Appu vs Saludheen - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 30TH DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 O.P.(MV) NO.264/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD, DATED 12.08.2013. APPELLANTS/PETITIONERS: 1 APPU,AGED 59 YEARS S/O. VELAYUDHAN, PAZHATHARA HOUSE, CHERAKKODE, CHERAMANGALAM, MELARCODE, PALAKKAD DISTRICT. 2 AMBUJAKSHI,AGED 54 YEARS, W/O. APPU, PAZHATHARA HOUSE, CHERAKKODE, CHERAMANGALAM, MELARCODE, PALAKKAD DISTRICT. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENTS/RESPONDENTS:

1 SALUDHEEN, S/O. CHELLAPPA ROWTHER, 5/93, A.V.C. MANZIL, KUNISSERY, PALAKKAD-678 681, (OWNER OF BUS BEARING REG. NO. KL-9/K-9249) 2 GOPALAKRISHNAN, S/O. THANKAPPAN, NEMMARA, PALAKKAD-678 508, (DRIVER OF BUS BEARING REG. NO. KL-9/K-9249) 3 ORIENTAL INSURANCE CO. LTD., PALAKKAD-678 001. (INSURER OF BUS BEARING REG. NO.KL-9/K-9249) BY ADVS.SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION

ON 30.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-

JUDGMENT

The appellants are the petitioners in O.P.(MV) No.264 of 2010 on the file of the Motor Accidents Claims Tribunal, Palakkad. The claim for compensation was filed for the death of their son who was aged 26 years old at the time of accident.

2. On 25.11.2009 at 4.30 p.m., the son of the

petitioners met with an accident while he was travelling in a motorcycle and hit against the stage carriage. He died in the accident. The accident happened due to the rash and negligent driving of the driver of the stage carriage. Hence, the application was filed claiming compensation.

3. The 1st and 2nd respondents remained ex-parte. The

3rd respondent admitted the insurance policy, but disputed the rash and negligent driving of the driver of the stage carriage. The Tribunal found that the accident happened due to the negligent driving of the driver of the stage carriage. Hence the compensation was worked out. The Tribunal -3- awarded a compensation of Rs.4,96,507/- with interest at the rate of 9% from the date of petition.

4. The counsel for the petitioners submitted that the deceased was working as a Spray Painter in a private firm earning a monthly income of Rs.8,000/- per month. To prove

the monthly income, he has produced Ext.A11 salary certificate and PW1 was examined to prove the certificate who was the manager of the firm. But the Tribunal without looking into the salary certificate and the deposition of PW1 assumed an average income of Rs.3,500/- per month and calculated the compensation. When a salary certificate produced is examined by a person who has issued the same, the Tribunal ought to have accepted it and fixed the monthly income of the deceased as Rs.8,000/-. Even going by the dictum laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the notional income of a coolie who met with an accident in the year 2009 is to be taken as Rs.7,000/-.

-4- Hence, I am taking the income as Rs.8,000/- per month as Ext.A11 is properly proved. The multiplier taken by the Tribunal is '13'. The Apex Court in National Insurance Co.

Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] has held

that the relevant age to be taken for calculating loss of dependency is the age of the deceased and not that of the dependents. Since the deceased was between the age group of 26-30, the multiplier has to be adopted is '17'.

5. Going by the decision reported in Pranay Sethi

(Supra), since the deceased was self-employed and below the age of 40 years, 40% has to be added as future prospects to the income. Hence the monthly income would be Rs.8,000 x 40/100= Rs.3,200/-. So, monthly income would be Rs.8,000+Rs.3,200 = Rs.11,200/-. Since the deceased was a bachelor, one-half has to be deducted towards personal expenses. Thus the dependency compensation is worked out as Rs.11,200 x 12 x 17/2 = Rs.11,42,400/-.

6. For loss of love and affection, the Tribunal awarded -5-

a sum of Rs.25,000/-. But, at the same time, loss of consortium was not awarded to the parents who are petitioners 1 and 2. In Pranay Sethi's case (supra), the petitioners being the parents are entitled Rs.40,000/- each + 10% increase would come to Rs.44,000 x 2 = Rs.88,000. When compensation for loss of consortium is awarded, no amounts under the head 'loss of love and affection' can be

granted. Hence the amount of Rs.25,000/- awarded under the head loss of love and affection, is set aside.

7. As far as 'funeral expenses' is concerned,

Rs.25,000/- was awarded by the Tribunal under the said head. The maximum that can be awarded under the head funeral expenses is Rs.15,000/- towards 10% increase which is Rs.16,500/-. The Tribunal awarded Rs.25,000/-. Hence the amount awarded is scaled down to Rs.16,500/-. Hence, the amount awarded by the Tribunal is scaled down to Rs.16,500/-

8. For 'loss of estate', only Rs.5,000/- was awarded. The amount should be awarded under the head 'loss of estate' -6- is Rs.15,000 + 10%. So the appellants are entitled to get an amount of Rs.11,500/- more under the said head.

Sl. Head of Claim                       Amt. Awarded        Amt.
No.                                      by Tribunal     Enhanced in
                                            (Rs.)        appeal (Rs.)
1    Loss of dependency                    4,09,500/-      11,42,400/-
2    Loss of consortium                      ---               88,000/-
3    Loss of estate                            5,000/-        16,500/-
4    Funeral expenses                        25,000/-          16,500/-
5    Loss of love and affection              25,000/-          -
                      Total                4,64,500/-      12,63,400/-

Amount enhanced = 12,63,400 - 4,64,500 = Rs.7,98,900/- In the result, the appeal is allowed and the appellants are entitled to an amount of Rs.7,98,900/- (Rupees seven lakh ninety eight thousand nine hundred only). The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of -7-

petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the

date of petition. It is also made clear that the appellants would not be entitled for interest for the period of delay of 98 days in filing the Appeal, as per order of this Court dated 23.8.2021 in C.M. Application No.1057 of 2014 on the enhanced compensation. sd BASANT BALAJI JUDGE bpr