MACA NO. 1703 OF 2017

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945`** ## **`MACA NO. 1703 OF 2017`** ``` AGAINST THE AWARD DATED 20.12.2016 IN O.P(M.V) NO.403/2014 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL, VATAKARA`** ## **`APPELLANTS / PETITIONERS:`** ``` 1SAVITHA, AGED 33 YEARS W/O LATE SHAGESH, AGED 33 YEARS, VALLAMPRATH HOUSE,PUTHUPPANAM, SIDDHANDAPURAM,VATAKARA-673 105. 2ASWATHY, D/O.LATE SHAGESH,AGED 9 YEARS, MINOR,REP.BY IST PETITIONER MOTHER,VALLAMPRATH HOUSE,PUTHUPPANAM,SIDDHANDAPURAM,VATAKARA-673105. 3ASWABTGM S/O.LATE SHAGESH,AGED 4 YEARS, MINOR,REP.BY 1ST PETITIONER MOTHER,VALLAMPRATH HOUSE,PUTHUPPANAM,SIDDHANDAPURAM,VATAKARA-673105. 4MUKUNDAN F/O LATE SHAGESH,AGED 61 YEARS,VALLAMPRATH HOUSE,PUTHUPPANAM,SIDDHANDAPURAM,VATAKARA-673105. 5SARADA M/O LATE SHAGESH,AGED 51 YEARS,VALLAMPRATH HOUSE,PUTHUPPANAM,SIDDHANDAPURAM,VATAKARA-673105. BY ADV SRI.ZUBAIR PULIKKOOL ``` ## **`RESPONDENT/RESPONDENT:`** ``` THE NEW INDIA ASSURANCE CO. LTD., KANNOOR ROAD,CALICUT,PIN-673001. ``` ``` BY ADVS. SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD. LAL K JOSEPH SURESH SUKUMAR(K/634/1997) ANZIL SALIM(K/000447/2018) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1703 OF 2017 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 27[th] day of October 2023. The appeal on hand is directed against an award passed by the Motor Accidents Claims Tribunal, Vatakara (for short, 'the Tribunal') in O.P.(M.V) No.403 of 2014. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 5 and respondents 1 to 3 in accordance with their status in the Original Petition. 3. As per the averments in the Original Petition, one Mr.Shagesh aged 34 years while travelling in his Motorcycle bearing Registration No.KL-19-AA-1151 through Kalaripadi National Highway was hit by a Lorry bearing Registration No.KL-57-H-1558, which was driven by its driver in a rash and negligent manner. He sustained serious injuries and succumbed to those at the spot of accident itself. Alleging that the motor accident was occurred due to the rash and negligent ``` MACA NO. 1703 OF 2017 ``` ``` 3 ``` driving of the Lorry by its driver and claiming a total sum of `1,70,000/- as compensation, the above Original Petition was filed. 4. All respondents were served with notice but 2[nd] respondent remained absent and therefore was declared as ex parte. 1[st] and 3[rd] respondent filed written statement raising identical contentions which includes that the motor accident was occurred due to negligence of Mr.Shagesh himself and not due to negligence of the 2[nd] respondent. Compensation claimed is also disputed for its exorbitant nature. Issuance of a policy in respect of Lorry bearing Registration No.KL-57-H-1558, covering the date of accident was admitted. 5. The quantum of compensation stood awarded by the Tribunal is under challenge for the reasons mainly that adequate monthly income was not considered for the purpose of arriving at the compensation. Contention secondly raised was that though the petitioners are entitled to get compensation under the conventional heads as directed by the Apex Court in National Insurance Company Ltd. v. Pranay Sethi and ``` MACA NO. 1703 OF 2017 ``` ``` 4 ``` Others [2017 (4) KLT 662 (SC)] , the Tribunal failed to award those in favour of them. 6. The learned counsel for the 3[rd] respondent has raised a contention that 50% was added to the monthly income of the victim by the Tribunal in consideration of loss of future prospects in the place of 40%, the addition actually required. The learned counsel has also pointed out that the petitioners being legal representatives of the victim who died in the motor accident are not entitled to get compensation towards pain and suffering and loss of love and affection already stood awarded by the Tribunal. 7. In the backdrop of the rival contentions, this Court has gone into the evidence on record. It is found therefrom that evidence is not forthcoming to establish the job as well as monthly income of the deceased at the relevant time of the motor accident. As per the pleadings of the petitioners in the Original Petition, the victim of the motor accident was a skilled painter earning `30,000/- monthly. It is noticed from the ``` MACA NO. 1703 OF 2017 ``` ``` 5 ``` impugned award that the Tribunal has taken `5,000/- as the monthly income of the victim on a notional basis. It is contended by the learned counsel that the deceased was survived by five members including his wife, two minor children and parents. The surviving members being five in numbers, the Tribunal is totally unjustified in fixing the monthly income as `5,000/- and calculating compensation on its basis. He canvassed for re-fixation of the monthly income as `12,000/-. Neeta W/o Kallappa Kadolkar and Others Vs. Divisional Manager, MSRTC, Kolhapur [2015 KHC 4027] was also relied on by him to fortify his argument. 8. It is noticed by this Court that the deceased was survived by five members but no evidence was adduced to establish that the deceased was the only son of his parents and they were residing with him at the relevant time of the motor accident. Nevertheless, the monthly income fixed notionally appears to this Court too low, since it was considered with reference to the year 2014, the year in which the motor accident in question was occurred. Therefore, this Court is inclined to ``` MACA NO. 1703 OF 2017 ``` ``` 6 ``` enhance the monthly income to `11,000/- and do accordingly. As rightly pointed out by the learned counsel for the 3[rd] respondent, 50% added by the Tribunal in consideration of loss of future prospects being incorrect, is replaced by 40%. 9. The Constitution Bench of the Apex Court has held in National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)] that the petitioners are entitled to get `16,500/- each as compensation towards loss of estate and funeral expenses and `44,000/- for loss of consortium to the surviving members who would come within the categories of spouse, children and parents. 10. This Court has already decided to enhance and re-fix the monthly income to `11,000/- and to add 40% to that in consideration of future prospects. Thus `15,400/- (`11,000/- + 40% of `11,000/-) is arrived at. 11. The deceased being survived by five members and therefore, ¼[th] needs to be deducted in consideration of personal expenditure liable to be met with by him, had he been alive. When compensation for loss of dependency is calculated ``` MACA NO. 1703 OF 2017 ``` ``` 7 ``` based on the modified factors as above, `22,17,600/(`15,400/- x 12 x 16 x ¾) is arrived at. `11,52,000/- stood awarded by the Tribunal when adjusted against, the petitioners will get `10,65,600/- (`22,17,600/- - `11,52,000/-) as additional compensation under that head. 12. In the case on hand, the surviving members includes the wife, two minor children and parents of the deceased. Therefore each of them are entitled to get `44,000/- as compensation towards loss of consortium and thus `2,20,000/- (`44,000/- x 5) is arrived at. `1,00,000/- stood awarded by the Tribunal when adjusted against the sum now arrived at, the petitioners will get `1,20,000/- (`2,20,000/- - `1,00,000/-) as additional compensation towards loss of consortium. 13. The Tribunal has awarded `25,000/- each as compensation towards funeral expenses and loss of estate, against the entitlement of the petitioners for `16,500/- each. Therefore, `8,500/- each stood awarded by the Tribunal in ``` MACA NO. 1703 OF 2017 ``` ``` 8 ``` excess need to be deducted from the total additional compensation arrived at as payable. 14. It is settled position that the petitioners, the legal representatives of the victim who died in the motor accident are not entitled to get compensation towards loss of love and affection and pain and suffering. Therefore, `1,15,000/(`1,00,000/- + `15,000/-) stood awarded by the Tribunal as compensation under the above heads is deducted from the total sum arrived at as additional compensation. 15. In the above manner of calculation of compensation afresh, the petitioners will get `10,53,600/- (Rupees Ten Lakh Fifty three thousand six hundred only) [(`10,65,600/- + `1,20,000/-) - (`8,500/- + `8,500/- + `1,15,000/-)] as total additional compensation. It will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent shall pay the above amount within two months from the date of receipt of a certified copy of this judgment, in accordance with the ``` MACA NO. 1703 OF 2017 ``` ``` 9 ``` directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. ``` Sd/- ``` MARY JOSEPH JUDGE JJ