Allowed

Bimi v. Rainalad.P.Perera

Kerala HC16 Dec 2021MACA/583/2014

Case brief

AI extract

What is this about?

The Court allowed the Motor Accident Claims Appeal against the Tribunal's quantum of compensation. It held that contributory negligence was unjustified given the charge sheet evidence and modified the compensation based on the deceased's actual income returns and updated quantum for dependency and other conventional heads.

What did the court decide?

Additional compensation of Rs. 16,49,945/- with interest at 9% per annum from the date of filing of the claim petition.

Bimi Vs Rainalad.P.Perera — Motor Accident Claims | Kerala HC (2021)

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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 T.R.RAVI

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THURSDAY, THE 16^TH DAY OF DECEMBER 2021/25TH AGRAHAYANA, 1943

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MACA NO. 583 OF 2014

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AGAINST THE AWARD IN OPMV 777/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL

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APPELLANTS/APPLICANTS:

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1 BIMI W/O.MONILAL, CHAITHRAM, KP 2/527/C KARAKULAM, THIRUVANANTHAPURAM.

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2 CHITHU M.LAL S/O.MONILAL, CHAITHRAM, KP2/527/C CHAITHRAM, KP2/527/C, KARAKULAM,THIRUVANANTHAPURAM.

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3 GAYATHRI M.LAL S/O.MONILAL, CHAITHRAM KP2/527/C CHAITHRAM, KP2/527/C, KARAKULAM,THIRUVANANTHAPURAM.

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4 USHA W/O.KUMARAN, POOJAS TKM COLLEGE P.O. KARIKKODU, KOLLAM.

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BY ADVS SRI.M.R.SARIN PANICKER SRI M.R.SASITH PANICKER

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RESPONDENTS/RESPONDENTS:

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1 RAINALAD.P.PERERA S/O.JOHN DION PERIERA, THUMBA PALLITHURA P.OTHIRUVANANTHAPURAM 695 586

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2 JAYA KUMAR S/O.MURUKAN, PUTHUVAL PUTHEN VEEDU,AMBALATHINKARA, THEKKYMBHAGAM,KAZHAKUTTAM 695 586

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3 IFFCO TOKIO GENERAL INSURANCE CO.LTD PAN AFRICAN PLAZA TC NO.25/2510(6) M.G.ROAD BRANCHTHIRUVANANTHAPURAM 695 007.

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BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 4.10.2021, THE COURT ON 16.12.2021 DELIVERED THE FOLLOWING:

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M.A.C.A.No.583 of 2014

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T.R. RAVI, J.

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M.A.C.A.No.583 of 2014

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Dated this the 16^th day of December, 2021

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JUDGMENT

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The 1 st appellant's husband, while riding his motorcycle on 16.5.2008, was hit by another motorcycle driven in a rash and negligent manner by the 2 nd respondent, sustained fatal injuries to which he succumbed on the very night. The widow, two minor children and the mother of the deceased, filed the claim petition and the Tribunal granted a compensation of Rs.5,48,250/-. The appeal has been filed claiming enhanced compensation.

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Heard the counsel for the appellants and the

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respondents.

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The first contention of the counsel for the appellant is that the Tribunal went wrong in fixing 50% contributory negligence on the part of the deceased. The counsel pointed out that Ext.A7 is the charge sheet in which the negligence of the 2^nd respondent was found to have caused the accident. No rebuttal evidence has been let in. It is hence submitted that in the absence of any contra evidence sufficient to disprove the contents of Exhibit A7, the Tribunal should not have fixed contributory negligence on the part

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M.A.C.A.No.583 of 2014

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of the deceased. The contention is fully justified in the light of the dictum laid down in New India Assurance Co.Ltd. v. Pazhaniammal reported in [(2011) 1 KLT 648] . I hence find that there is no justification for reducing any amount of compensation on reason of contributory negligence.

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The next contention put forward by the counsel for the appellants is that the Tribunal went wrong in fixing the notional monthly income as Rs.5,000/-. It is in evidence that the deceased was a cine artist, who had left his job in the Government Secretariat, Thiruvananthapuram, to pursue his career in acting. Exts.A23 to A26 are the income tax returns pertaining to the deceased for the assessment years 2004-05 to 2007-08 and it can be seen that during the assessment year 2007-08, the total income as per the return is Rs.1,62,060/-. When such evidence was forthcoming, the Tribunal ought not to have resorted to fixing a notional income for the purpose of calculating the compensation payable. Since the details of the income during the financial year 2007-08 is not available, probably for the reason that the deceased met with the accident in May, 2008, the total income returned during the financial year 2006-07 is to be adopted as the yearly income of the deceased at the time of the accident, for

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M.A.C.A.No.583 of 2014

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arriving at the compensation for loss of dependency. Since the deceased was aged 40 years at the time of the accident, 40% of the income is to be added towards future prospects. [See

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National Insurance Company Ltd. v. Pranay Sethy & Ors. reported in (2017 (5) KHC 350 (SC)) ]. The Tribunal has granted 50% towards future prospects and that needs to be adjusted. The amount awarded under the head loss of dependency has to be suitably modified.

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The counsel for the appellant next submitted that the amounts awarded under the conventional heads like loss of estate and funeral expenses and under the head loss of consortium are wrong and need to be modified. The Tribunal has awarded Rs.10,000/- each towards loss of estate and funeral expenses and both need to be increased by Rs.5,000/- each. The Tribunal has awarded Rs.30,000/- towards loss of consortium and Rs.30,000/towards loss of love, affection and guidance. The four appellants including the wife are entitled to a consolidated sum of Rs.1,60,000/- (40000x4) towards loss of consortium and loss of love and affection.

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The appellants are hence entitled to additional compensation of Rs.1,00,000/- under the head loss of

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M.A.C.A.No.583 of 2014

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consortium and loss of love and affection put together, Rs.5,000/- towards funeral expenses and Rs.5,000/- towards loss of estate. The amount to be awarded under the head loss of dependency should be Rs.25,52,445/- (162060x140%x15x3/4). After deducting the sum of Rs.10,12,500/- awarded by the Tribunal, the appellants will be entitled to an additional compensation of Rs.15,39,945/- under the above head.

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7 . In the result, the appeal is allowed. The appellants are awarded additional compensation of Rs.16,49,945/(Rupees Sixteen Lakhs Forty Nine Thousand Nine Hundred and Forty

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Five only) with interest at the rate of 9% per annum from the date of filing of the claim petition (10.07.2008) till the date of realisation, with proportionate costs. The Tribunal has held that the 2 nd respondent was not holding a valid licence at the time of the accident and that since there is a violation of policy condition, the 3 rd respondent Insurance Company is entitled to pay the amount of compensation and recover the same from the 1 st respondent. The 3 rd respondent Insurance Company will be entitled to enforce the above right of recovery, with regard to the additional compensation awarded in this appeal. The 3 rd respondent insurer shall deposit the additional compensation

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M.A.C.A.No.583 of 2014

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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, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law.

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Sd/-

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T.R. RAVI JUDGE

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dsn

Bimi v. Rainalad.P.Perera

Case brief

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Bimi v. Rainalad.P.Perera

Case brief

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