## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945**
## **MACA NO. 59 OF 2019**
## **AGAINST THE ORDER/JUDGMENT OPMV 697/2008 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -IV, THRISSUR / III**
## **ADDITIONAL MACT, THRISSUR**
## **APPELLANT/S:**
- 1 ASHA,AGED 39 YEARSW/O.LATE RAJAN, RESIDING AT KANJIRATHINGAL HOUSE, PUTHURIKKARA, AYYANTHOLE, THRISSUR.
- 2 AIJO (MINOR),AGED 15 YEARSS/O.LATE RAJAN, RESIDING AT KANJIRATHINGAL HOUSE, PUTHURIKKARA, AYYANTHOLE, THRISSUR.
- 3 AIRIN (MINOR)AGED 8 YEARSD/O.LATE RAJAN, RESIDING AT KANJIRATHINGAL HOUSE, PUTHURIKKARA, AYYANTHOLE, THRISSUR.
- 4 KUNJANNAMAGED 79 YEARSM/O.LATE RAJAN, RESIDING AT KANJIRATHINGAL HOUSE, PUTHURIKKARA, AYYANTHOLE, THRISSUR. (MINOR APPELLANTS 2 AND 3 REPRESENTED HEREIN BY THEIR GUARDIAN MOTHER THE 1ST RESPONDENT).
BY ADVS. T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD
## **RESPONDENT/S:**
- 1 FRANCIS V.J.,S/O.JOSEPH, RESIDING AT VADAKKOOT HOUSE, MANAPPADY, GURUVAYOOR, PAVARATTY P.O., THRISSUR-680 507.
- 2 RAJANS/O.SANKURU, RESIDING AT KALASSERY HOUSE, URAKAM DESOM, MULLASSERY VILLAGE, THRISSUR-680509.
- 3 I.C.I.C.I.LOMBARD GENERAL INSURANCE COMPANY
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LIMITED,NO.28/293/6, 2ND FLOOR, R.V.TRADE CENTRE, PATTURAIKKAL, THRISSUR-680 022, REPRESENTED BY MANAGER.
BY ADVS. SRI.P.RAMACHANDRAN SRI.LATHEESH SEBASTIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
Appellants are the petitioners in O.P.(MV) No. 697/2008 on the files of the Additional Motor Accidents Claims Tribunal/IV Additional District Court, Thrissur.
2. The aforesaid claim petition was submitted by the appellants seeking compensation for the death of one Rajan in a motor accident that occurred on 31.07.2007 at 5.30 p.m. The said Rajan is the husband of the 1[st] appellant, the father of the 2[nd] and 3[rd] appellants and the son of the 4[th] appellant. The accident occurred when the motorcycle bearing registration No. KL-8/T4603, ridden by the said Rajan, was hit by a Tipper Lorry bearing registration No. KL-46/7346. The said vehicle was being driven by the 2[nd] respondent, owned by the 1[st] respondent and was insured by the 3[rd] respondent. The said Rajan was aged 38 years at the time of the accident, and according to the appellants, he was working as a Machine Mechanic, thereby earning an amount of Rs.10,000/- per month at the relevant time. The claim petition was filed seeking a total compensation of Rs.20,00,000/-.
3. The 1[st] and 3[rd] respondents contested the matter by filing written statements. The 1[st] respondent denied the liability,
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and it was further contended that, if at all it was found that the 1[st] respondent is reliable, the said amount has to be paid by the 3[rd] respondent-Insurance Company as the said vehicle was covered with a valid insurance policy at the relevant time. The 3[rd] respondent also filed a written statement, admitting the coverage of the policy but denying the liability on various grounds. The negligence on the part of the 2[nd] respondent was also denied. They disputed the quantum of compensation.
4. From the part of appellants, PW1 was examined and Exts.A1 to A9 were marked. From the side of the respondents, the copy of the policy was marked as Ext.B1. After considering the materials placed on record, the Tribunal came to a definite finding that the accident occurred due to the negligence of the 2[nd] respondent and therefore, the 3[rd] respondent/insurer was held responsible for paying the amount. The quantum of compensation was fixed as Rs.7,85,000/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum. Being dissatisfied with the quantum of compensation, this appeal is filed by the appellants.
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5. Heard Sri. Nimod A.R, the learned counsel appearing for the appellants and Sri.Latheesh Sebastian, the learned Standing Counsel appearing for the 3[rd] respondent.
6. The learned counsel for the appellants mainly contends that the quantum of compensation awarded under the head of Loss of dependency is on the lower side. It was pointed out that, even though the salary certificate of the deceased was produced as Ext.A7 and to substantiate the same, the Manager of the firm was also examined, the Tribunal did not rely on the same and instead, fixed the monthly salary as Rs.4,000/- which is on the lower side. The relevant observations in this regard are in paragraph 12 of the award on page 7 thereof. It is discernible therefrom that the main reason for not accepting the Ext.A7 salary certificate was that PW1, who was examined to substantiate the said document, has not produced any document to show that he was the Manager of the firm in which the deceased was working. However, from the deposition of PW1, it is discernible that, in cross examination of PW1, the respondents have not seriously disputed the fact that PW1 was the Manager of the said firm. Of course, certain questions were asked about the lack of production of documents to substantiate his position as the Manager.
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However, apart from the same, the said fact was not seriously challenged. Therefore, it is evident that his employment as a Manager was not seriously disputed. Therefore, I am of the view that the reasons which prompted the Tribunal to reject Ext.A7 are not legally sustainable. Besides the same, it is also a crucial aspect to be noticed in this regard that the monthly income shown in Ext.A7 is Rs.10,000/-. Evidently, the deceased has been working as a Mechanic for the past seven years. Since the employment as a Mechanic is a skilled labour, the monthly income of Rs.10,000/- with respect to the period of the accident, even in the absence of any document, is reasonable. It is also to be noted in this regard that, in Ext.A2 FIS, a contemporaneous document, the deceased's employment was shown as Mechanic of Nestle Coffee Machine. This is in tune with the contents of the Ext.A7 certificate. In such circumstances, taking note of all the aforesaid aspects, I am of the view that a monthly income of Rs.10,000/- as certified in Ext.A7 can be taken into consideration to calculate the compensation for loss of dependency, and it is accordingly fixed.
7. The next aspect to be considered in this regard is that the Tribunal did not consider the future prospects of the deceased while computing the compensation. In the light of the principles
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laid down by the Honourable Supreme Court in **National Insurance Company v. Pranay Sethi [ 2017 (16) SCC 680],** the future prospects at the rate of 40% is to be taken into consideration in view of the fact that the deceased was aged 38 at the time of the accident. Thus, reworking the compensation with the above revised monthly income with 40% future prospects, the compensation under the head of loss of dependency would come to Rs.18,90,000/- under this head.
8. The learned counsel for the respondent pointed out that funeral expenses granted by the Tribunal are on the higher side, which is 25,000/-. I find some force in the contention put forward by the learned counsel for the petitioner as going by the principles laid in **Pranay Sethi** 's case. The proper compensation under this head should have been Rs.16,500/- and therefore, the compensation under the said head is revised accordingly. A similar deduction is necessitated under the head of loss of estate, as the amount under the said head, by following the principles in **Pranay Sethi** 's case, would be only Rs.16,500/- instead of Rs.30,000/- awarded by the Tribunal. Even though the learned counsel for the 3[rd] respondent seriously disputed the amount awarded under the head of pain and suffering, In the facts and
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circumstances of the case, I do not find any necessity to interfere with the same, as the amount under the said head is high.
9. The learned Tribunal awarded Rs. 75,000/- under the head of compensation for Loss of Consortium and a further sum of Rs.1,00,000/-under the head of Loss of Love and Affection. As per the principles laid down in the **United India Insurance Co. Ltd.**
**v. Satinder Kaur [2020 (3) KHC 760],** the compensation under the head of Loss of Consortium should be at the rate of Rs.40,000/- each to the spouse, children and parents. It is also a well settled position of law that when compensation for the loss of consortium is granted, no compensation separately under the head of love and affection needs to be granted. After adding the escalation of the amount due to the passage of time, as contemplated in **Pranay Sethi** 's case at the rate of 10%, the compensation under the head of loss of Consortium can be granted at the rate of Rs.44,000/- to each of the appellants herein. Therefore, the compensation under the head of loss of consortium would come to Rs.1,76,000/-. The amount awarded by the Tribunal under the head of compensation of Loss of Love and Affection is deducted. Thus, the total amount of compensation receivable by the appellants consequent to the
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revision under various heads as referred to above would come to Rs.21,14,000/-,(Rupees twenty one lakhs fourteen thousand only) (2000 + 3000 + 16500 + 10000 + 189000 + 16500 + 176000) instead of 7,85,000/- awarded by the Tribunal. Thus, the additional amount receivable by the appellant would come to Rs.13,29,000/- (Rupees thirteen lakhs twenty nine thousand only).
Accordingly, this appeal is allowed, and the award passed by the Tribunal is modified by fixing the total amount of compensation as Rs.21,14,000/-. In such circumstances, the 3[rd] respondent is directed to deposit an amount of Rs.13,29,000/which is the additional amount receivable by the appellant, along with interest at the rate of 7.5% per annum on the enhanced amount within a period of three months from the date of receipt of a copy of this judgment. It is clarified that, as there was a delay of 575 days in filing the appeal, it shall be open for the 3[rd] respondent-Insurance Company to exclude the period of delay while computing the interest on the additional amount.
Sd/-
**ZIYAD RAHMAN A.A. JUDGE**
rpk
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As per order dated 7/11/2023 in I.A No. 01/2023 in M.A.C.A 59/2019, it is clarified that in the judgment dated 13.09.2023 in M.A.C.A 59/2019, the amount additionally awarded by the High Court shall be deposited by the Insurance Company along with interest at the rate specified in the judgment along with proportionate costs.
Sd/-
Deputy Registrar
