M.A.C.A No. 3061 of 2014

``` MACA NO. 3061 OF 2014 ``` 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945 ``` ``` MACA NO. 3061 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 377/2009 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL ,PERUMBAVOOR ``` ## **`APPELLANTS/PETITIONERS IN OP(MV)NO.377/2009:`** ``` ADDL P1MOIHANROY, S/O.PURUSHOTHAMAN, MEDAYIL HOUSE, CHAMPANNOOR, ANGAMALY SOUTH P.O., 683 573. ``` ``` ADDL P2MUKESH, AGED 31 YEARS, S/O.MOHANROY, MEDAYIL HOUSE, CHAMPANNOOR, ANGAMALY SOUTH P.O., -683 573. ``` ``` ADDL P3PARVATHY, D/O.MOHANROY, MEDAYIL HOUSE, CHAMPANNOOR, ANGAMALY SOUTH P.O., -683 573. ``` ``` BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY SRI.UMESH.N.PAI ``` ## **`RESPONDENT/RESPONDENT NO.3 IN OP(MV)NO.377/2009:`** ``` ICICI LOMBARD GENERAL INSURANCE ZENITH HOUSE,KESHAVARAO KHADE MARG, MAHALAXMI, MUMBAI-400 034. ``` ``` ADV.SRI.P.JQACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3061 OF 2014 ``` 2 ## ZIYAD RAHMAN, A.A, J M.A.C.A No. 3061 of 2014 th Dated this the 27 day of October, 2023 ## JUDGMENT The appellants are the additional petitioners 2 to 4 in OP(MV)No.377/2009 on the files of the Motor Accidents Claims Tribunal,Perumbavoor. 2. The said claim petition was initially filed by the first petitioner therein, seeking compensation for the injuries sustained by her in a motor accident that occurred on 23.10.2008. The said claim petition was filed while she was undergoing treatment for the injuries sustained, and during the pendency of the said claim petition, she died on 01.05.2012. The additional petitioners were impleaded in such circumstances and the claim petition was amended by converting the same as a petition for compensation for death. According to the appellants, the accident occurred when the motorcycle on which the deceased was a pillion rider was hit ``` MACA NO. 3061 OF 2014 ``` 3 by a car bearing Registration No.KL-35/A-900, driven by the second respondent in the claim petition. The first respondent in the claim petition was the owner, and the sole respondent herein was the insurer of the said car. The claim petition was submitted in such circumstances. 3. The third respondent in the claim petition, the respondent herein alone contested the matter by filing a written statement admitting the coverage of policy in respect of the car. However, they disputed the negligence as well as the quantum of compensation. 4. To substantiate their contentions, the appellants examined PW1 and Exts.A1 to A12 were marked. No evidence was adduced from the side of the respondent. 5. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the second respondent in the claim petition and being the insurer of the said vehicle, the third respondent in the claim petition, the respondent herein was held liable to pay the ``` MACA NO. 3061 OF 2014 ``` 4 compensation. The quantum of compensation was fixed as Rs.13,94,436/- and the third respondent was directed to deposit the said amount along with interest @ 8% per annum from the date of petition till realisation. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 6. Heard Adv.Smt.Anupama Johny, the learned counsel appearing for the appellants and Adv.Sri.P.Jacob Mathew, the learned counsel appearing for the respondent-Insurance Company. 7. The main challenge in this appeal is in relation to the quantum of compensation awarded by the Tribunal. The learned counsel for the appellants would submit that, the amount awarded under the head of loss of dependency is grossly inadequate. The main reason highlighted for such lower amount under the said head is the monthly income, which was fixed as Rs.3500/- by the Tribunal, even though, the monthly income claimed was Rs.25,000/-. The deceased was a house ``` MACA NO. 3061 OF 2014 ``` 5 wife aged 44 years at the time of the accident. After considering the materials placed on record, I find some force in the contention put forward by the learned counsel for the appellants. Of course, it is true that, the deceased being a housewife, no specific income in terms of money can be claimed. However, the services rendered by a housewife in maintaining the household and providing support to the other members of the family cannot be ignored, and the same cannot be quantified in terms of money as well. However, to determine the compensation, the same has to be valued in terms of money to the extent possible. Therefore, to quantify the compensation, a reasonable amount has to be fixed as the monthly income of a housewife even though she may not be bringing any amount to the family as monthly income. In this regard, it is to be noted that 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 Sadik V. ``` MACA NO. 3061 OF 2014 ``` 6 Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], in respect of an ordinary employee, even in the absence of any evidence, the monthly income has to be fixed as Rs.4500/- for an accident occurred in the year 2004. To determine the monthly income for a subsequent year, an addition of Rs.500/- each per year has to be made. While adopting the said computation in this case, the monthly income in respect of an accident that occurred in the year 2008, has to be fixed as Rs.6500/-. In this case, under no circumstances, the monthly income can be fixed at a lower rate than the said amount. Therefore, Rs.6500/- is fixed as monthly income. 8. Another crucial element is the addition to be made towards future prospects. Here also, even though the services of a housewife cannot be measured in terms of money, considering various factors such as the decrease in the value of money as time passes, inflation, etc., an addition has to be made. This is mainly because, a housewife's services are rendered to the other family members, including the earning ``` MACA NO. 3061 OF 2014 ``` **==> picture [7 x 8] intentionally omitted <==** members thereon. Therefore, for the earning members of the family, to earn a monthly income and obtain a higher income to keep up with changing circumstances, the continued services of a housewife are unavoidable. Thus, the future prospects are to be taken at the equal rate as applicable to any other earning members of the family. As per the principles laid down in National Insurance Company Ltd. V. Pranay Sethi [(2017) 16 SCC 680], the future prospects have to be taken in respect of the persons coming within the age group between 40 and 50 as 25%, and it is to be adopted in this case also. Thus, while reassessing the compensation with the revised monthly income and future prospects, the compensation payable under this head would come to Rs.9,10,000/- [(6500 + 25%) X 12 X 14 X 2/3]. The amount already granted by the tribunal is Rs.3,64,260/-. Thus, the additional amount under the head of loss of dependency would come to Rs.5,45,740/-. 9. The learned counsel for the Insurance Company raised a contention that since compensation was awarded ``` MACA NO. 3061 OF 2014 ``` 8 towards loss of dependency, no amounts need to be granted for loss of earnings. In this case, the Tribunal has awarded an amount of Rs. 1,48,050/- as compensation for loss of earning power for a period of 42 months and nine days during the period in which the deceased was undergoing treatment. Evidently, she was in the stage of coma during this period. Even though the learned counsel for the appellants opposes the said contention, I find some force in the said contention. Since the application was converted as the one for death, the compensation has to be calculated by applying a multiplier applicable to the age of the victim as on the date of the accident. Moreover, the deceased was a person who was not physically earning but she was rendering her services as a housewife to the other members of the family. Therefore, I am of the view that the compensation awarded under the head of loss of earnings was unwarranted and therefore, the same has to be excluded. It is ordered accordingly. 10. When moving on to the other heads, I can be seen ``` MACA NO. 3061 OF 2014 ``` 9 that the Tribunal has awarded an amount of Rs.25,000/towards funeral expenses, which is in excess by Rs.10,000/- in the light of Pranay Sethi's case. However, the amount awarded under the head of loss of estate is Rs.2500/-; therefore, a further sum of Rs.12,500/- is to be awarded under the said head in the light of Pranay Sethi's case. The tribunal awarded Rs.1,00,000/- each for loss of love and affection and loss of consortium. As regards the loss of consortium, as per the decision in United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur [2020 (3) KHC 760], the appellants, being a husband and children, are entitled to Rs.40,000/- each, thereby making a total amount of Rs.1,20,000/- instead of Rs.1,00,000/under the said head. However, as per the decision in Satinder Kaur @ Satwinder Kaur's case, when compensation is awarded for loss of consortium, no amounts need to be granted under the head of love and affection. Therefore, Rs.1,00,000/awarded by the Tribunal under the said head is liable to be excluded, and it is ordered accordingly. ``` MACA NO. 3061 OF 2014 ``` 10 11. The learned counsel for the Insurance Company pointed out that the tribunal has awarded Rs.75,000/- towards pain and suffering and a further sum of Rs.50,000/- under the head of loss of amenities of life. According to the learned counsel for the Insurance Company, the said amounts were not at all necessary as the claim was for compensation for death. It was pointed out by the learned counsel for the insurer that in Oriental Insurance Company Vs Kahlon (AIR 2021 SC 319), the Hon'ble Supreme Court did not award any compensation for loss of pain and suffering, in respect of a person who died 12 years after the accident. However, on going through the observations made by the Hon'ble Supreme Court in the said decision, it can be seen that one of the main reasons the said claim was rejected was that the said claim, being one for personal injuries, would not survive to the legal heirs by virtue of Section 306 of the Indian Succession Act. However, the crucial aspect to be noted in this case is that the aforesaid decision was regarding a motor accident in a different State. ``` MACA NO. 3061 OF 2014 ``` **==> picture [13 x 9] intentionally omitted <==** The position of law that is existing in the State of Kerala is different. As per the Kerala Torts (Miscellaneous Provisions) Act, 1976, enacted by the State of Kerala, there is a repeal of Section 306 of the Indian Succession Act, so far as it relates to the right of action for torts, in the State of Kerala. Section 9(3) of the said Act deals explicitly with the same. Moreover, Section 2 of the said Act reads as follows: “On the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate”. In the light of the aforesaid provisions of the Kerala Torts (Miscellaneous Provisions) Act, 1976, the position of law as held by the Hon’ble Supreme Court cannot be made applicable to the State of Kerala since Section 306 of the Indian Succession Act cannot be made applicable to the claim arising from the tortious liability in the State of Kerala. Section 2 of ``` MACA NO. 3061 OF 2014 ``` 12 the Act specifically provides that the cause of action for personal injury would survive on the legal heirs upon the death of the person who sustained the personal injury. Therefore, the compensation for the pain and sufferings of the deceased until he/she dies consequent to the injuries sustained in the accident is a claim that would survive, and the legal heirs can pursue the claim, as well. Therefore, I do not find any necessity to interfere with the amount awarded under the head of pain and suffering. For the same reasons, the challenge raised by the respondent concerning the compensation awarded under the head of loss of amenities of life is also to be rejected. An amount of Rs.50,000/- was awarded by the Tribunal towards the loss of amenities of life for the sufferings of the deceased during the period from the date of the accident until her death, which was after 42 months. The sufferings of the deceased for such a prolonged duration cannot be ignored while calculating the compensation. Therefore, I do not find any reason to interfere with the award of the tribunal as far as the ``` MACA NO. 3061 OF 2014 ``` 13 compensation under the head of loss of amenities is concerned. 12. Thus, the total additional compensation receivable by the appellants is determined as Rs.3,20,190/- [(5,45,740 + – 12,500 + 20,000) (10,000 + 1,48,050+ 1,00,000)]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 19.06.2014 in OP(MV)No.377/2009 passed by the Motor Accidents Claims Tribunal, Perumbavoor, is hereby modified by granting an additional compensation of Rs.3,20,190/- (Rupees three lakhs twenty thousand, one hundred and ninety only) and the said amount shall be deposited by the respondent herein-Insurance Company along with interest @ as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. sd/- ## ZIYAD RAHMAN, A.A, JUDGE R.AV