Kerala High Court
Sreekumari vs Sulochana on 30 May, 2025
2025:KER:38245
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 30TH DAY OF MAY 2025 / 9TH JYAISHTA, 1947
MACA NO. 2749 OF 2022
AGAINST THE ORDER/JUDGMENT DATED 02.12.2021 IN OPMV
NO.435 OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANTS/PETITIONERS:
1 SREEKUMARI
AGED 63 YEARS
CHETTIYEZHATHU CHIRAYIL, PUNNAPRA NORTH P.O.,
PARAVOOR, ALAPPUZHA.
2 PRASANTH,
AGED 38 YEARS
CHETTIYEZHATHU CHIRAYIL, PUNNAPRA NORTH P.O.,
PARAVOOR, ALAPPUZHA.
3 SREELEKSHMI,
AGED 35 YEARS
CHETTIYEZHATHU CHIRAYIL, PUNNAPRA NORTH P.O.,
PARAVOOR, ALAPPUZHA.
BY ADVS.
SHRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.MANU SRINATH
SHRI.NIMESH THOMAS
RESPONDENTS/RESPONDENT:
1 SULOCHANA
HANUMAN PARAMBU, WEST OF KAPPAKADA BAGOM,
PUNNAPRA-688 004.
2 ARUN SULOCHANA
2/96, HANUMAN PARAMBU, PUNNAPRA P.O.,
ALAPPUZHA-688 004.
3 UNITED INDIA INSURANCE CO.LTD.,
REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE,
SARADA SHOPPING COMPLEX, MULLACKAL, ALAPPUZHA-688 001
MACA No.2749 of 2022 :2:
2025:KER:38245
BY ADV SMT.SMITHA S.PILLAI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN COME UP
FOR HEARING ON 30.05.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA No.2749 of 2022 :3:
2025:KER:38245
JUDGMENT
The petitioners in O.P.(MV).No. 435 of 2017 on the file of the Motor
Accidents Claims Tribunal, Alappuzha, have preferred this appeal
seeking enhancement of the compensation awarded by the tribunal on
account of the death of one Sasidharan Nair, who died in a motor
accident that occurred on 26.12.2016.
2. The brief facts of the case are as follows:-
On 26.12.2016, at 9.00 p.m., while Sri. Sasidharan Nair was
pedaling a bicycle through Kollam - Alappuzha NH-66 road, and when he
reached in front of Matrhubhumi Office near Thukkukulam Junction, a
motorcycle bearing registration No.KL/4/AF-586 ridden by the 1st
respondent in a rash and negligent manner, hit on the bicycle of
Sasidharan Nair. Due to the impact of the hit, Sadidharan Nair was
thrown onto the road, causing severe injuries on him. Immediately
after the accident, though the injured was rushed to the Hospital, while
undergoing treatment, he succumbed to the injuries on 08.01.2017.
3. The driver and owner of the motorcycle bearing registration
No.KL/4/AF-586 were arrayed as the 1st and 2nd respondents,
respectively, whereas, the insurer of the motorcycle was arrayed as 3rd
respondent. The 3rd respondent contested the petition by filing a written
statement mainly disputing the quantum of compensation awarded,
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despite admitting insurance coverage for the motorcycle involved in the
accident.
4. During trial, from the side of the petitioners, one witness was
examined as PW1 and Exts. A1 to A12 were marked. From the side of
the respondents, no evidence, whatsoever, was produced.
5. After trial, the tribunal came to the conclusion that the
accident occurred solely due to the rash and negligent driving of the
motorcycle bearing registration No. KL-4/AF-586 by the 1st respondent,
and being the insurer, the 3rd respondent was held liable to pay the
compensation. The compensation was quantified at Rs. 12,09,005/-,
with interest at the rate of 6.25% per annum from the date of the
petition till realisation and proportionate costs. Seeking enhancement of
the said compensation awarded by the tribunal, the petitioners have
come up with this appeal.
6. Heard learned counsel appearing for both sides.
7. The learned counsel for the appellants submitted that the
compensation awarded by the tribunal under various heads is too
meager and is not sufficient to compensate the loss suffered by the
bereaved family of the deceased. According to the counsel, the tribunal
erred in assessing the income of the deceased reasonably and
consequently awarded only a meager amount under the head of loss of
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dependency. The counsel further submitted that the deceased
underwent 30 days of inpatient treatment, and it was thereafter, he
succumbed to the injuries. However, without taking note of the said
fact, the tribunal omitted to award any amount under the head of pain
and sufferings, and the same is not justifiable. Per contra, the learned
counsel for the 3rd respondent, the insurance company, would submit
that the compensation awarded by the tribunal under each and every
head is just, fair, and reasonable, and hence warrants no interference.
8. From the rival contentions raised, it is gatherable that the main
dispute that revolves around this appeal is with respect to the quantum
of compensation awarded by the tribunal, particularly under the head of
loss of dependency. While considering the question whether any
interference is required with respect to the compensation awarded
under the head of loss of dependency, it is to be noted that, for the
purpose of determining compensation under the head of loss of
dependency, the tribunal assessed the monthly income of the deceased
at Rs. 12,000/-. In the petition, it was averred that the deceased was
a painter by profession, earning a monthly income of Rs. 20,000/- at
the time of the accident. In order to prove the occupation and income
of the deceased, the 1st petitioner herself entered into the witenss box
and deposed in tune with the averment contained in the petition
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regarding the occupation and income. Though she was subjected to
roving cross-examination, nothing was brought out to discredit her
evidence. I am not oblivious of the fact that apart from the oral
evidence of the 1st petitioner, no documentary evidence was produced
from the side of the petitioners to substantiate their contentions
regarding the occupation and income of the deceased. However, a
perusal of the FIS produced and marked in evidence as Ext. A1 shows
that the same was given by the brother of the deceased immediately
after the accident. In the FIS, it is specifically stated that the deceased,
who is none other than the brother of the first informant, was a painter
by profession. Though FIS is not a substantive piece of evidence, it is to
be noted that the provision contained under Section 166 of the Motor
Vehicles Act, being a beneficial legislation, strict rules of evidence are
not applicable. As already stated, in the FIS, it is specifically mentioned
that the deceased was a painter at the time of the accident. It strains
common sense to believe that the first informant, who is none other
than the brother of the deceased, would concoct facts immediately after
the accident to support a claim for a higher amount in a petition that
would be filed later seeking compensation for his brother's death. The
spontaneity of the statement cannot be overlooked while considering
the reliability of the statement regarding the occupation of the deceased
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contained in the FIS. Therefore, I am also concurring with the finding of
the tribunal that the petitioners succeeded in proving that the deceased
was a painter by profession at the time of the accident. Nevertheless,
there is no convincing evidence regarding the actual income of the
deceased. However, given the nature of the occupation and the year of
the accident, I am of the view that the monthly income of the deceased
can be reasonably assessed at Rs. 13,000/-.
9. As the petitioner was aged 59 years at the time of the accident,
in view of the decision in National Insurance Company Ltd. v.
Pranay Sethi [2017(4) KLT 662], an addition of 10% has to be
made to the actual income of the deceased towards his future
prospects. After making such an addition, the income of the deceased
will come to Rs. 14,300/-. As the total number of dependents is 3, 1/3rd
of the actual income has to be deducted towards his personal expenses.
After deducting the said amount, the income of the deceased will come
to Rs. 9,533/-. As the deceased was aged 59 at the time of the
accident, in view of the decision in Sarla Verma v. Delhi Transport
Corporation [2010 (2) KLT 802 (SC)], the multiplier to be reckoned
is 9. Hence, the petitioners are entitled to get an amount of
Rs. 10,29,564/- (Rs. 9,533/- x 12 x 9) under the head of loss of
dependency. Already an amount of Rs. 9,50,400/- has been awarded by
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the tribunal under the head of loss of dependency. After deducting the
said amount, the petitioners are entitled to get an amount of
Rs. 79,164/- (Rupees Seventy nine thousand one hundred and sixty
four only) as additional compensation under the said head.
10. As rightly pointed out by the learned counsel for the
appellants, this is not a case of instantaneous death. Rather, the
deceased succumbed to the injuries after 30 days of the accident while
undergoing treatment. Anyhow, the tribunal omitted to award any
amount under the head of pain and sufferings. The pain and sufferings
endured by the deceased prior to his death ought not have been
overlooked by the tribunal while awarding compensation under the said
head. Therefore, I am of the view that an amount of Rs. 20,000/-
(Rupees Twenty Thousand only) is to be awarded under the head of pain
and sufferings as well.
11. The compensation awarded by the Tribunal under other
heads appears to be reasonable and justifiable, and hence, no
interference is warranted. Resultantly, an amount of Rs. 99,164/-
(Rs. 79,164/- + Rs. 20,000/-) has to be added towards the total
compensation awarded by the tribunal.
In the light of the aforesaid observations and findings, the
appeal is allowed by enhancing the compensation by a further amount
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of Rs. 99,164/- (Rupees Ninety nine thousand one hundred and sixty
four only) with interest at the rate of 7.5% per annum on the enhanced
compensation from the date of claim petition till the date of deposit.
The 3rd respondent insurance company, is ordered to deposit the
enhanced compensation with interest and proportionate costs before the
tribunal within a period of three months from the date of this judgment.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
