M.A.C.A. No. 2535 of 2014 (United India Insurance Company Limited v. Baby D' Cruz & Others)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 ``` ## **`MACA NO. 2535 OF 2014`** ``` AGAINST THE AWARD DATED 04.04.2014 IN O.P(M.V)NO.261/2012 OF III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` UNITED INDIA INSURANCE COMPANY LIMITED, THODUPUZHA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, “SHARANYA”, HOSPITAL ROAD,KOCHI 11 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITIONERS:`** ``` 1BABY D' CRUZ, W/O.LATE BRUNO D CRUZ, THATTAMPARAMBIL, THAMMANAM P.O, KOCHI 32, NOW RESIDING AT NEDUNILATHHOUSE, THAMMANAM P.O, KOCHI 682 032 2JOSEPH SAVIN D’ CRUZ, S/O.LATE BRUNO D’ CRUZ, THATTAMPARAMBIL, THAMMANAM P.O, KOCHI 32, NOW RESIDING AT NEDUNILATHHOUSE, THAMMANAM P.O, KOCHI 682 032 3ANTONY STERVIN D’ CRUZ S/O.LATE BRUNO D’ CRUZ, THATTAMPARAMBIL, THAMMANAM P.O, KOCHI 32, NOW RESIDING AT NEDUNILATHHOUSE, THAMMANAM P.O, KOCHI 682 032 BY ADV SRI.T.R.SUGUNAN ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING`** ``` ON 07.02.2024, ALONG WITH CO.81/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 ``` ``` CO NO. 81 OF 2021 ``` ``` AGAINST THE AWARD DATED 04.04.2014 IN O.P(M.V)NO.261/2012 OF III ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ``` ## **`ERNAKULAM`** ## **`CROSS OBJECTOR/RESPONDENTS/CLAIMANTS:`** ``` 1BABY D' CRUZ W/O.LATE BRUNO D CRUZ, THATTAMPARAMBIL, THAMMANAM P.O., KOCHI-682032, NOW RESIDING AT NADUNILATH HOUSE, THAMMANAM P.O., KOCHI-682032. 2JOSEPH SAVIN D'CRUZ, S/O.LATE BRUNO D CRUZ, THATTAMPARAMBIL, THAMMANAM P.O., KOCHI-682032, NOW RESIDING AT NADUNILATH HOUSE, THAMMANAM P.O., KOCHI-682032. 3ANTONY STERWIN D'CRUZ, S/O.LATE BRUNO D CRUZ, THATTAMPARAMBIL, THAMMANAM P.O., KOCHI-682032, NOW RESIDING AT NADUNILATH HOUSE, THAMMANAM P.O., KOCHI-682032. BY ADV SRI.T.R.SUGUNAN ``` ## **`RESPONDENT/APPELLANT/2ND RESPONDENT:`** ``` UNITED INDIA INSURANCE CO LTD., THODUPUZHA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV P.JACOB MATHEW ``` ## **`THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR`** ``` HEARING ON 07.02.2024, ALONG WITH MACA.2535/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 07[th] day of February, 2024** The appeal as well as the Cross Objection on hand were originated from an award passed by III Additional Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 04.04.2014 in O.P.(M.V) No.281/2012. 2. For the sake of convenience, the parties to the appeal and cross objection will hereinafter be referred to in the proceedings on hand as petitioners and respondents 1 and 2 in accordance with their status in the above Original Petition. 3. The appeal was filed by the insurer of the offending vehicle challenging the quantum of compensation stood awarded by the Tribunal for the reason of its exorbitance. Cross Objection was filed by the claimants before the Tribunal who are legal representatives of one Mr.Bruno D Cruz who died due to ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 4 ``` the fatal injuries sustained by him in the motor accident in question, challenging the amount of compensation stood awarded by the Tribunal for it’s meagreness and inadequacy. 4. Mr.Bruno while waiting on the side of the road with his bicycle to cross the road, was hit by a car bearing Registration No.KL-38/9171 due to rash and negligent driving by it’s driver. He sustained serious injuries and was taken to Medical Centre, Ernakulam for treatment. But he succumbed to the injuries on reaching there. The Original Petition was filed by his legal heirs seeking for a compensation of Rs.15,55,500/- for the loss caused by his death in the motor accident. 5. The owner cum driver of the Car was arrayed as the 1[st] respondent in the Original Petition and it’s insurer as the 2[nd] respondent. They were served with notice from the Tribunal. The 1[st] respondent did not turn up to contest the Original Petition and was declared as ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 5 ``` _ex parte_ . 2[nd] respondent has filed written statement admitting the existence of a certificate of insurance for the car bearing Registration No.KL-38-9171 covering the date of accident. Negligence alleged against the 1[st] respondent was denied and it was sought to be attributed to the deceased. Amount claimed as compensation is also contended as exorbitant. 6. Exts.A1 to A10 were marked in evidence by the petitioner. 2[nd] respondent filed a petition under Section 170 M.V Act and obtained permission from the Tribunal to contest the Original Petition raising all statutory defences. Based on the evidence on record, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Car by the 1[st] respondent. The Tribunal also found that the claimants being the legal heirs of the deceased are entitled to get compensation. A sum of ₹5,83,000/was arrived at as the compensation payable and the 2[nd] ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 6 ``` respondent was directed to deposit the same in favour of the petitioners alongwith interest accrued on it at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation and proportionate costs. 7. According to Sri.Mathews Jacob, the learned Senior Counsel, the Tribunal failed to award compensation under the conventional heads as directed by the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]** . According to him, the Tribunal has also awarded ₹20,000/- as compensation towards pain and sufferings and ₹1,00,000/- towards loss of love and affection, for which the petitioners have no entitlement at all. The learned counsel sought for a modification of the compensation stood awarded in the light of the contentions raised. ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 7 ``` 8. The learned counsel representing the petitioners contended on the contrary that the Tribunal failed to award just and reasonable compensation in the case on hand. According to her, ₹5,000/- fixed by the Tribunal as the monthly income of the deceased is too low. According to her, as per the claims raised by the petitioners in the Original Petition, the deceased was a welder and earning Rs.13,000/- monthly. According to her, though the petitioners failed to adduce any evidence to establish those, the fixation of the monthly income by the Apex Court in the case of a coolie worker in the year, 2004 in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [ (2011) 13 SCC 236] can be taken as basis for fixing the monthly income of the deceased in the case on hand. Accordingly she canvassed for re-fixation of the monthly income on a proportionate basis. She also canvassed for maintaining the deduction adopted by the ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 8 ``` Tribunal in consideration of personal expenditure of the deceased. 9. Petitioners failed to adduce evidence to establish the job and monthly income of the deceased. In that context, the Tribunal opted to fix ₹5,000/- on a notional basis. The motor accident being occurred in the year 2012, this Court also finds it appropriate to fix a proportionate sum on the basis of **Ramachandrappa** supra. Accordingly, ₹8,000/- is re-fixed as the monthly income. Three family members survived the deceased and therefore, 1/4[th] erroneously deducted by the Tribunal from the monthly income fixed in consideration of personal expenditure of the deceased is replaced by 1/3[rd] . As pointed out by the learned counsel, the multiplier of ‘7’ was correctly adopted by the Tribunal and that is maintained. When compensation for loss of dependency is recalculated on the basis of the modified monthly income and the deduction as 1/3[rd] , ₹4,48,000/- ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 9 ``` (₹8,000/- x 12 x 7 x 2/3) is arrived at. ₹3,15,000/stood awarded by the Tribunal when adjusted against the sum arrived at now in the calculation afresh, the petitioners will get ₹1,33,000/- (₹4,48,000/- - ₹3,15,000/-) as additional compensation. 10. It is noticed that the Tribunal has awarded ₹25,000/- and ₹20,000/- respectively as compensation towards funeral expenses and loss of estate. As per **Pranay Sethi** supra petitioners are entitled to get only ₹15,000/- as compensation under each of the heads and therefore, the same is awarded in their favour. 11. As rightly pointed out by the learned counsel, petitioners are not entitled to get ₹20,000/- and ₹1,00,000/- stood awarded by the Tribunal respectively towards pain and sufferings and loss of love and affection. 12. Petitioners are none other than the wife and two children of the deceased. Therefore, each of them ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 10 ``` are entitled to get ₹40,000/- as compensation for loss of consortium. Thus ₹1,20,000/- (₹40,000/- x 3) is payable in total as compensation towards loss of consortium instead of ₹1,00,000/- stood awarded by the Tribunal. Interest was ordered by the Tribunal to be paid for the compensation at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation and it being excess is modified and reduced to 8%. 13. Appeal as well as the Cross Objection are allowed accordingly. In the calculation afresh as above, petitioners will get ₹6,01,000/- (Rupees Six lakhs one thousand only) (₹4,48,000/- + ₹2,000/- + ₹1,000/- + ₹15,000/- + ₹1,20,000/- + ₹15,000/-) instead of ₹5,83,000/- as the total compensation and that will carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. 2[nd] respondent is exempted from paying ``` M.A.C.A.No.2535 of 2014 and C.O.No.81 of 2021 ``` ``` 11 ``` interest for the sum for 1913 days, that being the delay occurred in filing the Cross Objection on hand. 2[nd] respondent shall pay the compensation modified now with interest accrued on it at the modified rate and costs within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the compensation in favour of the petitioners shall be in accordance with the directions issued by the Tribunal and also the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. Sd/- **MARY JOSEPH JUDGE** NAB