MACA No. 1899 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943** **MACA NO. 1899 OF 2008** **AGAINST THE AWARD DTED 28.05.2008 IN OP(MV0NO.231/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM** ## **APPELLANTS/ PETITIONERS:** **1 MOLLY BABU, W/O. LATE BABU, AGED 39 YEARS, KOZHIKATTAYIL, VAIKARA.P.O, KURUPPUMPADY, PERUMBAVOOR.** **2 ELIZABETH BABU, D/O.BABU, AGED 15 YEARS, MINOR-REPRESENTED BY HER NEXT FRIEND AND GUARDIAN, MOLLY BABU-W/O.LATE BABU, KOZHIKATTAYIL, VAIKARA.P.O, KURUPPUMPADY, PERUMBAVOOR.** **BY ADV SRI.M.M.SAIDU MUHAMMED** ## **RESPONDENTS/RESPONDENTS:** - **1 N.M.MUHAMMED RIFAS, NADUVELIPARAMBIL, VALLUVALLY, KOONAMMAVU.P.O, PIN-683101.** - **2 SHEMEER, S/O.ALIYAR, KALLARACKAL HOUSE, VALLUVALLY, KOONAMMALVU.P.O, PIN-683101.** - **3 THE NATIONAL INSURANCE CO.LTD, BRANCH OFFICE, ALUVA, (INSURER OF KL-7AJ 1440 MOTOR, CYCLE), POLICY NO.571000/31/02/6225074 FROM, 8-7-2002 TO 7-72003).** - **4 MS.UNITED INDIA INSURANCE COMPANY LTD, BRANCH OFFICE, PERUMBAVOOR, (INSURANCE OF KL-7-,** M.A.C.A.No.1899/2008 -:2:- ## **8449, MOTOR CYCLE).** - **5 K.Y.ROY, S/O.PAILY YACOB, KOZHIKATTAYIL, VAIKARA.P.O, KURUPPUMPADY, PERUMBAVOOR.** - **6 K.Y.BENNY, S/O.PAILY YACOOB, KOZHIKATTAYIL, VAIKARA.P.O, KURUPPUMPADY, PERUMBAVOOR.** - **7 ELSY, W/O.VARGHESE, KADAMBASHATTIL HOUSE, MANNOOR.P.O, MANNOOR.** **BY ADVS.SRI.T.J.LAKSHMANAN IYER SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1899/2008 -:3:- _Dated this the 28[th] day of September,2021_ ## **J U D G M E N T** The appellants were the petitioners 1 and 2 in O.P. (MV)No.231/2003 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The third petitioner before the Tribunal had expired during the pendency of the claim petition. Hence, he is not made a party in the appeal. The respondents in the appeal were the respondents before the Tribunal. 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 'Babu'(deceased)-the husband of the first petitioner, the father of the second petitioner and the son of the third petitioner. It was their case that, on 10.10.2002, M.A.C.A.No.1899/2008 -:4:- while the deceased was proceeding from Perumbavoor to Parappuram on his motorcycle bearing registration No.KL-7/X-8449(motorcycle) along the Aluva-Munnar road, the second respondent who was riding motorcycle bearing registration No.KL-7/AJ-1440 (offending motorcycle), hit the motorcycle of the deceased. The motorcycle was owned by the first respondent and insured with the third respondent. The fourth respondent was the insurer of the motorcycle of the deceased. Respondents 5 to 7 were the siblings of the deceased. The deceased was a LIC agent and earning a monthly income of Rs.17,500/-. An amount of Rs.21,420/- was deducted towards Tax Deducted at Source(TDS) in the year 2001-2002. As the deceased was the sole breadwinner of the family, the petitioners were dependant on him. The petitioners claimed a compensation of Rs.23,10,000/- from the respondents 1 to 3, which was limited to Rs.20,00,000/-. M.A.C.A.No.1899/2008 -:5:- 3. The respondents 1, 2, 5, 6 & 7 did not contest the proceedings and were set _ex parte_ . 4. The third respondent filed a written statement admitting that the offending motorcycle had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the deceased. The third respondent also disputed the age, income and occupation of the deceased. It was contended that the compensation claimed was highly exorbitant. 5. The fourth respondent filed a written statement admitting that the motorcycle of the deceased had a valid insurance coverage. It was contended that the accident occurred due to the negligence of the second respondent. 6. During the pendency of the claim petition, the third petitioner expired, and the same was recorded by the Tribunal on 09.07.2008. M.A.C.A.No.1899/2008 -:6:- 7. The petitioners 1 and 2 examined the Senior Manager of the Life Insurance Corporation of India, Perumbavoor branch as PW1, who proved Ext.A10. The petitioners also produced and marked Exts.A1 to A11 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners 1 and 2 to recover an amount of Rs.4,45,350/- with interest at the rate of 7% per annum from the date of petition till 30.06.2007 and, thereafter, at the rate of 7.5% per annum till the date of realisation from the third respondent. 9. Dissatisfied with the quantum of compensation, the petitioners 1 and 2 are in appeal. 10. Heard; Sri. M.M. Saidu Muhammed, the learned counsel appearing for the appellants/petitioners, Smt. Sarah Salvy, the learned counsel appearing for the third respondent-insurer and M.A.C.A.No.1899/2008 -:7:- Sri. T.J. Lakshmanan Iyer, the learned counsel appearing for the fourth respondent-insurer. 11. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability:** 12. Ext.A6 Final Report filed by the Perumbavoor police in Crime No.672/2002 substantiates that the accident occurred due to the negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the offending motorcycle. The third respondent had admitted that the offending motorcycle had a valid insurance coverage and had not alleged that the first respondent had violated the terms of the insurance policy. Therefore, it is the third respondent who is to indemnify the first respondent of his liability arising out of the accident. M.A.C.A.No.1899/2008 -:8:- ## **Income of the deceased:** 13. The petitioners had categorically pleaded in the claim petition that the deceased was a LIC agent and earning a monthly income of Rs.17,500/- and that, an amount of Rs.21,420/- was deducted towards TDS in the year 2001-2002. 14. In order to substantiate the above assertion, they produced Ext.A10 income certificate, which was proved through PW1, the Senior Manager of Life Insurance Corporation of India. 15. PW1 categorically deposed that the deceased had earned a total income of Rs.72,800/- in the financial year 1999-2000, Rs.1,60,144/- in the financial year 2000-2001, and Rs.2,09,999/- in the financial year 2001-2002. Even though PW1 was cross-examined, nothing has been brought out to discredit his oral testimony. 16. Nevertheless, the Tribunal for the reason that M.A.C.A.No.1899/2008 -:9:- PW1 had not produced the connected registers maintained by the LIC, to prove the genuinity of the certificate, discarded Ext.A10 certificate and the oral testimony of PW1, and fixed the notional income of deceased at Rs.3,000/- per month. The course adopted by the Tribunal, according to me, is erroneous and wrong. 17. The petitioners had clearly averred in the claim petition that the deceased was a LIC agent and had earned an amount of Rs.2,09,999/- in the year 2001-2002 and that an amount of Rs.21,420/- was deducted as TDS in the said financial year. They had produced Ext.A10 and examined PW1. I do not find any reason to discard Ext.A10 and the testimony of PW1, which clearly shows that the deceased had an annual income of Rs.2,09,999/- in the financial year 2001-2002, which I accept on its face value. 18. However, going by the law laid down in M.A.C.A.No.1899/2008 -:10:- ## _**Kalpanaraj & Ors. v. Tamil Nadu State Transport**_ _**Corporation**_ [(2015) 2 SCC 764] by the Hon'ble Supreme Court, that only the net income, after deducting the taxable amount, can be taken in account for the purpose of income of the deceased, I deduct the amount of Rs.21,420/- from the annual income for the year 2001-2002 as TDS. Thus, the net income of the deceased in the year 2001-2002, after deducting tax, comes to an amount of Rs.1,88,579/- which is Rs.15,714/- per month. Accordingly, I fix the monthly income of the deceased in the financial year 2001-2002 at Rs.15,714/-. ## **Multiplier** 19. The deceased was aged 42 years on the date of the accident. He lost his life on the following day i.e., on 11.10.2002. In the light of the law laid down in _**Sarla Verma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)],the M.A.C.A.No.1899/2008 -:11:- relevant multiplier is '14', instead of '15' adopted by the Tribunal. ## **Dependants of the deceased:** 20. It is undisputed that the petitioners 1 and 2 were the wife and daughter of the deceased. Even though the respondents 5 to 7 were impleaded as the siblings of the deceased, the Tribunal has in the last sentence of paragraph No.9 of the impugned award held that the respondents 5 to 7 are not the dependants of the deceased and have not entitled for compensation. Therefore, I hold that the deceased was maintaining the petitioners 1 and 2, who were his dependants. Thus, I deduct[1] /3rd of the compensation towards the 'personal living expenses' of the deceased, following the ratio in _**Sarla Verma**_ (supra) and _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662(SC)]. M.A.C.A.No.1899/2008 -:12:- ## **Future prospects:** 21. Following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra) and considering the fact that the deceased was aged 42 years at the time of his death, I hold that the petitioners are entitled for 'future prospects' at 25% on the compensation for 'loss of dependency'. ## **Loss due to dependency:** 22. Taking into account the above-mentioned factors, i.e, the monthly income of the deceased at Rs.15,714/-, the multiplier at '14', future prospects at 25% and deducting[1] /3rd of the compensation towards the 'personal living expenses' of the deceased, I re-fix the compensation for loss of dependency at Rs.21,99,960/- instead of Rs.3,60,000/- awarded by the Tribunal. ## **Conventional heads of compensation:** 23. In clause (viii) of paragraph 61 of _**Pranay**_ M.A.C.A.No.1899/2008 -:13:- _**Sethi**_ (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, 'funeral expenses', 'loss of estate' and 'loss of consortium' at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 24. In the instant case, the Tribunal has awarded only an amount of Rs.2,500/- towards 'funeral expenses' and Rs.2,500/- towards 'loss of estate' and Rs.20,000/- towards 'loss of consortium'. 25. In the light of the law laid down in the aforecited decision, I enhance the compensation under the aforesaid heads by a further amount of Rs.12,000/-, Rs.12,000/- and Rs.60,000/-. ## **P ain and sufferings and loss of love and affection:** 26. It is seen that the Tribunal has awarded an amount of Rs.10,000/- towards 'pain and sufferings' and Rs.20,000/- towards 'loss of love and affection'. In M.A.C.A.No.1899/2008 -:14:- _**Sarla Verma**_ (supra) , it has been held that in the case of death, no amount shall be awarded under the head 'pain and sufferings' to the legal representatives of the deceased. 27. Similarly, in _**New India Assurance Company Ltd. v. Somwati & Ors.**_ [2020(9)SCC 644], the Hon'ble Supreme Court has held that once compensation under the head 'loss of consortium' is awarded, no amount shall be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. Therefore, I set aside the amounts awarded under the heads 'pain and sufferings' and 'loss of love and affection'. 28. With respect to the compensation awarded under the head 'transportation', 'damage to clothing' and 'medical expenses', I find that the Tribunal has awarded reasonable and just compensation. 29. On an comprehensive re-appreciation of the M.A.C.A.No.1899/2008 -:15:- pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the considered opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport<br>expenses|2,500|2,500| |2|Damage to<br>clothing|250|250| |3|Medical expenses|27,600|27,600| |4|Loss of estate|2,500|15,000| |5|Funeral expenses|2,500|15,000| |6|Loss of consortium|20,000|80,000| |7|Pain and sufferings|10,000|Nil| |8|Loss of love and<br>affection|20,000|Nil| |9|Loss of<br>dependency|3,60,000|21,99,960| ||**TOTAL**|**4,45,350**|**23,40,310**| 28. Even though the petitioners had claimed only M.A.C.A.No.1899/2008 -:16:- amount of Rs.20,00,000/- as compensation, following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra), wherein the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for future prospects and also compensation under the conventional heads, I have awarded more compensation than what is claimed in the claim petition, as it is just and reasonable compensation that is to be payable. The above course is permissible in view of the law laid down 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 allowed by enhancing the compensation by a further amount of **Rs.18,94,960/-** (Rupees eighteen lakh ninety four thousand nine hundred and sixty only) with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit M.A.C.A.No.1899/2008 -:17:- and a cost of Rs.4,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellants/petitioners in the ratio of 60:40 and in accordance with law, after deducting their liability if any, towards payment of court fee. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge