Clement and others v. Sarath Mohan M. and National Insurance Company Limited

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 ``` ``` MACA NO. 3062 OF 2014 ``` ``` AGAINST THE AWARD DATED 25.07.2013 IN OP(MV)NO.709/2008 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM ``` ## `APPELLANTS/PETITIONERS:` ``` 1CLEMENT, AGED 46 YEARS,S/O.BENJAMINE, THYVEETTIL HOUSE, (VENNGATTAMPALLY VEETTIL), KODAMTHURUTH, WARD NO.3, EZHUPUNNA SOUTH P.O., CHERTHALA AND NOW RESIDING AT C/O.SANDYAVU BENJAMIN, THAIVEETTIL HOUSE, NORTH CHELLANAM, MARUVAKKAD 2THRESSIAMMA, AGED 43 YEARS, W/O.CLEMENT, C/O.SANDYAVU BENJAMIN, THAIVEETTIL HOUSE, NORTH CHELLANAM, MARUVAKKAD. 3LAZAR @ BENNY, AGED 23 YEARS, S/O.CLEMENT, C/O.SANDYAVU BENJAMIN, THAIVEETTIL HOUSE, NORTH CHELLANAM, MARUVAKKAD. BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SARATH MOHAN M., S/O.BHASKARAN, KUNNICKAL HOUSE, NETTOR P.O., VIA MARADU, MARADU, COCHIN, PIN - 682 304. 2NATIONAL INSURANCE COMPANY LIMITED, ST.AUGUSTINE CHURCH BUILDING, BYE-PASS JUNCTION, AROOR P.O., PIN - 688 534. R1 BY ADVS.SRI.M.I.JOHNSON SRI.T.K.MOIDEEN KUTTY R2 BY SRI.LAL GEORGE, STANDING COUNSEL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA.No.3062 of 2014 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 15[th] day of November, 2022`** The main challenge in the appeal on hand is against the compensation stands awarded by Additional Motor Accidents Claims Tribunal, Ernakulam (for short 'the Tribunal') on 25.07.2013 in OP (MV ) No.709/2008. 2. The parties to this appeal will hereinafter be referred to as the petitioners and the respondents in accordance with their status in the Original Petition. 3. The appellants are none other than the petitioners before the Tribunal who are the legal representatives of one Mr.Xavier who succumbed to the injuries sustained in the motor accident. They had raised a claim for Rs.11,25,500/- as the total compensation from the owner and the insurer of a car bearing Registration Number KL-7/AA-5722. 4. Mr.Xavier was a pedestrian through Alappuzha – Ernakulam National High Way and when he reached in front of Ezhupunna Village Office at Eramalloor, a car bearing Reg.No. KL-7/AA-5722 knocked him down and thus he sustained serious ``` MACA.No.3062 of 2014 ``` ``` 3 ``` injuries. He was taken to Lakeshore Hospital, Nettoor and on the day itself he succumbed to the injuries sustained in the motor accident. The 1[st ] respondent remained ex parte. The 2[nd] respondent had filed written statement admitting insurance coverage for the offending vehicle as on date of the motor accident under the certificate of insurance issued by it. 5. It was contended that the motor accident was not occurred due to the rash and negligent driving by the 1[st] respondent but due to the sole negligence on the part of the deceased. The amount claimed as compensation is also disputed for it’s exorbitance. 6. During trial, the 3[rd] petitioner was examined as PW1 and Exts.A1 to A9 were marked in evidence. Respondents did not adduce any evidence. Based on the oral evidence tendered by PW1 and the documents marked in evidence as Exts. A1 and A3, the Tribunal found the driver of the car negligent in driving the car and responsible for causing the motor accident in question. The Tribunal also found that Mr.Xavier died on account of injuries sustained in the motor accident. Accordingly the petitioners who are the parents and the only sibling of deceased Xavier were found entitled to get compensation. Rs.4,17,500/- ``` MACA.No.3062 of 2014 ``` ``` 4 ``` was arrived at as the compensation payable. The 1[st] respondent was directed to deposit the said sum with interest at the rate of 8% per annum from 22.04.2008, the date of filing of the Original Petition till the date of realisation alongwith proportionate cost. 7. The challenge firstly raised by Smt.Neethu Prem, the learned counsel for the petitioners was that the monthly income for assessment of compensation was fixed by the Tribunal as Rs.4,000/- on a notional basis. According to her the deceased claimed to be aged 20 years and a Carpenter by profession. The further claim raised in the Original Petition was that he was earning Rs.1,000/- as monthly income at the relevant time of his death. The 3[rd] petitioner in the Original Petition tendered evidence as PW1. He is none other than the brother of the deceased. He deposed in tune with his pleadings in the Original Petition that Mr.Xavier was aged 20 years, working as a Carpenter and earning Rs.6,000/- as monthly income. The grievance of the petitioners was that inspite of the oral evidence adduced by PW1 the Tribunal adopted fixation of monthly income on a notional basis and therefore is unjustified. ``` MACA.No.3062 of 2014 ``` ``` 5 ``` 8. The learned counsel has also pointed out that under the conventional heads of loss of estate and funeral expenses though the petitioners are entitled to get Rs.16,500/- each as compensation as directed by the Constitutional Bench in National Insurance Company Limited v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)] the Tribunal failed to award compensation accordingly. According to him the petitioners being the parents and the sole brother of the deceased Xavier, each of them are entitled to get Rs.44,000/- as compensation under the head loss of consortium. The sum stands awarded being lower than the actual sum payable, the petitioners seek for re-fixation of the compensation under the above heads. 9. Minu Rout and Another V. Satya Pradyumna Mohapatra and Others [2013 (ACJ) 2544] was relied on by the learned counsel to rest her contention that there is nothing wrong in fixing the monthly income over and above the claim raised in the Original Petition. According to her, the Apex Court in Minu Rout supra fixed a sum excess than that was claimed as the monthly income for computation of compensation. Accordingly the learned counsel sought for fixation of a sum higher than that was claimed as the monthly income in the Original ``` MACA.No.3062 of 2014 ``` ``` 6 ``` Petition on hand. 10. There is absolutely no evidence adduced by the petitioners to substantiate their claims on the occupation of the deceased and his monthly income at the relevant time. The brother of the deceased was examined before the court as PW1 and he deposed in tune with the claim of the petitioners regarding the monthly income of the victim of the motor accident. Therefore, Rs.6,000/- claimed by the petitioners as the monthly income of the deceased stands proved by the oral evidence tendered by PW1. When the pleading of the petitioners was established by evidence adduced, it is improper for a court of law to deviate and opt for a fixation totally against the evidence adduced. 11. The Tribunal in the context on hand is found unjustified in fixing Rs.4,000/- as the monthly income. This Court finds it reasonable to re-fix the monthly income of the deceased as Rs.6,000/- in the case on hand. The deceased being aged 20 years, 40% addition to the monthly income is permissible in consideration of loss of future prospects of the deceased. He being a bachelor half of the monthly income is liable to be deducted in consideration of personal expenditure that he would ``` MACA.No.3062 of 2014 ``` ``` 7 ``` have spent had he been alive. 12. This Court had already taken the mind to re-fix Rs.6,000/- as the monthly income of the deceased at the relevant time of his death following the motor accident. 40% when added in consideration of loss of future prospects Rs.8,400/- (Rs.6,000/- + 40% of Rs.6,000/-) is arrived at. The Tribunal had taken the age of the deceased at the relevant time of his death as 20 years based on the certificate of postmortem examination. Multiplier relevant for the age of the deceased is 18 but the Tribunal took it incorrectly as 15. Therefore 18 is adopted. Deceased being a bachelor, half of the monthly income arrived at is liable to be deducted in consideration of his personal expenditure and thus Rs.4,200/- (Rs.8,400/- / 2) is arrived at. 13. In the re-assessment of compensation with the above factors, Rs.9,07,200/- (Rs.4200/- x 12x 18) is arrived at. Rs.3,60,000/- stands awarded by the Tribunal when deducted from the sum now arrived at as the modified compensation, the petitioners will get Rs.5,47,200/- (Rs.9,07,200/- - Rs.3,60,000/-) as additional compensation under the head loss of dependency. ``` MACA.No.3062 of 2014 ``` ``` 8 ``` 14. On the basis of the direction issued by the Apex Court in Oriental Insurance Company Limited V. Kahlon alias Jasmail Singh Kahlon (deceased) through his legal representative Narinder Kahlon Gosakan and Anr . [AIR 2021 (SC) 3913] it was contended by Sri.Lal George that compensation is not liable to be granted towards pain and suffering in favour of the legal heirs for the death of a victim in a motor accident. Therefore, it is canvassed for deduction of Rs.10,000/- stands awarded as compensation under the head pain and suffering from the total additional compensation arrived at in the appeal on hand. The learned counsel has also canvassed for recording that the petitioners are also not entitled to get any sum as compensation under the head loss of love and affection. Accordingly Rs.30,000/- stands awarded as compensation towards loss of love and affection is sought to be deducted from the total sum now arrived at as additional compensation. 15. The Tribunal failed to award compensation towards loss of estate. The petitioners are entitled to get Rs.16,500/- (in view of 10% addition directed by the Apex Court in every three years from 2017) and this Court awards so. As compensation for funeral expenses Rs.15,000/-stands awarded by the Tribunal, ``` MACA.No.3062 of 2014 ``` ``` 9 ``` and the entitlement of the petitioners being to Rs.16,500/-, this Court awards Rs.1,500/- more. The Tribunal failed to award Rs.44,000/- (Rs.40,000/- + 10% increase) as compensation in favour of each of the petitioners towards loss of consortium. The deceased being survived by three members, one among whom is his sibling (having no entitlement for that) other two are awarded Rs.44,000/- each as compensation. Thus, the petitioner will get Rs.88,000/- as additional compensation towards loss of consortium. 16. The 3[rd] petitioner being the only sibling of the deceased and in view of his disentitlement for compensation under the head loss of consortium, this Court is inclined to award Rs.25,000/- as compensation towards loss of love and affection. Rs.30,000/- was awarded by the Tribunal and this Court is inclined to deduct Rs.5,000/- from the total compensation arrived at. Rs.10,000/- stands awarded as compensation towards pain and suffering is also liable to be deducted from the total additional compensation arrived at. 17. Thus Rs.6,53,200/- (Rs.88,000/- + Rs.1,500/- + Rs.16,500/- + Rs.5,47,200/-) is arrived at as the total additional compensation payable. Rs.15,000/- (Rs.5,000/- + Rs.10,000/-) ``` MACA.No.3062 of 2014 ``` ``` 10 ``` when deducted from that sum, the petitioners will get Rs.6,38,200/- as additional compensation. 18. In the manner of re-assessment of compensation as above, petitioners will get Rs.6,38,200/- as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of Original Petition till the date of realisation excluding 320 days, the delay occurred in filing the appeal on hand. The 2[nd] respondent shall deposit the sum now arrived at as additional compensation, alongwith the interest fixed by this Court and also the amount stands awarded originally by the impugned award with interest fixed by the Tribunal (if not already paid) within a period of two months from the date on which a certified copy of this judgment is received. MACA stands allowed accordingly. Sd/- ``` MJL ```