Jincy, Vs Tony Jose

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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 ZIYAD RAHMAN A.A.

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TUESDAY, THE 6^TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945

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MACA NO. 2992 OF 2019

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AGAINST THE ORDER/JUDGMENT OPMV 440/2016 OF MOTOR ACCIDENT

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CLAIMS TRIBUNAL PALA

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APPELLANTS/PETITIONERS:

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1 JINCY, AGED 33 YEARS, W/O.LATE DENNIS, MANJITHARA HOUSE, KOTHAVARA KARA, THALAYAZHAM VILLAGE.

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2 BENNYMON DENNIS, S/O. LATE DENNIS, MANJITHARA HOUSE, KOTHAVARA KARA, THALAYAZHAM VILLAGE. 3 AUGUSTINE (DIED), S/O.SHOURI, MANJITHARA (H), KOTHAVARA KARA, THALAYAZHAM VILLAGE. 4 LILLYKUTTY, W/O.AUGUSTINE, MANJITHARA (H), KOTHAVARA KARA, THALAYAZHAM VILLAGE. (APPELLANT NO.3 IS DEAD AND THE 2ND AND 4TH APPELLANTS ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 3RD APPELLANT, AS PER ORDER DTD 11.12.2023 IN IA.NO.2/2023) BY ADVS. MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE

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RESPONDENTS/RESPONDENTS:

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1 TONY JOSE, S/O.JOSE, KALPAKKASSERIL HOUSE, THALAYAZHAM P.O, VAIKOM, KOTTAYAM 686 607.

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2 RONI JOSE, S/O.JOSE, KALPAKLKASSERIL HOUSE, THALAYAZHAM P.O, VAIKOM, KOTTAYAM 686 607.

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3 THE MANAGER, UNITED INDIA INSURANCE CO.LTD, DAIVASAHAYAM BUILDINGS, PONKUNNAM P.O, KOTTAYAM DISTRICT 686 001. BY ADV.P.K.ManojKumar

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 2992 OF 2019

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2

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JUDGMENT

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The appellants are the petitioners in OP(MV) No.440 of 2016 on the files of the Motor Accidents Claims Tribunal, Pala. The said claim petition was submitted by them, seeking compensation for the death of one Dennis, due to the injuries sustained in a motor accident that occurred on 14.05.2016.

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The accident occurred when he was knocked down by a Scorpio Car bearing registration No. KL-40-4500. The deceased was the husband of the 1^st appellant, father of the 2^nd appellant and son of the appellants 3 and 4. The deceased was aged 37 years at the time of the accident and was working as a mason at the relevant time. The monthly income claimed was Rs.20,000/-. The 1^st respondent was the driver of the said vehicle, whereas the 2^nd and 3^rd respondent were the owner and the insurer of the said vehicle. The claim petition is submitted in such circumstances.

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The respondents have filed written statements admitting the accident but denying the negligence on the part of the 1^st respondent. The 3^rd respondent, in their written statement, admitted the coverage of the policy, but they disputed the quantum of compensation.

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To substantiate the contentions, the appellants examined PWs 1 and 2, and as documentary evidence, Ext.A1 to A9 were marked. No evidence was adduced by the respondents.

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MACA NO. 2992 OF 2019

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3

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After the trial, the Tribunal found that the accident occurred due to negligence on the part of the 1^st respondent in driving the vehicle and being the insurer of the said vehicle; the 3^rd respondent was held liable to pay the compensation. The quantum of compensation was fixed at Rs.20,15,000/-, and the said amount was directed to be deposited with interest at the rate of 7% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation.

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Heard Sri.Mathew John, learned counsel for the appellants and Sri.P.K.Manoj Kumar, learned counsel for the 3^rd respondent/insurer.

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The only question that arises for consideration is whether the amount awarded by the Tribunal is reasonable or not. After perusing the records, I find that the amount awarded by the Tribunal towards loss of dependency appears to be on the lower side. This is particularly because the monthly income fixed by the Tribunal for assessing the compensation was Rs.9,000/-, which was on the lower side. It is to be noted that, if the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance

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MACA NO. 2992 OF 2019

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4

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Insurance Co. Ltd.[2011 (13) SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735] is adopted, even for an ordinary worker without any skills, the monthly income can be fixed at Rs.10,500/- for the year 2016. In this case, there is no serious dispute as to the avocation of the appellant as a Mason, which is a skilled employment. Thus, a slightly higher amount can be taken, and I fix it as Rs.11,500/-. As the deceased was aged 37 years at the time of the accident, an addition of 40% is to be made towards future prospects. The multiplier applicable is 15 and since the appellant left behind four dependents, ¼ of the income should be deducted towards personal expenses. Thus, while re-assessing the compensation for loss of dependency with the above criteria, the amount would come to Rs.21,73,500/- [(11500+40%)x12x15x3/4]. The amount already awarded by the Tribunal is Rs.18,22,500/- and the additional amount would come to Rs.3,51,000/-.

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When moving on to the other heads, it can be seen that eventhough the amount awarded by the Tribunal towards funeral expenses was Rs.25,000/-, which was in excess by Rs.10,000/-, the Tribunal awarded only Rs.5,000/- under the head of loss of estate, which was lesser by Rs.10,000/-. Therefore, I do not find any necessity for interference when compensation under both heads is taken together. As regards the compensation for

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MACA NO. 2992 OF 2019

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5 loss of consortium also, it is seen that the Tribunal awarded Rs.1,00,000/- for loss of consortium and a further sum of Rs.60,000/- for loss of love and affection, which takes care of the actual amount payable as loss of consortium in the light of Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC) and United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760] . Therefore, no modification is required in that head as well. Amounts awarded under other heads are reasonable, and I do not find any scope for interference.

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In the result, this appeal is allowed by modifying the award passed by the Motor Accidents Claims Tribunal, Pala in O.P(MV).No.440 of 2016 by granting additional compensation of Rs.3,51,000/- with interest at the rate of 7.5% per annum from the date of petition till realization, which shall be deposited by the 3rd respondent within a period of three months from the date of receipt of a copy of this judgment. It is further ordered that the claimants shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above within a period of one month from the date of receipt of a copy of this judgment. In case they fail to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. It is

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MACA NO. 2992 OF 2019

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6 further clarified that, as the 3^rd appellant died during the pendency of the appeal and the 2^nd and 4^th appellants are the legal heirs of the deceased, the share in the compensation of the 3^rd appellant shall be released to the 2^nd and 4^th respondents equally. As there was delay of 431 days in filing the appeal, the 3^rd respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

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sms/DG/8.2.24

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MACA NO. 2992 OF 2019

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7

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APPENDIX OF MACA 2992/2019

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PETITIONER ANNEXURES

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Annexure A CERTIFIED COPY OF THE DISABILITY CERTIFICATE BY THE COMMUNITY HEALTH CENTRE ,VAIKOM DATED 24.06.2019

Jincy, v. Tony Jose

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Jincy, v. Tony Jose

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