MACA No.1448/2010 and MACA No.1146/2010, High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **MACA.No.1448 OF 2010** **AGAINST THE AWARD IN OPMV 1267/2003 DATED 21-11-2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,EKM** ## **APPELLANT:** **E.NARAYANI AMMAL** **AGED 65 YEARS, WIFE OF LATE SRI.C.M.GULIKAN, RESIDING AT KARUVAKKAL HOUSE, ELOOR NORTH VILLAGE,, UDYOGAMANDAL P.O., ERNAKULAM DISTRICT.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.BEENA DEVASSY SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P.** ## **RESPONDENTS:** - **1 THOMAS MATHEW S/O.MATHEW, KUMBALAMTHANATHU HOUSE, AYARKUNNAM P.O.,, KOTTAYAM.** - **2 JOSSY CHERIYAN SO.CHERIAN PANACHIKKALAYIL HOUSE, KIZHAKKUMBHAGHAM DESOM,, ETTUMANOOR, KOTTAYAM DISTRICT.** - **3 THE ORIENTAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE NO.1, MATTETHRA BUILDING,, 3RD FLOOR, BAKER JUNCTION, KOTTAYAM.** - **4 K.H.SHAJI SO.HASSAN KUNJU KAVANIPARAMBIL HOUSE, KAITHAKODE, THODUPUZHA,, IDUKKI DISTRICT.** - **5 ABBAS RAWUTHER SO.SAITHU MUHAMMED VADAKKEDATHU, MADAKKATHAZHAM, MUVATTUPUZHA,, ERNAKULAM DISTRICT.** - **6 THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE, P.B.NO.8, JYOTHI SUPER BAZAR,, THODUPUZHA.** MACA.1448/2010,MACA.1146/2010 2 ## **R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA** ## **OTHER PRESENT:** ## **SMT.K.S.SANTHI FOR ORIENTAL INSURANCE CO.LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2021, ALONG WITH MACA.1146/2010, THE COURT ON 01-032021 DELIVERED THE FOLLOWING:** MACA.1448/2010,MACA.1146/2010 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **MACA.No.1146 OF 2010** **AGAINST THE AWARD IN OPMV 1267/2003 DATED 21-11-2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS:** **1 THE OPRIENTAL INSURANCE CO.LTD KOTTAYAM, REPRESENTED BY ITS ASSISTANT MANAGER,, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. 2 THE ORIENTAL INSURANCE CO.LTD. THODUPUZHA, REPRESENTED BY ITS ASSISTANT MANAGER,, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. SRI.GEORGE CHERIAN (SR.) : 1 C.M.GULIKAN (DIED) S/O.LATE MARAN, RESIDING AT KARUVAKKAL HOUSE, ELOOR NORTH VILLAGE,, UDYOGAMANDAL P.O., ERNAKULAM DISTRICT. 2 E.NARAYANI AMMAL W/O.C.M.GULIKAN RESIDING AT KARUVAKKAL HOUSE,, ELOOR NORTH VILLAGE, UDYOGAMANDAL P.O., ERNAKULAM DISTRICT. (THE SECOND RESPONDENT IS RECOREDED AS THE LEGAL HEIR OF THE DECEASED FIRST RESPONDENT AS PER ORDER DATED 20/10/2010 IN IA 2707/2010) R1 BY ADV. SRI.ANIL S.RAJ R1 BY ADV. SMT.ANILA PETER R1 BY ADV. SMT.K.N.RAJANI R1 BY ADV. SRI.RADHIKA RAJASEKHARAN P.** ## **RESPONDENTS:** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2021, ALONG WITH MACA.1448/2010, THE COURT ON 01-032021 DELIVERED THE FOLLOWING:** MACA.1448/2010,MACA.1146/2010 4 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- MACA.1448/2010 & MACA.1146/2010 ------------------------------- ## **JUDGMENT** Dated this the 1st day of March 2021 These two appeals are filed challenging the award dated 21.11.2009 in O.P (MV) No.1267 of 2003 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. 2. The appellants in MACA No.1146/2010 are the 3[rd] and 6[th] respondents in OP(MV).No.1267/2003 and the appellant in MACA No.1448/2010 is the 2[nd] petitioner before the tribunal. As far the 1[st] petitioner in OP(MV).No.1267/2003 concerned, it is submitted that he is no more even before filing this appeal. 3. The MACA No.1448/2010 is filed challenging the quantum of award. MACA No.1146/2010 is filed by the insurance company with a grievance that instead of one half of the compensation, which is to be deducted from the compensation for personal expenses MACA.1448/2010,MACA.1146/2010 5 of the deceased only 1/3rd is deducted. (Hereinafter the parties are mentioned in accordance to their rank before the tribunal). 4. The petitioners filed the claim petition under Section 166 of the Motor Vehicles Act claiming compensation. The son of the petitioners, C.G Sunil died in a motor accident on 5/2/2003. According to the petitioners, the respondents are liable to pay the compensation to the petitioners. 5. To substantiate the case, the appellants had produced Exts.A1 to A11. 6. After going through the pleadings and documents, the Tribunal fixed a total compensation of Rs.4,27,064/- with interest @ 7.5% p.a from the date of petition till realisation. 7. Aggrieved by the quantum of compensation the 2[nd] petitioner filed MACA No.1448/2010. The 3[rd] and 6[th] respondents filed MACA.No.1146/2010. These two appeals are connected and therefore I am MACA.1448/2010,MACA.1146/2010 6 disposing these appeals by a common judgment. MACA.No.1146/2010. In this appeal the main grievance of the appellants who are respondents 3 and 6 is that only 1/3rd is deducted from the compensation fixed by the tribunal towards personal expenses of the deceased and in the light of the judgment of the **Sarla Verma & Otrs Vs. Delhi Transport Corporation [2010(2)KLT 802]** half of the amount ought to have been deducted from the income of a bachelor. Admittedly, the deceased was a bachelor. There is no dispute on this aspect to the petitioners also. Hence, the tribunal erred in deducting only 1/3rd of the compensation for the personal expense of the deceased while fixing loss of dependency. That is to be set-aside and it is to be refixed. ## MACA No.1448/2010 8. This is an appeal filed by the 2[nd] petitioner claiming enhancement of compensation. According to MACA.1448/2010,MACA.1146/2010 7 the claimant, Ext.A8 is the salary statement of the deceased- C.G Sunil who was working as a police constable. According to the counsel, the last pay drawn by the deceased was Rs.4,399/-. The tribunal ought to have taken this as his monthly income. The counsel submitted that the future prospects is not added to the monthly income and 50% is to be added in the light of the judgment of the apex court in **National Insurance Co.Ltd v. Pranay Sethi** **[2017(4)KLT 662].** The deceased was working as a police constable and he was aged only 34 at the time of accident. 9. There is force in the argument of the counsel for the appellant in MACA No.1448/2010. The tribunal ought to have added amount for future prospects. Hence, the monthly income of the deceased will be Rs.6,598/- after adding 50% for future prospects. Consequently, the compensation amount for loss of dependency is to be recalculated in the following MACA.1448/2010,MACA.1146/2010 8 manner after deducting one half towards the personal expenses of the deceased:- Rs.6,598X12X16X1/2= Rs.6,33,408/- 10. It is also pointed out by the counsel that multiplier used by the tribunal is 12 and it is actually 16. There is no dispute on this aspect. Hence, the multiplier used in the above calculation is 16. 11. As far as the funeral expenses is concerned the tribunal awarded only an amount of Rs.5,000/-. The petitioners are entitled an amount of Rs.15,000/as per the decision of the **Pranay Sethi's case** (supra). Therefore, an additional amount of Rs.10,000/- is entitled by the petitioners on that head. As far as loss of estate is concerned only Rs.5,000/- is awarded by the tribunal. The petitioners are entitled an additional amount of Rs.10,000/- on that head as per the decision in **Pranay Sethi's case** (supra). Similarly, loss of love and affection only Rs.5,000/- is awarded. The petitioners are the father and mother. MACA.1448/2010,MACA.1146/2010 9 In the light of the decisions of the apex court in **Magma General Insurance Co.Ltd. V. Nanu Ram@Chuhru Ram & others [2018KHC 6697],** the appellants are entitled an amount of Rs.40,000/- each towards the filial consortium. Hence, the appellants are entitled an enhanced compensation of Rs.75,000/on this head. Therefore, the enhanced compensation entitled by the appellant can be summarized like this:- Funeral expenses :- Rs. 10,000/Compensation for Loss of dependency:- Rs.6,33,408/- (modified) Loss of estate :- Rs.10,000/Filial consortium :- Rs.75,000/–----------------Total Rs.7,28,408/======== 12. The appellants are entitled 8% interest for the enhanced amount. Therefore, the above appeals are allowed in part:- (i) MACA 1146/2010 is allowed in part. The loss of MACA.1448/2010,MACA.1146/2010 10 dependency compensation awarded by the tribunal is set aside and it is refixed as Rs.6,33,408/-. Towards the personal expenses of the deceased half of the compensation is deducted. (ii) MACA No.1448/2010 is allowed in part. The appellant/petitioner No.2 is entitled an enhanced amount of Rs.7,28,408/- with interest @ 8% from the date of application till realisation. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** ska