Ammini Gopalan and K. R. Gopal (Appellants) v. K. Gangadharan, P. Sajeesh and The Branch Manager, New India Assurance Co. Ltd. (Respondents)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 3[RD] DAY OF JANUARY 2024 / 13TH POUSHA, 1945 ``` ## **`MACA NO. 1345 OF 2012`** ## **`AGAINST THE AWARD DATED 01.10.2011 IN OP(MV) 409/2008 OF MOTOR`** ## **`ACCIDENT CLAIMS TRIBUNAL, KASARAGOD`** ## **`APPELLANTS/APPELLANTS:`** ``` 1AMMINI GOPALAN KALLARACKA PARAMBIL HOUSE, CHITTARICKAL P.O.,KASARAGOD DIST. 2K.R. GOPALAN -DO- BY ADV SRI.SUBHASH CYRIAC ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.GANGADHARAN THANNOTH HOUSE, P.O.RAENESHWAR, MAKKI,CHITTARI VILLAGE, KASARAGODE DIST. PIN-671361 2P.SAJEESH S/O.JANARDHAN, PALERI VEEDU, ETTUKUDKA, KANKOLE P.O., PAYYANNUR, KANNUR DIST. PIN-670141 3THE BRANCH MANAGER NEW INDIA ASSURANCE CO-LTD, GOKUL BUILDING, M.G.ROAD, KASARAGOD, PIN -671121 ``` ``` BY ADVS. SRI.P.K.BABU ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1345 OF 2012 ``` ``` 2 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.409/2008 on the files of the Motor Accident Claims Tribunal, Kasaragod. The said claim petition was submitted to them seeking compensation for the death of their son named Anish Gopalan due to the injuries sustained in a motor accident that occurred on 18.01.2008. 2. According to the appellants, the accident occurred when the motorcycle ridden by the deceased, along with his friends, was hit by a tempo van bearing Registration No.KL 13 L 5568 came from the opposite direction. Due to the impact of the hit, he sustained serious injuries and was taken to Manzoor Hospital, Kanhangad, from where he was referred to a hospital in Mangalore. While undergoing treatment, he succumbed to the injuries. The deceased was a Guest Lecturer with a monthly income of Rs.18,000/- and he was 27 years old at the time of the death. The claim petition was submitted in such circumstances. 3. The owner and driver of the vehicle did not contest the matter. The 3rd respondent, the insurer of the tempo van, filed a ``` MACA NO. 1345 OF 2012 ``` ``` 3 ``` written statement admitting the coverage of the policy. However, they disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were also disputed by them. 4. The evidence in this case consists of Exts.A1 to A9 from the side of the appellants, and no evidence was adduced from the side of respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the tempo van and being the insurer of the said vehicle, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,87,000/- and the said amount was directed to be deposited with interest @ 8% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.Subhash Syriac, learned counsel appearing for the appellants and Sri.P.K. Babu, learned counsel appearing for the 3[rd] respondent. 6. The only dispute in this case relates to the quantum of ``` MACA NO. 1345 OF 2012 ``` ``` 4 ``` compensation. It was contended that the Tribunal awarded a meagre amount under the head of loss of dependency. Upon perusal of the records, I find some force in the said contention. It is to be noted that the Tribunal took the monthly income as Rs.5,000/- which appears to be on the lower side. Besides, the multiplier applied by the Tribunal was that of the age of the dependent and not that of the deceased, which is also against the said settled position of law as held in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. Similarly, no addition towards future prospects were also made and this is also not in tune with the principles laid down by the Hon’ble Supreme Court in **Pranay Sethi’s** case. 7. As far as the monthly income is concerned, the specific case of the appellants is that the deceased was working as a Guest Lecturer and they placed reliance upon Exts.A6, A7 and A8 to substantiate the same. Ext.A6 was an order issued by the Principal Government College, Kasargode, as per which he was engaged as a Guest Lecturer in the Department of Hindi up to 31.03.2006. The ``` MACA NO. 1345 OF 2012 ``` ``` 5 ``` monthly remuneration was Rs.6,000/-. Ext.A7 would indicate that he was employed as the Teacher in Higher Secondary Classes for a period of five months on daily wages by St.Thomas Higher Secondary School, Thomapuram, Chittarikkal and Ext.A8 indicates that he was engaged as Guest Lecturer in Hindi for the period from 01.08.2006 to 13.12.2006 in Government Higher Secondary School, Kamballur. Ext.A9 was a certificate issued by the Registrar of Kannur University, which would indicate that, he passed PhD. preliminary qualifying examination. The aforesaid documents would clearly indicate the educational qualification of the petitioner as well as his engagement as Guest Lecturer in various establishment at various spells. In none of the documents except Ext A6, there was no mention about the month income. However, the aforesaid documents would make it clear that, the deceased was highly educated and capable of earning a decent livelihood. Despite the same, the Tribunal fixed the monthly income as Rs.5,000/which appears to be on the lower side. In such circumstances taking note of the educational qualification and the experience he gained ``` MACA NO. 1345 OF 2012 ``` ``` 6 ``` on getting appointed as Guest Lecturers in various establishments, at various point of times, I deem it appropriate to fix the monthly income as Rs.13,000/- in this case. 8. The next aspect relates to the addition to be made towards future prospects. As the deceased was 27 years of age at the accident, an addition of 40% has to be made towards future prospects. Similarly, in the light of **Sarla Verma & Ors. v. Delhi Transport** Corporation [(2009) 6 SCC 121] and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] the multiplier to be applied is the one that is applicable to the age of the deceased and not the with respect to the age of the dependents. Therefore, as the deceased was aged 27, the proper multiplier that should have been applied was 17. Thus, when the compensation for loss of dependency is reassessed with the above-revised criteria, it would come to Rs.18,56,400/- [(13,000 + 40%) x 12 x 17 x ½]. The amount already awarded by the Tribunal under the said head is Rs.2,40,000/- and thus the additional amount would come to Rs.16,16,400/-. ``` MACA NO. 1345 OF 2012 ``` ``` 7 ``` 9. The amounts awarded by the Tribunal towards funeral expenses as well as loss of estate were also on the lower side. It is to be noted that the amount awarded under the said heads were Rs.10,000/- each, whereas in the light of in the light of **Pranay Sethi** (supra) the proper amount should be Rs.15,000/- each. Therefore, a further sum of Rs.5,000/- each is awarded under both these heads. The next head which requires interference is the loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram** [(2018) 18 SCC 130] and **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760] the appellants being the parents of the deceased are entitled for compensation for loss of consortium @ Rs.40,000/- each. Thus, the amount is to be fixed as Rs.80,000/-. However, the learned counsel for the insurance company would point out that the Tribunal has awarded an amount of Rs.10,000/under the head of love and affection which is not warranted when compensation for loss of consortium is awarded. The said contention is to be accepted in the light of the observations in ``` MACA NO. 1345 OF 2012 ``` ``` 8 ``` **Satinder Kaur** (cited supra), and hence the amount of Rs.10,000/awarded towards loss of love and affection is adjusted in the additional amount awarded towards loss of consortium. Therefore, the additional amount under the head of loss of consortium would come to Rs.70,000/-. 10. The learned counsel for the appellants further points out that, the amount awarded under the head of transportation expenses was only Rs.1,000/- which is inadequate. It was pointed out that, after the accident, the deceased was taken to a hospital in Mangalore, and after his death, his body was brought back from Mangalore. In such circumstances, I deem it appropriate to grant a further sum of Rs.1,000/- under the said head. Thus, the total additional compensation receivable by the appellants is determined as Rs.16,97,400/- (16,16,400 + 5,000 + 5,000 + 70,000 + 1,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 01.10.2011 in O.P.(M.V.) No.409/2008 passed by the Motor Accident Claims Tribunal, Kasaragod is hereby modified by granting an additional ``` MACA NO. 1345 OF 2012 ``` ``` 9 ``` compensation for Rs.16,97,400/- (Rupees sixteen lakhs ninety seven thousand and four hundred only). The 3[rd] respondent Insurance Company shall deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs