MACA No. 1910 of 2016 & MACA No. 2047 of 2016 vs. Award in OP(MV) 1279/2015, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941** ## **MACA.No.1910 OF 2016** **AGAINST THE AWARD IN OP(MV)1279/2015 DATED 22-04-2016 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/CLAIMANTS:** - **1 ANU AGED 24 YEARS, W/O. (LATE) JOSHI JOBY** - **2 RIYA JOSHI JOBY (MINOR), AGED 4 YEARS, DOB 02.03.2012, REPRESENTED BY MOTHER ANU, BOTH RESIDING AT ANUGRAHAM, MERIKKUNNU.P.O, KOZHIKODE** - **3 JOY GEORGE STEPHEN S/O.STEPHEN, AGED 61 YEARS** - **4 VICTORIYA JOY, W/O.JOY STEPHEN, BOTH RESIDING AT J.S. VILLA, CHURCH COMPOUND CHALIL, TEMPLE GATE, THALASSERY P.O., KANNUR.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENT/2ND RESPONDENT:** **BHARATI AXA GENERAL INSURANCE COMPANY LTD., TEMPLE ROAD, KALIDASA CIRCLE V.V, 1ST FLOOR, MOHALLA, MYSORE, REPRESENTED BY ITS MANAGER** **R1 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2019, ALONG WITH MACA.2047/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A Nos.1910/2016 & 2047/2016** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941** ## **MACA.No.2047 OF 2016** **AGAINST THE AWARD IN OP(MV) 1279/2015 DATED 22-04-2016 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/2ND RESPONDENT IN O.P.(MV):** **BHARATI AXA GENERAL INSURANCE COMPANY LIMITED, TEMPLE ROAD,KALIDASA CIRCLE.V.V,1ST FLOOR,MOHALLA,MYSORE,REPRESENTED BY ITS AUTHORIZED SIGNATORY.** **BY ADV. SRI.LAL GEORGE** **RESPONDENTS/PETITIONERS 1 TO 4 & RESPONDENT NO.1 IN O.P(MV):-** **1 ANU AGED 23 YEARS, W/O.JOSHI JOBY(LATE),RESIDING AT ANUGRAHAM,P.O.MERIKUNNU,KOZHIKODE-673001.** **2 RIYA JOSHY JOBY (MINOR), AGED 3 YEARS D/O.LATE JOSHI JOBY(LATE),REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN ANU,W/O.JOSHI JOBY(LATE),AGED 23 YEARS,RESIDING AT ANUGRAHAM,P.O.MERIKUNNU,KOZHIKODE-673001.** **M.A.C.A Nos.1910/2016 & 2047/2016** 3 - **3 JOY GEORGE STEPHAN, AGED 60 YEARS, S/O. STEPHAN,RESIDING AT JS VILLA CHURCH COMPOUND CHALIL,TEMPLE GATE,P.O.THALASSERY,KANNUR-670101.** - **4 VICTORIYA JOY** - **W/O.JOY STEPHAN,RESIDING AT JS VILLA,CHURCH COMPOUND CHALIL,TEMPLE GATE,P.O.THALASSERY,KANNUR-670101.** - **5 AZAM.M.C, AGED 32 YEARS S/O.CHINNAPPA,RESIDING AT DOOR NO.226,SANTHEMALA,2ND MAIN ROAD,SARGUR TOWN,HD KOTE(TQ),MYSORE,KARNATAKA-570001.** **R1 TO R4 BY BY ADV. SMT.K.V.RASHMI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2019, ALONG WITH MACA.1910/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A Nos.1910/2016 & 2047/2016** 4 ## **J U D G M E N T** M.A.C.A. No.1910 of 2016 is by the claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal and M.A.C.A. No.2047 of 2016 is by the insurer in the said proceedings. 2. One Joshy Joby, aged 30 years died in a motor accident on 08.03.2015. It is stated in the claim petition that he was a cook. His parents, wife and minor daughter were the claimants in the proceedings. A sum of Rs.30,00,000/- was the claim made in the proceedings. As against the said claim, the Tribunal has granted to the claimants a sum of Rs.17,02,500/by way of compensation. According to the claimants, the compensation granted is grossly inadequate and according to the insurer, the compensation granted is excessive. 3. Heard the learned counsel for the parties. 4. Though it is stated in the claim petition that the deceased was earning a sum of Rs.25,000/- per month, in the **M.A.C.A Nos.1910/2016 & 2047/2016** 5 absence of supporting evidence, the Tribunal has reckoned the monthly income of the deceased only at Rs.5,000/- for the purpose of computing the compensation payable to the claimants for loss of dependency. 5. In the absence of any evidence in support of the plea as regards the income of the deceased, I am of the view that in the light of the decisions of the Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited** , [(2011) 13 SCC 236] and **Syed Sadiq** v. **Divisional Manager, United India Insurance Co. Ltd.** , [(2014) 2 SCC 735], where the Apex Court has reckoned the monthly income of similarly placed persons at Rs.4,500/and Rs.6,500/- in the context of the accidents took place in the year 2004 and 2008 respectively, the monthly income of the deceased in the instant case can be certainly reckoned at Rs.10,000/-, in the context of the accident took place in 2015. In the light of the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 **M.A.C.A Nos.1910/2016 & 2047/2016** 6 (SC)], as the dependants of the deceased were four in number, one fourth of the income has to be deducted towards personal expenses, and as the deceased was aged below 40, 40% of the income reckoned has to be added towards future prospects for arriving at the multiplicand while computing the compensation for loss of dependency. As the deceased was aged 30, the multiplier to be applied for the said purpose is '17'. If compensation for loss of dependency is arrived at on that basis, the same would come to Rs.21,42,000/(Rs.10000x140/100x12x17x3/4). As the Tribunal has granted only a sum of Rs.11,47,500/- towards compensation under that head, the claimants would be entitled to an additional compensation of Rs.9,94,500/-. 6. It is trite that a conventional amount has to be granted in all cases of death towards compensation for pain and suffering. As no amount has been granted by the Tribunal to the claimants under that head, they are granted a sum of Rs.15,000/- by way of compensation under that head. **M.A.C.A Nos.1910/2016 & 2047/2016** 7 7. In the light of the decision of the Apex Court in **Pranay Sethi** , the Tribunal should have granted Rs.40,000/- to the wife of the deceased towards compensation for loss of consortium, Rs.15,000/- towards compensation for loss of estate and Rs.15,000/- towards funeral expenses, totalling to Rs.70,000/-. As the Tribunal has granted Rs.1,50,000/- under these three heads, Rs.80,000/- granted under the said heads is excessive. 8. Coming to the compensation for loss of love and affection, in the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), having regard to the fact that the accident in the instant case is one that took place in the year 2015, I am of the view that the parents of the deceased are entitled to a sum of Rs.40,000/- each and the daughter of the deceased entitled to a sum of Rs.50,000/- under that head. As the claimants were granted Rs.3,00,000/- under the said head, Rs.1,70,000/- under this head is excessive. **M.A.C.A Nos.1910/2016 & 2047/2016** 8 9. The compensation granted under the remaining heads appear to be in order. 10. In short, the claimants are entitled to Rs.7,59,500/- by way of additional compensation. In the result, the appeals are disposed of granting to the claimants a sum of Rs.7,59,500/- by way of additional compensation. Needless to say, the claimants will be entitled to interest for the additional compensation at the rate of 7.5%. It is clarified that all other directions contained in the impugned award will stand. The parties will be at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. All interlocutory applications in the appeals are closed. **Sd/P.B.SURESH KUMAR, JUDGE** DK