MACA No. 1382 of 2007 (High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 MACA NO. 1382 OF 2007** **OPMV 1285/2003 OF SPECIAL COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR** ## **APPELLANT/S:** 1 M.K.VENU, S/O.KESAVAN 2 K.V.LEELA WO.M.K.VENU. BOTH ARE RESIDING AT MANGATTU NJALIL, HOUSE, R.V.PURAM P.O., NELLIKKAD, THRISSUR DISTRICT. BY ADVS. SRI.JIBU P THOMAS SRI.T.C.SURESH MENON ## **RESPONDENT/S:** 1 T.R.NARAYANAN, RESIDING AT THANIDKKAL HOUSE, KONCHERRY ROAD, KOLAZHY, THRISSUR - 680 581. 2 JAYAN SO.BALAN RESIDING AT VALLATH HOUSE KUNNAMPATHUR, CHENGALUR, PUDUKKAD, THRISSUR. 3 THE UNITED INDIA INSURANCE COMPANY LIMITED, SIMIS COMPLEX, KURUPPAM ROAD, THRISSUR. 4 M.V.GIRISH KUMAR, S/O.M.K.VENU RESIDING AT MANGATTU NJALIL HOUSE,, R.V.PURAM, P.O.NELLIKKAD, THRISSUR DISTRICT. *(DELETED) **MACA NO. 1382 OF 2007** -2- 5 M.V.RAJESH KUMAR SO.M.K.VENU RESIDING AT MANGATTU NJALIL HOUSE,, R.V.PURAM P.O. NELLIKKAD, THRISSUR DISTRICT. * RESPONDENT 4 DELETED THE FOURTH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 20/12/2021 IN I.A 1/2021 IN MACA 1382/2007. BY ADVS. SRI.ARUN P. ANTONY SMT.DEEPA GEORGE SMT.K.G.MARY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1382 OF 2007** ## JUDGMENT (Dated this the 26[th] day of October 2022) Appellants are the petitioner Nos.1 and 2 in OP(MV) No.1285 of 2003 on the files of the MACT, Thrissur. The 3[rd] petitioner was arrayed as 4[th] respondent in this appeal and he was deleted from the party array as per order dated 20.12.2021 in I.A. No.1 of 2021 at the risk of the appellant. The 4[th] petitioner is arrayed as 5[th] respondent herein. The claim was filed as compensation for the death one Ramesh Kumar in a road traffic accident. The appellants are the legal heirs of the deceased Ramesh Kumar. 2. On 23.3.2003 at about 4 pm deceased Ramesh Kumar was standing on the western side of Ponganamkadu, Thrissur public road near Nellikkadu junction and a lorry bearing registration No.KL-8/K-3663 came in a rash and negligent manner. While attempting to overtake another vehicle, the lorry hit against Ramesh Kumar and he was thrown away and sustained injuries. He was immediately ## **MACA NO. 1382 OF 2007** -4- taken to Medical college, Thrissur but on the way he breathed his last. The accident happened due to the rash and negligent driving of the lorry by 2[nd] respondent. The 1[st] respondent is the registered owner of the lorry and the 3[rd] respondent is the insurer and they are jointly and severally liable to pay the compensation. 3. Though the first respondent entered appearance he did not file any written statement. Respondent Nos.2 and 3 filed written statement. The 2[nd] respondent contended that there was no negligence on his part and if at all the appellants are entitled to get any compensation it is the third respondent to pay the same. The 3[rd] respondent contended that even though the lorry involved in the accident was insured with them, they are not liable to compensate the petitioners as there was no negligent on the part of the driver of the lorry. The amount claimed under various heads as compensation are highly exorbitant. 4. Before the Tribunal, the first petitioner was ## **MACA NO. 1382 OF 2007** -5- examined as PW1 and Exts.A1 to A12 were marked on his side. Ext.B1 was marked on the side of the respondents. 5. The Tribunal, on an appreciation of the facts and circumstances of the case, awarded a total sum of Rs.2,96,000/- with interest at the rate of 7% per annum from 30.5.2003 till date of actual deposit. Aggrieved by the compensation awarded by the Tribunal on various heads, this appeal is filed. 6. The deceased Ramesh Kumar was a head load worker. According to the petitioners he was earning a monthly income of Rs.6,000/- and was aged 28 years. No documentary evidence was adduced to prove that the deceased was earning a monthly income of Rs.6,000/-. Hence the Tribunal took Rs.2,000/- per month as notional income and deducted 1/3 of his income towards personal expenses and fixed the contribution to the family as **v.** Rs.16,000/- per annum. In _**Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the apex court held that a person who **MACA NO. 1382 OF 2007** met with an accident and died in the year 2011, whose income was not proved, the notional income at the rate of Rs.4,000/- per month can be taken. Hence I am inclined to take the monthly income of the deceased, at the time of accident, as Rs.4,000/- per month. The deceased was aged 28 at the time of accident. The Tribunal took the age of the mother, who was 45 years at the time of accident, to adopt the multiplier as 15. The Apex court in _**National Insurance Company v. Pranay Sethi**_ [ _**2017 (16) SCC 680**_ **]** held that in the case of death the proper multiplier is taken into consideration the age of the deceased and not that of the parents. Hence the proper multiplier to be adopted in this case is 17 since the deceased was in the age group of 26-30. The deceased being a self employed, 40% has to be added towards future prospects and therefore the monthly income can be fixed as Rs.4,000 +40% = 5600/-. since the deceased was a bachelor one half to be deducted towards personal and living expenses. Thus, Loss of dependency compensation can be worked as 5600 x 12 x 17x 1/2 = 5,71,200/- . The Tribunal awarded Rs.2,40,000/- under the ## **MACA NO. 1382 OF 2007** -7- head. 7. Towards funeral expenses, a sum of Rs.5,000/was awarded by the Tribunal. Relying on the decision mentioned in _**Pranay Sethi**_ (supra), the minimum amount of compensation for funeral expenses is Rs.15,000 + 10% escalation for three years which comes to Rs.16,500/-. The compensation under funeral expenses is enhanced to Rs.16,500/-. 8. As far as the compensation for loss of estate is concerned, Rs.20,000/- was awarded by the Tribunal. The maximum amount of compensation for lost of estate is Rs.15,000 + 10% escalation for three years which comes to Rs.16,500/-, as per the decision reported in _**Pranay Sethi**_ (supra). Accordingly, the compensation for loss of estate is scaled down to Rs.16,500/- from Rs.20,000/-. 9. As per the decision reported in _**Magma General Insurance Co.Ltd.**_ **v** . _**Nanu Ram Allias Chuhru Ram & Others**_ [(2018) 18 SCC 130] the dependants are entitled for ## **MACA NO. 1382 OF 2007** Rs.40,000/- each towards loss of consortium. They are also entitled to 10% increase every three years as per the decision reported in _**Pranay Sethi**_ (supra) and thus, the 10% increase would come to Rs.44,000 x 2, i.e., Rs.88,000/-. No amount was granted by the Tribunal under the head. 10. When loss of consortium is awarded, no amount can be awarded under the head love and affection. Thus, the amount of Rs.15,000/- awarded under loss of love and affection is set aside. 11. The counsel for the respondent submits that the deceased died on the way to hospital and therefore no pain and suffering can be awarded. The Tribunal awarded an amount of Rs.15,000/- towards pain and suffering. 12. In J **yni v. Raphel P.T.,[2016 (2) KHC 870]** , a Division Bench of this court held that death in an accident is generally the result of violent impact on the body **MACA NO. 1382 OF 2007** -9- resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous death also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs. 5,000 to Rs. 15,000 could be awarded under the head pain and suffering in such cases. Since the deceased died on the way to hospital a conventional amount of Rs.5,000/- can be awarded. The amount of compensation awarded under pain and suffering to the tune of Rs.15,000/- is brought down to Rs.5,000/- Accordingly, the following enhancements/deductions are made to the award passed by the Tribunal: ## **MACA NO. 1382 OF 2007** -10- |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt. Enhanced<br>in appeal (Rs.)| |---|---|---|---| |1|Loss of dependency|2,40,000|5,71,200| |2.|Funeral expenses|5,000|16,500| |4|Loss of estate|20,000|16,500| |5|Loss of consortium|0|88,000| |5|Compensation for pain<br>and suffering|15,000|5,000| |6|Loss of love and affection|15,000|0| |||2,95,000|6,97,200| ||Amount enhanced ..6,97,200 – 2,95,000 = Rs**.4,02,200**/-||| In the result, the appeal is allowed and the appellants are entitled to for an enhanced amount of Rs.4,02,200/- (Rupees four lakh two thousand and two hundred only) with 7% from 30.5.2003 till realisation. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be **MACA NO. 1382 OF 2007** granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. It is also made clear that the appellants would not be entitled for interest for the period of delay of 232 days in filing the Appeal, as per order of this Court dated 20.12.2021, on the enhanced compensation. **sd BASANT BALAJI, JUDGE** _dl/_