MACA NO. 2634 OF 2010

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 11[TH] DAY OF DECEMBER 2023/20TH AGRAHAYANA, 1945 ``` ``` MACA NO. 2634 OF 2010 ``` ``` AGAINST THE COMMON AWARD DATED 30.01.2010 IN OP(MV) 1208/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM ``` ## **`APPELLANTS/CLAIMANTS IN THE OP:`** - `1 P.K.RAMAKRISHNAN NAIR, S/O.PADMANABHA PILLAI, PUTHENPURAYIL HOUSE, KIZHAKKEKKARA, MUVATTUPUZHA.` - `2 GEETHA, W/O.RAMAKRISHNAN NAIR -DO- -DO-, NOW RESIDING AT -DO-` - `3 PREETHA, W/O.AJITHKUMAR, HOUSE NO.6, K.T.JACOB NAGAR, MUVATTUPUZHA. BY ADVS. SRI.P.V.GEORGE(PUTHIYIDAM) (expired) ANEY PAUL` ## **`RESPONDENT/RESPONDENT NO.3 IN O.P.:`** ``` THE BR.MANAGER, THE NEW INDIA ASSURANCE CO.LTD., TEMPLE ROAD, PAYYANNOOR - 670 307. BY ADV SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD.( BY ORDER ) ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2634/2010 : 2 : ## JUDGMENT The appellants are the petitioners in OP(MV) No.1208/2009 on the files of the Motor Accident Claims Tribunal, Kollam. 2. The said claim petition was submitted by the appellants seeking compensation for the death of one Praveen due to the injuries sustained in a motor accident that occurred on 01.05.2000. The accident occurred when a Tata Sumo vehicle owned and driven by the deceased was hit by a lorry bearing registration No.KL-13D/411 driven by the 2[nd] respondent in the claim petition. The said lorry was owned by the 1[st] respondent and was insured with the 3[rd] respondent in the claim petition. The deceased was aged 25 years and he was a driver by profession with a monthly income of Rs.3,250/-. The claim petition was submitted in such circumstances. 3. The respondent herein, the insurer of the lorry filed written statement admitting the coverage of policy for the said lorry. However, they raised a contention that the accident occurred due to the negligence on the part of the deceased himself in driving the Tata Sumo vehicle. The quantum of compensation was also M.A.C.A. No.2634/2010 : 3 : seriously disputed by them. The said claim petition was tried along with 7 other claim petitions which arose from the very same accident and disposed of by a common award. 4. Before the tribunal, the claimants produced Exts.A1 to A39 to prove their contentions. The case diary of the crime registered by the Police in connection with the accident was marked as Ext.X1. From the side of the respondents, RW1 was examined and Ext.B1 copy of the insurance policy was marked. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the deceased as well as the driver of the lorry. The liability was apportioned among them equally. Thus the entitlement of the appellants to get the compensation was limited to the extent of 50% on account of the finding of the contributory negligence on the part of the deceased. As compensation, the tribunal fixed an amount of Rs.2,18,000/- and 50% of the said amount was directed to be deposited by the respondent insurance company with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. M.A.C.A. No.2634/2010 : 4 : 6. Heard Smt. Aney Paul, the learned counsel appearing for the appellants and Sri. Lal K Joseph, the learned counsel appearing for the respondent insurance company. 7. The challenge in this appeal is confined to the quantum of compensation alone. It was pointed out that, while assessing the compensation for loss of dependency very meagre monthly income was taken by the tribunal and the multiplier adopted by the tribunal was the one applicable to the age of the parents. In addition to that, the tribunal also failed to make any addition towards future prospects as well. After considering the materials placed on record, I find force in all the said contention. As regards the monthly income, it is to be noted that the tribunal has accepted the same as Rs.3,000/- which appears to be on the lower side. The contention of the appellants that, the deceased was a driver by profession is only to be accepted in view of the fact that, at the relevant time, the deceased himself was driving the Tata Sumo vehicle which was registered as a taxi. He was having a driving licence with a badge which authorises him to drive transport vehicle as well. These aspects would clearly indicate that he was a driver who used to drive his own vehicle for livelihood. Therefore, the monthly income M.A.C.A. No.2634/2010 : 5 : of Rs.3,000/- taken by the tribunal appears to be on the lower side. The learned counsel for the insurance company at this juncture would point out that the monthly income claimed itself was Rs.3,250/- and therefore, any amount higher than the same, cannot be fixed as the monthly income. However, I am not inclined to accept the said contention. Merely because, the legal representatives of the deceased happened to show a lesser monthly income in the claim petition, that by itself would not preclude the tribunal or this Court from taking higher monthly income, if the facts and circumstances of the case, indicates the necessity of taking a higher monthly income as a reasonable amount. In this case, evidently, he was the owner of the Tata Sumo, which was a taxi vehicle, and he himself was driving the same. Therefore, a reasonable monthly income of Rs.4,000/could be fixed and it is ordered accordingly. 8. As rightly pointed out by the learned counsel for the appellant, the tribunal adopted the multiplier that was applicable to the mother of the deceased, which was not proper in the light of the observations made by the Hon'ble Supreme Court in Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]. Since the M.A.C.A. No.2634/2010 : 6 : deceased was aged 25 years at the time of the accident, the proper multiplier that should have been adopted was 18. Another omission from the part of the Tribunal was the failure in making any addition towards future prospects. In the light of National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], an addition of 40% is to be made, as the deceased comes within the age group of below 40 years. Since the deceased died as bachelor, a deduction of 50% is to be made towards his personal expenses. Thus, while reassessing the compensation for loss of dependency with the above revised criteria the amount of compensation would come to Rs.6,04,800/- [(4000 + 40%) x 12 x 18x ½]. The amount already awarded by the Tribunal is 1,98,000/- and thus the additional amount receivable by the appellant would come to Rs.4,06,800/-. In addition to that, appellants 1 and 2 are entitled to compensation for loss of consortium @ Rs.40,000/- each in the light of Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130] and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760]. However, it is pointed out that, an amount of Rs.10,000/- has already been awarded under the head of loss of love and affection which was not M.A.C.A. No.2634/2010 : 7 : warranted since compensation is being granted under the head of loss of consortium in the light of the observations in Satinder Kaur. Therefore, the same is to be adjusted towards the amount awarded towards loss of consortium and thus, the additional amount receivable by the appellant under that head would come to Rs.70,000/-. 8. The Tribunal has awarded an amount Rs.5,000/towards transport to hospital and funeral expenses. As far as the funeral expenses is concerned the actual amount payable was Rs.15,000/-. Thus, the amount of Rs.5,000/- already awarded by the Tribunal, is adjusted against the said amount and hence a further sum of Rs.10,000/- is awarded towards funeral expenses. Since the entire amount of Rs.5,000/- as referred to above is appropriated towards the funeral expenses, a separate compensation needs to be granted for transport to hospital which is determined as Rs.1,000/-. No amount is seen granted towards loss of estate which is Rs.15,000/- as per National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]. The said amount is also awarded. Thus, the total additional compensation is determined as Rs.5,02,800/- (4,06,800 + 70,000 + 10,000 + 1,000 + 15,000). M.A.C.A. No.2634/2010 : 8 : Since the finding of the Tribunal attributing 50% of contributory negligence upon the deceased was not interfered with, the entitlement of the appellants would be 50% of the amount mentioned above which is Rs.2,51,400/-. In the light of the aforesaid observations and findings this appeal is allowed. The award dated 30.01.2010 passed by the Motor Accident Claims Tribunal, Kollam in O.P.(M.V.) No.1208/2009 is hereby modified by granting an additional compensation of Rs.2,51,400/- (Rupees two lakh fifty one thousand and four hundred only) to the appellants 1 and 2 which shall be payable to them with interest @ 7.5% per annum from the date of petition till realisation by the 3[rd] respondent, insurer. However, it is clarified that, as the delay of 155 days was condoned by this Court subject to the condition that, the appellants shall not be entitled for interest for the additional compensation if any granted, the respondent Insurance Company shall be entitled to exclude the said period while computing the interest on the additional amount. ## Sd/- ZIYAD RAHMAN A.A. JUDGE ncd/scs