MACA No. 80 of 2016

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** ## **MACA NO. 80 OF 2016** ## **AGAINST THE AWARD IN OPMV 1223/2011 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL VATAKARA** ## **APPELLANT/PETITIONERS:** - **1 KALLIYANI, AGED 69 YEARS W/O.SANKARAN,NADUKKANDI HOUSE,THIKKODI VILLAGE, THIKKODI.P.O,PIN-673529,KOILANDY TALUK.** - **2 SINDHU, AGED 41 YEARS W/O.MURALIDHARAN,NADUKKANDI HOUSE,THIKKODI VILLAGE, THIKKODI.P.O,PIN-673529,KOILANDY TALUK.** - **3 SARANG, AGED 17 YEARS S/O.MURALIDHARAN D.O.B:26-09-1997,REPRESENTED BY HIS MOTHER,2ND PETITIONER SINDHU,AGED 37 YEARS, W/O MURALIDHARAN,NADUKKANDI HOUSE,THIKKODI VILLAGE, THIKKODI.P.O,PIN-673529,KOILANDY TALUK.** - **4 SWATHI, AGED 14 YEARS, D/O MURALIDHARAN D.O.B:11.08.2000,REPRESENTED BY HER MOTHER, 2ND PETITIONER SINDHU,AGED 37 YEARS, W/O MURALIDHARAN,NADUKKANDI HOUSE,THIKKODI VILLAGE, THIKKODI.P.O,PIN-673529,KOILANDY TALUK.** ## **BY ADV SRI.ZUBAIR PULIKKOOL** ## **RESPONDENT/RESPONDENT NO.3:** **NATIONAL INSURANCE COM. LTD.** **YEMPEE TOWER,TOWN HALL JUNCTION T.C, ROAD THALASSERY-670104.** **BY ADVS.** **SRI.P.K.MANOJ KUMAR,SC,NATIONAL INSURANCE CO. LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 80 OF 2016 ..2..** ## **JUDGMENT** The appellants are the petitioners in O.P.(MV) No.1223/11 on the files of the Motor Accidents Claims Tribunal, Vatakara. The parties are referred to as per their status in the claim petition. 2. The petitioners are the legal heirs of deceased Muralidharan, who met with an accident on 08.08.2010 while he was riding a motor cycle. A car bearing Registration No.PY 03 5614 driven and owned by the 1[st] respondent hit against the motor cycle and the deceased sustained serious injuries and later succumbed to the injuries during the course of the treatment. According to the petitioners, the accident happened due to the negligence on the part of the 1[st] respondent. The 2[nd] respondent is the insurer of the vehicle. Before the Tribunal, the 1[st] respondent remained _ex parte_ . The **MACA NO. 80 OF 2016 ..3..** Insurance Company filed a written statement admitting the policy, but denying the liability. It is also contended that the amount of compensation claimed is excessive. The petitioners claimed an amount of Rs.10,00,000/- as compensation for the death of the deceased. The Tribunal awarded an amount of Rs.8,48,400/- as total compensation with 9% interest from the date of petition till realisation. The 2[nd] respondent was directed to satisfy the award. The compensation awarded by the Tribunal under different heads are as follows: |Sl.<br>No.|Head of claim (Rs)|Amount<br>claimed (Rs.)|Amount<br>awarded (Rs.)| |---|---|---|---| |1|Transport to hospital|2000|1000| |2|Damage to clothing|2000|1000| |3|Funeral expenses|25000|25000| |4|Loss of estate|10000|8000| |5|Loss of love and afection|300000|150000| |6|Pain and sufering|100000|5000| **MACA NO. 80 OF 2016 ..4..** ||||| |---|---|---|---| |7|Loss of consortium|100000|50000| |8|Compensation for loss of<br>dependency|300000|608400| ||Total|848400|| 3. According to the petitioners, the amount of compensation awarded by the Tribunal under various heads are totally inadequate. 4. The learned Counsel for the petitioners contends that the deceased was a tailor and was earning an amount of Rs.16,000/- per month at the time of his death. However, the Tribunal fixed the notional income of the deceased as Rs.4,000/-. The learned Counsel for the petitioner contends that the Tribunal ought to have taken Rs.16,000/- as income of the deceased. The the Hon'ble _**v**_ Supreme Court in **Ramachandrappa . Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236 : AIR 2011 SC 2951], and **MACA NO. 80 OF 2016 ..5..** **Chameli Devi v. Jivrail Mian** [2019 KHC 5352] has held that when the victim is a coolie, the court cannot expect him to produce any documentary evidence to substantiate his claim. Therefore, in the absence of any evidence to the contrary, the claim made by the claimant with regard to his income has to be accepted. However, the Apex Court added that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of the supporting material and it changes on the facts and circumstances of each case. In the said case, the Apex Court took the income of the claimant therein, who was working as coolie as Rs.4,500/- per month. 5. Going by the decision in **Ramachandrappa** (supra), the notional income of the petitioner, who was a tailor in 2010 has to be taken as Rs.7,500/-. There are no supporting materials available to fix a higher notional income. Therefore, for the purpose of assessment of **MACA NO. 80 OF 2016 ..6..** compensation, I have taken the notional income of the deceased as Rs.7,500/-. Since the deceased was aged 47 years at the time of accident, 25% of the notional income is to be added towards future prospects. By adding 25% of the income towards future prospects, the income of the deceased would come to Rs.9,375/- [7500 + 1875]. The multiplier to be adopted is '13'. There are four dependents and 1/4 has to be deducted towards personal and living expenses. Therefore, the compensation for loss of dependency is re-worked as Rs.10,96,875/- [9375 x 12 x 13 x ¾]. An amount of Rs.6,08,400/- has already been awarded by the Tribunal under the head compensation for loss of dependency. After deducting the said amount, the petitioners are entitled for an amount of **Rs.4,88,475/-** [10,96,875–6,08,400] under the head loss of dependency. 6. Towards funeral expenses, the Tribunal has awarded an amount of Rs.25,000/- as total compensation. **MACA NO. 80 OF 2016 ..7..** In the light of the decision of the Hon'ble Supreme Court in v. _**National Insurance Company Ltd. Pranay Sethi** [2017(4) KLT 662 SC],_ the petitioners are entitled to get only an amount of Rs.15,000/- as compensation towards funeral expenses. Therefore, an amount of **Rs.10,000/-** has to be deducted under the head funeral expenses. 7. Going by the decision reported in _**Pranay Sethi**_ (supra), towards loss of estate, the petitioners are entitled for an amount of Rs.15,000/-. The Tribunal has awarded only an amount of Rs.8,000/-. The petitioners are entitled for an enhanced amount of **Rs.7,000/-** under the head loss of estate. 8. Towards loss of consortium, an amount of Rs.50,000/- has been awarded by the Tribunal. Following the ratio in **Pranay Sethi** (supra) the petitioners are entitled to Rs.40,000/- each for loss of consortium. Accordingly, for loss of consortium, the petitioners are entitled for Rs.1,60,000/- (40,000x4). Therefore, the **MACA NO. 80 OF 2016 ..8..** petitioners are entitled to an enhanced amount of **Rs.1,10,000** [1,60,000 – 50,000] under the head loss of consortium. The Hon'ble Supreme Court has held in **United India Insurance Co.Ltd.** _**v.**_ **Satinder Kaur [AIR 2020 SC 3076],** 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. Since the petitioners are entitled for Rs.1,60,000/- towards loss of consortium, no further amount is to be awarded under the head loss of love and affection. Therefore, **Rs.1,50,000/-** already awarded under the head loss of love and affection has to be deducted from the total compensation. 9. Accordingly, the compensation awarded by the Tribunal under various heads are re-worked as follows: |Sl.<br>No.|Head of claim<br>(Rs)|Amount<br>awarded by<br>the Tribunal|Award<br>modifed|Diference| |---|---|---|---|---| |1|Transport<br>to|1000|--|--| **MACA NO. 80 OF 2016 ..9..** ||hospital|||| |---|---|---|---|---| |2|Damage<br>to<br>clothing|1000|--|--| |3|Funeral<br>expenses|25000|15000|-10000| |4|Loss of estate|8000|15000|7000| |5|Loss of love and<br>afection|150000|--|-150000| |6|Pain<br>and<br>sufering|5000|--|| |7|Loss<br>of<br>consortium|50000|160000|1,10,000| |8|Compensation<br>for loss of<br>dependency|608400|10,96,875|4,88,475| ||**Total**|**8,48,400**|**4,45,475**|| In the result, the petitioners are entitled for an enhanced compensation of **Rs.4,45,475/-** (Rupees four lakhs forty five thousand four hundred and seventy five only). The 2[nd] respondent insurance company shall deposit the said amount with 9% interest and **MACA NO. 80 OF 2016 ..10..** proportionate costs before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB/25/03/2022