Baby A., Baby B., Dablu P. Baby v. G. Selva Kumar, Sadik Basha and National Insurance Company Limited

``` 2025:KER:25338 ``` ``` MACA NO.2287 OF 2014 ``` ``` 1 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` THURSDAY, THE 6[TH] DAY OF MARCH 2025 / 15TH PHALGUNA, 1946 MACA NO. 2287 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 12.06.2014 IN OPMV NO.560 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`MUVATTUPUZHA`** ## **`APPELLANTS/PETITIONERS:`** - **`1 BABY AGED 50 YEARS S/O.LATE SKARIA,PARA PUZHIYIL HOUSE,VETTITHARAKARA,EZHAKARANADU,MANEED POST`** - **`2 BBU P BABY AGED 28 YEARS S/O.BABY,PARA PUZHIYIL HOUSE,VETTITHARAKARA,EZHAKARANADU,MANEED POST`** - **`3 DABLU P BABY AGED 27 YEARS S/O.BABY,PARA PUZHIYIL HOUSE,VETTITHARAKARA,EZHAKARANADU,MANEED POST(4TH PETITIONER IN THE CLAIM PETITION IS NOT JOINED AS AN APPELLANT AS THE HEIRSHIP CERTIFICATE DOES NOT SHOW HER AS ON HEIR OF THE DECEASED)`** ``` BY ADV SRI.K.A.SALIL NARAYANAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1G.SELVA KUMAR SON OF GOPAL 15 C CHARAN COLONY,POLLACHI 642 001 ``` ``` 2 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:25338 ``` ``` MACA NO.2287 OF 2014 ``` - **`2 SADIK BASHA SON OF KADER BASHA,DOOR NUMBER 25,NATHAJI ROAD,POLLACHI,TAMILNADU 642 001`** - **`3 NATIONALINSURANCE COMPANY LIMITED BRANCH OFFICE,POLLACHI,TAMILNADU 642 001`** ``` BY ADV P.A.REZIYA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2287 OF 2014 ``` ``` 3 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:25338 ``` ## **J U D G M E N T** The petitioners in O.P.(M.V.) No.560/2009 on the file of the Motor Accident Claims Tribunal, Muvattupuzha, are the appellants herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal) 2. The O.P. was filed under under Section 166 of the Motor Vehicles Act, 1988, by the husband, children and mother of the deceased by name Kumari, who died in a motor vehicle accident that occurred on 1.10.2008. According to them, on 1.10.2008, at about 3.30 a.m., while the deceased was travelling in a Tata Sumo car bearing reg.no.KL-17/6755 from Kozhikode to Kannur, a lorry bearing reg.no.TN 38/Z 6279 driven by the 2[nd] respondent in a rash and negligent manner hit against the Tata Sumo and as a result of which the deceased sustained serious injuries and succumbed to the injuries, on the same day. 3. The 1[st] respondent is the owner, the 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioners, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. was ``` 4 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:25338 ``` ``` MACA NO.2287 OF 2014 ``` Rs.40,00,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimonies of PWs 1, 2, 3 and 4 and documentary evidence Exts.A1 to A31, C1 to C3, X1 and X1(a). No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.15,19,537/- rounded to Rs.15,19,600/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri.K.A. Salil Narayanan, the learned Counsel appearing for the petitioners/appellants, and Sri. P.A. Raziya, the learned Standing ``` MACA NO.2287 OF 2014 ``` ``` 5 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:25338 ``` Counsel for the 3[rd] respondent. 10. One of the contentions raised by the learned counsel for the petitioners is regarding the income of the deceased fixed by the Tribunal at Rs.127326/- per year. According to the petitioners the deceased was an LIC agent getting a monthly income of Rs.40000/-. The petitioners have produced the copy of the Income Tax Returns filed by the deceased. As per Ext.A31 Income Tax Return filed by the deceased during the year 2007-2008, the annual income shown as Rs.2,12,210/-. The Tribunal has deducted a portion of the annual income towards expenses and fixed the annual income at Rs.1,27,326/-. The above proceedure adopted by the Tribunal is not correct. Since as per Ext.A31 income tax return the annual income shown is Rs.212210/-, the same is to be taken as the annual income of the deceased during the relevant year. The notional income for the purpose of assessing the loss of dependency is to be taken as the annual income less the income tax payable during the relevant year. During the year 2006-2007 there was no income tax for the first 1.5 lakhs and for the remaining income upto 2.5 lakhs the tax payable was 10%. Therefore, the income tax payable by the deceased during the year 2007-2008 will come to Rs.6221/-. Therefore the annual income less the income tax payable will come to Rs.205989/-. Therefore the ``` MACA NO.2287 OF 2014 ``` ``` 6 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:25338 ``` monthly income after deducting the income tax payable will come to Rs.17166/-. 11. On the date of accident, the deceased was aged 47 years. Therefore, 25% of the monthly income is liable to be added towards future prospects, as held in the decision in **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 13, as held in **Sarla Verma v. Delhi Transport Corporation,** (2009) 6 SCC 121. Since the deceased was married who left behind 4 dependents, towards personal and living expense, 1/4 of the income is liable to be deducted, as held in **Sarla Verma** (supra). In the above circumstances, the loss of dependency will come to Rs.25,10,528/-. 12. The Tribunal has awarded Rs.5000/- towards loss of estate, Rs.5000/- towards funeral expenses, Rs.10000/- towards loss of consortium and Rs.50000/- towards love and affection. In the light of the decision in **Pranay Sethi** (supra), the appellants are entitled to get a consolidated sum of Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral expenses, and the dependents (parents, children and spouse) are entitled to get a sum of Rs.40,000/- each towards loss of consortium, with an increase of 10% in every three years. Therefore, towards loss of estate and funeral expense they ``` MACA NO.2287 OF 2014 ``` ``` 7 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:25338 ``` are entitled to get a sum of Rs.18,150/- each. Towards loss of consortium, petitioners together are entitled to get a sum of Rs.1,93,600/- (48,400 x 4). 13. Since compensation for loss of consortium was given, further compensation for love and affection cannot be granted, in view of the decision in **New India Assurance Company Ltd. v. Somwati and Others,** (2020)9 SCC 644. Therefore, the compensation awarded towards love and affection is to be deducted. 14. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.10,000/-, which according to the learned counsel for the petitioners, is on the lower side. The deceased died in this case on the date of the accident. In the above circumstances, I hold that the compensation awarded towards pain and suffering is on the lower side, and hence, it is enhanced to Rs.25000/-. 15. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 16. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.27,70,428/-, as modified and recalculated above and given in the table below, for easy reference: ``` MACA NO.2287 OF 2014 ``` ``` 8 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:25338 ``` |Sl.<br>No<br>.|Head of Claim|Amount awarded by<br>Tribunal (in Rs.)|Amount Awarded<br>in Appeal (in Rs.)| |---|---|---|---| |1|Compensation for loss of<br>dependency/loss<br>of<br>expected future earnings|1434537|2510528| |2|Pain and sufferings|10000|25000| |3|Funeral<br>and <br>allied<br>expenses|5000|18150| |4|Transportation charges|5000|5000| |5|Loss of estate|5000|18150| |6|Loss of consortium|10000|1,93,600| |7|Loss of love and<br>affection<br>(to the 2<br>nd<br>and<br>3<br>rd<br>petitioner)|50000|---------| ||**Total**|**1519537 (rounded to**<br>**15,19,600)**|**27,70,428**| ||Enhanced / reduced Rs.|**1250828**|| 17. In the result, this Appeal is allowed in part, and the 3[rd] respondent is directed to deposit a total sum of Rs.27,70,428/- (Rupees Twenty Seven Lakhs Seventy Thousand Four Hundred and Twenty Eight Only), less the amount already deposited, if any, along with interest @ 8% per annum from the date of the petition till realisation/deposit, with proportionate costs, within a period of two months from today. ``` MACA NO.2287 OF 2014 ``` ``` 9 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:25338 ``` On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioners, in the ratio fixed by the Tribunal, excluding court fee payable, if any, without delay, as per rules. **Sd/C. PRATHEEP KUMAR, JUDGE** Pvv