Kerala High Court
Jose vs K.K. Vijayan on 4 March, 2025
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MACA NO.1067 OF 2014
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946
MACA NO. 1067 OF 2014
AGAINST THE AWARD DATED IN OPMV NO.461 OF 2008 OF
ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS
TRIBUNAL ,THODUPUZHA
APPELLANTS/PETITIONERS:
1 JOSE
S/O. JOSEPH, AGED 57,ELAYAMBANICKAL HOUSE,8TH MILE
KARA, THANKAMANI VILLAGE.
2 MARY
W/O. JOSE, AGED 53 YEARS, ,ELAYAMBANICKAL
HOUSE,8TH MILE KARA, THANKAMANI VILLAGE.
BY ADVS.
SRI.C.M.TOMY
SRI.K.J.JOSEMON
SRI.MATHEW SKARIA
RESPONDENTS/RESPONDENTS:
1 K.K. VIJAYAN
S/O. KUNJUKUTTY,KALLARACKAL HOUSE, NEELOOR
KOTTAYAM DISTRICT - 686 651(DRIVER)
2 REJI
W/O. SOBY, PUTHUPARAMBIL HOUSE, KAYOOR P.O.,
BHARANANGANAM, PALA, KOTTAYAM DISTRICT - 686 651
(R.C OWNER)
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2
3 THE ORIENTAL INSURANCE COMPANY LIMITED
REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM -
686 001 (INSURER)
BY ADVS.
P.JACOB MATHEW
MATHEWS JACOB (SR.)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 04.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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3
JUDGMENT
The petitioners in O.P.(M.V.) No.461/ 2008 on the file of the Motor
Accident Claims Tribunal, Thodupuzha, 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 parents of the deceased by name Bibin, who
died in a motor vehicle accident that occurred on 30.07.2008. According to
them, on 30.07.2008, at about 3.00 p.m., while the deceased was standing by
the side of the Kattappana- Thodupuzha road, a car bearing reg.no.KL
5Q/8613 driven by the 1st respondent in a rash and negligent manner and
excessive speed, knocked down the deceased and he sustained grievous
injuries and he succumbed to the injuries on the same day.
3. The 1st respondent is the driver, the 2nd respondent is the
owner 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
limited to Rs.7,00,000/-.
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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 A7. No evidence was adduced by the respondents.
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.4,91,000/- 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 Sri.C.M.Tomy, the learned Counsel appearing for the
petitioners/appellants, and Sri.P.Jacob Mathew, the learned Standing Counsel
for the 3rd respondent.
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
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MACA NO.1067 OF 2014
fixed by the Tribunal. According to him, the deceased was working as bus
coductor, earning Rs. 7875/- per month, but the Tribunal fixed his monthly
income at Rs.5000/-.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 2008 will come to Rs.6500/-. 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), his notional income is liable to be fixed as that of
a coolie, at Rs.6500/-.
12. On the date of accident, the deceased was aged 21 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 18, as held in
Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121. Since the
deceased was a bachelor who left behind 2 dependents, towards personal and
living expense, 1/2 of the income is liable to be deducted, as held in Sarla
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Verma (supra). In the above circumstances, the loss of dependency will come
to Rs.9,82,800/-.
13. The Tribunal has awarded Rs.10,000/- towards loss of estate,
Rs.20,000/- towards funeral expenses, and Rs.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, petitioners together are entitled to get a sum of Rs.96800/-
(48,400 x 2).
14. 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.
15. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.15,000/-, which according to the learned counsel for the
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petitioners, is on the lower side. The deceased died in this case on the same.
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/-.
16. No change is required, in the amounts awarded on other
heads, as the compensation awarded on those heads appears to be just and
reasonable.
17. Therefore, the petitioners/appellants are entitled to get a
total compensation of Rs.11,46,900/-, 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 Loss of dependency 390000 9,82,800
2 Transportation expenses 5000 5000
3 Funeral expenses 20000 18150
4 Damage to clothing 1000 1000
5 Pain and suffering 15000 25000
6 Loss of love and 50000 -------
affection
7 Loss of estate 10000 18150
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8 Loss of consortium Nil 96800
Total 491000 1146900
Enhanced / reduced Rs. 655900
18. In the result, this Appeal is allowed in part, and the 3rd
respondent is directed to deposit a total sum of Rs.11,46,900/- (Rupees
Eleven Lakhs Forty Six Thousand Nine Hundred Only), less the amount
already deposited, if any, along with interest at the rate ordered by the
Tribunal from the date of the petition till realisation/deposit, with
proportionate costs, within a period of two months from today. (enhanced
compensation will carry interest @8%).
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
