M.A.C.A. No.1581/2015

M.A.C.A. No.1581/2015 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945 ``` ## _`MACA NO. 1581 OF 2015`_ ``` AGAINST THE ORDER/JUDGMENT IN OPMV 366/2011 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL ,KOLLAM ``` ## _`APPELLANTS/PETITIONERS:`_ ``` 1OSSIE GOMEZ (DIED) MEMO RECORDED AGED 63 YEARS SON OF JOE SONNY GOMEZ, RESIDING AT KAMALAKSHMI MANDIRAM, 9C, ANANYA NAGAR, THIRUMULLAVARAM P.O,KOLLAM WEST. 2LEONI VINCENT GOMEZ AGED 54 YEARS, DAUGHTER OF PHILOMINA,RESIDING AT KAMALAKSHMI MANDIRAM, 9C, ANANYA NAGAR, THIRUMULLAVARAM P.O, KOLLAM WEST. 3JAYARAM GEORGE GOMEZ ( NAME SUBSTITUTED) AGED 37 YEARS, SON OF OSSIE GOMEZ, RESIDING AT KAMALAKSHMI MANDIRAM, 9C, ANANYA NAGAR, THIRUMULLAVARAM P.O, KOLLAM WEST ``` ``` **APPELLANT NOS. 2 AND 3 ARE CONSIDERED IN THE PARTY ARRAY AND THE APPELLANT NO.3 HAS BECOME ELIGIBLE FOR CLAIMING UNDER THIS CASE AS PER ORDER DATED 3/12/2020 VIDE MEMO DATED 12/11/2020. *** THE NAME OF THE 3RD APPELLANT IS SUBSTITUTED AS ' JAYANTH' GEORGE GOMEZ INSTEAD OF JAYARAM GEORGE GOMEZ AS PER ORDER DATED 20/12/2022 IN IA 1/2022. BY ADVS. JOHNSON GOMEZ S.BIJU (KIZHAKKANELA) ``` ## _`RESPONDENTS/RESPONDENTS:`_ ``` 1VIJAYAN K.P. SON OF POULOSE, RESIDING AT 17/430, KALAPARAMBATHU HOUSE, ANGAMALY SOUTH, ERNAKULAM 683 573, KERALA. 2VIJU VIJAYAN SON OF VIJAYAN, RESIDING AT 17/430, KALAPARAMBATHU HOUSE, ANGAMALY SOUTH, ERNAKULAM 683 573, KERALA. ``` M.A.C.A. No.1581/2015 2 _`3 MANAGER IFCOJOKIO GENERAL INSURANCE CO. LTD. PAN AFRICAN PLASZA, TC 25/2510/6, MG ROAD,THIRUVANANTHAPURAM-695 004. 4 *VASUDEVAN (DELETED) SON OF RAMASWAMY NAIDU, 107 4TH CROSS,KALAS PALAYAM, NEW EXTES BANGALORE 560 002. 5 *RAJAN SON OF KRISHNAN (DELETED) RESIDING AT 3/342, VANDITHA VALAM, PERUMATTI,PALAKKAD - 678 001. 6 *UNIVERSAL SAMPOO GENERAL INSURANCE CO. LTD. (DELETED) A 201, CRYSTAL PLASA, OPP INFINIT MAIL, LINK ROAD,ANDHERIWEST, MUMBAI - 400 058. *RESPONDENTS 4 TO 6 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS/APPELLANTS AS PER ORDER DATED 3/12/2020 IN I.A.1/2020. BY ADVS. SRI.P.R.MILTON SRI.MATHEWS JACOB (SR.)-- R3 SRI.K.J.CHACKOCHAN SRI.P.JACOB MATHEW`_ ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1581/2015 3 # **MURALI PURUSHOTHAMAN, J. --------------------------------------------M.A.C.A. No. 1581 of 2015** **-------------------------------------------------** Dated this the 22[nd] day of May, 2023 ## **JUDGMENT** The claimants/petitioners in O.P.(MV) No.366 of 2011 on the file of the Motor Accidents Claims Tribunal, Kollam have filed this appeal aggrieved by the quantum of compensation awarded by the Tribunal. The parties to this appeal will hereinafter be referred to as petitioners and respondents in accordance with their status in the claim petition. 2. Heard Sri.Johnson Gomez, the learned counsel for the petitioners and Sri. Mathews Jacob, the learned senior counsel appearing for the 3[rd] respondent Insurance Company. 3. Petitioners 1 and 2 are the parents of one Steaphen Gomas who died in a motor traffic accident that occurred on 27.1.2010. The 3[rd] petitioner is the M.A.C.A. No.1581/2015 **==> picture [7 x 10] intentionally omitted <==** younger brother of the deceased. According to the petitioners, while the deceased Steaphen Gomas was traveling in a Maruthi Swift car bearing Registration No. KL- 41 B 1742, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured by the 3[rd] respondent, the car collided with a lorry bearing registration No. KL01 AD 5495 driven by the 5[th] respondent, owned by the 4[th] respondent and insured by the 6[th] respondent and Steaphen Gomas sustained serious injuries and succumbed to the injuries on the same day. Petitioners contended that the accident happened due to the negligence of the 5[th] respondent, the driver of the lorry. They claimed an amount of Rs. One crore as compensation for the death of Steaphen Gomas. 4. The owner and driver of the lorry remained ex parte before the Tribunal. The 3[rd] respondent’s insurance company filed a written statement contending that the accident happened due to the negligence of the 5[th] respondent who was driving the lorry. They admitted the existence of a valid policy of insurance for the car, however, disputed the income, age and occupation of the deceased. Exts.A1 to A25 were marked on the side M.A.C.A. No.1581/2015 5 of the petitioners. The 2[nd] petitioner, the mother of the deceased, was examined as PW1. The Tribunal found that the accident happened due to the negligence of the 2[nd] respondent, the driver of the car and awarded an amount of Rs. 27,43,000/- (Rupees Twenty-Seven lakh Forty-three Thousand only) with 9% interest per annum with proportionate costs as compensation as per the table given below. |Sl.No.|Head of claim|Amount<br>claimed|Amount<br>awarded|Basics-vital details<br>in a nut shell| |---|---|---|---|---| |1.|Transport to and from<br>the hospital|20,000/-|2,000/-|Reasonable<br>estimate made| |2.|Damages to clothing|3,000/-|1,000/-|Reasonable<br>estimate made.| |3.|Medical expenses|7,000/-|Nil|Not awarded| |4.|Bye Standing fee|10,000/-|Nil|Not awarded| |5.|Funeral|20,000/-|25,000/-|Rajesh & Others v.<br>Rajbir Singh and<br>Others.| |6.|Compensation<br>for<br>pain and suffering of<br>the deceased|5,00,000/-|Nil|Not awarded.| |7.|Loss of consortium to<br>petitioner|1,00,000/-|Nil|Not awarded.| |8.|Loss of estate|1,00,000/-|5,000/-|Sarla Verma’s case<br>supra| |9.|Loss of llove and<br>affection<br>to<br>the<br>petitioners|1,40,000/-|10,000/-|Sarla Verma’s case<br>supra| |10.|Loss of dependency|91,00,000/-|27,00,000/-|Rs.25,000x12x9| |TOTAL||1,00,00,000|27,43,000|With interest at<br>9% per annum<br>from the date of<br>petition<br>(18.3.2011)<br>till<br>realization together<br>with proportionate<br>costs.| M.A.C.A. No.1581/2015 6 5. It is contended by the learned counsel for the petitioners that the Tribunal went wrong in taking the multiplier as 9 on the basis of the age of the mother of the deceased at the time of the accident. The Hon’ble Supreme Court has held in **Sarla Verma & Ors. v. Delhi** **Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** that the age of the deceased at the time of the accident has to be taken into consideration for arriving at the multiplier. Going by the said decision, the multiplier to be taken in the case of the deceased who was aged 26 years at the time of the accident is ‘17’. 6. According to the petitioners, the deceased was a third officer in the Anglo-Eastern Ship Management, Hongkong and he was drawing a monthly income of 3700 US dollars (Rs.1,80,000/-) at the time of the accident. PW1, mother gave evidence regarding the academic qualification of the deceased. PW1 produced Ext.A15 certificate issued by the employer of the deceased which shows that his appointment was on a contract basis for a period of six months. The Tribunal found that Ext.A15 salary certificate shows the basic M.A.C.A. No.1581/2015 7 wage of the deceased as 947 US dollars. The Tribunal further found that Ext.A15 is not proved in accordance with law and that the original contract for Ext.A15 is not produced by the petitioners. In the absence of other evidence, the Tribunal arrived at the monthly income of the deceased on the basis of the circumstances in the context of Indian standards and fixed the monthly income of the deceased as Rs.50,000/-. Before this Court, the petitioners had filed I.A.No.2/2022 wherein they have produced Annexure A1 employment contract. Annexure A1 shows that the total monthly wage of the deceased was Rs.3,700 US dollars. The fact remains that the income which the deceased was receiving at the time of his death is not proved with cogent evidence. It was accordingly that the Tribunal fixed the income of the deceased going by the Indian standards. I find that the monthly income of the deceased fixed by the Tribunal is just and reasonable. 7. The deceased was a bachelor at the time of the accident. Therefore, the deduction towards personal and living expenses of the deceased has to be one-half of the monthly earnings. The further contention of the M.A.C.A. No.1581/2015 8 petitioners is that the Tribunal did not consider future prospects while computing the compensation. The deceased was only 26 at the time of the accident. Definitely, the Tribunal should have added 40% of the monthly income of the deceased towards future prospects. On such assessment, the income of the deceased is arrived at Rs.35,000/- 8. Accordingly, the compensation for loss of dependency is re-worked as Rs.71,40,000/(35000x12x17). Since the petitioners are already awarded Rs.27,00,000/- for loss of dependency, they are entitled to get an additional amount of Rs. 44,40,000/- (Rs.71,40,000 – Rs. 27,00,000) under that head. 9. The further contention of the learned counsel for the petitioners/appellants is that the parents of the deceased are entitled to compensation for loss of consortium. The father of the deceased expired after the filing of the claim petition. Accordingly, the petitioners 1 and 2 are entitled for compensation for loss of filial consortium of Rs.40,000/- each [ **National Insurance Company Limited v. Pranay Sethi and others** M.A.C.A. No.1581/2015 9 ## **[2017 (4) KLT 662 (SC)].** 10. Towards funeral expenses, an amount of Rs.25,000/- has been awarded by the Tribunal. The petitioners are entitled to only Rs.15,000/- towards funeral expenses.[ **Pranay Sethi** ]. Accordingly, an amount of Rs.10,000/- has to be deducted from the said head. 11. Towards loss of estate, only an amount of Rs.5,000/- has been awarded. The petitioners are entitled for Rs.15,000/- under the head loss of estate [ **Pranay Sethi** ]. Therefore, an additional amount of Rs.10,000/- is awarded. 12. Since the petitioners are awarded compensation for loss of consortium, they are not entitled to any amount for loss of love and affection. Therefore, an amount of Rs.10,000/- awarded under the said head has to be deducted. 13. I find that the compensation awarded under other heads is just and reasonable. 14. Accordingly, the petitioners will be entitled to an enhanced compensation of Rs. 45,10,000/(44,40,000+80,000-10,000+ 10,000 – 10,000) with M.A.C.A. No.1581/2015 10 ## 9% interest per annum from the date of filing of the petition till realization with proportionate costs. The split up of the compensation as modified and re-calculated by this Court is as follows: |Sl.No.|Head of claim|Amount<br>claimed|Amount<br>awarded|Amount awarded<br>by this Court| |---|---|---|---|---| |1.|Transport to and from<br>the hospital|20,000/-|2,000/-|2000| |2.|Damages to clothing|3,000/-|1,000/-|1000| |3.|Medical expenses|7,000/-|Nil|0| |4.|Bye Standing fee|10,000/-|Nil|0| |5.|Funeral|20,000/-|25,000/-|15,000/-<br>(less<br>Rs.10,000/-)| |6.|Compensation for pain<br>and suffering of the<br>deceased|5,00,000/-|Nil|0| |7.|Loss of consortium to<br>petitioner|1,00,000/-|Nil|80000| |8.|Loss of estate|1,00,000/-|5,000/-|15,000 (Rs.10,000<br>added)| |9.|Loss of love and<br>affection<br>to<br>the<br>petitioners|1,40,000/-|10,000/-|(Less Rs.10,000)<br>Nil| |10.|Loss of dependency|91,00,000/-|27,00,000/-|71,40,000/-| |||||| ||TOTAL|100,00,000|27,43,000|**72,53,000**| ## 15. The 3[rd] respondent insurance company shall deposit the enhanced amount along with 9% interest per annum and proportionate costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. While calculating the interest on the enhanced compensation, the petitioners M.A.C.A. No.1581/2015 11 will not be entitled for interest for the period of delay in filing the appeal, as directed in C.M.Application No.2 of 2015. The appeal is allowed as above. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.+.. M.A.C.A. No.1581/2015 12 ## _`APPENDIX OF MACA 1581/2015`_ ``` PETITIONER ANNEXURES Annexure A1ORIGINAL CONTRACT OF THE LAST EMPLOYMENT CONTRACT OF THE DECEASED AND EMPLOYER REF NO. BOMO039460 DATED 01/06/2009. ```