Anu Emmanuel and Others v. Murugesan V. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940** ## **M.A.C.A.No.2436 of 2016** **AGAINST THE AWARD IN O.P.(M.V.)NO.404/2011 of THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL (ADDITIONAL DISTRICT JUDGE-III), THALASSERY DATED 07-05-2015** ## **APPELLANTS/PETITIONERS:** - **1 ANU EMMANUAL W/O.LATE SIBEESH SEBASTIAN, AGED 27 YEARS, HOUSE WIFE, RESIDING AT MALIAKKAL HOUSE, VATTIAMTHODE P. O., IRITTY, KANNUR DISTRICT-670705.** - **2 ALPHA SIBEESH D/O.LATE SIBEESH SEBASTIAN, AGED BELOW I YEAR, RESIDING AT MALIAKKAL HOUSE, VATTIAMTHODE P O, IRITTY, KANNUR DISTRICT-670705 MINOR REPRESENTED BY MOTHER AND NEXT FRIEND,ANU EMMANUAL** - **3 SEBASTAIN M J S/O.LATE JOSEPH, RESIDING AT MALIAKKAL HOUSE, VATTIAMTHODE P O, IRITTY, KANNUR DISTRICT-670705.** - **4 ALPHONSA SEBASTIAN W/O.SEBASTIAN M J, RESIDING AT MALIAKKAL HOUSE, VATTIAMTHODE P.O, IRITTY, KANNUR DISTRICT, PIN670705.** ## **BY ADV. SRI.SERGI JOSEPH THOMAS** ## **RESPONDENTS/RESPONDENTS:** - **1 MURUGESAN V. S/O.VENKITACHALAM, 3/26, IYYARKADU, THATHAPURAM, THRIRUCHENGOD NAMAKAL, TAMIL NADU-637211, DRIVER, TN 34/H-4722 TIPPER LORRY, LICENCE NO TN 27V, 19930000352, BADGE NO 15018, DTD 15/4/1993 TN27V.** - **2 R PALANISWAMI** **S/O.RAMASWAMI, 134, RAJENDRA NAGAR, SANKARI MAIN ROAD, TIRUCHENGODE, NAMAKAL DISTRICT, TAMIL NADU, OWNER, TN 34/H-4722, TIPPER LORRY.** **M.A.C.A.No.2436 of 2016 2** **3 NATIONAL INSURANCE COMPANY LTD 2ND FLOOR, B1-D, CHETTY STREET, OPP.BUS STAND, TIRUCHENGOD, NAMAKAL, TAMIL NADU, 637211, POLICY NO.650401/31/10/6300000775.** - **4 C V RADHAKRISHNAN S/O.VEERANNA, OLD TOWN CHELLAKKERE, CHIDRADURGA, KARNATAKA, DRIVER KA 01/F-9060 BUS LICENCE NO2689/2009, BADGE NO 6862.** - **5 THE MANAGING DIRECTOR** **KSRTC, CENTRAL OFFICE, K H ROAD, SANTHINAGAR, KARNATAKA, PIN-560027, OWNER KA 01/F-9060 BUS.** - 6 **UNITED INDIA INSURANCE CO. LTD., 19-19/1, SOUTH END ROAD, BASAVANGUDI,BANGLORE-560004,POLICY NO.070400/10/01/00002522** **BY ADVS.** - **R3 BY SRI.E.M.JOSEPH, SC** **R6 BY SRI.P.K.MANOJKUMAR SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No.2436 of 2016 3** ## **JUDGMENT** This appeal is directed against the award dated 07.05.2015 of the Additional Motor Accident Claims Tribunal, Thalassery (for short 'the Tribunal') in O.P.(M.V.)No.404 of 2011. The appellants are the petitioners before the Tribunal. 2. One Mr.Sibeesh Sebastian met with a motor accident at 3.30 am on 27.10.2010 at Thirumangal Bye Pass road, Salem. He was traveling in a bus bearing registration No.KA-01/F-9060 from Ernakulam to Bangaluru and when the bus reached at Thirumangal bypass road at Salem, a tipper lorry bearing registration No.TN-34/H-4722, proceeding from the opposite direction dashed against the bus and thereby, he sustained fatal injuries. Due to the serious injuries impacted from the said accident he succumbed to death at the spot itself. He was survived by his wife aged 27 years, a daughter aged 1 year and age old parents. Alleging that the accident was occurred due to the rash and negligent driving of the tipper lorry by it's driver and claiming a compensation of Rs.22,00,000/-, the claim petition as above was preferred before the Tribunal. The driver, owner and insurer of the tipper lorry bearing registration No.TN- ## **M.A.C.A.No.2436 of 2016 4** 34/H-4722 were arrayed as respondents 1 to 3 and driver, owner and insurer of the bus bearing registration No.KA.01/F9060 were arrayed as respondents 4 to 6 in the claim petition. Respondents 1, 2 and 4 did not turn up to contest the claim petition and were declared ex-parte by the Tribunal. The third respondent, the insurer of the tipper lorry has filed a written statement admitting insurance coverage of the said vehicle at the relevant time of accident. The negligence of the first respondent, the driver of the tipper lorry was denied. The accident was alleged as resulted due to the rash and negligent driving of the bus by its driver. The quantum of compensation was also disputed. 3. The fifth respondent had filed written statement raising contentions that the accident was occurred due to the rash and negligent driving of the tipper lorry by the first respondent. The negligence on the part of the fourth respondent, the driver of the bus was denied. 4. The sixth respondent has also filed written statement admitting insurance coverage of the K.S.R.T.C. bus at the relevant time of the accident. The negligence on the part of the first respondent was alleged as the cause of accident. ## **M.A.C.A.No.2436 of 2016 5** 5. The claim petition was tried by the Tribunal. On the petitioners side Exts.A1 to A6(a) were marked in evidence. The contesting respondents failed to adduce any evidence. On appreciation of the evidence on record, the Tribunal found the first respondent liable for the accident by his rash and negligent driving of the tipper lorry. The Tribunal has also arrived at Rs.10,78,000/- as the compensation payable to the petitioners and directed the third respondent, the insurer of the Tipper lorry to deposit the same with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation along with proportionate costs. The said award, is taken up in challenge by the petitioners in the proceedings on hand seeking for a modification of the compensation awarded by the Tribunal. For the sake of convenience, the parties to this appeal will be referred to hereinafter as the petitioners and respondents 1 to 3. 6. Sri.Sergi Joseph Thomas, the learned counsel has advanced arguments on behalf of the petitioners. According to him, the claim of the petitioners was that the deceased was earning a monthly salary of Rs.10,000/- from his engagement as Managing Partner of a firm namely 'Designer Home Interiors'. The Tribunal had discarded the claim and fixed Rs.6,000/- as ## **M.A.C.A.No.2436 of 2016 6** the monthly income notionally for calculation of compensation towards loss of dependency. According to the learned counsel, Exts.A6 and A6(a) had been produced and marked in evidence by the petitioners to establish the engagement of the deceased as Managing Partner of the firm namely 'Designer Home Interiors' and earning of a monthly income of Rs.10,000/- from such engagement. But, the Tribunal overlooked the said evidence without stating reasons and fixed notional income as monthly income. The learned counsel canvassed for interference with the aforesaid fixation of monthly income. 7. The contention raised by the learned counsel secondly was that the Tribunal ought to have taken 40% addition to the monthly income of the deceased in consideration of future prospects. According to him, in the case on hand, the Tribunal failed to consider the future prospects as directed in _**National**_ ## _**Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662 (SC)],**_ . 8. Thirdly, it was contended by the learned counsel that though the deceased was survived by his wife aged 27 years, minor child aged 1 year and age old parents, the Tribunal failed to award reasonable compensation under the head loss of love ## **M.A.C.A.No.2436 of 2016 7** and affection to each of them despite their entitlement for that. The Tribunal has considered only Rs.40,000/- by taking Rs.10,000/- per head as compensation towards loss of love and affection, which according to the learned counsel is on the lower side and unreasonable. Lastly and finally, it was contended by the learned counsel that the Tribunal failed to compensate the petitioners under the head loss of estate, though in view of _**Pranay Sethi's**_ case supra, they are entitled to get Rs.15,000/-. Raising contentions as above, the learned counsel seeks for a modification of the award by making necessary enhancements. 9. Sri.E.M.Joseph, the learned Standing Counsel for the third respondent, insurer of the tipper lorry has contended that, just and reasonable compensation was arrived at by the Tribunal and awarded as per the impugned award and interference of any nature is totally unwarranted. According to him, the monthly income was taken by the Tribunal as Rs.6,000/- and that consideration cannot be said to be unjust, for the reason that the petitioners failed to adduce any evidence to establish the monthly income of the deceased. According to him, though Ext.A6 and Ext.A6(a) were marked in evidence from the side of ## **M.A.C.A.No.2436 of 2016 8** the petitioners, deceased being the managing partner of a firm, it is unlikely for him to obtain a fixed remuneration each month. It is contended by the learned counsel that, the remuneration may vary with the profits earned by the firm. Accordingly, the learned Standing Counsel urged that interference with the fixation of monthly income is totally unwarranted. According to the learned Standing Counsel, 40% addition is required to be made to the monthly income in consideration of future prospects, based on the direction of the Constitutional Bench in _**Pranay Sethi's,**_ case supra. The learned Standing Counsel did not raise any dispute against the claim of the petitioners seeking compensation under the head loss of estate in view of _**Pranay Sethi's**_ case supra. The learned counsel pointed out that the award of a sum of Rs.1,00,000/- towards loss of consortium, is against the direction of the Constitutional Bench in _**Pranay Sethi's**_ case supra. Accordingly, the learned Standing Counsel seeks for reduction of Rs.60,000/- from Rs.1,00,000/- awarded by the Tribunal, under loss of consortium. 10. From a look at the award under challenge it is noticed that the petitioner had caused to mark Exts.A6 and A6(a) in evidence, which are Income Tax Returns filed by the firm, for ## **M.A.C.A.No.2436 of 2016 9** assessment years 2009 and 2010. The deceased's status during the period as a managing partner of the firm aforesaid and receipt of Rs.1,50,000/- annually as remuneration are disclosed therefrom. Exts.A6 and A6(a) were received in evidence without marking of those being opposed by the contesting third respondent. Eventhough, the annual remuneration received by the deceased was shown in Exts.A6 and A6(a) as Rs.1,50,000/-, there is merit in the argument of the learned Standing Counsel for the third respondent that a Managing Partner of a firm is unlikely to earn a fixed income in all months throughout an year. Therefore, this Court finds justification in taking Rs.8,000/- as the monthly income for the purpose of calculation of compensation. The deceased being the Managing Partner of a firm can be treated as a self employed man. Being aged 30 years as on date of death, in view of _**Pranay Sethi's**_ case supra, 40% addition to the monthly income is unavoidable. The surviving members of deceased being four in numbers, it would be apposite to deduct ¼[th] of the income so arrived at in consideration of future prospects, likely to be met by the deceased, had he been alive. The monthly income having been fixed by this Court as Rs.8000/- and by applying the addition ## **M.A.C.A.No.2436 of 2016 10** and deduction as stated above, Rs.8400/- is arrived at as the monthly income for calculation purpose. The multiplier of 17 has been correctly applied by the Tribunal in consideration of age of the deceased at the relevant time of accident. In re-fixation of compensation for loss of dependency with the modified monthly income of Rs.8,400/- and multiplier 17, the total compensation payable under the head loss of dependency is arrived at as Rs.17,13,600/- (8400 x 12 x 17). Since a sum of Rs.9,18,000/was already awarded by the Tribunal the petitioners in interference and modification of award by this Court will get a sum of Rs.7,95,600/- additionally. The deceased was survived by his wife aged 27 years. Since, the Apex Court has limited the sum payable to the spouse of the deceased under the conventional head loss of consortium as Rs.40,000/-, this Court is constrained to deduct Rs.60,000/- from Rs.1,00,000/- already awarded by the Tribunal. Apart from the wife, the deceased was also survived by a minor girl child aged 1 year and aged parents. The Tribunal has awarded Rs.10,000/- towards loss of love and affection to each of the petitioners. The Apex Court had maintained Rs.1,00,000/- when an award as modified by the High Court was taken up in challenge before it. Therefore, there ## **M.A.C.A.No.2436 of 2016 11** is justification in awarding Rs.1,50,000/- (Rs.50,000/- each to petitioners 2 to 4) under the head loss of love and affection and this Court do so. Rs.40,000/- being the sum (Rs.10,000/- per head to petitioners 1 to 4) already awarded by the Tribunal the same is liable to be adjusted against Rs.1,50,000/- accordingly, the petitioners will be entitled to get Rs.1,10,000/- additionally. As directed in _**Pranay Sethi's**_ case supra, a sum of Rs.15,000/is also awarded under the head loss of estate. Though the death was instantaneous, this Court is inclined to award Rs.10,000/under the head pain and suffering. In the mode of calculation as above, the petitioners will be entitled to get a sum of **Rs.8,70,600/** - as compensation additionally. 11. A plea was also raised by the learned counsel that rate of interest fixed by the Tribunal being 8% modification is required. The claim petition was considered in the year 2015 and interest rate prevalent at that time being higher than 8%, this Court is inclined to substitute the interest rate of 8% by 9%. Therefore petitioners will be entitled to get interest at the rate of 9% per annum for the sum already awarded by the Tribunal and 8% per annum for the sum awarded by this Court additionally. In the result, the appeal stands allowed in part on the ## **M.A.C.A.No.2436 of 2016 12** above terms. The third respondent shall deposit the total sum of compensation with interest as aforestated within two months from the date of receipt of a copy of this judgment. No order as to costs. Sd/- ## **MARY JOSEPH** **JUDGE** nab