Partly allowed

Jeena Joshy and Others v. Kailasan @ Sunil and Others

Kerala HC8 Jun 2011MACA/903/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Motor Accidents Claims Tribunal's award. The Court enhanced the dependency loss compensation from ₹3,20,000 to ₹4,99,200 based on a revised income assessment and dependent count, totaling an extra ₹1,79,200, and increased the interest rate from 7% to 7.5%. The insurance company was directed to deposit the amount.

What did the court decide?

Additional compensation of ₹1,79,200 granted; interest rate enhanced to 7.5% per annum; insurer directed to deposit the enhanced amount.

Jeena Joshy and Others Vs Kailasan @ Sunil and Others — Motor Accident Claims | Kerala HC (2011)

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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 8TH JUNE 2011 / 18TH JYAISHTA 1933

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MACA.No. 903 of 2010() ---------------------------------OP(MV)NO .52/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA

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APPELLANT(S): PETITIONERS IN OPMV

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1. JEENA JOSHY,W/O.LATE JOSHY, PAYYAPILLY HOUSE, NEAR GOVT.HIGH SCHOOL, MALA P.O,THRISSUR DISTRICT.

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2. JEVIN JOSHY, MINOR,AGED 15 YEARS, S/O.LATE JOSHY,PAYYAPILLY HOUSE, NEAR GOVT. HIGH SCHOOL,MALA P.O,THRISSUR DISTRICT,REPRESENTED BY GUARDIAN -NEXT FRIEND MOTHER IST APPELLANT.

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3. JOMEL JOSHY,MINOR, AGED 11 YEARS, S/O.LATE JOSHY,PAYYAPILLY HOUSE, NEAR GOVT. HIGH SCHOOL,MALA P.O,THRISSUR DISTRICT, REPRESENTED BY GUARDIAN -NEXT FRIEND MOTHER IST APPELLANT.

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4. JEWEL JOSHY,MINOR, AGED 8 YEARS, S/O.LATE JOSHY,PAYYAPILLY HOUSE, NEAR GOVT. HIGH SCHOOL,MALA P.O,THRISSUR DISTRICT,REPRESENTED BY GUARDIAN -NEXT FRIEND MOTHER IST APPELLANT.

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5. MARY AUGUSTINE, W/O.LATE AUGUSTINE, PAYYAPILLY HOUSE, NEAR GOVT.HIGH SCHOOL, MALA P.O,THRISSUR DISTRICT.

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BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH

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RESPONDENT(S): RESPONDENTS

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--------------------------------------------------

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1. KAILASAN @ SUNIL,S/O.NIKATHIL KARTHIKEYAN, PERUPADANNA, N.PARAVUR, ERNAKULAM DISTRICT.

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2. O.N.RADHAKRISHNAN, ORAVANTHURUTHU, MUNDIYATH THOPE,CHENDAMANGALAM, N.PARAVUR, ERNAKULAM DISTRICT.

2/-

sts

-2-

M.A.C.A.NO.903/2010

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3. UNITED INDIA INSURANCE CO.LTD, BRANCH: NORTH PARAVUR.

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4. MR.ABILASH, S/O. A.C.UTHAMAN, ENNAKULATHIL HOUSE, EZHIKKARA VILLAGE,

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PERUMBADANNA, NORTH PARAVUR, ERNAKULAM DISTRICT.

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R1 BY ADV. SRI.N.T.NANDAKUMAR (PARAVUR) R2 BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) R3 BY ADV. SMT.S.JAYASREE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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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. 903 of 2010

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

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Dated this the 8^th day of June, 2011

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JUDGMENT

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Barkath Ali, J.

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Appellants are the claimants in O.P.(MV) No.52/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. They are the husband, children and mother of deceased Joshy who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated April 4, 2009 awarding a compensation of ` 3,79,000/- for the loss caused to them on account of the death of Joshy in that accident.

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The accident occurred on July 31, 2004 at Ashtamichira. Scooter bearing registration No. KL-8/Y 6983 ridden by the deceased collided head on with a tempo trax bearing registration No.KEE 8290, driven by the first respondent. Deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. The claimants filed the O.P.

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MACA 903/2010 2

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before the Tribunal claiming a compensation of ` 10,00,000/- against respondents 1 to 3, the driver, owner and insurer of the offending tempo trax

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The first respondent though entered appearance did not file any written statement before the Tribunal. The second respondent filed a written statement stating that he had sold the vehicle to one Abilash. The third respondent filed a written statement admitting the policy. The fourth respondent, the alleged present owner of the offending tempo trax, remained absent before the Tribunal. Exts. A1 to A5 were marked on the side of the claimants. Ext.B1 was marked on the side of the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to negligence of the first respondent and awarded a compensation of ` 3,79,000/- with interest @ 7% per annum from the date of petition till realization and proportionate cost. The claimants have come up in appeal challenging the quantum of compensation awarded by the Tribunal.

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MACA 903/2010

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Heard the counsel for the appellants/claimants and the counsel for the third respondent/Insurance Company.

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The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the first respondent, driver of the offending vehicle, and that the deceased died as a result of the injuries sustained in the accident are not challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimants are entitled to any enhanced compensation.

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The Tribunal awarded a total compensation of ` 3,79,000/-. Break up of the compensation awarded is as

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under:-

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Funeral expenses	:	` 4,000
Pain and suffering	:	` 5,000
Loss of love and affection	:	` 25,000
Loss of consortium	:	` 25,000
Loss of dependency	:	` 3,20,000
		------------------
Total	:	` 3,79,000 ========

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The counsel for the appellants sought enhancement

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of compensation awarded by the Tribunal for the loss of

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MACA 903/2010 4

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dependency and on other heads.

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The Tribunal took the monthly income of the deceased as 2,500/-, which comes to 30,000/- per annum and after deducting 1/3^rd for his personal expenses balance amount of 20,000/- was taken as his annual contribution to his family. The Tribunal adopted multiplier of 16 and awarded a compensation of 3,20,000/- for the loss of dependency.

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The deceased was a Hotel Manager earning 8,000/- per month, according to the claimants. Taking into consideration the above aspect, we feel that the monthly income of the deceased can reasonably be fixed at 3,250/-. The first claimant widow was aged 36 at the time of the accident and claimants 2 to 4 were minors and fifth claimant is the aged mother of the deceased. Taking into consideration the fact that there are five dependents of the deceased, in the light of the principles laid down in Sarala Varma V. Delhi Transport Corporation (AIR 2009 SC 3104) only 1/5^th need be deducted out of the income for the

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MACA 903/2010 5

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personal expenses of the deceased. Thus balance amount of 31,200/- can be taken as his annual contribution to his family. Multiplier adopted by the Tribunal as 16 appears to be reasonable. Thus, calculated for the loss of dependency, the claimants are entitled to a compensation of 4,99,200/-. Thus, the claimants are entitled an additional compensation of ` 1,79,200/- on this count.

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The Tribunal awarded interest only @ 7% per annum, which appears to be very low. The claimants are entitled to interest @ 7.5% per annum for the compensation already awarded and also for the enhanced compensation. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore,we are not disturbing the same. Regarding the apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand.

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In the result, the claimants are found entitled to an additional compensation of ` 1,79,200/-. They are entitled to interest @ 7.5% p.a. for the compensation

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MACA 903/2010 6

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already awarded and also for the enhanced compensation from the date of petition till realization. They are also entitled to proportionate costs. The third respondent being the insurer of the offending vehicle 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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The appeal is disposed of as found above.

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A.K.BASHEER, JUDGE.

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P.Q.BARKATH ALI, JUDGE.

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mn.

Jeena Joshy and Others v. Kailasan @ Sunil and Others

Case brief

What is this about?

What did the court decide?

Jeena Joshy and Others v. Kailasan @ Sunil and Others

Case brief

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