Dr. P.J. Mathew & Jannifer Mathew v. P. Pradeep & Ors.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** # **`THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 MACA NO. 2540 OF 2009`** ``` AGAINST THE JUDGMENT IN OP(MV)1415/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1DR.P.J.MATHEW DOOR NO.FF6-40,BLOCK NO.7, VASANTH NAGAR, PALARIVATTOM, COCHIN - 682 025. 2JANNIFER MATHEW, W/O.DR.P.J.MATHEW DOOR NO.FF6-40, BLOCK NO.7, VASANTH NAGAR, PALARIVATTOM, COCHIN - 682 025. BY ADVS. SRI.MATHEW A KUZHALANADAN SRI.SUDEEP ARAVIND PANICKER KUM.APARNA SATHIANATHAN SHRI.KURIAKOSE VARGHESE ``` ## **`RESPONDENTS/RESPONDENTS NOS.1,3,4 & 5:`** - `1 P.PRADEEP, S/O. PRABHAKARAN, ANAND BHAVAN, ATTINGAL, THIRUVANANTHAPURAM DISTRICT.` - `2 MANAGER, THE NEW INDIA ASSURANCE CO.LTD NEAR MUNICIPAL BUS STAND, MAIN ROAD, ATTINGAL - 695 011.` - `3 MANAGER THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE II, JEWEL ARCADE, LAYAM ROAD, COCHIN - 682 011.` ``` 4KUMARAN NAIR, S/O.GANGADHARAN NAIR, VILAYIL VEEDU, ATTINGAL, THIRUVANANTHAPURAM. BY ADVS. SRI.R.S.KALKURA Ganappan P G SRI.GEORGE CHERIAN (SR.) ``` ## **MACA.No.2540 /2009** ..2.. ``` SRI.ALEXY AUGUSTINE SRI.M.S.KALESH SRI.HARISH GOPINATH SMT.R.BINDU SMT.P.ANJANA SMT.NEENU PAVITHRAN SRI.R.HARIKRISHNAN (KAMBISSERIL) ``` ``` SMT.K.S.SANTHI-SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA.No.2540 /2009** ..3.. ## **`JUDGMENT`** The hapless parents of Bhimal Mathew, who died in a motor accident in the year, 2000, have filed this appeal impugning the Award of the Motor Accidents Claims Tribunal, Ernakulam (“Tribunal” for short) in OP(MV)No.1415 of 2001, which was filed seeking just compensation, on the ground that the amounts awarded are exiguous. 2. Smt.Sradhaxna Mudrika - learned counsel for the appellant, argued that the deceased was a very young man, who was pursuing his studies in Engineering, in the College of Engineering, Thiruvananthapuram - which is one of the most prestigious colleges in Kerala - in an exemplary manner; thus with the prospect of very high income in future, particularly because he was planning to go abroad. She pointed out that the claimants had produced Ext.A16 to A20, which are the offer letters issued by certain institutions in India and abroad in favour of the classmates of the deceased and asserted that they would luculently establish that the deceased would have been able to obtain an income of more than 50,000/- per month. She argued that, however, in spite of this, the Tribunal **MACA.No.2540 /2009** ..4.. fixed the income of the deceased notionally to be a mere Rs.6,000/- a month, after deducting 1/3rd as personal expenses until he reaches the age of 20 and a further 1/3 beyond that, holding that he would have been married by then and hence his expenses would also go up. The learned counsel contented that this is totally unacceptable and that the Award of the Tribunal is _per se_ untenable, also because it has not granted any amount under the heads “Loss of Estate”, “Consortium” and “Funeral expenses”. She thus prayed that the Award of the Tribunal be set aside to the extent impugned. 3. Sri.P.G.Ganappan – learned Standing Counsel for the 2[nd] respondent Insurance Company, in response, conceded that the accident occurred on 19.10.2000 and that the evidence would show that the 4[th] respondent - the driver of the offending vehicle - was negligent. He, however, argued that the Tribunal erred in accepting Rs.6,000/- per month as the notional income of the deceased because, admittedly, he was not earning any amount at that time, but was only a student of 19 years in age. He submitted that, therefore, going by ## _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ _**Insurance Company Ltd.**_ [(2011) 13 SCC 236], the maximum **MACA.No.2540 /2009** ..5.. that the Tribunal could have taken was Rs.4,500/-, which is the notional income postulated by the Hon’ble Supreme Court in the year 2004, and no more. He argued that, therefore, the appellants cannot assail the Award of the Tribunal, when it has taken the notional income to be Rs.6,000/- per month, which is more than what was entitled. He thus prayed that this appeal be dismissed. 4. Smt.K.S.Santhi – learned counsel for the 3[rd] respondent Insurance Company, submitted that her client is an unnecessary party to this case, because the vehicle insured by them were in fact ridden by the deceased, and there is no claim against them. 5. I have considered the afore submissions and have also gone through the documents and materials on record – copies of which have been handed across the Bar by the learned counsel for the parties on the express understanding that can be relied upon by this Court without dispute. 6. As I have seen above, the factum of the accident is undisputed, so is the fact that it occurred on account of the negligence of the driver of the offending vehicle. 7. Before I move forward, I see from the records that the 4[th] respondent has not been properly served, but this **MACA.No.2540 /2009** ..6.. would not impede this Court from proceeding with the judgment, because there is no order of “pay and recover” against him and the Insurance Company has been made fully liable for the compensation. Therefore, even if this Court is to find in favour of the claimants, it would not cause any prejudice to the 4[th] respondent. 8. The evidence on record would show that the deceased was 19 years of age at the time of his unfortunate demise in the year 2000 and studying in the College of Engineering, Thiruvananthapuram. The claimants, who are his parents, relied upon Exts.A16 to A20 to contend that their son would have earned atleast Rs.60,000/- per month, since, he was likely to get a placement abroad like his classmates, in whose favour said offer letters are stated to have been issued. However, the Tribunal, found from the evidence lead, that it cannot be established that at least two of the persons mentioned in the afore documents were the classmates of the deceased and that one another had died even during his course. If then went on to accept Rs.6,000/- as the notional income of the deceased and to then deduct one third toward his personal expenses and a further one third after the age of 28 years, on the assumption that he would have got married at ..7.. ## **MACA.No.2540 /2009** that age. 9. The learned Tribunal, further, granted only Rs.10,000/- under the head ‘Loss of Estate’ and denied compensation for ‘Loss of Consortium’ to the appellants. The requirements under the head ‘Funeral Expenses’ has also not been considered; and has thus awarded an amount of Rs.5,95,008/- to the claimants, with 7.5% interest from the date of petition till reliasation. 10. The learned counsel for the appellant relied upon _**National Insurance Company v. Fathimath Zuhara**_ [2016 (3) KLT 459] **,** to argue that, in a similar case, wherein, the victim of an accident died in the year 2005, while studying in an Engineering College at Kasargod, this Court approved the notional income found in his favour as Rs.12,000/-. The learned counsel added that, the deceased in this case was studying in a much better College, namely, Government Engineering College, Thiruvananthapuram; and hence that his prospects would have been much higher on that account, particularly, because he was an exemplary student. 11. In response, though Sri.P.G.Ganappan - learned Standing Counsel for the 2[nd] respondent Insurance Company agreed that **Fathimath Zuhara** ( _supra_ ) had adopted **MACA.No.2540 /2009** ..8.. Rs12,000/- as the notional income of a student, he argued that, since the accident in this case took place five years prior to the one noticed by the Court in the said case, the figure could not exceed Rs.10,000/-, at the best. He, however, very fairly conceded that appellants are entitled to Rs.15,000/- towards ‘Loss of Estate’; Rs.80,000/- towards ‘Loss of Consortium’; Rs.15,000/- towards ‘Funeral Expenses’, as has been settled by the Hon’ble Supreme Court in various binding precedents. 12. When one evaluates the afore rival submissions, it is clear that all this Court is required to decide is the notional income of the deceased along with future prospects, as also the amount to be reduced towards his personal expenses. As rightly argued by Smt.Sradhaxna Mudrika, in **Fathimath Zuhara** ( _supra_ ), a learned Division Bench of this Court approved Rs.12,000/- to be the notional income of a student who died in the year 2005. The facts of the case, as recorded therein, render it limpid that the student was studying in a private college in Kasargod; and viewed in that perspective, the case of the appellants in this case would certainly stand on a better footing, because their son was studying in a much more prestigious institution, namely, Government Engineering College, Thiruvananthapuram. The learned counsel, therefore, **MACA.No.2540 /2009** ..9.. is absolutely without error in asserting that, prospects of the deceased would have been much better, particularly, because he was an exemplary student and was trying to go abroad for a job placement. I am, therefore, of the firm view that this Court will be fully justified in adopting the same figure of Rs.12,000/-, as the notional income of the deceased. I hold so. 13. Coming to the percentile _qua_ future prospects to be adopted, it is without doubt, and as is admitted, that going by _**Sarla Varma v. Delhi Transport Corporation**_ [2010 (2) KLT 802 (SC)], the one to be adopted is 40%, while the personal expenses to be deducted would be one half, since the deceased was a bachelor. Add to this, the Tribunal has erred in adopting the multiplier of 13, because at the relevant multiplier, admittedly, was 18. 14. That said, certainly, the claimants are entitled to compensation under the heads ‘Loss of Estate’ and ‘Funeral Expenses’ of Rs.15,000/- each; and though the Tribunal could not have granted any compensation to them under the head Loss of Love and Affection’, it ought to have certainly granted them under the head ‘Loss of Consortium’ to the extent of Rs.40,000/- each, going by _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)]. **MACA.No.2540 /2009** **==> picture [26 x 8] intentionally omitted <==** 15. In such view, the appellants are surely entitled to succeed in this appeal. Resultantly, this appeal is allowed in part, granting the appellants additional compensation under the following heads: - a. Transportation: Rs.5000/- - b. Funeral expenses: Rs.15,000/- - c. Loss of estate: Rs.15,000/- - d. Loss of consortium: Rs.80,000/- - e. Loss of dependency: Rs.18,14,400/- Total amount – Rs.19,29,400/- The afore amount of Rs.19,29,400/- will be eligible to be realised to the appellants from the Insurance Company along with interest at the rate of 5% p.a. from the date of claim, until it is realised; after deducting any amounts that they may have already received. The apportionment, as ordered by the Tribunal, is left intact. Sd/- ## **DEVAN RAMACHANDRAN, JUDGE** ACR **MACA.No.2540 /2009** ..11.. ## **`APPENDIX OF MACA 2540/2009`** ``` PETITIONER ANNEXURES ``` ``` Annexure A5TRUE NOTARIZED COPY OF THE DRIVER LICENSE BEARING NO. 087294271 ISSUED TO APPELLANT NO. 1 Annexure A6TRUE NOTARIZED COPY OF THE DRIVER LICENSE BEARING NO. 0985801490 ISSUED TO APPELLANT NO. 2 ```