Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 MACA NO. 935 OF 2016 AGAINST THE AWARD IN OPMV 81/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD, PALAKKAD APPELLANTS/PETITIONERS: 1 FATHIMA,W/O BASHA,AGED 52 YEARS KATTAKKALAM VEEDU,CHULLIMADA,KANJIKODE, PALAKKAD. 2 RAFIYA, AGED 32 YEARS W/O.KASIM,KATTAKKALAM VEEDU,CHULLIMADA, KANJIKODE, PALAKKAD. BY ADV SRI.BINOY VASUDEVAN RESPONDENT/S:
1 AJITHKUMAR, AGED 34 YEARS S/O.BALAN,MANGALATHU VEEDU, MALAYATTOOR POST, KALADI,ERNAKULAM DISTRICT. 2 SHIJU.K.S, AGED 36 YEARS S/O.SUKUMARAN,KIZHAKKAPURATHU KUDI VEEDU, CHAKKUKETTIMALA,MALAYATTOOR POST, KALADI, ERNAKULAM DISTRICT. 3 THE NEW INDIA INSURANCE CO.LTD REPRESENTED BY BRANCH MANAGER, KALAMASSERY BRANCH OFFICE, PATHICHERIL GARDENTS,CHANGAMPUZHA NAGAR POST, COCHIN,ERNAKULAM. 4 RAMACHANDRAN.V.S ELAMAKKARA, KOCHI,ERNAKULAM DISTRICT. BY ADVS. JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 935 OF 2016 ..2..
JUDGMENT
The claimants in O.P.(MV)No. 81/2011 on the files of the Motor Accidents Claims Tribunal, Palakkad has preferred
this appeal, aggrieved by the amount awarded as compensation for the death of their mother, 70 year old Sulekha, in a motor accident. The claimants are the daughters of deceased Sulekha. Sulekha sustained injuries when she was hit by a car bearing Registration No.KL- 07/BD/3085, driven by the 2nd respondent and owned by the 1st respondent. The 3rd respondent is the insurer of the said vehicle. The accident had happened on 15.06.2010 at 12.15 p.m., when she was walking through the mud road of Palakkad-Coimbatore National Highway 47. Though she was taken to the District Hospital, Palakkad, she succumbed to the injuries at the hospital. The claimants filed a claim petition under Section 166 of the Motor Vehicles Act, claiming an amount of Rs.6,46,000/-, which was limited to
MACA NO. 935 OF 2016 ..3.. Rs.5,00,000/-. Respondents 1 and 2 remained ex parte in the proceedings. Exts.A1 to A11 were marked from the side of the claimants.
2. The Tribunal found that the accident happened due
to the negligent driving of the vehicle by the 2 nd respondent. The Tribunal further found that the vehicle was validly insured with the 3rd respondent on the date of accident. A total amount of Rs.1,20,000/- with 9% interest from the date of petition was awarded as compensation to the claimants. According to the appellants/claimants, the amount awarded under various heads are not adequate. They prayed for enhancement of the compensation under various heads.
3. I have heard Sri.Binoy Vasudevan, the learned Counsel for the appellants and Sri.John Joseph Vettikad, the learned Standing Counsel for the 3 rd respondent Insurance Company. MACA NO. 935 OF 2016 ..4..
4. According to the appellants, the Tribunal went wrong
in taking Rs.2,000/- as monthly income/notional income of the deceased for the purpose of calculating loss of dependence. The deceased was a manual labourer and going by the decision reported in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236 : AIR 2011 SC 2951], the notional income of a manual labourer has to be taken as Rs.4,500/-. I find force in the submission made by the learned Counsel for the appellant. The notional income/ monthly income of the deceased has to be taken as Rs.4,500/- and therefore, I have re-fixed the compensation under the head loss of dependency as Rs.1,80,000/- [4500x12x5x2/3].
5. Under the head funeral expenses, the Tribunal has
awarded Rs.25,000/-. Going by the principles laid down in National Insurance Company Limited v. Pranay Sethi and Ors. [(2017) 16 SCC 680], the appellants are entitled MACA NO. 935 OF 2016 ..5.. only to Rs.15,000/- for funeral expenses. Therefore, I re-fix the funeral expenses as Rs.15,000/-.
6. Under the head loss of consortium, the appellants are
entitled to Rs.80,000/- [40,000x2]. However, the Tribunal has not awarded any amount under this head. The Tribunal has awarded Rs.10,000/- towards love and affection. Since, I have re-fixed Rs.80,000/- under the head loss of consortium, the amount awarded under the head loss of love and affection has to be deducted from the head loss of love and affection. Thus, the amount will be Rs.70,000/- (Rs.80,000- Rs.10,000/-).
7. Towards loss of estate, the Tribunal has awarded
Rs.5,000/-. The appellants are entitled for an amount of Rs.15,000/- under this head as per the decision in Pranay Sethi (supra), I re-fix the amount under the head loss of estate as Rs.15,000/- and an additional amount of Rs.10,000/- is awarded [15,000-5000]. MACA NO. 935 OF 2016 ..6..
8. Thus, the appellants are entitled to get an additional compensation of Rs.1,55,000/- [2,75,000-1,20,000] (Rupees one lakh fifty five thousand only) as shown below: Sl. Head of claim Amount Amount modified by No. awarded by the this Court (Rs.) Tribunal (Rs.)
1. Loss of dependency 80,000 1,80,000
2. Funeral expenses 25,000 15,000
3. Loss of consortium Nil 70,000
4. Loss of love and 10,000 Nil affection
5. Loss of estate 5,000 10,000 Total 1,20,000 2,75,000 In the result, this appeal is allowed in part and the
appellants are awarded an enhanced compensation of Rs.1,55,000/- (Rupees one lakh fifty five thousand only) with interest at the rate of 9% per annum from the date of filing of the claim petition till realisation, with proportionate MACA NO. 935 OF 2016 ..7.. costs. The 3rd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this
judgment.
Sd/- MURALI PURUSHOTHAMAN JUDGE SB