
MACA NO. 2030 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 27.09.2014 IN OPMV
NO.442 OF 2009 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,PERUMBAVOOR
APPELLANT/1ST RESPONDENT:
K.K.BABU
S/O. KUMARAN, KUDIYIL HOUSE, ONAMPILLY, OKKAL
P.O, PERUMBAVOOR, PIN - 683 550.
BY ADVS.
SRI.K.K.CHANDRAN PILLAI (SR.)
SMT.S.AMBILY
SRI.ARUN ANTONY
SMT.K.V.SHENU
RESPONDENTS/PETITIONERS & RESPONDENTS 2 AND 3:
1 THOMAS
48 YEARS, S/O. ABRAHAM, PUTHUSSERI
HOUSE,MUNNAMPARAMBU, PADUVAPURAM, KARUKUTTY
VILLAGE, ALUVA TALUK,(HUSBAND OF THE DECEASED
MOLY) PIN - 683 576.
2 ANJITHA THOMAS
AGED 17 YEARS,(MINOR) (DATE OF BIRTH 6.12.97)
D/O. THOMAS, PUTHUSSERI HOUSE,
MUNNAMPARAMBU,PADUVAPURAM, KARUKUTTY VILLAGE,
ALUVA TALUK,REPRESENTED BY HER FATHER THOMAS,
AGED 48 YEARS, S/O. ABRAHAM, PUTHUSSERI HOUSE,
MUNNAMPARAMBU, PADUVAPURAM,KARUKUTTY VILLAGE,
ALUVA TALUK, AS HER GUARDIAN AND NEXT FRIEND,
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(DAUGHTER OF THE DECEASED MOLLY PIN : 683 576.
3 ANCEENA THOMAS
AGED 15 YEARS
(MINOR)(DATE OF BIRTH 24.6.1999), D/O. THOMAS,
PUTHUSSERI HOUSE, MUNNAMPARAMBU,
PADUVAPURAM,KARUKUTTY VILLAGE, ALUVA TALUK,
REPRESENTED BY HER FATHER THOMAS, AGED 48 YEARS,
S/O. ABRAHAM, PUTHUSSERI HOUSE,MUNNAMPARAMBU,
PADUVAPURAM, KARUKUTTY VILLAGE, ALUVA TALUK,AS
HER GUARDIAN AND NEXT FRIEND,(DAUGHTER OF THE
DECEASED MOLLY PIN 683 576.
4 ANSAL THOMAS
AGED 10 YEARS
(MINOR) DATE OF BIRTH 8.5.2004) S/O. THOMAS
PUTHUSSERI HOUSE, MUNNAMPARAMBU,
PADUVAPURAM,KARUKUTTY VILLAGE, ALUVA TALUK,
REPRESENTED BY HER FATHER THOMAS, AGED 48 YEARS,
S/O. ABRAHAM, PUTHUSSERI HOUSE,MUNNAMPARAMBU,
PADUVAPURAM, KARUKUTTY VILLAGE, ALUVA TALUK,AS
HER GUARDIAN AND NEXT FRIEND,(SON OF THE DECEASED
MOLLY) PIN 683 576.
5 PAUL K.K
S/O. KUNJIPPAVU, KARIYAKKU HOUSE,KORANDY DESOM,
VARANDARAPILLY VILLAGE, MUKUNDAPURAM TALUK,
THRISSUR DISTRICT, PIN - 680 303.
6 ICICI LOMBARD GENERAL INSURANCE CO LTD
ZENITH HOUSE, KESHAVRAO KHADE MARG, MAHALAXMI,
MUMBAI - 400 034.
BY ADVS.
SRI.K.B.HARSHAN
SMT.SOUMINI JAMES
N.S.NAJEEB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 18.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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C. PRATHEEP KUMAR, J.
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MACA.No.1442 & 2030 of 2018
------------------------------------
Dated this the 18th day of February, 2025
JUDGMENT
The petitioners in O.P.(M.V.) No.442/2009 on the file
of the Motor Accident Claims Tribunal, Perumbavoor are the
appellants herein. The 1st respondent in O.P. is the
appellant in MACA No.2030/2018. (For the purpose of
convenience, the parties are hereafter referred to as
per their rank before the Tribunal)
2. The O.P. was filed under under Section 166 of
the Motor Vehicles Act, 1988, by the husband and three
children of the deceased by name Molly, who died in a
motor vehicle accident that occurred on 26.03.2009.
According to them, on 26.03.2009, at about 3:20 PM,
the Tipper lorry KL-45/7852 driven by the 2 nd
respondent along the Angamaly - Chalakkudy N.H road,
in a rash and negligent manner, had hit down the
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motorcycle ridden by the 1st petitioner with the
deceased as pillion rider and as a result of which she
sustained serious injuries and later on she succumbed
to the injuries, on the same day, while under treatment.
The 1st respondent is the owner and 3 rd respondent is
the insurer of the offending vehicle.
3. The Tribunal found that the accident
occurred due to the negligence of the 2nd respondent,
awarded in compensation Rs.9,01,000/- and directed
the 3rd respondent to pay the same. Further, the
Tribunal permitted the 3rd respondent to recover the
compensation from respondents 1 and 2 on the ground
that at the time of the accident the 2 nd respondent did
not have valid driving licence to drive the Tipper Lorry.
4. Aggrieved by the quantum of compensation
awarded by the Tribunal, the petitioners preferred MACA
1442 of 2015, while aggrieved by the award permitting the
3rd respondent to recover the compensation from the 1 st
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respondent, he preferred MACA 2030 of 2018.
5. Now the points that arises for consideration
are the following:
1) Whether the quantum of compensation
awarded by the Tribunal is just and reasonable?
2) Whether the award permitting the 3 rd
respondent to recover the compensation from the 1 st
respondent is liable to be interfered with?
6. Heard Smt.Anupama Johny, the learned
Counsel appearing for the petitioners, and Sri.N.S.Najeeb,
the learned Standing Counsel for the 3rd respondent.
7. The Point: In this case the accident as well
as valid policy of the offending vehicle are admitted. The
learned counsel for the 1st respondent tried to establish
that there was negligence on the part of the driver of
the motorcycle also. However, it is to be noted that in
this case the police after investigation filed charge
sheet which was marked as Ext.A5, against the 2 nd
respondent. As per Ext.A5, the 2 nd respondent was
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responsible for the above accident and as such it is
prima facie evidence of negligence on his part. In the
absence of any contra evidence, in the light of Ext.A5, it
is to be held that the accident occurred due to the
negligence of the 2nd respondent.
8. One of the contentions raised by the
learned counsel for the petitioners is regarding the income
of the deceased as fixed by the Tribunal. According to him,
the deceased was working as a coolie, earning Rs. 7000/-
per month, but the Tribunal fixed his monthly income at
Rs.4500/-.The learned counsel for the insurer would argue
that the income fixed by the tribunal is reasonable.
9. As per the dictum laid down by the Hon'ble
Supreme Court in the decision in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Co.
Ltd. [2011 (13) SCC 236], the notional income of a coolie,
during the year 2009 will come to Rs.7000/-. Since the
petitioners could not prove the job or income of the
deceased, as claimed in the OP, in the light of the dictum
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laid down by the Hon'ble Supreme Court in
Ramachandrappa (supra), his notional income is liable to
be fixed as that of a coolie, at Rs.7000/-.
10. On the date of accident, the deceased was
aged 36 years. Therefore, 40% of the monthly income is
liable to be added towards future prospects, as held in the
decision in National Insurance Co.Ltd v Pranay
Sethi [(2017) 16 SCC 680] and the multiplier to be
applied is 15, as held in Sarla Verma v. Delhi
Transport Corporation, (2009) 6 SCC 121. Since the
deceased was married who left behind 4 dependants,
towards personal and living expense, 1/4 of the income
is liable to be deducted, as held in Sarla Verma
(supra). In the above circumstances, the loss of
dependency will come to Rs.13,23,000/-.
11. The Tribunal has awarded Rs.2,500/-
towards loss of estate, Rs.25,000/- towards funeral
expenses, Rs.1,00,000/- towards loss of consortium and
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Rs.1,50,000/- towards love and affection. In the light of
the decision in Pranay Sethi (supra), the appellants
are entitled to get a consolidated sum of Rs.15,000/-
towards loss of estate, Rs.15,000/- towards funeral
expenses, and the dependents are entitled to get a sum
of Rs.40,000/- each towards loss of consortium, with an
increase of 10% in every three years. Therefore,
towards loss of estate and funeral expense they are
entitled to get a sum of Rs.18,150/- each. Towards loss
of consortium, the petitioners together are entitled to
get a sum of Rs.1,93,600/- (48,400 x4).
12. Since compensation for loss of consortium
was given, further compensation for love and affection
cannot be granted, in view of the decision in New
India Assurance Company Ltd. v. Somwati and
Others, (2020)9 SCC 644. Therefore, the compensation
awarded towards love and affection is to be deducted.
13. Towards the head 'pain and sufferings', the
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Tribunal has awarded Rs.10,000/-, which according to the
learned counsel for the petitioners, is on the lower side. The
deceased died in this case on the date of the accident. In
the above circumstances, the compensation awarded
towards pain and suffering is on the lower side, and hence,
it is enhanced to Rs.25000/-.
14. No change is required, in the amounts
awarded on other heads, as the compensation awarded on
those heads appears to be just and reasonable.
15. Therefore, the petitioners are entitled to
get a total compensation of Rs.15,83,900/-, as modified
and recalculated above and given in the table below,
for easy reference.
Sl.
No Head of Claim Amount awarded Amount Awarded
. by Tribunal (in Rs.) in Appeal
(in Rs.)
1 Funeral Expenses 25,000 18150
2 Transportation to 5,000 5,000
hospital
3 Damages to Clothing 1,000 1000
4 Pain and suffering 10000 25000
5 Loss of Dependency 6,07,500 13,23,000
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6 Loss of Consortium 100000 193600
(48400*x4)
7 Loss of Love and 1,50,000 ----
Affection
8 Loss of Estate 2500 18150
Total 9,01,000/- 15,83,900/-
Enhanced 682900
16. According to the learned counsel for the
3rd respondent, the 2nd respondent had valid driving
licence to drive only light motor vehicles and no driving
licence to drive a heavy vehicle like tipper lorry. As per
Ext.B2 driving licence of the 2nd respondent, he was
authorized to drive only light vehicles, three wheeler
and motorcycle with gear. As per Ext.B1 RC particulars,
the gross weight of the Tipper lorry is 8800 Kgs, which
is beyond the purview of LMV and as such it is to be
held that, at the time of accident the 2 nd respondent
had no valid driving licence and as such the Tribunal
was justified in permitting the 3rd respondent to pay the
compensation to the petitioners and thereafter to
recover the same from the 1st respondent.
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17. In the result, these Appeals are disposed of
directing the 3rd respondent to deposit a total sum of
Rs.15,83,900/- (Rupees Fifteen Lakh Eighty Three Thousand
and Nine Hundred Only), less the amount already
deposited, if any, along with interest @ 8% per annum from
the date of the petition till realisation/deposit, with
proportionate costs, within a period of two months from
today. After payment, the 3rd respondent is permitted to
recover the compensation from the 1st respondent.
18. On depositing the aforesaid amount, the
Tribunal shall disburse the entire amount to the petitioners,
in the ratio fixed by the Tribunal, excluding court fee
payable, if any, without delay, as per rules.
SD/-
C.PRATHEEP KUMAR, JUDGE.
Raj.
