MACA NO. 1903 OF 2020 & C.O.156 OF 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 13[TH] DAY OF JULY 2023 / 22ND ASHADHA, 1945** ## **MACA NO. 1903 OF 2020** ## **AGAINST THE AWARD DATED 22.10.2019 IN OPMV 400/2018 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL , PALAKKADD** ## **APPELLANT/2ND RESPONDENT:** MAGMA HDI GENERAL INSURANCE CO. LTD. 1ST FLOOR, JAIN TOWERS, NH-47,BYE PASS ROAD, POWER HOUSE JUNCTION, VYTTILA, ERNAKULAM-682 019, REP BY ITS DEPUTY MANAGER, MAGMA HDI GENERAL INSURANCE CO.LT.D, ERNAKULAM BY ADVS. R.AJITH KUMAR (128/84) RAJAN P.KALIYATH ## **RESPONDENTS / PETITIONERS 1 TO 4 & 1ST RESPONDENT:** 1 SAJITHA. R AGED 34 YEARS W/O. LATE VILLODHIRI @ VILLIWADRI @ SATHEESH, PLAKKAL HOUSE, KURIDIKKAD, PUDUSSERY POST, PUDUSSERY WEST, PALAKKAD DISTRICT678103. 2 ATHUJITH (MINOR), AGED 7 YEARS DOB 8.12.12, REPRESENTED BY GUARDIAN MOTHER, SAJITHA R., AGED 34 YEARS, W/O. LATE VILLODHIRI @ VILLIWADRI @ SATHEESH, PLAKKAL HOUSE, KURIDIKKAD, PUDUSSERY POST, PUDUSSERY WEST, PALAKKAD DISTRICT-678103. 3 ANANYA (MINOR), AGED 11 YEARS DISABLED CHILD-50%, CEREBRAL PALSY, DOB 3.8.09, REPRESENTED BY GUARDIAN MOTHER, SAJITHA R., AGED 34 YEARS, W/O. LATE VILLODHIRI @ VILLIWADRI @ SATHEESH, PLAKKAL HOUSE, KURIDIKKAD, PUDUSSERY POST, PUDUSSERY WEST, PALAKKAD DISTRICT-678103. - VASU, AGED 64 YEARS, S/O. VELU, PLAKKAL HOUSE, KURUDIKAD, - 4.* PUDUSSERY POST, PUDUSSERY WEST, PALAKKAD, PINCODE – 678103. - (DECEASED) ``` MACA NO. 1903 OF 2020 & ``` ``` C.O.156 OF 2021 ``` ``` 2 ``` 5. SREEVALSAN V., AGED 35 YEARS S/O.VELAYUDHAN PILLAI P.N., 17/171, SREEVALSAM, PUDUSSERY P.O., PALAKKAD-678103. *(ADDITIONAL RESPONDENTS 6 TO 9 ARE IMPLEADED AS PER ORDER DATED 14.1.2021 IN I.A.1/2021 IN MACA 1903/2020) ADDL.R6 JAYANTHI V., AGED 44 YEARS W/O. VELAYUDHAN R., N R C COLONY, NERUKAMPULLY, KURIDIKKAD, KANJIKKODE P.O., PUTHUSSERY, PALAKKAD DISTRICT-678621. ADDL.R7 BINDU V., AGED 41 YEARS W/O. RAJAKUMARAN A., PUTHURPADAM, KALANDITHARA, KURIDIKKAD, KANJIKKODE P.O., PUTHUSSERY, PALAKKAD DISTRICT-678621. ADDL.R8 RAVI V., AGED 36 YEARS W/O. SIVAPRAKASH N., PLAKKAL HOUSE, KANJIKKODE P.O., PUDUSSERY, PALAKKAD DISTRICT-678621. ADDL.R9 MANOJ V., AGED 33 YEARS S/O.VASU, PLAKKAL HOUSE,KURIDIKKAD, KANJIKKODE P.O., PUDUSSERY, PALAKKAD DISTRICT-678621. BY ADVS. SRI.BABY MATHEW SMT.RESMI NANDANAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2023, ALONG WITH CO.156/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA NO. 1903 OF 2020 & ``` ``` C.O.156 OF 2021 ``` ``` 3 ``` ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 13[TH] DAY OF JULY 2023 / 22ND ASHADHA, 1945** **CO NO. 156 OF 2021** **AGAINST THE JUDGMENT DATED 22.10.2019 IN O.P.(MV)** **NO.400/2018 OF THE MACT, PALAKKAD.** ## **CROSSOBJECTORS/RESPONDENTS 1 TO3 AND ADDL.R6 TO R9:** 1 SAJITHA. R AGED 34 YEARS W/O. LATE VILLODHIRI @ VILLIWADRI @ SATHEESH, PLAKKAL HOUSE, KURIDIKKAD, PUDUSSERY POST, PUDUSSERY WEST, PALAKKAD DISTRICT-678103. 2 ATHUJITH (MINOR), AGED 8 YEARS DOB 8.12.12, REPRESENTED BY GUARDIAN MOTHER, SAJITHA R., AGED 34 YEARS, W/O. LATE VILLODHIRI @ VILLIWADRI @ SATHEESH, PLAKKAL HOUSE, KURIDIKKAD, PUDUSSERY POST, PUDUSSERY WEST, PALAKKAD DISTRICT-678103. 3 ANANYA (MINOR), AGED 11 YEARS DISABLED CHILD-50%, CEREBRAL PALSY, DOB 3.8.09, REPRESENTED BY GUARDIAN MOTHER, SAJITHA R., AGED 34 YEARS, W/O. LATE VILLODHIRI @ VILLIWADRI @ SATHEESH, PLAKKAL HOUSE, KURIDIKKAD, PUDUSSERY POST, PUDUSSERY WEST, PALAKKAD DISTRICT-678103. 4 JAYANTHI V., AGED 44 YEARS W/O. VELAYUDHAN R., N R C COLONY, NERUKAMPULLY, KURIDIKKAD, KANJIKKODE P.O., PUTHUSSERY, PALAKKAD DISTRICT-678621. 5 BINDU V., AGED 41 YEARS W/O. RAJAKUMARAN A., PUTHURPADAM, KALANDITHARA, KURIDIKKAD, KANJIKKODE P.O., PUTHUSSERY, PALAKKAD DISTRICT-678621. 6 RAJI V., AGED 36 YEARS W/O. SIVAPRAKASH N., PLAKKAL HOUSE, KANJIKKODE P.O., ``` MACA NO. 1903 OF 2020 & ``` ``` C.O.156 OF 2021 ``` ``` 4 ``` PUDUSSERY, PALAKKAD DISTRICT-678621. - 7 MANOJ V., AGED 33 YEARS S/O.VASU, PLAKKAL HOUSE, KANJIKKODE P.O., PUDUSSERY, PALAKKAD DISTRICT-678621. BY ADV BABY MATHEW ## **RESPONDENTS/APPELLANT/5TH RESPONDENT:** - 1 MAGMA HDI GENERAL INSURANCE COMPANY LIMITED, 1ST FLOOR, JAIN TOWERS, NH-47, BYE PASS ROAD, POWER HOUSE JUNCTION, VYTTILA, ERNAKULAM-682019, REPRESENTED BY ITS DEPUTY MANAGER, MAGMA HDI GENERAL INSURANCE COMPANY LIMITED, ERNAKULAM. - 2 SREEVALSAN V., AGED 35 YEARS S/O.VELAYUDHAN PILLAI P.N., 17/171, SREEVALSAM, PUDUSSERY P.O., PALAKKAD-678103. BY ADV R.AJITH KUMAR (128/84) BY ADV. SRI RAJAN P.KALLIYATH – SC THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2023, ALONG WITH MACA.1903/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA NO. 1903 OF 2020 & C.O.156 OF 2021 ``` ``` 5 ``` ## **JUDGMENT** The Insurance Company, the 2[nd] respondent in OP(MV) No. 400 of 2018 on the files of the Motor Accidents Claims Tribunal, Palakkad has filed this appeal challenging the award passed by the Tribunal. The parties to this appeal will hereinafter be referred to as petitioners and respondents in accordance with their status in the claim petition. 2. The petitioners are the wife, minor children and father of Villodhiri @ Satheesh who died in a motor vehicle accident occurred on 17.09.2017. The case of the petitioners is that while the deceased was travelling in a car, the driver lost its control and the car hit against an electric post and the deceased sustained serious injuries. Though the deceased was rushed to the hospital, he succumbed to the injuries. The 1[st] respondent is the owner-cum-driver and the 2[nd] respondent is the insurer of the car. The petitioners ``` 6 ``` ``` MACA NO. 1903 OF 2020 & C.O.156 OF 2021 ``` claimed an amount of Rs. 20,00,000/- as compensation for the death of the deceased. The Tribunal found that the accident happened due to the negligence of the 1[st] respondent and awarded an amount of Rs.19,71,000/as compensation with 7.5% interest per annum from the date of petition till realisation with proportionate costs. The 2[nd] respondent insurance company was directed to satisfy the Award. Aggrieved by the amount awarded as compensation, the 2[nd] respondent has filed this appeal. 3. The petitioners have filed Cross Objection No.156 of 2021 seeking enhancement of the quantum of compensation awarded by the Tribunal. 4. In view of the rival contentions in the appeal and cross objection, this Court has to fix a compensation which is just and reasonable. 5. It is contended by the learned counsel for the petitioners that the Tribunal ought to have taken Rs.20,000/- as the monthly income of the deceased in the light of Ext.A12 salary certificate. Since the salary ``` 7 ``` ``` MACA NO. 1903 OF 2020 & C.O.156 OF 2021 ``` certificate was not proved, the Tribunal took the monthly income of the deceased as Rs.9,000/- notionally. The deceased was a security staff and he was aged 36 years at the time of the accident. In the absence of evidence, his income can be fixed only notionally. In the light of the guidelines in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], I take the income of the deceased as Rs.11,000/- per month. 40% of the income has to be added towards future prospects **National Insurance Company Limited v. Pranay Sethi and others** [2017 (4) KLT 662 (SC)]. Therefore, the income for the purpose of computation would be Rs.15,400/-. Since the number of dependents is four, ¼ of the income has to be deducted towards personal and living expenses of the deceased. The Tribunal has rightly adopted the multiplier as '15'. In the light of the above factors, the compensation for loss of dependency is reworked as Rs.20,79,000/- (15400x12x15x3/4). Since an amount of ``` 8 ``` ``` MACA NO. 1903 OF 2020 & C.O.156 OF 2021 ``` Rs.17,01,000/- has already been awarded under the head loss of dependency, the petitioners are entitled for an additional amount of Rs.3,78,000/- under the said head. 6. Towards compensation under conventional heads of loss of estate and funeral expenses, the petitioners were awarded an amount of Rs. 15,000/each. In the light of the decision in **Pranay Sethi** (supra), the petitioners are entitled for Rs.16,500/- each under the head funeral expenses and loss of estate. Therefore, they will get an additional amount of Rs.3,000/-. 7. Towards loss of consortium, the petitioners were awarded a sum of Rs. 1,20,000/-. They are entitled for Rs.44,000/- each in the light of the decision in **Pranay Sethi** (supra). On deducting the amount already awarded, they are granted an additional amount of Rs.56,000/- [(44,000x4)-1,20,000] under the said head. 8. The Tribunal has awarded a sum of ``` 9 ``` ``` MACA NO. 1903 OF 2020 & C.O.156 OF 2021 ``` Rs.1,00,000/- under the head loss of love and affection. Since the petitioners are paid compensation under the head loss of consortium, they are not entitled to get any amount under the separate head loss of love and affection **[United India Insurance Company Ltd. v. Satinder Kaur and Ors. [(2021) 11 SCC 780].** Therefore, Rs.1,00,000/- has to be deducted. 9. Accordingly, the petitioners are entitled for an additional amount of **Rs.3,37,000/-** (3,78,000+3000+56000-100000). The insurance company shall deposit the said amount with 7.5% interest per annum from the date of the petition till realisation and proportionate costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. 10. The apportionment of compensation among the petitioners shall be done as ordered by the Tribunal. It is submitted by the learned counsel for the petitioners that the 4[th] respondent, the father died immediately ``` 10 ``` ``` MACA NO. 1903 OF 2020 & C.O.156 OF 2021 ``` after the award was passed and the legal representatives of the 4[th] respondent have been brought to the party array of the appeal and cross objection. On apportionment, the share due to the 4[th] respondent shall be allotted to his legal representatives, in accordance with law. The appeal and cross objection are disposed of as above. **Sd/-** **MURALI PURUSHOTHAMAN** **JUDGE** al/-+