MACA NO. 1545 OF 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944** **MACA NO. 1545 OF 2019** **OPMV 250/2015 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA / I ADDL. M.A.C.T. APPELLANT/S:** 1 N.G.MATHAI, AGED 58 YEARS S/O. P.V. GEORGE, NJAZHISSERIL HOUSE, PALLICKACHIRA P.O, PAIPPAD, KOTTAYAM DISTRICT. 2 LEENA MATHAI, AGED 49 YEARS W/O.N.G. MATHAI, NJAZHISSERIL HOUSE, PALLICKACHIRA P.O, PAIPPAD, KOTTAYAM DISTRICT., PIN-686537. 3 RINO M MATHAI, AGED 22 YEARS S/O. N.G. MATHAI, NJAZHISSERIL HOUSE, PALLICKACHIRA P.O, PAIPPAD, KOTTAYAM DISTRICT, PIN-686537. BY ADVS. SUSANTH SHAJI VARGHESE C.KURIAKOSE V.V.SHAJI ## **RESPONDENT/S:** 1 ALAN JOSEPH --(DIED) S/O. JOSEPH JOSEPH, AZHEEKAL HOUSE, KOTTAMURI P.O, CHANGANASSERY, PIN-686101. 2 THE NEW INDIA ASSURANCE CO.LTD, DIVISIONAL OFFICE, KHAISE BUILDINGS, OPP. BENZIGR HOSPITAL, KOLLAM, PIN-691001. **MACA NO. 1545 OF 2019** 3 JOSEPH JOSEPH, ***** S/O. JOSEPH CHACKO, AZHEEKAL HOUSE, KOTTAMURI P.O, CHANGANASSERY, PIN-686101. 4 GRACYAMMA @ GRASAMMA, ***** W/O. JOSEPH CHACKO, AZHEEKAL HOUSE, KOTTAMURI P.O, CHANGANASSERY, PIN-686101. ***** RESPONDENT NOS.3 AND 4 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT BY MEMO DATED 4.3.2022 AS PER THE ORDER DATED 5.4.22 IN MACA 1545/2019 BY ADVS. SHAJI P.MATHEW SRI.T.K.BIJU (MANJINIKARA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1545 OF 2019** -3- ## **JUDGMENT** (Dated this the 17[th] day of October 2022) The appellants are petitioner Nos1 to 3 in O.P.(M.V.) No.250 of 2015 on the files of the MACT, Pathanamthitta. Dissatisfied by the award of the compensation awarded by the Tribunal, petitioner Nos.1 and 2 who are the parents and 3[rd] petitioner who is the brother of the deceased Lino M George, filed this appeal. 2. The brief facts of the case are as follows: On 7.12.2013 at about 7.30 pm the deceased was riding a motor cycle bearing registration No.KL.25. 9380 and when he reached Kunnumpuram - Thengana public road, another motor cycle bearing registration No.KL.33.E 4383 which came from the opposite direction in a rash and negligent **MACA NO. 1545 OF 2019** -4- manner, ridden by the first respondent hit against the motor cycle, as a result of which Lino M. George sustained serious injuries and was taken immediately to St.Thomas hospital,Chethipuzha and the very same day he succumbed to the injuries. 3. 2[nd] respondent insurance company contended that the accident as narrated by the petitioner, is false and contended that the Tribunal does not have jurisdiction to try the petition as the divisional office of the company who issued the policy is at Kottyam. The insurance policy of the offending vehicle was admitted by the 2[nd] respondent. Evidence consisted of Ext.A1 to A34. There was no oral evidence. 4. The Tribunal on an appreciation of the facts and circumstances of the case, awarded a sum of Rs.9,99,000/- **MACA NO. 1545 OF 2019** together with interest at 9% per annum from the date of petition till realisation. 5. The counsel for the appellant submits that the deceased was aged 19 years at the time of accident and he was pursuing his second year B.Com course at St.Joseph college of commerce at Changanasserry. Though the appellants claimed that the deceased was a student tuition master earning a monthly income of Rs.10,000/-, the Tribunal erred in fixing the monthly income at Rs.8,000/per month. 6. The apex court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236],** has held that the notional income to be taken in respect of a coolie who had met with the an accident in the year 2013 is Rs.9,000 per month. Ext Nos.A11 to A18 and **MACA NO. 1545 OF 2019** -6- A20 to A26 are the merit certificates of the deceased and Ext.A19 is PCM scholarship certificate. Thus it can be seen that the deceased Lino was a meritorious student who was pursuing his second year B.com degree course. When the notional income of a coolie is taken as Rs.9,000/- in 2013, definitely a meritorious student would earn much more than the amount earned by a coolie. Hence the monthly income of the deceased is taken as Rs.10,000/- per month. In **National Insurance Co.Ltd v. Pranay Sethi [(2017(4) KLT 662 (SC)],** Apex court has held that future prospects for a self employed person 40% of the salary should be added in computing the loss of dependency. Hence the monthly income plus future prospects at 40% would come to Rs.10000 + 40% of 10000 = Rs.14,000/-. Since the deceased was a Bachelor half should be deducted towards **MACA NO. 1545 OF 2019** personal expenses. Thus the monthly income for the purpose of calculation loss of dependency 14000 x 1/2= Rs.7000/-. Going by the decision reported in **Sarla Verma** **v. Delhi Transport Corporation [(2009) 6 SCC 121],** the multiplier to be adopted is 18. Hence the loss of dependency can be calculated as Rs.7000x 12 x 18 = Rs.15,12,000/-, less amount awarded by the Tribunal. 7. As per the dictum laid down in **Magma General Insurance Co.Ltd v. Nanu Ram alias Chuhru Ram and others [2018 KHC 6697],** the parents of the deceased are entitled to filial consortium of Rs.40,000/ each + 10% increase in every three years, as per the decision cited in **(Pranay Sethi (supra)** . Hence the appellants 1 and 2 are entitled to Rs.88,000/- towards loss of consortium. When loss of consortium is awarded compensation under love and **MACA NO. 1545 OF 2019** -8- affection cannot be awarded. Hence the amount of compensation of Rs.50,000/- under love and affection is set aside. 8. Towards pain and suffering the tribunal awarded Rs.10,000/- Relying on the decision reported in **Sarla Verma (supra),** since the deceased died on the very same day of accident, the legal heirs are not entitled for any compensation under pain and suffering, hence the said compensation is also set aside. 9. While calculating loss of dependency I have awarded 40% increase, hence the amount of Rs.40,000/awarded by the Tribunal under the loss of expectation life/future prospects is also set aside. 10. The counsel for the appellants submits that the original petition was filed initially on 30.5.2014 but it was **MACA NO. 1545 OF 2019** -9- returned stating that the Tribunal does not have territorial jurisdiction to entertain the same. Relying on the decision reported in **Sugunan E.I. v. P.M. Riyas and others [2015(1) KLT 788]** , the Tribunal suo-motu took the file back and numbered the same as O.P.(MV) No. 250/2015 on 9.3.2015. Tribunal while allowing the compensation restricted the payment of interest from 9.3.2015 onwards, whereas the interest ought to have been calculated from 30.5.2014 i.e., the day on which the original claim petition was preferred by the appellants. Since the O.P. was filed on 30.5.2014, the appellants are entitled to interest on the compensation awarded by the Tribunal from 30.5.2014 till realisation at the rate fixed by the Tribunal and for the enhanced compensation at the rate of 8% from 30.5.2014, and not from 9.3.2015 as ordered by the Tribunal. **MACA NO. 1545 OF 2019** -10- ## Accordingly, the following enhancements/deductions are ## made to the award passed by the Tribunal: |Head of Claim|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt.<br>Awarded in<br>appeal (Rs.)| |---|---|---| |Loss of dependency|8,64,000|15,12,000| |Loss of consortium|---|88,000| |Pain and suffering|10,000|0| |Loss of love and affection|50,000|0| |Loss of future prospects|40,000|0| |TOTAL|9,64,000|16,00,000| |Amount enhanced is**..Rs.16,00,000 –**|**Rs.9,64,000 = Rs.6,36,000/-**|| In the result, the appeal is allowed. The appellants and entitled to the enhanced compensation of Rs.6,36,000/- (Rupees six lakh and thirty six thousand only). The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced **MACA NO. 1545 OF 2019** -11- amounts at the rate of 8% from the date of petition till realisation. If any amounts have already been paid, the same shall be 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. However, if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of the petition. ## **sd** **BASANT BALAJI, JUDGE** _dl/_