MACA No. 3114 of 2014

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 ``` ## **`MACA NO. 3114 OF 2014`** ``` AGAINST THE AWARD DATED 03.02.2014 IN OPMV 1256/2010 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, PALAKKAD`** ## **`APPELLANTS/PETITIONERS:`** ``` 1M.K. RADHAMANI @ RADHA AGED 53 YEARS,W/O. LATE M.S. SANKARANARAYANAN, RESIDING AT SREELAKSHMY NIVAS, CORNER STREEET, AYALUR PIN - 678 510, NOW RESIDING AT ULLERY (H.O), GOVT. PRESS P.O, SHORANUR, OTTAPALAM, PALAKKAD. 2M.S. LAKSHMI D/O. RADHAMANI, AGED 27 YEARS, RESIDING AT SREELAKSHMY NIVAS, CORNER STREEET, AYALUR PIN - 678 510, NOW RESIDING AT ULLERY (H.O), GOVT. PRESS P.O, SHORANUR, OTTAPALAM, PALAKKAD. 3M.S. KULATHUMANI D/O. RADHAMANI, AGED 26 YEARS, RESIDING AT SREELAKSHMY NIVAS, CORNER STREEET, AYALUR PIN - 678 510, NOW RESIDING AT ULLERY (H.O), GOVT. PRESS P.O, SHORANUR, OTTAPALAM, PALAKKAD. ``` ``` BY ADV SRI. JACOB SEBASTIAN ``` ## **`RESPONDENT/RESPPONDENT NO.3:`** ``` UNITED INDIA INSURANCE CO.LTD., SURYA COMPLEX, PALAKKAD, PIN - 678 001. ``` ``` SRI. JOHN JOSEPH VETTIKAD, SC ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON`** ``` 21.12.2021, THE COURT ON 02.03.2022 DELIVERED THE FOLLOWING: ``` MACA 3114/2014 2 ## **JUDGMENT** This is an appeal preferred by the petitioners in O.P.(MV) No.1256/2010 on the file of the Motor Accidents Claims Tribunal, Palakkad. The parties in this appeal are referred to as per the status in the claim petition unless otherwise specifically mentioned. 2. Deceased Sreenivasan, while riding a motorcycle on 24.08.2006 with his wife on the pillion, was hit by a lorry coming from the opposite direction and both of them died in the said accident. The deceased had no children. The mother, sister and brother of deceased Sreenivasan filed claim petition seeking a compensation of Rs.20,00,000/- for the death of Sreenivasan. MACA 3114/2014 3 3. The driver and owner of the lorry remained ex parte before the Tribunal. The 3[rd] respondent Insurance Company admitted that the lorry was having a valid policy of insurance at the time of the accident; but, contended that they are not bound to pay compensation to third parties under its terms if there is violation of conditions of policy. 4. The Tribunal found that the accident happened due to the rash and negligent driving of the lorry by its driver and awarded an amount of Rs.5,60,000/- as total compensation to the petitioners with 9% interest per annum from the date of petition till realisation with proportionate costs. The 3[rd] respondent-insurer was directed to satisfy the award. MACA 3114/2014 4 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners have preferred this appeal. 6. According to the petitioners, the deceased was working as an air-conditioning and refrigeration mechanic in Kuwait and as per Ext. A12 salary certificate, his monthly salary was Rs.36,400/-. The Tribunal did not rely on Ext. A12 as it was not proved. The Tribunal assumed the income of the deceased to be Rs.5,000/- per month. One-third of the said amount was deducted towards personal expenses of the deceased. Further, taking into account the age of the mother of the deceased, the Tribunal fixed the multiplier as ‘13’. Accordingly, the Tribunal awarded Rs.5,20,000/- Rs.5,20,000/- MACA 3114/2014 5 (5,000×2/3x12×13) as compensation towards loss of dependency. 7.Tribunal went in the wrong assessing compensation towards loss of dependency. This Court in **Valsamma v. Binu Jose** (2014 (1) KLT 10) has held that, the standards to be applied while assessing the income of a person who is not permanently employed in a foreign country would be in the context of Indian standards. In **v. Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236: AIR 2011 SC 2951]** , the Hon'ble Supreme Court has taken the notional monthly income of a coolie in the year 2004 as Rs.4,500/-. In Pushkar Mehra v. Brij Mohan MACA 3114/2014 6 Kushwala and others [(2015) 12 SCC 688], the Hon'ble Supreme Court has taken the notional income of a skilled worker in the year 2010 as Rs.7,020/- per month. In Chameli Devi and others v. Jivrail Mian and others [2019 KHC 5352], the Hon'ble Supreme Court has taken the notional monthly income of a carpenter in the year 2001 as Rs.5,000/-. In **Valsamma** (supra), the Division Bench of this Court fixed the monthly income of a spray painter in Kerala during 2004 as Rs.3,000/-. Going by the above yardsticks and in the absence of other evidence as to the salary of the deceased who was working as an air-conditioning and refrigeration mechanic in Kuwait, the notional income can be fixed as Rs.7,500/- per month. The MACA 3114/2014 7 deceased was aged 28 years at the time of accident. Therefore, going by the decision in **National Insurance Company Ltd. v. Pranay Sethi [2017 (16) SCC 680]** , 40% has to be added towards future prospects and the monthly income of the deceased is fixed at Rs.10,500. After deducting one-third of the income towards his personal expenses, the monthly income will be Rs.7,000/-. As far as the multiplier is concerned, it is the multiplier, which is relevant to the age of the deceased, which shall apply. This position has been recently reiterated in **Chandra and others v. Branch Manager Oriental Insurance Co Ltd and another** [2021 KHC 5314]. The deceased was aged 28 years and the multiplier to be applied is MACA 3114/2014 8 ‘17’. Therefore, the petitioners are entitled for an amount of Rs.14,28,000/- (7000×12x17) as compensation towards loss of dependency. After deducting Rs.5,20,000/- awarded by the Tribunal, the petitioners are entitled for an enhanced amount of **Rs.9,08,000/-** as compensation under the said head. 8.Towards funeral expenses, the Tribunal has awarded Rs.25,000/-, whereas, in the light of the decision in **Pranay Sethi** (supra) followed in **Jayasree N. and others** v. **Cholamandalam MS General Insurance Company Ltd. [2021 (6) KHC 163]** , the petitioners are entitled to get only an amount of Rs.15,000/- plus 10% enhancement in every three years. Accordingly, the compensation MACA 3114/2014 9 towards funeral expenses is re-fixed as Rs.16,500/and an amount of **Rs.8,500/-** (Rs.25,000-16,500) has to be deducted under the said head. 9.Towards loss of estate, the Tribunal has awarded Rs.5,000/-, whereas, the petitioners are entitled to get Rs.16,500/- under the said head in the light of the decision in **Pranay Sethi** (supra) followed in **Jayasree** (supra). Therefore, an enhanced amount of **Rs.11,500/-** (Rs.16,500-5000) is awarded towards loss of estate. 10. Petitioners 1 and 2, the mother and sister of the deceased, are entitled for an amount of Rs.44,000/- each towards loss of consortium in the light of the decisions in **Magma General Insurance Co.Ltd v. Nanu Ram alias Chuhru** MACA 3114/2014 10 **Ram and others [2018 KHC 6697]** , **United India Insurance Co.Ltd. v Satinder Kaur** [AIR 2020 SC 3076] and **Pranay Sethi** (supra). Therefore, an amount of **Rs.88,000/-** is awarded under the said head. The Hon'ble Supreme Court has held in **Satinder Kaur** (supra) that, when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for loss of love and affection as a separate head. Therefore, the petitioners are not entitled for any amount under the head loss of love and affection and amount of **Rs** . **10,000/-** awarded under the head loss of love and affection has to be deducted from the total compensation. 11. The petitioners contend that they are MACA 3114/2014 11 entitled to get compensation for pain and **Satinder** sufferings. In the light of the decision in **Kaur** (supra), they are not entitled for compensation under the said head. 12. In the absence of evidence, the Tribunal has declined the compensation claimed under the other heads. 13.Thus, on a re-appreciation of the pleadings and materials on record and the law laid down in the aforecited decisions, I hold that the compensation awarded by the Tribunal in the impugned award has to be modified and enhanced as held above and given in the table below for easy reference. MACA 3114/2014 12 |Sl.<br>No.|Head<br>under<br>which<br>compensation is<br>claimed|Amount<br>claimed (in<br>Rupees)|Amount<br>allowed<br>(in<br>Rupees)|Basis<br>on<br>which<br>allowed/dis-<br>allowed<br>with<br>reasons in a<br>nut-shell| |---|---|---|---|---| |1|Loss of earnings|||| |2|Partial loss of<br>earnings|||| |3|Medical<br>expenses|5000||| |4|Bystander<br>expenses|5000||| |5|Damage<br>to<br>clothingetc|1000||| |6|Transportation|5000||| |7|Extra-<br>nourishment|||| |8|Pain<br>and<br>sufering|50000||| |9|Loss of love and<br>afection|50000|10000|| |10|Loss<br>of<br>consortium|15000||88000| |11|Loss of estate|10000|5000|16500| |12|Loss<br>of<br>dependency /<br>economic<br>benefts|2000000|520000|1428000| |13|Loss<br>of|||| MACA 3114/2014 13 ||amenities and<br>conveniences of<br>life|||| |---|---|---|---|---| |14|Loss of earning<br>power|||| |15|Funeral<br>expenses||25000|16500| |16|Disfgurement /<br>deformity|||| |17|Anyother head|||| ||Total|2000000|560000|1549000| In the result, the appeal is allowed as above holding that the appellants/petitioners are entitled for enhanced compensation of **Rs.9,89,000/-** (Rs.15,49,000-5,60,000) with 9% interest per annum from the date of petition till realisation and proportionate costs. The insurance company shall deposit the amount along with interest and proportionate costs before the Tribunal within a MACA 3114/2014 14 period of two months from the date of receipt of a copy of this judgment. Sd/- # **MURALI PURUSHOTHAMAN JUDGE**