Gracy Samuel and Allen Samuel (Minor) represented by Rachel@Gincy v. Rachel @ Gincy and New India Assurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 ``` ``` MACA NO. 36 OF 2013 ``` ``` AGAINST THE COMMON AWARD DATED 23.11.2011 IN OP(MV) NO.1246 OF 2005 AND OP(MV)NO.1873/2007 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## `APPELLANTS/PETITIONERS:` ``` 1GRACY SAMUEL, M/O MATHEW, KODIYIL PUTHEN VEEDU, AYANIVELIKULANGARA, S.V.MARKET, KARUNAGAPPALLY. 2ALLEN SAMUEL (MINOR) REPRESENTED BY RACHEL@GINCY, W/O.LATE MATHEW, KODIYIL PUTHEN VEEDU, AYANIVELIKULANGARA, S.V.MARKET, KARUNAGAPPALLY. ``` ``` BY ADV. SRI.PRATHEESH.P ``` ## `RESPONDENTS/1ST AND 4TH RESPONDENTS:` ``` 1RACHEL @ GINCY, W/O.MATHEW, RAJU BHAVAN, KARUVELIL, EZHUKONE. 2NEW INDIA ASSURANCE CO.LTD. SNV CHAMBERS, III FLOOR,COIMBATORE - 12. R2 BY ADVS.SRI.P.G.GANAPPAN SRI.LAL K.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No. 36 of 2013 -:2:- ## **JUDGMENT** Dated this the 27[th] day of November, 2023 The appeal on hand is originated from a common award passed by II Additional Motor Accidents Claims Tribunal, Kollam (for short ‘the Tribunal’) on 23.11.2011 in O.P(M.V) Nos.1246/2005 and 1873/2007. 2. The quantum of compensation stood awarded by the Tribunal in favour of the claimants in both the Original Petitions are under challenge. 3. It is contended by the learned counsel for the appellants that the Tribunal failed to award just and reasonable compensation in favour of the appellants. 4. This is a case where one Mr.S.Mathew, who is the husband of the 1[st] petitioner in O.P.(MV) No.1873/2007 and the father of the 2[nd] petitioner in both the petitions, died in a motor accident occurred at about 8 p.m. on 07.05.2005. MACA No. 36 of 2013 -:3:- Mr.S.Mathew was a pedestrian and was hit by a Tempo Trax bearing Registration No.TN-38W-0477, driven by it’s driver who was arrayed as the 3[rd] respondent in Original Petition No.1873/2007, due to his rash and negligent driving. The registered owner of the said vehicle was the 2[nd] respondent and the insurer of the same was arrayed as the 4[th] respondent in the Original Petition 1873/2007. 5. All respondents were served with notice from the Tribunal. 2[nd] and 3[rd] respondents though served with notice, did not turn up to contest the Original Petition and therefore were declared as _ex-parte._ 4[th] respondent/insurer filed written statement admitting policy coverage of the offending vehicle as on date of motor accident but denying its liability to indemnify the insured for the reason that the deceased himself was negligent and responsible for causing the motor accident. Compensation claimed was also disputed for it’s exorbitant nature. MACA No. 36 of 2013 -:4:- 6. On the side of the petitioners, Exts.A1 to 10 were marked and on the side of the respondents, none of them adduced any evidence. The Tribunal found on the basis of the evidence on record that the motor accident was occurred due to the rash and negligent driving of the Tempo trax by the 3[rd] respondent. The Tribunal also found that on account of the death of Mr.S.Mathew in the motor accident, petitioners who are his legal representatives are entitled to get compensation. The Tribunal arrived at a sum of `14,00,500/- as compensation payable to the petitioners in both the Original Petitions. It directed the 4[th] respondent to pay the compensation arrived at with interest at the rate of 7.5% per annum from the date of filing of Original Petition No.1246/2005, till the date of realisation. Cost was declined. Aggrieved by the quantum of compensation stood awarded by the Tribunal, the appeal on hand is filed. 7. The primary contention raised by the learned counsel for the appellants was that only a meagre sum was MACA No. 36 of 2013 -:5:- fixed by the Tribunal as the monthly income of the deceased. According to him, the Tribunal ought to have taken a higher sum as the monthly income having due regard to the year in which the motor accident was occurred. It is found from the documentary evidence on record that Ext.A7 was produced which is nothing but copy of a relevant page of the Secondary School Leaving Certificate of the deceased where his date of birth was shown as 26.05.1975. Exts.A8 to 10 were also produced by the petitioners with a view to establish the occupation and monthly income of the deceased. Ext.A8 is nothing but the statement showing contribution of the deceased towards EPF issued from Malabar Cements Ltd. Walayar. Exts.A9 and A10 are certificates respectively dated 07.04.2006 and 27.09.2011 where the salary of the deceased at the relevant time of his death and the salary at a later year were certified. In Ext.A9, a certificate marked in evidence, `8,023/- was certified as the salary of the deceased and 31.05.2033 as the date MACA No. 36 of 2013 -:6:- of his retirement. In Ext.A10 produced and marked in evidence from the side of the appellants, the salary the deceased would have drawn on September, 2011 was certified as `15,799/-. In Ext.A8, the gross salary of the deceased for 2004-2005 was shown as `91,940.99/-. On the basis of the above documents, the Tribunal fixed `10,000/- as his monthly income and compensation payable was calculated on it’s basis. It is found from the discussion in the impugned award that the Tribunal did not take into account loss of future prospects in the case of the deceased while calculating the compensation payable in his favour. 8. The learned counsel for the appellants has drawn the attention of this Court to the method of calculation adopted by the Tribunal and contended it as wrong. According to him the Tribunal ought to have based Exts.A8 to 10 for fixing a higher sum as salary of the deceased and to calculate compensation on its basis. MACA No. 36 of 2013 -:7:- 9. The learned counsel for the respondents opposed the argument on the basis of Ext.A10. According to him what was certified in Ext.A10 was the salary the deceased would have earned at a later point of time and not the one relating to his earnings as on the date of his death in the motor accident. According to him, that cannot be relied on whereas he consents for considering loss of future prospects while awarding compensation. 10. This Court is inclined to rely on Ext.A9 where the salary of the deceased at the relevant time of his death was certified as `8,023/-. Loss of future prospects is also a material aspect which requires consideration in the case on hand. The deceased being a permanent employee earning a fixed sum, in view of **National insurance Company Ltd. v. Pranay Sethi and Ors.** [2017 (4) KLT 662 (SC)], 50% is liable to be added to the monthly income certified in Ext.A9, and thus, `12,034/- [`8,023/- + `4,011/(50% of `8,023/-)] is arrived at. The multiplier has been MACA No. 36 of 2013 -:8:- correctly adopted by the Tribunal as 17 and the deduction towards personal expenditure as 1/ 3[rd] . Those being correct are maintained. 11. On a calculation of compensation towards loss of dependency based on the monthly income modified as above, `16,36,624/- (`12,034/- x 17 x 12 x 2/3) is arrived at. `13,60,000/- being the sum stood awarded by the Tribunal when adjusted against, petitioners will get `2,76,624/- as additional compensation towards loss of dependency. It is found from the impugned award that the Tribunal failed to award the compensation which the petitioners are entitled to get under the conventional heads as per **Pranay Sethi** supra. The Tribunal has awarded only `5,000/- each as compensation towards loss of estate and funeral expenses. The petitioners are entitled to receive `15,000/- each and therefore they will get `10,000/- each as additional compensation under those heads. As compensation towards loss of consortium, the Tribunal has MACA No. 36 of 2013 -:9:- awarded only `10,000/- whereas in view of **Pranay Sethi** supra, each of the petitioners are entitled to get `40,000/-. Since the child is common in both the Original Petitions, this Court is inclined to award `40,000/- each to the child, the mother and the wife. Thus `1,20,000/- is arrived at. When `10,000/- stood awarded by the Tribunal is adjusted against, petitioners will get `1,10,000/- as additional compensation towards loss of consortium. Petitioners are not entitled to get compensation towards loss of love and affection and therefore, `15,000/- stood awarded by the Tribunal as compensation is liable to be deducted from the total sum payable as additional compensation. 12. In the above manner of calculation afresh, petitioners will get `3,91,624/- [(`2,76,624/- + `10,000/- + `10,000/- + `1,10,000/-) - (`15,000/-)] (Rupees Three lakhs ninety one thousand six hundred and twenty four only) as additional compensation, which will also carry interest at the rate of 7.5% per annum from the date of filing of the MACA No. 36 of 2013 -:10:- Original Petition i.e. OP(MV)No.1246/2005, till the date of realisation, excluding 216 days of delay occurred in filing the appeal on hand. 4[th] respondent (2[nd] respondent in the appeal) shall pay the additional compensation proportionately as per direction of the Tribunal in the impugned award, within a period of two months from the date on which a certified copy of this judgment is received. The directions issued by this Court in Circular No.03/2019 dated 06.09.2019 shall also be borne in mind while disbursing the amount. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** MJL