MACA NO. 2741 OF 2012

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 MACA NO. 2741 OF 2012 ``` ``` AGAINST THE AWARD DATED 19.07.2012 IN OP(MV) 935/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## **`APPELLANTS/PETITIONERS:`** - `1 VELAYUDHAN [DIED]` - `2 MEENAKSHI W/O VELAYUDHAN` - `3 BABU S/O.VELAYUDHAN.` ``` 4SANTHOSH S/O.VELAYUDHAN ``` ``` 5SAJITHA D/O.VELAYUDHAN ``` ``` 6SUDHEESH (MINOR ) S/O.VELAYUDHAN,(MINOR 6TH APPELLANT REPRESENTED BY HIS GUARDIAN FATHER THE 1ST APPELLANT HEREIN.) ``` ``` ALL ARE RESIDING AT VEMPALLUR, THENKURISSI, ALATHUR, PALAKKAD DISTRICT. ``` ``` [IT IS RECORDED THAT APPELLANTS 2 TO 6 ARE THE LEGAL HEIRS OF DECEASED 1ST APPELLANT AS PER ORDER DATED 3/10/2023 IN MEMO DATED 12/10/2021 IN MACA 2741/2012.] ``` ``` BY ADVS. T.C.SURESH MENON P.S.APPU A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1B.BALASUBRAMANIAN S/O.ARUMUGHA GOUNDER, RESIDING AT HOUSE NO.2/752, SBT COLONY, NATTUKKAL, P.O.KOZHINJAMPARA,CHITTUR, PALAKKAD - 678 555. ``` ``` MACA NO. 2741 OF 2012 ``` ``` 2 ``` - `2 GIRISH S/O.KITTUCHAMI, RESIDING AT KOLAKKAMPADU HOUSE, MANJALUR, ALATHUR, PALAKKAD - 678 541.` ``` 3THE NEW INDIA ASSURANCE COMPANY LIMITED M.A.LANE, T.B.ROAD, PALAKKAD - 678 001. ``` ``` BY ADVS. V.A.JOHNSON (VARIKKAPPALLIL) K.C.SANTHOSHKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2741 OF 2012 ``` ``` 3 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.935/2006 on the files of the Motor Accident Claims Tribunal, Thrissur. The said claim petition was submitted by them seeking compensation for the death of one Satheesh, the son of appellants 1 and 2 and the brother of the other appellants. 2. The accident occurred when the lorry in which the deceased was working as a cleaner hit against a container lorry; thereby, he sustained serious injuries and later passed away. According to the appellants, the deceased was aged 18 years. The claim petition was submitted in such circumstances seeking compensation. 3. The 3rd respondent, the insurer of the said vehicle, filed written statement admitting the coverage of policy for the said vehicle. The Insurance Company further contended that the lorry was not having valid fitness certificate at the time of the accident. It was also contended that the deceased was a gratuitous passenger in the lorry driven by the 2nd respondent. They sought exoneration from the liability in such circumstances. ``` MACA NO. 2741 OF 2012 ``` ``` 4 ``` 4. The evidence in this case consists of Exts.A1 to A10 from the side of the appellants and from the side of the respondents Ext.B1 was marked. After the trial the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2nd respondent, the driver of the lorry. However, it was found that the said lorry was not having permit and fitness certificate and thus, a violation of policy conditions was found. The quantum of compensation was fixed as Rs.4,22,000/- and the 3rd respondent Insurance Company was directed to deposit the said amount along with interest @ 8% per annum from the date of petition till realization with proportionate costs and they were permitted to recover the said compensation from the 1st respondent, the registered owner of the lorry, after satisfying the award. This appeal is submitted by the appellants seeking enhancement of compensation. 5. Heard Sri.T.C. Suresh Menon, learned counsel appearing for the appellants and Sri.K.C. Santhoshkumar, learned counsel appearing for the 3rd respondent Insurance Company. 6. The only dispute in this case is with respect to the ``` MACA NO. 2741 OF 2012 ``` ``` 5 ``` quantum of compensation. The specific contention put forward by the learned counsel for the appellants is that, the monthly income taken by the Tribunal for assessing the compensation for loss of dependency was inadequate. Besides the same, it was also contended that the multiplier adopted by the Tribunal was that of the dependents, which is also required to be modified. It was further contended that the addition towards future prospects was also not made. After considering the materials placed on record, I am inclined to accept all the said contentions. 7. As far as the monthly income of the deceased is concerned, even though the monthly income claimed was Rs.4,500/-, the Tribunal took the same as Rs.4000/-. The deceased was aged 18 years and he was working as a cleaner in the said lorry. Of course, no evidence was adduced to substantiate the income he was receiving from the said employment. However, as per the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], and Syed Sadiq v.** ``` MACA NO. 2741 OF 2012 ``` ``` 6 ``` ## **Divisional Manager, United India Insurance Company [(2014)** **2 SCC 735],** the monthly income for an ordinary employee, in respect of an accident occurred in the 2006 can be taken as Rs.5,500/- even without any evidence. Of course, it is true that in this case, the monthly income claimed was Rs.4,500/-. But, I am of the view that that would not preclude this Court from taking higher monthly income if the facts and circumstances warrant the adoption of such higher income for ensuring ‘just compensation’ to the victims. Moreover, in **Minu Rout v. Satya Pradyumna Mohapatra [(2013) 10 SCC 695],** the Honourable Supreme Court accepted the monthly income, which was higher than what was claimed in the claim petition. Here, in this case, the legal heirs of the deceased are claiming compensation, and it is possible that they may not be aware of the exact monthly income of the deceased. Thus, I am inclined to take the monthly income as Rs.5,500/-. In the light of **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** an addition of 40% of the monthly income is to be made towards future prospects, and towards personal expenses 50% has to be deducted as well. ``` MACA NO. 2741 OF 2012 ``` ``` 7 ``` Thus, while reassessing the compensation with the above-revised criteria, the quantum of compensation under the head of loss of dependency would come to Rs.8,31,600/- [(5500 + 40%) x 12 x 18 x ½]. The amount already awarded by the Tribunal under this head is Rs.3,52,000/-; thus, the additional amount receivable by the appellants would come to Rs.4,79,600/-. 8. When considering the amounts awarded by the Tribunal under the other heads, it can be seen that the Tribunal awarded only Rs.5000/- under the head of funeral expenses and thus, a further sum of Rs.10,000/- is awarded under the said head. Similarly, the amount awarded under the head of loss of estate is Rs.5,000/-, and in that head, a further amount of Rs.10,000/- is to be granted. As regards the compensation for loss of consortium, it can be seen that no amount is seen granted even though an amount of Rs.48,000/- is awarded for loss of love and affection. As per **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],** the appellants 1 and 2, who are the ``` MACA NO. 2741 OF 2012 ``` ``` 8 ``` parents of the deceased are entitled for loss of consortium @ Rs.40,000/- each. It is also held in **Satinder Kaur** that when compensation is awarded for loss of consortium, no further amount needs to be granted for loss of love and affection. Therefore, Rs.48,000/- awarded by the Tribunal under this head can be set off against the additional compensation granted for loss of consortium. Thus, the additional amount payable under the head of loss of consortium would come to Rs.32,000/-. 9. Thus, the total additional compensation receivable by the appellant would come to Rs.5,31,600/- (Rupees five lakhs thirty-one thousand and six hundred only) (4,79,600 + 10,000 + 10,000 + 32,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 19.07.2012 passed by the Motor Accident Claims Tribunal, Thrissur, in O.P.(M.V.) No.935/2006 is hereby modified by granting an additional compensation of Rs.5,31,600/- (Rupees five lakhs thirty-one thousand and six hundred only), which shall be deposited by the 3rd respondent Insurance Company along with interest at the rate ``` MACA NO. 2741 OF 2012 ``` ``` 9 ``` as ordered by the Tribunal and proportionate costs. However, it is clarified that since this Court did not interfere with the right of recovery granted to the 3rd respondent, it shall be open for the 3rd respondent to recover the said amount from the 1st respondent after satisfying the judgment. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` scs