BY AD vs GEORGE CHERIAN (SR.)

THE HONOURABLE MR. JUSTICE EASWARAN S. FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 MACA NO. 2967 OF 2020 AGAINST THE AWARD DATED 20.05.2020 IN O.P.(M.V) NO.143 OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM APPELLANT/3RD RESPONDENT : THE ORIENTAL INSURANCE CO. LTD MALIACKAL GALEXY, OPP. MSM COLLEGE, KAYAMKULAM-690 502, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM SOUTH, KOCHI 18. BY ADVS. GEORGE CHERIAN (SR.) SRI.GEORGE A.CHERIAN SRI.ALEXY AUGUSTINE RESPONDENTS/PETITIONERS AND ADDITIONAL 4TH RESPONDENT : 1 2 3 DHANYA.S D/O. THANKARAJAN, OAM NIVAS, PUTHAN CHANTHA VARKALA P.O, THIRUVANANTHAPURAM, PIN 695 141, (FROM BREEZELAND, SIVA GIRI, VARKALA). SUBHADRA, W/O. THAKARAJAN, KIZHANGUVILA VADAKKATHIL, VELIYAM P.O, KOTTARAKKARA, PIN-691 540 ANEESA,D/O. SUBHADRA, KIZHANGUVILA VADAKKATHIL, VELIYAM P.O, KOTTARAKKARA, PIN-691 540 MACA No.2188 of 2021 and 2967 of 2020 4 2025:KER:28566 BY ADVS. SRI.P.N.DAMODARAN NAMBOODIRI SHRI. HRITHWIK D. NAMBOOTHIRI SHRI.VISWAJITH.V THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 28.03.2025, ALONG WITH MACA NO.2188/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.2188 of 2021 and 2967 of 2020 5 2025:KER:28566 EASWARAN S., J. -------------------------------- M.A.C.A Nos.2188 of 2021 & 2967 of 2020 ------------------------------------------ Dated this the 28th day of March, 2025 JUDGMENT The appeals arise out of the award in O.P.(M.V.) No.143 of 2017 on the files of the Motor Accidents Claims Tribunal, Kollam. M.A.C.A. No.2188 of 2021 is preferred by the claimants/legal heirs of the deceased Sri. Thankarajan who died in a motor accident on 14.8.2016 and M.A.C.A No.2967 of 2020 is preferred by the insurance company.

2. The brief facts necessary for the disposal of the appeal are as follows: On 14.8.2016, the deceased Thankarajan was travelling in a private bus bearing registration No.KL-02-R-945 from Kadappakkada to Chinnakkada through Kollam-Schencottah NH 208 and when the driver of the bus negotiated the curve in front of Jawahar Balabhavan, the victim happened to fall down on the road and sustained serious injuries. Immediately after the accident, he was taken to Sree Narayana Trust Medical Mission Sanker Shastyabdapporthi hospital, Kollam. From there, he was referred Medical College Hospital, Thiruvananthapuram, treated there and, succumbed to the injuries on 15.11.2016.

3. The legal heirs of the deceased contended that Sri. Thankarajan MACA No.2188 of 2021 and 2967 of 2020 6 2025:KER:28566 was earning a monthly income of Rs.40,000/- as a Priest at Varkala Devaswom and was also cleaner in a lorry. In support of their contentions, Exts.A1 to A18(e) documents were produced before the tribunal. No oral and documentary evidence was adduced from the side of the insurance company. The tribunal, on appreciation of the evidence, found that the claimants could not establish that the deceased was drawing a monthly income of Rs.40,000/-, proceeded to fix the income notionally at Rs.20,000/- and awarded compensation as follows: 1 2 3 4 5 6 7 8 9 10 Heads Loss of earnings Transport to hospital Extra nourishment Damage to cloth Medicine and treatment till his Bystander expense Funeral expense Compensation for pain and suffering Compensation consortium Compensation dependency Compensation for love and affection Compensation for loss of care and guidance Compensation estate Total loss of loss of loss of Amount claimed 1,20,000 10,000 5,000 2,000 6,00,000 Amount awarded 60,000 10,000 6,000 2,500 Nil 50,000 35,000 1,50,000 31,500 15,000 50,000 120000 15,00,000 15,84,079 25000 Nil 1,00,000 Nil 1,00,000 15,000 26,95,000 18,94,079

4. The insurance company contends that while granting the aforesaid compensation, the tribunal could not have granted loss of MACA No.2188 of 2021 and 2967 of 2020 7 2025:KER:28566 earnings for three months since the same itself is taken care under the head loss of dependency.

5. On the other hand, the claimants have approached this Court aggrieved by the fact that the tribunal has not granted any compensation towards medical expenses covered by Exts.A18 to A18(e). They further contended that since the deceased was aged 55 years at the time of accident the right multiplier to be applied was 11 instead of 9.

6. Heard Sri. P. N. Damodaran Namboodiri, the learned counsel appearing for the appellants/legal heirs and Sri. George A. Cherian, the learned Standing Counsel appearing for the insurance company.

7. On a consideration of the rival submissions raised across the Bar, this Court is of the view that both the appeals are liable to be allowed and a slight modification of the award passed by the tribunal is required.

8. A reading of the award passed by the tribunal shows that under the ‘head loss of earnings’, an amount of Rs.60,000/- (Rs.20,000 for three months) is granted by the tribunal. This Court finds considerable force in the submissions made by the learned counsel for the insurance company that the compensation awarded by the tribunal under the head ‘loss of earning’ is taken care under the head ‘loss of dependency’.

9. On the other hand, learned counsel appellants/claimants pointed out that since the deceased Thankarajan MACA No.2188 of 2021 and 2967 of 2020 8 2025:KER:28566 was hospitalised for three months, the tribunal was justified in granting compensation under the head loss of earnings. It is further seen that the age of the deceased was 55 years a the time of accident and, therefore, the right multiplier to be adopted by the tribunal ought to have been ‘11’ instead of ‘9’.

10. Although, the learned counsel for the insurance company pointed out that no evidence has been adduced on behalf of the claimants to prove the exact age of the deceased, this Court is of the considered view that, from the available evidence on record, the conclusion possible is that the deceased was aged 55 years at the time of accident and therefore the right multiplier to be adopted is 11 instead of 9.

11. As regards the claim for medical expenses, this Court finds that Exts.A18 to A18(e) bills produced on behalf of the claimants shows that an amount of Rs.63,459/- has been expended by the appellants for treatment. Since the insurance company has not adduced any contra evidence to disprove the claim, this Court is of the view that the tribunal ought to have accepted the same and granted the benefits.

12. On a consideration of the rival submissions, this Court is of the view that both these appeals are liable to be allowed and the award of the tribunal is to be modified as follows: a. Loss of earnings awarded by the tribunal is deleted. b. Loss of dependency is reworked at Rs.3,51,921/- MACA No.2188 of 2021 and 2967 of 2020 9 2025:KER:28566 [19,36,000–15,84,079] [22000x12x11x2/3=18,48,000) c. Medical expenses Rs.63,459/ d. Loss of estate Rs.3,000/- [18,000 -15000] e. Loss of consortium Rs.24,000/- [48,000x3 -1,20,000] f. Funeral expenses Rs.3,000/- [18,000 -15000] Accordingly, the appellants are entitled to get an amount of Rs.3,85,380/- (4,45,380-60000) (Rupees Three Lakh Eighty Five Thousand Three Hundred and Eighty only) as enhanced compensation with 8% interest per annum from the date of petition till realization with proportionate cost. The insurance company shall deposit the amount in the bank account of the appellants within a period of two months from the date of receipt of a copy of this judgment. Appeal ordered accordingly. Sd/- EASWARAN S. JUDGE NS