Partly allowed

Elsamma v. K.J.Joseph

Kerala HC16 Jun 2010MACA/1089/2004

Case brief

AI extract

What is this about?

The Court allowed the appeal against the Tribunal's award in a motor accident claim. It enhanced the compensation for loss of dependency by revising the deceased's income estimate and applied the predecessor to Sarala Varma for calculating the dependency share. It also increased compensation for loss of consortium and love and affection.

What did the court decide?

Award of the Tribunal modified; additional compensation of Rs. 1,87,500 granted to the appellants with interest.

Elsamma Vs K.J.Joseph — Motor Accident Claims | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

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WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932

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MACA.No. 1089 of 2004()

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----------------------OPMV.1601/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM

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APPELLANTS/PETITIONERS:

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--------------------------------------------1. ELSAMMA JOSE, W/O. JOSEPH JOSE, MOOTHEDATHU HOUSE (KUNNATHU HOUSE), THELLAKOM, KOTTAYAM.

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2. JOICE JOSE, AGED 20, D/O. JOSEPH JOSE, MOOTHEDATHU HOUSE, (KUNNATHU HOUSE), THELLAKOM, KOTTAYAM.

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3. JOBY JOSE, S/O. JOSEPH JOSE, MOOTHEDATHU HOUSE (KUNNATHU HOUSE), THELLAKOM, KOTTAYAM.

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4. JOSSY JOSE, D/O. JOSEPH JOSE, MOOTHEDATHU HOUSE (KUNNATHU HOUSE), THELLAKOM, KOTTAYAM.

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(APPELLANTS 3 & 4 BEING MINORS ARE REPRESENTED BY NEXT FRIEND AND GUARDIAN THE 1ST APPELLANT).

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BY ADV. SRI.P.RAVINDRA BABU

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RESPONDENT(S): RESPONDENTS:

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---------------------------------------------------1. K.J.JOSEPH, KUNNATHU HOUSE, THELLAKOM P.O., KOTTAYAM.

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2. THE UNITED INDIA INSURANCE CO. LTD., NEAR COLLECTORATE, KOTTAYAM.

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3. JOSEPH P.C., S/O. CHACKO, PULIMOOTTIL HOUSE, NEAR SHINY MOSIAC, CHANGANACHERRY.

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R2 BY ADV. SRI.P.JACOB MATHEW

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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A.K.BASHEER & P.Q.BARKATH ALI, JJ.

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=================

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M.A.C.A.No. 1089 of 2004

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=================

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Dated this the 16^th day of June, 2010

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JUDGMENT

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Barkath Ali, J.

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In this appeal under section 173 of the Motor Vehicles Act claimants in O.P.(MV) No.1601 of 1996 of the Motor Accidents Claims Tribunal, Kottayam challenge the judgment and award of the Tribunal dated April 16, 2003 awarding a compensation of Rs. 3,23,000/- for the loss caused to them, on account of the death of Joseph Jose in a motor accident.

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The facts leading to this appeal, in brief, are these:Deceased Joseph Jose was aged 40 at the time of the accident and was earning Rs.5,000/- per month as a Contractor. Claimants are his wife and minor children. On May 12, 1996 at 8.30 p.m. deceased Joseph Jose was travelling in a jeep bearing KL-5C/5112, driven by the third respondent. When the jeep reached at Kuzhithura, it dashed against the back side of a bullock cart. Deceased Joseph

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MACA 1089/2004 2

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Jose sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. According to the claimants, the accident occurred due to the negligence on the part of the third respondent, driver of the jeep. The first respondent as the owner, second respondent as the insurer and third respondent as the driver of the offending jeep are jointly and severally liable to pay the compensation to the claimants who are the legal heirs and dependents of the deceased.

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Respondents 1 and 3, owner and driver of the offending jeep, remained absent and were set ex parte by the Tribunal. The second, respondent insurer of the offending vehicle, filed a written statement, admitting the policy.

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PW1 was examined and Exts. A1 to A6 were marked on the side of the claimants. No evidence was adduced by contesting second respondent. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.3,23,000/- with interest at the rate of 9% p.a. from the

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MACA 1089/2004 3

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date of petition till realization and proportionate costs. The claimants have come up in appeal, challenging the quantum of compensation awarded by the Tribunal.

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Heard the learned counsel for the claimants and the learned counsel for the Insurance Company.

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The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the third respondent, driver of the offending jeep, is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation ?

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The Tribunal awarded a total compensation of Rs.3,23,000/-. Break up of the compensation awarded is as under:-

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Loss of dependency : Rs.3,00,000/Pain and suffering : Rs. 5,000/Loss of consortium, : Rs. 15,000/-. Funeral expenses : Rs. 2,000/love and affection. Transportation : Rs 1,000/-----------------Total : Rs.3,23,000/========

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MACA 1089/2004

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The learned counsel for the appellants mainly sought enhancement of compensation awarded by the Tribunal for the loss of dependency, loss of consortium and loss of love and affection.

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The Tribunal took the monthly income of the deceased as Rs.2,500/- and after deducting 1/3 for his personal expenses, took Rs.20,000/- as his annual contribution to his family and adopted a multiplier of 15 and awarded a compensation of Rs.3 lakhs for loss of dependency. As the claimant was a 'C' class Contractor, as evidenced by Ext.A1,we feel that his monthly income can reasonably estimated at Rs.3,500/-, which comes to Rs.42,000/- per annum. In the light of the principles laid down in Sarala Varma V. Delhi Transport Corporation (AIR 2009 SC 3104), as there are four dependents in this case, 1/4^th of the income can be deducted for his personal expenses. Hence, balance amount of Rs.31,500/- can be taken as his annual contribution to his family. The multiplier adopted by the Tribunal as 15 is not seriously

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MACA 1089/2004 5

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disputed. Thus, the compensation for the loss of dependency would come to Rs.4,72,500/- (Rs.31,500/- x 15). Thus, the claimants are entitled an additional compensation of Rs.1,72,500/- on this count.

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For loss of consortium and loss love and affection, the Tribunal awarded a compensation of Rs.15,000/-, which appears to be very low. Taking into consideration the age of the widow, we feel that a compensation of Rs.10,000/would be reasonable for loss of consortium. Having regard to the age of the children, we feel that a compensation of Rs.20,000/-would be reasonable for loss of love and affection. Thus, on this count, the claimants are entitled to an additional compensation of Rs.15,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, are not disturbing the same.

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In the result, the claimants are entitled to additional compensation of Rs.1,87,500/- with interest at 9% p.a. from the date of petition till realization with proportionate costs. The second respondent Insurance

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MACA 1089/2004

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Company shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimants. The award of the Tribunal is modified to the above extent.

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In the result, the appeal is disposed of as above.

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A.K.BASHEER, JUDGE.

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P.Q.BARKATH ALI, JUDGE.

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mn.

Elsamma v. K.J.Joseph

Case brief

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Elsamma v. K.J.Joseph

Case brief

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