Partly allowed

Sudhakaran v. Johnson

Kerala HC24 Aug 2017MACA/1805/2008

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court enhanced the compensation awarded by the Motor Accidents Claims Tribunal for a child. The Court applied a higher multiplier for loss of dependency, increased pain and suffering awards, and significantly raised loss of love and affection compensation.

What did the court decide?

Further sum of Rs. 1,60,000 awarded to appellants over and above the Tribunal's award, with interest.

Sudhakaran Vs Johnson — Motor Accident Claims | Kerala HC (2017)

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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 P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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THURSDAY, THE 24TH DAY OF AUGUST 2017/2ND BHADRA, 1939 MACA.No. 1805 of 2008 (A) --------------------------

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AGAINST THE AWARD DATED 06-12-2006 IN O.P.(MV) NO.2205/2001 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR.

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APPELLANTS/APPELLANTS:

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1. SUDHAKARAN.

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2. NALINI, W/O.SUDHAKARAN.

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3. SIGMA (MINOR), D/O. SUDHAKARAN.

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4. SIMIL (MINOR), S/O.SUDHAKARAN., (MINOR APPELLANTS 3 AND 4 REPRESENTED BY THEIR, GUARDIAN FATHER THE IST APPELLANT HEREIN), ALL ARE RESIDING AT MANALUMUKKIL HOUSE, CHOWANNOOR P.O., THRISSUR.

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BY ADVS.SRI.JIBU P THOMAS SRI.T.C.SURESH MENON

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RESPONDENTS/RESPONDENTS:

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1. JOHNSON,S/O.LONAPPAN, RESIDING AT PADAMADAN HOUSE, CHAKKARAPADAM, PERINJANAM,

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THRISSUR.

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2. PAULOSON, S/O. VARGHESE, RESIDING AT KURIYEDATH HOUSE, ST.GEORGE STREET, CHOWANNUR, THRISSUR

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3. THE NATIONAL INSURANCE CO.LTD BRANCH OFFICE, THRISSUR.

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R3 BY ADV. SRI.E.M.JOSEPH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

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24-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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P.N.RAVINDRAN &

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DEVAN RAMACHANDRAN,JJ.

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= = = = = = = = = = = = = = = = = M.A.C.A. No. 1805 of 2008

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

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Dated this the 24^th day of August, 2017

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J U D G M E N T

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P.N.RAVINDRAN,J

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This appeal arises from the award passed by the Motor Accidents Claims Tribunal, Thrissur, on 06.12.2006 in O.P.(MV) No.2205 of 2001. The appellants are the claimants therein. They are the parents and siblings of Sinil, a five year aged boy, who succumbed to the injuries sustained by him in a motor accident that took place on 03.05.2001. The victim along with his parents and siblings was travelling from Thrissur to Kunnamkulam, in a stage carriage, owned by the first respondent, driven by the second respondent and insured with the third respondent. On the way, at a place known as Mundur, it hit against an elephant and capsized. In that accident, many passengers including 'Sinil' sustained injuries. Sinil died on the same day, while undergoing treatment in the hospital. The appellants had in O.P.(MV) No.2205 of 2001 claimed a total sum of Rs.2,29,000/-as compensation under various heads. Before the court below, they contended that the accident took place on account of the negligence of the second respondent, the driver of the stage carriage.

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Though notice was served, the owner and driver of the stage carriage did not enter appearance with the result, they were set

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M.A.C.A. No.1805 of 2008

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ex parte. The third respondent insurer, filed a written statement admitting insurance coverage but denying the allegation of negligence against the second respondent. It also contended that the death of Sinil was not on account of the injuries sustained by him in the accident and that the compensation claimed is excessive and exorbitant.

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O.P.(MV) No.2205 of 2001 was tried and disposed of along with eight other claim petitions, which arose from the same accident. After considering the rival contentions and the evidence, oral and documentary on record, the Tribunal held that the accident took place on account of the rash and negligent driving of the driver of the stage carriage. The Tribunal further held that in that accident, Sinil sustained fatal injuries. The Tribunal thereafter proceeded to award the sum of Rs.1,82,000/- as compensation as detailed below:

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1 Expenses for transportation : Rs.1000 2 Damages to clothing and articles : Rs.1000 3 Expense for funeral : Rs.5000 4 Compensation for pain and suffering : Rs.15000 5 For loss of love and affection : Rs.10000 6 Compensation for loss of dependency : Rs.150000 Total : Rs.182000

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In view of the fact that the third respondent insurer had admitted insurance coverage and had not pleaded or proved breach of policy conditions, it was directed to pay the said sum together with

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M.A.C.A. No.1805 of 2008

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interest at the rate of 7% per annum from the date of petition (06.09.2001) till the date of payment, along with proportionate costs. The claimants have, dissatisfied with the quantum of compensation awarded by the Tribunal, filed this appeal.

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We heard Sri. A.R. Nimod, learned counsel for the appellant and Sri. E.M. Joseph, learned counsel appearing for the third respondent, insurer.

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The victim was a child aged five years. The Tribunal has awarded compensation for loss of dependency applying the Second Schedule. It has taken Rs.15,000/- as the notional annual income and the multiplier as 15. The Apex Court has in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65] held that where the age of the victim is up to 15 years, irrespective of Section 163-A or 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'), the multiplier to be applied should be the one indicated in column (6) of the table in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. [(2009) 6 SCC 121]. The Apex Court has held that this is to ensure that the claimants in such cases are not awarded lesser amounts when the application is made under Section 166 of the Act. The Apex Court has also held that in all other cases, the multiplier as indicated in column (4) of the table in Sarla Verma (supra) should be followed. In the light of the said decision, we are of the opinion that the Tribunal

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M.A.C.A. No.1805 of 2008

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should have awarded the sum of Rs.2,00,000/ (Rs.10,000/-x20) as compensation under the head loss of dependency. The Tribunal has, in the instant case, awarded only the sum of Rs.1,50,000/-. We, accordingly, award a further sum of Rs.50,000/- as compensation under the head loss of dependency.

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The impugned award discloses that the Tribunal has awarded the sum of Rs.15,000/- as compensation for pain and suffering and the sum of Rs.10,000/- as compensation for loss of love and affection. Though the victim died on the date of the accident, he did not die instantaneously. The medical records disclos that he had sustained 18 ante mortem injuries, some of which were fatal. The compensation awarded under the head pain and suffering has therefore to be suitably enhanced. Having regard to the nature and the number of injuries, we deem it appropriate to award a further sum of Rs.10,000/- as compensation for pain and suffering. We, accordingly, award a further sum of Rs.10,000/- as compensation under the head pain and suffering undergone by the victim.

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The Tribunal has awarded the sum of Rs.10,000/- as compensation to the parents and siblings of a five year old boy under the head loss of love and affection. Taking note of the decisions of the Apex Court in Amrit Bhanu Shali and others v. National Insurance Company Ltd. And others [(2012) 11 SCC 738] and

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M.A.C.A. No.1805 of 2008

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-: 5 :-

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Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC], we deem it appropriate to award a further sum of Rs.1,00,000/- under that head. The sum of Rs.10,000/- originally awarded shall be treated as the compensation awarded to siblings of the victim under the head loss of love and affection. The compensation awarded under the other heads does not in our opinion call for enhancement.

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We, accordingly, allow the appeal in part and award a further sum of Rs.1,60,000/- (Rs.50,000+Rs.10,000+Rs.1,00,000) as compensation to the appellants/claimants over and above the compensation awarded by the Tribunal. The third respondent insurer, shall deposit the said amount together with interest at the rate of 7% per annum from the date of petition till the date of deposit, within a period of three months from today. Upon such deposit, the sum of Rs.25,000/- each shall be disbursed to claimants 3 and 4 and the balance amount shall be disbursed equally to claimants 1 and 2. No costs.

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Sd/- P.N.RAVINDRAN, JUDGE

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Sd/- DEVAN RAMACHANDRAN,JUDGE

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DST

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//True copy//

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P.A. To Judge

Sudhakaran v. Johnson

Case brief

What is this about?

What did the court decide?

Sudhakaran v. Johnson

Case brief

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What did the court decide?

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