Beena Muraleedharan, Vishnuprasad, Minor Aiswarya, C.R. Janaki (deceased) v. Anbu Selvam s/o Mr. Raj, Rajesh s/o Shanmughan, The Manager, New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944** ## **MACA NO. 1306 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 750/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **IRINJALAKUDA** ## **APPELLANTS/PETITIONERS:** |**1**|**BEENA MURALEEDHARAN**| |---|---| ||**W/O.LATE MURALEEDHARAN, ELOOR HOUSE, PALAMURI DESOM, MELOOR,**| ||**THRISSUR.**| |**2**|**VISHNUPRASAD**| ||**S/O.LATE MURALEEDHARAN, DO---- DO-----**| |**3**|**MINOR AISWARYA**| ||**D/O.LATE MURALEEDHARAN, DO----- DO---- DO----, REPRESENTED BY IST**| ||**APPELLANT.**| |***4**|**C.R.JANAKI (DIED)**| ||**W/O.A.CHANDRASEKARAN NAIR, ELOOR HOUSE, PALAMURI, MELOOR.**| ||**[4TH APPELLANT IS RECORDED AS DIED AS PER ORDER DATED 17.06.2022 IN**| ||**R.P.NO.472/2022 FILED AGAISNT JUDGMENT DATED 08.04.2022 IN MACA**| ||**1306/2012]**| **BY ADV SRI.T.N.MANOJ** ## **RESPONDENTS/RESPONDENTS:** - **1 ANBU SELVAM S/O.MR.RAJ, VELLIAMMAL LAYOUT, NETHAJI ROAD POLLACHI-642 001.** - **2 RAJESH S/O.SHANMUGHAN, KOZHIKUTHI HOUSE, VADAVANNOOR DESOM, CHITTOOR, PALAKKAD DISTRICT.686 321.** - **3 THE MANAGER NEW INDIA ASSURANCE COMPANY LTD, RAJA MILL ROAD, POLLACHI.642 001. BY ADVS. SRI.P.JACOB MATHEW P.JAYASANKAR** ## **OTHER PRESENT:** ## **P.JACOB MATHEW-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** ## **08.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1306/2012 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(MV) No.750/2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation on account of the death of Muraleedharan, husband of the 1[st] appellant, father of appellants 2 & 3 and son of the 4[th] appellant. 2. It is alleged that the accident occurred on 17.01.2008 at about 11.15 p.m., in Ernakulam-Thrissur National Highway at Koratty Junction due to hit by a lorry bearing Reg.No.TN 33/D 7475 driven by the 2nd respondent. While undergoing treatment, he succumbed to the injuries. It is alleged that the accident happened due to the rash and negligent driving of the lorry by the 2[nd] respondent. First MACA No.1306/2012 3 respondent is the owner of the vehicle. The appellants claimed a total compensation of Rs.14,00,000/-. 3. Before the Tribunal, respondent Nos.1 and 2 remained ex-parte. 3[rd] respondent/insurer filed written statement, admitting the policy coverage with respect to the offending vehicle. The rashness and negligence attributed against the 2[nd] respondent is denied. The age, occupation and monthly income of the deceased are disputed. It is further contended that the appellants are not the dependents or legal heirs of the deceased. 4. PW1 examined and Exts.A1 to A5 were marked from the side of the appellants. There was no evidence from the side of respondent. 5. Tribunal on evaluating the evidence and facts and circumstances found that the accident happened due to the rash and negligent driving of the lorry by the 2[nd] respondent. 1[st] respondent/owner is held liable for the act of the 2[nd] respondent. The 3[rd] respondent/insurer was held liable to indemnify the 1[st] respondent. A total compensation of MACA No.1306/2012 4 Rs.9,15,864/- was awarded. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants came up before this Court in appeal under various grounds stated in the Memorandum of appeal. 7. Notice as against the respondents 1 and 2 is dispensed with at the risk of the appellants. Adv.Sri.P.Jacob Mathew, entered appearance on behalf of the 3[rd] respondent/insurer. 8. Heard the learned Counsel for the claimants as well as the learned Standing Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. 9. According to the learned counsel for the appellants, the Tribunal deducted 1/3[rd] of the annual income towards personal and living expenses, which is against the settled principles of law. He would also contend that nothing was added towards future prospects. 30% ought to have been added towards future prospects. The learned counsel also MACA No.1306/2012 5 would contend that compensation awarded under the conventional heads are very low, hence, he seeks for enhancement on all heads. 10. The learned Standing Counsel for the insurer on the other hand would contend that all the allowances cannot be considered for the purpose of computing the monthly salary and hence, the amount shown as 'MA' and 'others' in Exhibit A5 to be excluded in taking the monthly income of the deceased. It is further contended that just and reasonable compensation has already been awarded by the Tribunal on all heads. Hence, no interference is called for at the instance of this Court. 11. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be MACA No.1306/2012 6 just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 12. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of MACA No.1306/2012 7 equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 13. In Sarla Verma's case the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years. 14. In Pranay Sethi's case, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 15. Appellants are the legal heirs of deceased who was MACA No.1306/2012 8 aged 43 years at the time of incident and he has been working as a Lineman in Kerala State Electricity Board (in short, K.S.E.B) and as per Ext.A5 he has been drawing a salary of Rs.7,972/-. 16. Though the learned counsel for the insurer has got a contention that all the allowances shown in Ext.A5 cannot be taken for computation of dependency, as per Sarla Verma the multiplicand is the total income less the tax. The salary certificate, Ext.A5, would show that his total salary is Rs.7,972/-. So there is no possibility of having any taxable income since taxable turnover during 2008-2009 is for income exceeding Rs.1,50,000/-. So I am of the view that the entire amount covered by Ext.A5 can be taken as the income of the deceased. 17. As per Sarla Verma as approved by Pranay Sethi since the deceased being a government servant, 30% should be added towards future prospects for computation of the income per month. If that be so, the total monthly income would be Rs.10,363.6 [7,972+2,391.06 (30% of 7,972]. MACA No.1306/2012 9 18. Appellants are four in number. So as per per Sarla Verma as approved by Pranay Sethi , the deduction towards personal and living expenses would be 1/4 instead of 1/3[rd] taken by the Tribunal. Since the deceased was 43 years of age at the time of incident the suitable multiplier to be applied is '14'. So total amount will come to Rs.17,41,084.8 [10,363.6x12x14]. From that 1/4[th] to be deducted towards personal and living expenses. Then the amount will be Rs.13,05,813.6 [17,41,084.8 – 4,35,271.2 [(1/4 of 17,41,084.8)]. Deducting the amount already awarded by the Tribunal i.e. Rs.8,92,864/-, the balance would be Rs.4,12,949.6 [13,05,813.6-8,92,084]. 19. Next contention of the learned counsel for the appellants is with regard to the compensation awarded under conventional heads. In Pranay Sethi , Constitutional Bench has fixed the compensation under the conventional heads, as Rs.15,000/- each towards loss of estate and funeral expenses and Rs.40,000/- towards loss of consortium. That has been followed in Magma General Insurance Co. Ltd v. Nanu MACA No.1306/2012 10 Ram alias Chuhru Ram and Ors. [(2018) 18 SCC 130] , with an expansion of the consortium as spousal consortium, ‘parental consortium’, and ‘filial consortium’. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse and parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. 20. The Apex Court in Rasmita Biswal & Others v. Divisional Manager, National Insurance Company Ltd., & Another (CDJ 2021 SC 1024 ) has awarded 10% increase to the conventional heads taking into account the directions in Pranay Sethi for 10% enhancement after every three years. Accordingly the claimants in that case were awarded 16,500/each towards loss of estate and funeral expenses and MACA No.1306/2012 11 Rs.44,000 towards spousal consortium by giving 10% enhancement to Rs.15,000/- as well as to Rs.40,000/-. The accident in that case, was on 9.5.2013. 21. In Pranay Sethi , the Apex Court while declaring 10% enhancement in every three years did not make any reference with respect to the date of accident also. Hence appellants are entitled to get 10% escalation of conventional heads. 22. So appellants are entitled to get Rs.16,500/- under the head 'loss of estate' and Rs.44,000/- each under the head 'loss of consortium' as well as Rs.16,500/- towards funeral expenses, thus a total amount of Rs.2,09,000/- [Rs.16,500 + 1,76,000 (Rs.44,000x4) + Rs.16,500] towards conventional heads. Deducting the amount already awarded by the Tribunal under the head of loss of consortium, funeral expenses and loss of estate, the balance amount, the appellants are entitled to get under the conventional heads is Rs.1,92,000/- [2,09,000– 17,000(10,000+Rs.2,000+ Rs.5,000)]. 23. In the result, the appellants are allowed to realise enhanced compensation of Rs.6,04,949.6 [4,12,949.6+ MACA No.1306/2012 12 1,92,000], which is rounded off to Rs.6,04,950/- (Rupees six lakhs four thousand nine hundred and fifty only) which will carry interest at the rate of 6% per annum from the date of petition till realisation (excluding the period of 261 days delay caused in filing the appeal). The third respondent-insurer is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability towards balance Court Fee, if any. 24. The disbursement of enhanced compensation shall be made taking note of the law on the point and in terms of directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Disbursement of the enhanced compensation among the appellants/claimants would be in the ratio 40:20:20:20. 25. Parties shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of MACA No.1306/2012 13 the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** **JUDGE** The Fourth appellant in MACA 1306/2012 is recorded as “died” in the cause title of the Judgment dated 08.04.2022 in MACA 1306/2012, as per order dated 17.06.2022 in R.P.No.472/2022 in MACA 1306/2012. **Sd/-** **DEPUTY REGISTRAR** shg