Bindu C.M. & Niraj Parthip P.S. v. C. Mohan Das, Rajesh Kumar A.P., M/S. HDFC General Insurance, and Smt. Sarojini P.K.

MACA.No.2216/2013 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ ## _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945_ ## _MACA NO. 2216 OF 2013_ _AGAINST THE ORDER/JUDGMENT DATED 05.07.2010 IN OPMV NO.711 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE_ ## _APPELLANTS/PETITIONERS:_ _1 BINDU.C.M., AGED 43 YEARS, W/O.LATE P.K.SUDHEESH KUMAR, PARTHIPAN, 6/36-32 MELEVARAM, FEROKE COLLEGE (PO), KOZHIKODE DISTRICT._ - _2 NIRAJ PARTHIP P.S., AGED 13 MINOR, S/O.LATE P.K.SUDHEESH KUMAR, PARTHIPAN, 6/36-32 MELEVARAM, FEROKE COLLEGE (PO), KOZHIKODE DISTRICT (REPRESENTED BY MOTHER, THE 1ST APPELLANT)_ _BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P_ ## _RESPONDENTS/RESPONDENTS:_ - _1 C.MOHAN DAS, CHARAKKU MALLIL HOUSE, KOLUKKALLUR (P.O), PALAKKAD DISTRICT, PIN-679 337._ - _2 RAJESH KUMAR A.P., ANAPPAYYA PADINHARETHIL VEEDU, KOLUKKALLUR (P.O), PALAKKAD DISTRICT, PIN-679 337._ - _3 M/S.HDFC GENERAL INSURANCE, 6TH FLOOR, LEELA BUSINESS PARK, KURIA ROAD, ANDHERI EAST, MUMBAI, PIN-400 599._ MACA.No.2216/2013 2 _4 SMT.SAROJINI P.K., W/O.LATE KRISHNANKUTTY, PATHAYAKKATTIL HOUSE KARIMPADAM, CHENNAMANGALAM (PO), NORTH PARUR ERNAKULAM DISTRICT, PIN 683 513._ _BY ADVS. SRI.P.JAYARAM SRI.GEORGE CHERIAN (SR.) SMT.M.KABANI DINESH SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2216/2013 3 ## **JUDGMENT** The appellants were the petitioners in O.P.(MV). No.711 of 2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was submitted by them seeking compensation for the death of one Sudheesh Kumar, due to the injuries sustained in a motor accident that occurred on 03.01.2008. The said Sudheesh Kumar was the husband of the 1st appellant and the father of the 2[nd] appellant. The mother of the deceased was impleaded as the 4[th] respondent in the claim petition. The deceased was working as a Reader in the Department of Education, Calicut University, with a monthly salary of Rs.26,645/-. He was 50 years old on the date of the accident. 2. According to the appellants, the accident occurred when the motorcycle ridden by the said Sudheesh was hit by a Ford Fiesta car bearing registration No.KL-52-4041 driven by the 2[nd] respondent. The said vehicle was owned by the 1st respondent and was insured with the 3[rd] respondent. The claim petition was submitted in such circumstances. 3. The 1[st] and 2[nd] respondents filed a written statement disputing the negligence on the part of the 2[nd] respondent. They MACA.No.2216/2013 4 disputed the quantum of compensation as well. The 3[rd] respondent filed a written statement admitting the coverage of the policy for the car, but denied the negligence on the part of the 2[nd] respondent. They also disputed the quantum of compensation claimed by the appellants. The 4[th] respondent submitted a written statement admitting the claim and it was contended that she is also entitled to a share in the said compensation. 4. To substantiate the said contentions, the appellants produced Exts.A1 to A16 and no oral evidence was adduced. Respondents did not adduce any evidence. After appreciating the materials placed on record, the Tribunal found that the accident occurred due to the negligence of the 2[nd] respondent in driving the car and being the owner and insurer, respondents 1 and 3 were also held jointly and severally liable along with the 2[nd] respondent. The quantum of compensation even though determined as Rs.27,09,461/-, the amount awarded was Rs.25,00,000/-, in view of the fact that the appellants limited the claim as Rs.25,00,000/- in the claim petition. The said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 7% from the date of petition till realization with a MACA.No.2216/2013 5 cost of Rs.3,000/-. This appeal is submitted by the appellants seeking enhancement of compensation. 5. Heard Sri. R. Bindu Sasthamangalam, learned counsel for the appellants and Smt.Latha Susan Cherian, learned counsel for the 3[rd] respondent. 6. The only issue to be considered in this appeal relates to the quantum of compensation. The learned counsel for the appellants mainly points out that the Tribunal, while assessing the compensation, failed to take into account the future prospects of the deceased. Moreover, it was also pointed out that, the fact that the deceased was likely to get promotion as Professor, was also not taken into account while assessing the compensation. After carefully going through the records, I find that there is some force in the contention raised by the learned counsel for the appellants. The age of the appellant was found to be 50 years 2 months, as on the date of the accident and since he had already crossed the age of 50 years, in the light of **National** **Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** an addition of 15% should have been made towards future prospects. As far as the contention raised by the learned counsel for the appellants with respect to the possibility of the deceased MACA.No.2216/2013 6 getting promoted in the near future to the post of professor is concerned, the same cannot be considered. In the light of the observations made in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] and Pranay Sethi (supra)** what is to be considered for assessment of compensation is the monthly income of the deceased at the time of the accident with future prospects, in the manner as referred to in the said decisions. Since the appellant herein was employed in a regular vacancy with regular periodical increments, 15% was the addition prescribed in the aforesaid decisions and hence, the proper addition to be made is 15%. As far as the monthly income is concerned, Ext.A12 salary certificate was relied on, wherein the gross salary was referred to as Rs.26,645/-. The Tribunal, however, fixed the monthly income as Rs.25,445/-. The Tribunal deducted the amount of Rs.1,200/-, which was being paid to the deceased as House Rent Allowance (HRA). However, I am of the view that as far as the HRA is concerned, it forms part of the salary package of the appellant and under no circumstances same can be excluded while computing the income of the deceased. Therefore, the entire amount of Rs.26,645/- is to be accepted and it is ordered accordingly. MACA.No.2216/2013 7 7. At this juncture, the learned counsel for the 3[rd] respondent points out that the Tribunal did not consider the income tax payable in respect of the income of the deceased while assessing the compensation. The said contention is to be accepted as it is a well-settled position of law that, while assessing the compensation for dependency, the necessary deduction towards Income Tax should be made, if the income falls within the taxable limits. In this case, the accident occurred in the year 2008 and when the Income Tax slab prevailing at the relevant time is considered, it is seen that no tax was payable up to Rs.1,10,000/- and tax payable was 10% for the income from Rs.1,10,000/- to 1,50,000/-. 20% was the tax payable for the amount from Rs.1,50,000/- up to Rs.2,50,000/- and above Rs.2,50,000/- the same was 30%. When the annual income of the deceased is calculated at the rate of Rs.26,645/- per month, it comes to Rs.3,19,740/-. When the deduction is made as per the Income Tax slab as referred to above, the tax payable comes to Rs.44,922/- and thus, the annual income after the deduction of tax would come to Rs.2,74,818/-. Since the deceased had completed the age of 50 years on the date of the accident, the addition of 15% has to be made towards future prospects in the MACA.No.2216/2013 8 light of **Pranay Sethi (supra)** . Therefore, the total annual income including the addition of 15% would come to Rs.3,16,041/- [274818+41223]. The multiplier applicable was 11 and the deduction to be made was 1/3. Thus, while re-assessing the compensation for dependency with the above criteria, the amount would come to Rs.23,17,634/- [316041 x 11 x 2/3]. The amount already awarded by the Tribunal is Rs.22,39,160/- and thus, the additional compensation under this head would come to Rs.78,474/-. 8. The Tribunal awarded Rs.3,000/- only towards funeral expenses, whereas the actual amount payable was Rs.15,000/- in the light of **Pranay Sethi (supra).** Therefore, a further sum of Rs.12,000/- is awarded under the said head. For the same reason, a further sum of Rs.10,000/- is awarded under the head of loss of estate, as the amount awarded by the Tribunal under the said head was only Rs.5,000/-. 9. The next head which requires consideration is the loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others, 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** the appellants as well as the 4th MACA.No.2216/2013 9 respondent, being the wife, son and mother of the deceased, were entitled to compensation of Rs.40,000/- each under the head of loss of consortium. The Tribunal awarded Rs.5,000/- towards loss of consortium and a further sum of Rs.10,000/- towards loss of love and affection. It was held in **Satinder Kaur (supra)** that, when compensation for loss of consortium is awarded, no separate compensation needs to be awarded for loss of love and affection. Therefore, the amount of Rs.10,000/- awarded by the Tribunal under the head of loss of love and affection, can be adjusted against the compensation now fixed by this Court towards loss of consortium. Thus, the additional compensation towards the loss of consortium is determined as Rs.1,05,000/-. Accordingly, the total additional compensation is determined as Rs.2,05,474/- (78474+12000+10000+105000). 10. Another aspect to be noticed in this award is that, even though the Tribunal quantified the total compensation as Rs.27,09,461/-, the amount awarded was only Rs.25,00,000/-, in view of the fact that the appellants limited the claim to that extent. However, it is a well-settled position of law that, merely because of the fact that the amount of compensation was limited in the claim petition, that will not preclude the Court/Tribunal MACA.No.2216/2013 10 from granting any higher compensation. This is particularly because what is relevant for adjudicating the claim for compensation for injuries/death in a motor accident is ‘just compensation’ to the victim and under any circumstances, the amount claimed will not affect the right of the parties to get the said compensation even if it is found higher than the amount claimed. Therefore, I do not find any justification for reducing the amount of compensation to the tune of the amount claimed in the claim petition after quantifying the compensation at a higher rate. Therefore, the appellant is entitled to get the entire compensation determined by the Tribunal along with additional compensation granted by this Court in this appeal. Thus, the total compensation payable by the appellants and the 4th respondent is determined as Rs.29,14,935/- [2709461+205474]. In the result, this appeal is allowed. The award dated 05.07.2010 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P(MV). No.711 of 2009 is hereby modified by re-assessing the total compensation as Rs.29,14,935/(Rupees twenty nine lakhs, fourteen thousand, nine hundred and thirty five only) and the said amount shall be deposited by the 3rd respondent with interest at the rate of 7.5% per annum from the MACA.No.2216/2013 11 date of petition till realization. However, it is to be noted that, the delay of 1100 days in filing the appeal was condoned by this Court subject to the condition that, in case of any additional amount is awarded to the appellants, they shall not be entitled to interest for the enhanced compensation for the period of delay. Thus, the 3rd respondent shall be at liberty to exclude the period of delay while computing the interest. It is further ordered that the claimants and the respondent No.4, shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/11.3.24