Latha v. P.P. Padmanabhan and others

## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 17[TH] DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943_ ## _MACA NO.824 OF 2012_ _AGAINST THE ORDER/JUDGMENT IN OPMV 2318/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM, ERNAKULAM_ _APPELLANT/S:_ _1 LATHA, AGED 43 YEARS, WIFE OF LATE SRI. LALU. 2 MINOR MEERA, AGED 16 YEARS, (DATE OF BIRTH 06-06-1996), DAUGHTER OF LATE SRI.LALU. 3 MINOR NIKHIL, AGED 15 YEARS, (DATE OF BIRTH 12-10-1997), SON OF LATE SRI. LALU. MINOR APPELLANTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER AND GUARDIAN THE 1ST APPELLANT SMT. LATHA._ _ALL APPELLANTS ARE RESIDING AT PALAKUNNEL HOUSE, URULANTHANNI DESOM, KUTTAMPUZHA VILLAGE, P.O. URULANTHANNI, PIN-686691, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. NOW RESIDING AT CHULLY HOUSE, KALLUR PALAKKAPARAMBU DESOM, KALLUR VILLAGE, P.O.KALLUR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT._ _BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI SRI.K.R.SUNIL SRI.J.VIVEK GEORGE_ M.A.C.A.No.824/2012 2 ## _RESPONDENT/S:_ - _1 P.P.PADMANABHAN,_ - _PULLATH HOUSE, KALLOORKAD P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686 668._ - _2 SRI.ABDUL MAJEED, S/O.ABOOBACKER KOYA HAJI, PANTHAKKIL HOUSE, ELAVATHUR AMSOM, PUTHUR DESOM, PAVANADU P.O., KOZHIKODE DISTRICT, PIN-673 104._ - _3 ORIENTAL INSURANCE COMPANY LIMITED, D.O.T.H. TOWERS, MARKET ROAD, MOOVATTUPUZHA P.O., PIN-686 673._ - _4 P.R.JOHNSON, S/O.RAJU, PARAKKAL HOUSE, VANDIPPERIYAR P.O., VANDIPERIYAR, PIN-685 533._ - _5 M.K.CHELLAPPAN,_ - _S/O. NARAYANAN NAIR, INJIKKAD, ATTOVAN,_ _VANDIPPERIYAR, P.O.VANDIPPERIYAR, PIN-685 533._ - _6 THE MANAGER_ _NEW INDIA ASSURANCE COMPANY LIMITED,_ _KANJIRATHANAM BUILDING, CENTRAL JUNCTION, KATTAPPANA, PIN-685 508._ _BY ADVS._ _A.R.GEORGE_ _VPK.PANICKER_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.824/2012 3 ## **ZIYAD RAHMAN A.A, J.** -------------------------------------------------------M.A.C.A.No.824 of 2012 ---------------------------------------------Dated this the 17[th] day of September, 2021 ## **ORDER** This appeal is filed by the petitioners in O.P.(M.V.).No.2318 of 2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The claim petition was filed by them seeking compensation for the death of one Lalu, who died due to the injuries sustained in a motor accident occurred on 17.07.2002. According to the appellants, the deceased was aged 39 and was working as a driver at the time of accident. The monthly income claimed was Rs.4,000/-. The accident occurred when the Qualis car in which he was traveling, collided with a lorry coming from the opposite side. 2. As compensation, they claimed an amount of Rs.9,52,500/-, which limited to Rs.9,50,000/-. The claim petition was contested by the 3[rd] and 6[th] respondents- insurance companies with whom respective vehicles were insured at the M.A.C.A.No.824/2012 4 time of the accident. They filed written statement admitting coverage of policy in respect of the said vehicles, but disputed the liability by putting the claim upon each other. Evidence in this case consists of Exts.A1 to A13 from the side of the appellants and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the finding that the accident occurred due to the negligence of the driver of the Qualis car and accordingly, the 3[rd] respondent, the insurer of the said vehicle was held responsible to pay the compensation, being the insurer of the said vehicle. The quantum of compensation was fixed as Rs.4,31,000/-. Being dissatisfied with the compensation, this appeal is filed. 3. Heard the learned counsel for the appellants/petitioners and the learned counsel for the respondents. 4. The learned counsel for the appellants submits that the quantum of compensation is extremely low and not in tune with the settled principles of law. She points out that even though the monthly income claimed by the appellants was M.A.C.A.No.824/2012 5 Rs.4,000/- and Ext.A9 salary certificate as well as Ext.A10 driving license were produced to substantiate the income, the Tribunal has taken only Rs.3,000/-. Similarly, it was also pointed out that no future prospects was taken into consideration while computing compensation for loss of dependency. Similarly, the deduction made by the Tribunal towards personal expenses was 1/3rd[, whereas proper deduction should have been limited to ¼ as] the deceased left behind 5 depending survivors. Further, the Tribunal has also not granted any amounts towards loss of estate, loss of consortium and the amount awarded under the head of funeral expenses was only Rs.4,000/-. On the other hand, the learned counsel for the insurance company seriously opposes the said contentions and she submits that the Tribunal has awarded an amount of Rs.20,000/- under the head of loss of guidance and service to children, parents etc., which was not allowable. 5. When considering the question of quantum of compensation under the head of loss of dependency, it can be seen that the monthly income of Rs.3,000/- as taken by the Tribunal is low. There is no evidence to show that he was a M.A.C.A.No.824/2012 6 driver by profession. However, as the accident occurred in the year 2002, at any rate, monthly income of Rs.3,000/- is slightly on the lower side. In my view he would have been getting at least an amount of Rs.3,500/- per month as monthly income and accordingly it is reasonable to take the same for compensation. Similarly, as per the principles laid down by the Hon’ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** while computing the compensation for loss of dependency, future prospects of the deceased also should be taken into account. As the deceased comes within the age group of below 40 years, 40% is the appropriate addition to be made. Further, as rightly pointed out by the learned counsel for the appellants, the deduction also should have been confined ¼[th] as there are five dependents. At this juncture, the leaned counsel for the insurance company points out that the multiplier taken by the Tribunal is 16; but as per the decision in **Sarla Verma & Ors. v. Delhi Transport Corporation [(2009) 6 SCC 121],** the proper multiplier is 15. The said contention is legally sustainable, since the deceased would come within the age group of 35-40 M.A.C.A.No.824/2012 7 years, and it is accordingly accepted. In the light of the above, the compensation under the head of loss of dependency has to be re-worked and while doing so, it comes to Rs.6,61,500/[(3500+1400) x 12 x 15 x ¾]. The Tribunal has already awarded an amount of Rs.3,84,000/- under this head and hence, the balance amount comes to Rs.2,77,500/-. 6. Next aspect is with regard to the compensation for loss of consortium. It is seen that the amount awarded under the head of loss of spousal consortium is Rs.15,000/-, which is inadequate. In **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [2020 (3) KHC 760],** the Honourable Supreme Court stipulted that in the case of death of a person, spouse of the deceased shall be entitled for spousal consortium, children shall be entitled for parental consortium and filial consortium shall be granted to the parents of the deceased. The rate of compensation under this head was fixed as Rs.40,000/- each. In this case, the deceased left behind wife, two children and aged parents. In such circumstances, all the petitioners in the orginal petition shall be entitled for M.A.C.A.No.824/2012 8 compensation under the heads of spousal, parental and filial consortium at the rate of Rs.40,000/- each and thus it comes to Rs.2,00,000/-. As the Tribunal awarded Rs.15,000/- under this head, the appellants will be entitled for further sum of Rs.1,85,000/-. 7. As pointed out by the learned counsel for the appellant, no amount should have been granted by the Tribunal under the head of loss of guidance and service to the children, parents etc. This is not necessary, particularly because, this Court has already granted compensation under the head of loss of consortium to all the petitioners in the claim petition, which would take care the compensation under that head as well. In such circumstances, amount of Rs.20,000/- granted under that head is set aside. No amount is seen awarded under the head of loss of estate. As per **Pranay Sethi** (supra), the amount to be awarded is Rs.15,000/- and it is granted. Similarly, the amount granted under the head of funeral expenses is only Rs.4,000/-, which is lessor by Rs.11,000/- as the proper amount is Rs.15,000/-. Accordingly, that amount is also to be granted. 9 M.A.C.A.No.824/2012 Accordingly this appeal is disposed of, fixing the additional amount receivable by the appellants as Rs.4,68,500/[277500+1,85,000+15000+11000-20000] (Rupees four lakhs sixty eight thousand and five hundred only) and the insurance company shall deposit the said amount along with interest as ordered by the Tribunal along with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A.(JUDGE)** DG