MACA 245/12 & CO 87/12

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** ## **MACA NO.245 OF 2012** **AGAINST THE AWARD DATED 5.5.2011 IN OP(MV) NO.862/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT:** **NATIONAL INSURANCE CO. LTD. PALARIVATTOM, ERNAKULAM, REP.BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, KOCHI-35.** ## **BY ADV SRI.E.M.JOSEPH** ## **RESPONDENTS:** **1 OMANA AGED 46 YEARS W/O.LATE VENUGOPAL, MADAPPATTIL HOUSE, KUNJATTUKARA, EDATHALA P.O., PUKKATTUPADY, KOCHI-683 561. 2 VISHNU M.V. AGED 22 YEARS S/O.LATE VENUGOPAL, MADAPPATTIL HOUSE, KUNJATTUKARA, EDATHALA P.O., PUKKATTUPADY, KOCHI-683 561. 3 KRISHNAKUMAR K.R. AGED 32 YEARS S/O.RADHAKRISHNA MENON, KADAMBANATTU HOUSE, PAZHANGANADU P.O., KIZHAKKAMBALAM, ERNAKULAM, PIN 683101.** **BY ADV SRI.SAJU J.VALLYARA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 245/12 & CO 87/12 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** ## **CO NO.87 OF 2012** **AGAINST THE AWARD DATED 5.5.2011 IN OP(MV) NO.862/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM,** ## **PETITIONERS:** - **1 OMANA** **AGED 46 YEARS W/O.LATE GENUGOPAL, MADAPPATTIL HOUSE, KUNJATTUKARA, EDATHALA P.O., PUKKATTUPADY, KOCHI-683561, ERNAKULAM DISTRICT.** - **2 VISHNU M.V. AGED 22 YEARS** **S/O.LATE VENUGOPAL, MADAPPATTIL HOUSE, KUNJATTUKARA, EDATHALA P.O., PUKKATTUPADY, KOCHI-683561, ERNAKULAM DISTRICT.** **BY ADV SRI.SAJU J.VALLYARA** ## **RESPONDENTS:** - **1 THE NATIONAL INSURANCE COMPANY PALARIVATTOM, ERNAKULAM, REPRESENTED BY THE MANAGER, KOCHI, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN-682035.** - **2 KRISHNAKUMAR K.R.** - **S/O.RADHAKRISHNA MENON, KADAMBANATTU HOUSE, PAZHANGANADU P.O., KIZHAKKAMBALAM, ERNAKULAM-683562.** **BY ADV SRI.E.M.JOSEPH** **THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA 245/12 & CO 87/12 ## **COMMON JUDGMENT** Dated this the 4[th] day of October, 2021 As the appeal and Cross Objection arise from the award in O.P.(M.V.)No.862 of 2009 on the file of the Motor Accidents Claims Tribunal, Ernakulam, they are being disposed of by this common judgment. 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 under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Vipin Venugopalan (deceased), the son of the first petitioner and the brother of the second petitioner. It was their case that, on 1.11.2008, while the deceased was riding pillion on a motor cycle bearing registration No.KL-40/A 8522 (motor cycle), ridden by the first respondent in a rash and negligent manner so as to endanger human life, when the motor cycle reached the petrol pump at Neriyamangalam on the Kochi – Madura National Highway, the motor cycle skidded and overturned and hit 4 MACA 245/12 & CO 87/12 the hundi box of a Juma Masjid. The deceased sustained serious head injuries. Although he was treated at the Community Health Centre, Kothamangalam, he lost his life on 2.11.2008. The accident occurred due to the negligence of the first respondent, who was also the owner of the motor cycle. The second respondent was the insurer of the motor cycle. The deceased was a Safaiwala in the Southern Naval Command, INS Venduruthy, Ernakulam and was drawing a monthly salary of Rs.8,996/-. The petitioners were the dependents of the deceased. Hence they claimed a compensation of Rs.14,00,000/- from the respondents. 3. The first respondent did not contest the proceedings and was set exparte. The second respondent filed a written statement admitting that the motor cycle had a valid insurance coverage. Nevertheless, it was contended that the compensation claimed was excessive. 4. The petitioners produced and marked Exhibits A1 to A11 in evidence. The respondents did not let in any evidence. 5 MACA 245/12 & CO 87/12 5. The Tribunal, by the impugned award, allowed the claim petition in part, by permitting the petitioners to recover from the second respondent an amount of Rs.9,95,864/- with interest at the rate of 8% per annum from the date of petition till the date of realisation. The compensation amount was directed to be apportioned between the petitioners in the ratio of 80:20. 6. Aggrieved by the impugned award, the second respondent - insurer has filed the appeal, and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners have preferred the CrossObjection. 7. Heard ; Sri.E.M.Joseph, the learned counsel appearing for the appellant/second respondent - insurer and Sri.Saju J.Vallyara, the learned counsel appearing for the respondents/cross objectors/petitioners. 8. The sole question that arises for consideration in the appeal and the Cross Objection is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 6 MACA 245/12 & CO 87/12 ## **Negligence and liability** 9. Exhibit A2 final report filed by the Oonnu police in Crime No.253 of 2008 substantiates that the accident occurred due to the negligence of the first respondent. Admittedly the first respondent was the owner and the second respondent was the insurer of the motor cycle. The second respondent admitted the insurance policy and had not alleged that the first respondent had violated the policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out the accident. ## **Income of the deceased** 10. The petitioners had averred in the claim petition that the deceased was employed as Safaiwala under the Commanding Officer of INS Venduruthy, and he was drawing a monthly salary of Rs.8,996/-. To substantiate their assertions, they had produced Exhibit A9 salary certificate. 11. The Tribunal after deducting the travelling allowance and washing allowance fixed the monthly 7 MACA 245/12 & CO 87/12 income of the deceased at Rs.8,472/-. As the income of the deceased fell well within the income tax exemption limit, which in the year 2010 was Rs.1,10,000/-, no amount is to be deducted towards income tax of the deceased. Hence I confirm the fixation of the monthly income of the deceased at Rs.8,472/-. ## **Age and multiplier of the deceased** 12. As per Exhibit A10 SSLC Book, it is proved that the deceased was aged 22 years, on the date of the accident/death. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier is '18'. ## **Personal Living Expenses of the deceased** 13. Admittedly the deceased was a bachelor. In the light of the law laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [2017 (16) SCC 680], one half of the compensation, for loss due to dependency, has to be deducted towards the personal living expenses of the deceased because he was a bachelor. 8 MACA 245/12 & CO 87/12 ## **Future prospects** 14. Following the ratio in **Sarla Verma** (supra) and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 22 years at the time of the accident/death and he was a permanent employee in the Indian Navy, I hold that the petitioners are entitled for future prospects at 50% on the compensation for loss due to dependency. ## **Loss due to dependency** 15. Taking into account the above mentioned factors i.e., the monthly income of the deceased at Rs.8,472/-, the multiplier 18, the future prospects at 50% and deducting one half of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.13,72,464/-, instead of Rs.9,48,864/- fixed by the Tribunal. ## **Conventional heads of compensation** 16. The Honourable Supreme Court in Clause (viii) of Paragraph 61 of **Pranay Sethi** (supra) has held that the dependents of the deceased are entitled for 9 MACA 245/12 & CO 87/12 compensation under the conventional heads which are funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, 15,000/- and 40,000/- respectively. 17. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- towards funeral expenses, Rs.5,000/- towards loss of estate and no amount towards loss of consortium. 18. Therefore, following the ratio in **Pranay Sethi** (supra), I enhance the compensation under the above heads 'funeral expenses' and 'loss of estate' by Rs.10,000/- each. Likewise as the petitioners are the mother and younger brother of the deceased, I hold that both of them are entitled to compensation for 'loss of consortium' at Rs.40,000/- each, i.e., Rs.80,000/-. ## **Compensation for pain and sufferings and loss of love and affection** 19. The Tribunal has awarded an amount of Rs.5,000/- towards pain and sufferings and Rs.30,000/towards loss of love and affection. 20. In paragraph 19 of **Sarla Verma** (supra), the Honourable Supreme Court has categorically held that no 10 MACA 245/12 & CO 87/12 amount shall be awarded under the head 'pain and sufferings' to the legal representatives of the deceased. The said view has been reiterated by the Honourable Supreme Court in **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others** [2020 (3) KHC 760]. In such circumstances, I set aside the amount of Rs.5,000/- awarded under the head pain and sufferings. 21. In **New Insurance Assurance Co. Ltd v. Somwati & Others** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation for 'loss of consortium' is awarded, no amount of compensation shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of compensation awarded under the head 'loss of love and affection'. 22. With respect to the compensation awarded under the head transportation expenses, I find the same to be reasonable and just. 11 MACA 245/12 & CO 87/12 23. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the aforecited decisions, I hold that the petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference : |sy reference :||| |---|---|---| |Head of claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Amount modified<br>and recalculated<br>by this Court (Rs.)| |Transport expenses|2,000/-|2,000/-| |Funeral Expenses|5,000/-|15,000/-| |Loss of estate|5,000/-|15,000/-| |Compensation for Pain<br>and suffering|5,000/-|nil| |Compensation forloss of<br>love and affection|30,000/-|nil| |Loss of Consortium|nil|80,000/-| |Loss of dependency|9,48,864/-|13,72,464/-| |Total|9,95,864/-|14,84,464/-| 24. Even though the petitioners had claimed only an amount of Rs.14,00,000/- as compensation, following the ratio in **Sarla Verma** (supra) and **Pranay Sethi** (supra), wherein the Honourable Supreme Court has held that the dependents of the deceased are entitled for future prospects at 50% and also compensation under the conventional heads, I have awarded more compensation 12 MACA 245/12 & CO 87/12 than what is claimed in the claim petition. The said course is permissible in the light of the law laid down by the Honourable Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 (SC)]. In the result, the appeal is dismissed and the Cross Objection is allowed, by enhancing the compensation by an amount of Rs.4,88,600/- with interest @8% per annum from the date of petition till the date of realisation and a cost of Rs.4,000/-. The appellant/second respondent insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation with interest and cost to the petitioners in the ratio of 80:20, after deducting their liability, if any, towards court fee. Needless to mention that in view of the dismissal of the appeal, the appellant/2[nd] respondent shall deposit the balance amount due as per the impugned award after deducting Rs.5,00,000/- that was directed to 13 MACA 245/12 & CO 87/12 be deposited by this Court by its order dated 8.4.2014 in I.A.No.288 of 2012. Due to the long lapse of time, the entire compensation amount deposited by the appellant/ 2[nd] respondent shall be immediately released to the respondents/ petitioners. Sd/- **C.S.DIAS, JUDGE** csl