Jayasreekumari and others v. Vineeth Kumar Vilayil Puthen Veedu; Jyothi Chaly; United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN SATURDAY,THE 18[TH] DAY OF DECEMBER,2021/27TH AGRAHAYANA,** ## **1943** **MACA NO. 1448 OF 2020** **AGAINST THE AWARD DATED 15.02.2020 IN OPMV 316/2016 OF AMOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA** ## **APPELLANTS/PETITIONERS:** 1 JAYASREEKUMARI, AGED 56 YEARS, KOMALIL VEEDU, CHERUTHANA P.O., CHERUTHANA -690 517. 2 ARAVINDAKSHAN NAIR, AGED 61 YEARS, KOMALIL VEEDU, CHERUTHANA P.O., CHERUTHANA - 690 517. 3 ARUN A. AGED 28 YEARS, KOMALIL VEEDU, CHERUTHANA P.O., CHERUTHANA - 690 517. BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) A.R.DILEEP P.J.JOE PAUL MANU SRINATH RAJAN G. GEORGE ## **RESPONDENTS/RESPONDENTS:** 1 VINEETH KUMAR VILAYIL PUTHEN VEEDU, KULATHOOR, THIRUVANANTHAPURAM - 695 583. 2 JYOTHI CHALY, T.C.26/302, KANDATHIL, PUNNAN ROAD, AGS POST, THIRUVANANTHAPURAM - 695 039. 3 UNITED INDIA INSURANCE CO.LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KOTTAYAM - 686 001. BY ADV SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 _M.A.C.A No.1448 of 2020_ ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.1448 of 2020_ ================================ _Dated this the 18[th] day of December, 2021_ ## _**J U D G M E N T**_ The petitioners are parents and elder brother of one Akhil, who died in a motor accident occurred at Maliyeckal Junction on 04.08.2015 at about 2.15 p.m. While Akhil was travelling in a motorcycle bearing Registration No.KL 29J 2895 along with one Ragesh Kumar through Kollam-Alappuzha national highway, a tanker lorry bearing Registration No.KL 01BL 5947 driven by the 1st respondent in a rash and negligent manner hit the motorcycle bearing Registration No.KL 29J 2895, thereby both Akhil and Ragesh Kumar, sustained grievous injuries, while Akhil succumbed to the injuries. The legal heirs of deceased Akhil approached the Tribunal and canvassed compensation to the tune of Rs.35 lakh alleging negligence against the 1st 3 _M.A.C.A No.1448 of 2020_ respondent driver of the tanker lorry. Respondents 1 and 2 were set exparte. The 3rd respondent insurance company disputed negligence and quantum of compensation while admitting the policy. The Tribunal tried 2 cases jointly, viz., O.P(MV).No.316/2016 and O.P(MV).No.317/2016. Thereafter the Tribunal granted Rs.15,04,800/- as compensation to the appellants in this case. 2. The appellants are dissatisfied in the matter of quantum. 3. Heard both sides. 4. The learned counsel for the appellants confined his argument mainly in the matter of fixation of monthly income at Rs.9,000/- by the Tribunal though the appellants adduced evidence to prove that the deceased was a technically qualified person to do the work of a Computer Hardware and Maintenance Technician. According to the learned counsel for the appellants, Ext.A12 produced along with Ext.A10 would go to show that 4 _M.A.C.A No.1448 of 2020_ Akhil completed the above said course and passed Diploma Course in the Computer Hardware and Maintenance from the Government Polytechnic, Cherthala in second class and at the time of accident, he was getting Rs.20,000/- as salary from SDS IT Solutiona. The learned counsel for the appellants would submit that the Tribunal is not justified in fixing Rs.9,000/- alone as the monthly income where the appellants adduced evidence to substantiate the technical qualification of the deceased in a satisfactory manner. 5. Refuting this argument, it is submitted by the learned counsel for the insurance company that Rs.20,000/- claimed by producing Ext.A13 salary certificate, in fact, not proved in any manner. That is the reason why the Tribunal negatived the said contention at the instance of the appellants. Therefore, the learned counsel for the insurance company opposed revision of monthly income in excess of Rs.9,000/- fixed by the Tribunal. I have perused Ext.A10 certificate issued from Government 5 _M.A.C.A No.1448 of 2020_ Polytechnic, Cherthala and Ext.A12 provisional certificate of Diploma in Computer Hardware Maintenance of Akhil. Apart from that, as per Ext.A9 the deceased obtained the certificate of recognition in Entry Level Professional course in Hardware and Networking from the Corona Institute of Technology and he was employed in SDS IT Solutions as per Ext.A11 certificate. 6. It is true that the appellants not attempted to prove Ext.A13 salary certificate by examining its author in a convincing manner and therefore the Tribunal could not be faulted in the matter of not considering Ext.A13 salary certificate. 7. In this context, it is relevant to note that, following the ratio in [(2011) 13 SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance,**_ if notional income is considered, the same would come to Rs.9,500/-. In view of the matter, I have no hesitation to hold that the monthly income fixed at Rs.9,000/- by the Tribunal for calculating loss of dependency income is insufficient and in this regard the contention raised by the learned 6 _M.A.C.A No.1448 of 2020_ counsel for the appellants is having force. Having considered the educational qualification as discussed, I am of the view that Rs.12,000/- can be fixed as the monthly income for the purpose of calculating the loss of dependency income. Needless to say that 40% addition also to be made in this particular case following the ratio in [(2017) 16 SCC 680], _**National Insurance Company Limited v. Pranay Sethi & Ors.**_ considering the age of the deceased below 40. No disputes raised as regards to the multiplier fixed by the Tribunal or in relation to the deduction as half considering the status of the deceased as a bachelor. In view of the matter, dependency income is recalculated as under: 16800 X 12 X 18 X ½ = Rs.18,14,400/-, out of which Rs.13,60,800/- was granted by the Tribunal. Therefore **Rs.4,53,600/- more** is granted under the head **loss of dependency** . No other challenge raised at the instance of the appellants. 8. However, the learned counsel for the insurance 7 _M.A.C.A No.1448 of 2020_ company submitted that following the ratio in [AIR 2020 SC 3076], _**United India Insurance Co. Ltd. v. Satinder Kaur,**_ **Rs.15,000/-** granted under the head **pain and sufferings** is impermissible and the same required to be **reduced.** Therefore, Rs.15,000/- is reduced. 9. Similarly, the learned counsel for the insurance company is right in pointing out that the Tribunal granted Rs.90,000/- under the head loss of consortium though Rs.80,000/alone is admissible considering the fact that the original appellants 1 and 2, being parents, alone are entitled to get parental consortium. This submission also is correct. In view of the matter, **Rs.10,000/-** under the head **loss of consortium reduced** . granted in excess is 10. In the result, the appeal is allowed in part. It is held that the appellants are entitled to get Rs.4,28,600/- (Rupees Four lakh twenty eight thousand six hundred only) as enhanced compensation and the award impugned is modified as above with 8 _M.A.C.A No.1448 of 2020_ the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellants in the proportion fixed by the Tribunal within two months from today and the appellants are at liberty to realise the same, on deposit. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_