Jancy Jolly and Others v A. Mahalingam and Cherian K.V. and The Oriental Insurance Co. Ltd.

**MACA NO. 512 OF 2011** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943 MACA NO. 512 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1977/2005 DATED** **8.11.2010 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **PERUMBAVOOR, ERNAKULAM** ## **APPELLANTS/PETITIONERS:** 1 JANCY JOLLY, W/O.JOLLY PAUL, PETTAH HOUSE, KUTTIKKATTUKARA.P.O., UDYOGAMANDAL-683504. 2 NIYA JOLLY (MINOR), D/O. JOLLY PAUL, PETTAH HOUSE, KUTTIKATTUKARA.P.O., UDYOGAMANDAL, PIN-683504, REP. BY HER MOTHER AND NEXT FRIEND JANCY JOLLY, W/O. JOLLY PAUL, PETTAH HOUSE, KUTTIKKATTUKARA.P.O., UDYOGAMANDAL-683504. 3 LIYA JOLLY (MINOR), D/O.JOLLY PAUL, PETTAH HOUSE,KUTTIKKATTUKARA.P.O., UDYOGAMANDAL, PIN-683504, REP. BY HER MOTHER AND NEXT FRIEND JANCY JOLLY, W/O.JOLLY PAUL, PETTAH HOUSE, KUTTIKKATTUKARA.P.O., UDYOGAMANDAL-683504. 4 MARIYAMMA PAUL, W/O. PAUL, PETTAH HOUSE, KUTTIKKATTUKARA.P.O., UDYOGAMANDAL683504. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH **MACA NO. 512 OF 2011** **2** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** 1 A.MAHALINGAM, 217, A.A.C STREET, TIRUPUR ROAD, KANGAYAM-678701. 2 CHERIAN.K.V., S/O. VARUGHESE, 19, MURUGESAN NAGAR, SURAM TEX COLONY, KUMALANKUTTAI, ERODE-638001. 3 THE ORIENTAL INSURANCE CO., SUGUNA BUILDINGS, 70-7, AVANASHI ROAD, COIMBATORE-641018. BY ADV SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 512 OF 2011** **3** ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1977 of 2005 on the file of the Principal Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents 1 to 3 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition u/s.166 of the Motor Vehicles, 1988 claiming compensation on account of the death of Johny Paul (deceased) - the husband of the 1[st] petitioner, father of the petitioners 2 and 3 and the son of the 4[th] petitioner. The petitioners had averred that, on 22.8.2005, while the deceased was riding pillion on a motorcycle bearing **MACA NO. 512 OF 2011** **4** Reg.No.KL-7/U-7102 from Edappally to Kalamasserry through the Aluva – Ernakulam National Highway, when the vehicle reached in front of the Kalamasserry Municipal Town Hall, a mini lorry bearing Reg.No.TN 33/Q-5250 (lorry) driven by the 2[nd] respondent in a rash and negligent manner hit the motorcycle. The deceased fell and sustained serious injuries. Although he was rushed to the Medical Trust Hospital, Ernakulam, he lost his life at the hospital. The deceased was employed as a band builder in the Appollo Tyres, Kalammasserry and drawing a monthly salary of Rs.10,754/-. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The respondents 4 and 5 were the owner and insurer of the motorcycle on which the deceased was riding. The petitioners were the dependents of the deceased and were entitled to compensation from respondents 1 to 3, which they quantified at Rs.16,64000/-, but limited to Rs.15,00,000/-. **MACA NO. 512 OF 2011** ## **5** 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. The 3[rd] respondent insurer filed a written statement admitting the insurance coverage of the lorry. However, it was contended that the accident occurred due to the negligence on the part of the rider of the motorcycle. It was alleged that the petitioners colluded with the owner and driver of the lorry and framed the 2[nd] respondent as an accused in order to claim compensation from the 3[rd] respondent. It was also contended that the compensation claimed under the different heads was excessive. The 3[rd] respondent prayed that the claim petition be dismissed. 4. The 5[th] respondent filed a written statement admitting that the insurance coverage of the motorcycle. Nevertheless, it was contended that the accident occurred due to the negligence of the 2[nd] respondent. 5. The rider of the motorcycle – who also got injured in the accident - also filed OP(M) No.1791 of 2005 **MACA NO. 512 OF 2011** **6** before the same Tribunal, claiming compensation. 6. The Tribunal consolidated and jointly tried the original petitions. 7. The petitioners in the original petitions examined PWs.1 to 5 and marked Exts.A1 to A18 in evidence. The 3[rd] respondent produced and marked Ext.B1 and B2 in evidence. Ext.X1 was summoned and marked as a court exhibit. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners in the captioned case to realise an amount of Rs.12,99,054/- with interest @ 8% per annum from the date of petition till the date of realisation from the 3[rd] respondent. The compensation was directed to be apportioned equally among the petitioners. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. **MACA NO. 512 OF 2011** **7** 10. Heard, Sri.A.N.Santhosh, the learned counsel appearing for the appellants/petitioners and Sri.A.R.George, the learned counsel appearing for the 3[rd] respondent/ Insurance Company. 11. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 12. Ext.A5 charge sheet filed by the Edappally City Traffic Police in Crime No.3164 of 2005 substantiates that the accident occurred on account of the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. Therefore, it is the 3[rd] respondent who is to indemnify the 1[st] respondent of his liability to pay compensation. ## **Salary of the deceased** 13. The petitioners had claimed that the deceased was employed as a band builder in Appollo Tyres, **MACA NO. 512 OF 2011** **8** Kalmasserry and drawing a monthly salary of Rs.10,754/-. They produced Ext.A9 salary certificate, which was proved through PW3, the Executive Personnel Officer of the company where the deceased was employed. As per Ext.A9 the deceased was drawing a total salary of Rs.10,754/-. Nevertheless, the Tribunal fixed the salary of the deceased at Rs.7,669/-. 14. The learned counsel appearing for the appellants submitted that the fixation of the salary by the tribunal is erroneous because the Tribunal has deducted allowances that were payable to the deceased. However, the learned counsel appearing for the 3[rd] respondent supported the finding of the Tribunal. 15. On a perusal of Ext.A9 salary certificate, it is seen that other than for the milk allowance of Rs.72.40/-, washing allowance of Rs.25/-, and educational allowance of Rs.125/-, all the other amounts mentioned in Ext.A9 were the legitimate entitlements of the deceased given to **MACA NO. 512 OF 2011** **9** him for the work done by him, which comes to an amount of Rs.10,483/-. 16. Going by the settled law as laid down by the Hon'ble Supreme Court, only the net income of the deceased, i.e after deducting the income tax, that has to be taken into consideration for calculating the loss of dependency. 17. As per the Income Tax slab prevailing in the year 2004-2005, 10% has to be deducted for the income between Rs.50,000/- and Rs.60,000/- and Rs.20 % above the income of Rs.60,000/-. 18. Taking into account the aforesaid slab and the total salary of the deceased at Rs.1,25,796/- per annum, an amount of Rs.14,159/- has to be deducted towards his income tax deduction. Therefore, the net salary of the deceased would be Rs.1,11,637/- i.e., a monthly salary of Rs.9,300/-. Hence, I hold that the net income of the deceased as on the date of his death was Rs.9,300/- per **MACA NO. 512 OF 2011** **10** month. ## **Multiplier** 19. In light of the law laid down in _**Sarala Verma v. Delhi transport Corporation [(2010) (2) KLT 802 (SC)]**_ and as the deceased was aged 40 years at the time of his death, the relevant multiplier is '15'. ## **Future Prospects** 20. In _**Sarala Verma**_ and _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],**_ the Hon'ble Supreme Court has held that the dependents of the deceased are also entitled for an additional compensation of 30%, towards future prospects if the deceased falls in the age group of 40-50 years and is a permanent employee. Accordingly, I fix the future prospects at 30% on the compensation for loss of dependency. ## **Personal living expenses** 21. Following the ratio in _**Sarala Verma**_ and **MACA NO. 512 OF 2011** **11** _**Praanay Sethi**_ (supra) and taking into account the fact that the petitioners were the dependents of the deceased, who are four in number, 1/4[th] of the compensation for loss of dependency has to be deducted towards the personal living expenses of the deceased, which I do. ## **Loss of dependency** 22. Taking into consideration the above factors, namely the salary of the deceased at Rs, 9,300/-, the multiplier at '15', future prospects at 30% and deduction of 1/4[th] of the total compensation towards personal living expenses of the deceased, I refix the compensation for loss of dependecy at Rs.16,32,150/- instead of Rs.12,56,304/-fixed by the Tribunal. ## **Conventional heads of compensation** 23. In clause (viii) of paragraph 61 of _**Pranay Sethi**_ (supra), the Hon'ble Suipreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads, namely, funeral expenses, **MACA NO. 512 OF 2011** **12** loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 24. Following the above ratio, I enhance the compensation under the heads 'funeral expenses' and 'loss of estate' to Rs.15,000/- each instead of Rs.2,500/each awarded by the Tribunal. 25. Similary, the Tribunal has awarded only an amount of Rs.15,000/- under the head loss of consortium. 26. Considering the fact that the petitioners were all dependents on the deceased, I hold that each of them are entitled Rs.40,000/- towards loss of consortium, totalling to an amount of Rs.1,60,000/-. ## **Compensation for loss of love and affection and pain** ## **and sufferings** 27. In New _**India Assurance Company Ltd., v.**_ _**Somwati and others [(2020 9 SCC 644]**_ , the Hon'ble Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount ## **MACA NO. 512 OF 2011** ## **13** shall be awarded under the head 'loss of love and affection', as it would amount to duplication or overlapping of compensation. Hence, I set aside the amount of Rs.15,000/- awarded under the head loss of love and affection. 28. Similarly, in _**United India Insurance Company Ltd., v. Satinder Kaur @ Satwinder Kaur and others (2020 (3) KHC 760),**_ the Hon'ble Supreme Court has held that the dependents of the deceased are not entitled for compensation under the head 'pain and sufferings'. Therefore, I set aside the amount of Rs.5,000/- awarded by the Tribunal under the said head. 29. With respect to the compensation awarded under the heads transportation expenses and damage to clothing at Rs.250/- respectively, I find that the Tribunal has awarded reasonable and just compensation. 30. On a comprehensive re-appreciation of the **MACA NO. 512 OF 2011** **14** pleadings and materials on record, the law laid down in the aforecited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount<br>Awarded by<br>the Tribunal<br>(in Rs.)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---| |Transportation<br>expenses|2500/-|2500/-| |Clothing|250/-|250/-| |Funeral expenses|2,500-|15,000/-| |Pain and sufferings|5,000/-|-| |Loss of estate|2,500/-|15,000/-| |Loss of love and<br>affection|15,000/-|-| |Loss of consortium|15,000/-|1,60,000/-| |Loss of dependency|12,56,304/-|16,32,150/-| |Total|12,99,054/-|18,24,900/-| **MACA NO. 512 OF 2011** **15** 31 **.** The appellants/petitioners had claimed a total compensation of Rs.15,00,000/-. 32. In light of the law laid down by the Hon'ble Supreme Court in _**Nagappa v. Gurudwara Singh (2003) 1 KLT 115),**_ there is no restriction for the courts in awarding more compensation than the amount that is claimed in the claim petition because what is being awarded is just compensation. The above view has been reiterated by the Hon'ble Supreme Court in _**Rajesh v.**_ ## _**Rajbir Singh [(2013 (3) KLT 89 SC].**_ 33. In the instant case, the above just compensation has been arrived at following the ratio in _**Sarala Verma**_ and _**Pranay Sethi**_ . Therefore, the petitioners are legally entitled for the above fixed amount as compensation. In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.5,25,846/- with interest at the rate of Rs.6% per annum on the enhanced **MACA NO. 512 OF 2011** **16** compensation from the date of petition till the date of deposit and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation before the Tribunal with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellants/petitioners, after deducting their liability, if any, towards court fee, in equal shares and in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm