Kerala High Court
Leela vs Bineesh on 25 February, 2025
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MACA NO.2983 OF 2014
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 25TH DAY OF FEBRUARY 2025 / 6TH PHALGUNA, 1946
MACA NO. 2983 OF 2014
AGAINST THE JUDGMENT DATED 10.03.2014 IN OPMV NO.1086 OF 2013
OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANTS/PETITIONERS:
1 LEELA
AGED 46 YEARS
W/O DAMODHARAN, RAMATHUPARAMBIL HOUSE, THIRUVALI,
NILAMBUR, MALAPPURAM.
2 DEVI
AGED 44 YEARS
W/O SREENIVASAN, POTTATHIL (H), P.O. FEROKE, WEST
NALLUR, KOZHIKODE.
3 SANTHOSH
AGED 38 YEARS
S/O SAMI, VALIYATTIL, PAZHANIKOLIL, VAZHAYOOR,
P.O. FEROKE COLLEGE, MALAPPURAM.
4 SUNIL KUMAR
AGED 35 YEARS
S/O SAMI, VALIYATTIL, PAZHANIKOLIL, VAZHAYOOR,
P.O. FEROKE COLLEGE, MALAPPURAM.
BY ADV SMT.DIVYA B.NAIR
RESPONDENTS/RESPONDENTS:
1 BINEESH
S/O SREENIVASAN, POTTATHIL (H), P.O. FEROKE, WEST
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MACA NO.2983 OF 2014
2
NALLUR, KOZHIKODE-673631.
2 SHAJI V
AGED 41 YEARS
S/O SAMI, VALIYATTIL, KOVAYIL HOSUE, SAMISADHANAM,
P.O. FEROKE COLLEGE, RAMANATTUKARA, KOZHIKODE-
673632.
3 THE NEW INDIA ASSURANCE CO. LTD.
DIVISIONAL OFFICE, SILVER PLAZA BUILDING, MAVOOR
ROAD, KOZHIKODE-673004.
BY ADV SMT.M.HEMALATHA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.02.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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3
JUDGMENT
The petitioners in O.P.(M.V.) No.1086/ 2013 on the file of the
Motor Accident Claims Tribunal, Kozhikode, are the appellants herein. (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 140 and 166 of the
Motor Vehicles Act, 1988, by the children of the deceased by name
Malukutty, who died in a motor vehicle accident that occurred on
20.03.2013. According to them, on 20.03.2013, at about 11.30 a.m., the
deceased was riding pillion on a motor cycle along the Feroke Petta-
Paruthipara road ridden by the 1st respondent. When he applied sudden
break, the deceased fell down and sustained serious injuries and she
succumbed to the injuries, on 22.03.2013.
3. The 1st respondent is the owner, the 2nd respondent is the
rider and 3rd respondent is the insurer of the offending vehicle. According to
the petitioners, the accident occurred due to the negligence of the driver of the
offending vehicle. The quantum of compensation claimed in the O.P. was
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Rs.7,87,000/-.
4. The insurance company filed a written statement,
admitting the accident as well as policy, but disputing the negligence on the
part of the driver of the offending vehicle.
5. The evidence in the case consists of the documentary
evidence Exts.A1 to A6, B1 and B2.
6. After evaluating the evidence on record, the Tribunal
found negligence on the part of the driver of the offending vehicle, awarded a
total compensation of Rs.1,68,959/- and directed the insurer to pay the same.
7. Aggrieved by the quantum of compensation awarded by
the Tribunal, the petitioners preferred this appeal.
8. Now the point that arises for consideration is the
following:
Whether the quantum of compensation awarded by the Tribunal is just
and reasonable?
9. Heard Smt. Divya B. Nair, the learned Counsel appearing
for the petitioners/appellants, and Smt. M. Hemalatha, the learned Standing
Counsel for the 3rd respondent.
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10. The Point: In this case the accident as well as valid policy
of the offending vehicle are admitted. 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 her, the deceased was working as a coolie
earning Rs.10000/- per month. The Tribunal fixed her monthly income at
Rs.4500/-.The learned counsel for the insurer would argue that the income
fixed by the tribunal is reasonable.
11. 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 2013 will come to Rs.9000/-. Since the petitioners
could not prove the job or income of the deceased, as claimed in the OP, in
the light of the dictum laid down by the Hon'ble Supreme Court in
Ramachandrappa (supra), her notional income is liable to be fixed as that of
a coolie, at Rs.9000/-.
12. On the date of accident, the deceased was aged 66 years.
Therefore, no part 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 5, as held in
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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.4,05,000/-.
13. It is argued by the learned counsel for the 3rd respondent that, all
the petitioners are major and hence, 1/2 of the income is to be deducted
towards peronal and living expenses. It is to be noted that petitioners 1 & 2
are the daughters and petitioners 3 & 4 are the sons of the deceased. On the
mere reason that they are major, it cannot be held that they are not dependents
of the deceased. Therefore, in the light of the decision in Sarla Verma
(supra), only 1/4th of the income is liable to be deducted towards personal and
living expenses.
14. The Tribunal has awarded Rs.90,000/- towards loss of estate,
Rs.10,000/- towards funeral expenses and Rs.25,000/- 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 (parents, children
and spouse) are entitled to get a sum of Rs.40,000/- each towards loss of
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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, petitioners together are entitled to get a
sum of Rs. 1,93,600/- (48,400 x 4).
15. 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.
16. Towards the head 'pain and sufferings', the 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 2 days after
the accident. In the above circumstances, I hold that the compensation
awarded towards pain and suffering is on the lower side, and hence, it is
enhanced to Rs.25000/-.
17. No change is required, in the amounts awarded on other
heads, as the compensation awarded on those heads appears to be just and
reasonable.
18. Therefore, the petitioners/ appellants are entitled to get a
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total compensation of Rs.6,93,859/-, as modified and recalculated above and
given in the table below, for easy reference.
Sl.
No Head of Claim Amount awarded by Amount Awarded
. Tribunal (in Rs.) in Appeal
(in Rs.)
1 Transport to hospital 1000 1000
2 Damage to clothings and 1000 1000
articles
3 Funeral expenses 10000 18150
4 Treatment expenses 31959 31959
5 Pain and suffering 10000 25000
6 Loss of love and 25000 -----
affection
7 Loss of estate 90000 18150
8 Loss of consortium Nil 193600
9 Loss of dependency Nil 4,05,000
Total 168959 6,93,859
Enhanced/reduced 524900
19. In the result, this Appeal is allowed in part, and the 3rd
respondent is directed to deposit a total sum of Rs.6,93,859/- (Rupees Six
Lakhs Ninety Three Thousand Eight Hundred and Fifty Nine Only), less the
amount already deposited, if any, along with interest @ 8% per annum from
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the date of the petition till realisation/deposit, excluding interest for a period
of 105 days, the period of delay in filing the appeal, with proportionate costs,
within a period of two months from today.
20. 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
Pvv
