MACA No. 112 of 2010

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 ``` ## **`MACA NO. 112 OF 2010`** ## **`AGAINST THE AWARD DATED 25.08.2009 OP(MV) 487/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA`** ## **`APPELLANTS/PETITIONERS:`** - `1 RAGHAVAN NAIR S/O KANNAN NAIR ERUVATTIL HOUSE,NEELESWARAM DESOM, KASARAGOD DISTRICT.` - `2 PADMAVATHYWO.RAGHAVAN NAIR ERUVATTIL HOUSE,NEELESWARAM DESOM, KASARAGOD DISTRICT.` ``` BY ADV SRI.T.N.MANOJ ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RAMESH KUMAR S/O VELAYUDHAN MADATHUMUTHIPARAMBIL HOUSE, PAINGODE, THRISSUR. ``` - `2 SANKARANARAYANAN PARAPARAMBIL HOUSE VELLANGALLORE, DESOM VELLANGALLORE.P.O.` - `3 THE MANAGER, NATIONAL INSURANCE COMPANY MALEIKAL BUILDINGS,MAIN ROAD, IRINJALAKUDA.` ``` 4JALAKAKSHMI D/O.RAGHAVAN NAIR S/O.KANNAN NAIR,ERUVATTIL HOUSE, NEELESWARAM DESOM, KASARAGOD DISTRICT. ``` ``` 2 ``` ## **`MACA NO. 112 OF 2010`** ``` BY ADVS. GEORGE A.CHERIAN, SC, NATIONAL INSURANCE COMPANY LIMITED GEORGE A.CHERIAN GEORGE CHERIAN (SR.)(G-81) ARATHI PRABHAKARAN(K/001158/2022) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 112 OF 2010 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.487/2006 on the files of the Motor Accident Claims Tribunal, Irinjalakkuda. The said claim petition was submitted by them seeking compensation for the death of one Jayarajan, the son of the appellants 1 and 2 and the brother of the 3[rd] appellant, due to the injuries sustained in motor accident that occurred on 21.12.2005. The accident occurred, when the motorcycle ridden by the deceased, collided with an autorickshaw driven by the 1st respondent. The said autorickshaw was owned by the 2nd respondent and was insured with the 3rd respondent. 2. The 3rd respondent filed a written statement admitting the coverage of policy but, contended that the 1st respondent had no license and badge at the time of the accident. The negligence as well as the quantum of compensation was also disputed by them. 3. The evidence in this case consists of Exts.A1 to A8 from the side of the appellants. No evidence was adduced by the respondents. After the trial, the Tribunal came to the conclusion ``` MACA NO. 112 OF 2010 ``` ``` 4 ``` that the accident occurred due to the negligence on the part of the 1st respondent in driving the autorickshaw and being the insurer of the said vehicle, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,67,000/- and said amount was directed to be deposited by the 3rd respondent with interest @ 7% per annum from the date of petition till realisation with proportionate cost. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 4. Heard Sri.Manoj T.N., learned counsel appearing for the appellants and Sri.George A. Cherian, learned counsel appearing for the 3rd respondent. 5. The only question that arises for consideration is whether any enhancement of compensation as sought for in the appeal is necessary or not. The contentions raised by the appellants are mainly on the monthly income taken by the Tribunal and also the lack of consideration of future prospects while assessing the compensation. Both the said contentions have to be accepted in the light of the settled positions of law in this regard. ``` MACA NO. 112 OF 2010 ``` ``` 5 ``` 6. As far as the monthly income is concerned, according to the appellants, the deceased was working as a Teacher in Chinmaya Vidyalaya, Kolazhy, Thrissur with a monthly income of Rs.6,300/-. However, the Tribunal took the monthly income as Rs.3,500/- only. To substantiate the salary, Ext.A4 certificate was produced. 7. As far as the Ext.A4 salary certificate is concerned, the Tribunal did not accept the said amount mainly on the ground that the amount of Rs.6,300/- shown therein, included the basic salary of Rs.3,500/- plus the emoluments provided to him including for accommodation. However, I am of the view that, considering the educational qualification of the petitioner as is discernible from Exts.A6 to A8 and the nature of employment and the year of accident which was 2005, the monthly income of Rs.3,500/adopted by the Tribunal is on the lower side. Of course, it is true that Rs.3,500/- was the basic salary shown in the salary certificate. However, it is discernible from the said certificate itself that he was also being provided with other emoluments which form part of his remuneration package. In this regard, it is to be noted that the ``` MACA NO. 112 OF 2010 ``` ``` 6 ``` Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] was pleased to take the income of an ordinary worker as Rs.4,500/- in the year 2004 even without any evidence. Considering that in this case, the accident occurred in the year 2005 and the appellant was highly educated and engaged as a teacher in a reputed establishment, I am of the view that the monthly income can be taken as Rs.6,000/-. As the deceased was aged 27 years at the time of the accident, 40% of the income has to be added towards future prospects. Even though the learned counsel for the appellants contended that 50% of the addition ought to have been made, I am of the view that 50% contemplated in **National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** was in respect of a person having employment with periodical increment. In this case, the employment of the deceased was with a private establishment and there is no evidence indicating the periodical increment in the salary. Therefore, the proper addition is 40%. As the deceased died as a bachelor, the deduction to be made is 50%. Thus, while ``` MACA NO. 112 OF 2010 ``` ``` 7 ``` re-assessing the compensation with the revised criteria as referred to above, the amount would come to Rs.8,56,800/[(6000+40%)x12x17x1/2]. The amount already awarded by the Tribunal is Rs.2,31,000/- and thus, the additional compensation would come to Rs.6,25,800/-. 8. When moving on to the other heads, it can be seen that the Tribunal has awarded only Rs.4,000/- under the head funeral expenses, whereas the proper amount is Rs.15,000/- as per **Pranay Sethi (supra).** Therefore, a further sum of Rs.11,000/- is awarded under the said head. Similarly, the amount awarded under loss of estate was only Rs.10,000/- and therefore, a further sum of Rs.5,000/- is awarded under the said head. 9. The next head to be considered is the loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** , appellants 1 and 2 being the parents of the deceased are entitled for compensation under the head of loss of consortium ``` MACA NO. 112 OF 2010 ``` ``` 8 ``` at the rate of Rs.40,000/- each. However, it is discernible from the award that an amount of Rs.15,000/- is already awarded under the head of loss of love and affection. In the light of **Satinder Kaur (surpa)** the Honourable Supreme Court held that when compensation for loss of consortium is awarded, no further compensation needs to be granted for loss of love and affection. In such circumstances, the amount of Rs.15,000/- granted for loss of love and affection can be adjusted against the amount determined towards loss of consortium. Therefore, the additional amount under the said head would come to Rs.65,000/-. Thus, the total additional compensation is determined as Rs.7,06,800/[625800+11000+5000+65000]. 10. In the result, this appeal is allowed. The award dated 25.08.2009 passed by the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(MV).No.487 of 2006 is hereby modified by granting an additional compensation of Rs.7,06,800/- (Rupees seven lakhs six thousand and eight hundred only) and the said amount shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate at ordered by the Tribunal with ``` MACA NO. 112 OF 2010 ``` ``` 9 ``` proportionate costs within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the claimants shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs/DG