MACA No.1859/2016 & MACA No.1161/2017, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 ``` ## **`MACA NO. 1859 OF 2016`** ``` AGAINST THE JUDGMENT IN OPMV 1830/2012 OF III ADDITIONAL MACT, ``` ## **`ERNAKULAM`** ## **`APPELLANTS/APPLICANTS IN OP(MV):`** ``` 1K. UMADEVI,W/O. 1ST APPLICANT, THE LATE DR.P.S.KRISHNA PILLAI, MRRA 21 B, MILLENNIUM LANE, MANIMALA ROAD, EDAPPALLY, KOCHI-682 024. ``` - `2 P.K.GOVIND,S/O. LATE DR.P.S.KRISHNA PILLAI -DO-. 3 P.K.GOPIKA,D/O.LATE DR.P.S.KRISHNA PILLAI, -DO-.` ``` [THE 1ST APPLICANT, DR.P.S.KRISHNA PILLAI,ADVOCATE, DIED PRIOR TO THE JUDGMENT ON 9.1.2016,AND IS REPRESENTED IN THIS APPEAL, BY HIS LEGAL REPRESENTATIVES, WHO ARE APPLICANTS 2 TO 4]. ``` ``` BY ADVS. SRI.S.JAMES VINCENT SRI.R.GOPAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1THE SECRETARY,CORPORATION OF KOCHI, KOCHI-682 010. 2PADMANABHA PILLAI THEKKEKKOOTTATHINKAL HOUSE,NEAR PYARI JUNCTION, THOPPUMPADY, KOCHI-682 005. ``` ``` 3THE DISTRICT INSURANCE OFFICER ERNAKULAM, KOCHI-682 016. 4JEFFREY JOHN JOSEPH KUNNAMPILLYL HOUSE,SOCIETY ROAD, MARADU P.O., KOCHI-682 304. 5THE ORIENTAL INSURANCE COMPANY I FLOOR, "WHITE HOUSE",KALOOR-KADAVANTHRA ROAD, KADAVANTHRA P.O.,KOCHI-682 020, REPRESENTED BY ITS MANAGER. BY ADVS. SRI.E.D.GEORGE SRI.AKHIL K.MADHAV SRI.M.JACOB MURICKAN SRI.T.R.JERRY SEBASTIAN SRI.THOMAS M.JACOB V.P.REJITHA (PUZHAKKALIDOM) GOVERNMENT PLEADER-SRI.K.M.FAIZAL ``` MACA 1859/2016 & 1161/2017 2 ``` SMT.K.S.SANTHI-R5 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2022, ALONG WITH MACA.1161/2017, THE COURT ON 11.10.2022 DELIVERED THE FOLLOWING: ``` MACA 1859/2016 & 1161/2017 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 ``` ``` MACA NO. 1161 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 1830/2012 OF III ADDITIONAL ``` ## **`MACT, ERNAKULAM`** ## **`APPELLANT/RESPONDENT NO.3 IN OP(MV):`** ``` THE DISTRICT INSURANCE OFFICER ERNAKULAM, KOCHI-682016. ``` ``` BY GOVERNMENT PLEADER SRI.K.M.FAIZAL ``` ## **`RESPONDENTS/CLAIMANTS 1 TO 4 & RESPONDENTS 1,2,4 & 5 IN OP(MV):`** - `1 DR.P.S.KRISHNA PILLAI (DIED) ADVOCATE, KRISHNA KRIPA, MRRA 21B(50/410A), MILLENNIUM LANE, MANIMALA ROAD, EDAPPALLY, KOCHI-682024 (RESPONDENTS 2 TO 4 ARE THE ONLY LRS OF DECEASED 1ST RESPONDENT)` - `2 UMADEVI K. W/O.KRISHNA PILLAI, KRISHNA KRIPA, MRRA 21B(50/410A), MILLENNIUM LANE, MANIMALA ROAD, EDAPPALLY, KOCHI-682024.` - `3 GOVIND P.K. S/O.KRISHNA PILLAI, KRISHNA KRIPA, MRRA 21B(50/410A),MILLENNIUM LANE, MANIMALA ROAD, EDAPPALLY,KOCHI-682024.` - `4 GOPIKA P.K. D/O.KRISHNA PILLAI, KRISHNA KRIPA, MRRA 21B(50/410A),MILLENNIUM LANE, MANIMALA ROAD, EDAPPALLY,KOCHI-682024.` - `5 THE SECRETARY CORPORATION OF KOCHI, KOCHI-682016.` - `6 PADMANABHA PILLAI S/O.SANKARA PILLAI, THEKKEKOOTATHINKAL HOUSE, (HOUSE NO.18/405), NEAR PYARI JUNCTION, THOPPUMPADY, KOCHI-682004.` - `7 JEFFREY JOHN JOSEPH KUNNAMPALLIL HOUSE, SOCIETY ROAD, MARADU P.O.,` MACA 1859/2016 & 1161/2017 4 ``` KOCHI-682304. 8THE ORIENTAL INSURANCE COMPANY BRANCH, WHITE HOUSE, FIRST FLOOR, KALOOR-KADAVANTHRA ROAD,KADAVANTHRA P.O., KOCHI-682020. ``` ``` BY ADVS. SRI.M.JACOB MURICKAN SRI.S.JAMES VINCENT SRI.THOMAS M.JACOB SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2022, ALONG WITH MACA.1859/2016, THE COURT ON 11.10.2022 DELIVERED THE FOLLOWING: ``` MACA 1859/2016 & 1161/2017 5 ## **JUDGMENT** These two appeals arise from the judgment and award dated 05.02.2016 in OP(MV)No.1830/2012 on the files of the III Additional Motor Accidents Claims Tribunal, Ernakulam. The appeals were heard together and are disposed of by this Common judgment. 2. MACA No.1859/2016 is preferred by petitioners 2 to 4 in the original petition dissatisfied with the compensation awarded by the Tribunal and MACA No.1161/2017 is preferred by the District Insurance Officer, the third respondent therein contending that the compensation awarded is excessive. The parties in these appeals are referred to as per their status in the original petition. 3. The petitioners are the parents and brother and sister (twins) of Krishnanunni who died in a motor vehicle accident on 12.10.2011. According to the petitioners, while Krishnanunni was riding pillion on a motorcycle bearing Reg. MACA 1859/2016 & 1161/2017 6 No.KL-39/B-9038, owned and ridden by the 4[th] respondent and insured with the 5[th] respondent, a tipper lorry bearing Reg. No.KL-7/BH-5117, owned by the 1[st ] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent, hit the motorcycle and Krishnanunni was thrown on the road and was run over by the same lorry. Though he was taken to the hospital immediately, he succumbed to the injuries on the same day. The petitioners contended that the accident happened due to the negligence of the 2[nd] respondent, the driver of the tipper lorry. According to the petitioners, the deceased was aged 27 years at the time of accident and was a Senior Consultant in M/s Sutherland Global Services (P) Ltd., Kochi and had a monthly income of Rs.27,803/-. In the petition filed under Section 166 (1) (c) of the Motor Vehicles Act, 1988, they claimed an amount of Rs.85,67,775/- as compensation under various heads including treatment expenses of the 1[st] petitioner-father, the amount the deceased would have spent for the marriage of his sister and 'special MACA 1859/2016 & 1161/2017 7 damages' for wiping off the educational loan liability of the deceased. 4. Before the Tribunal, respondents 1 and 4 remained ex parte. On the side of the petitioners, Exts.A1 to A44 were marked and PWs 1 to 3 were examined. No evidence was adduced by the respondents. 5. The 2[nd ] respondent filed written statement contending that the accident happened due to the negligence of the 4[th] respondent who rode the motorcycle and that the compensation claimed is exorbitant. 6. The 3[rd] respondent, insurer of the tipper lorry, filed written statement stating that the tipper lorry was having a valid insurance policy with them at the time of the accident and the accident happened due to the negligence of the rider of the motorcycle. The petitioners were put to strict proof of age, occupation and income of the deceased and it was contended that the 1[st] petitioner was not dependent on the deceased and the amount of compensation claimed is MACA 1859/2016 & 1161/2017 8 excessive. 7.The 5[th] respondent insurer of the motorcycle contended that they have been impleaded as formal party and that the motorcycle was insured with them and the accident happened due to the fault of the 2[nd] respondent. 8.The Tribunal found that the accident happened due to the rash and negligent driving of the tipper lorry by the 2[nd] respondent. On the basis of Ext.A30(a) salary certificate, the Tribunal took the annual income of the deceased as Rs.3,25,000/-. The Tribunal added 50% of the income towards future prospects. The Tribunal found that the mother is the sole dependant of the deceased and a deduction of one-half of the income was made towards his personal and living expenses. The Tribunal adopted the multiplier of ‘17’. Accordingly, the Tribunal found that the petitioners are entitled for an amount of Rs.41,43,750/- as compensation for loss of dependency and awarded a total compensation of 41,98,750/- with 9% interest per annum from the date of the MACA 1859/2016 & 1161/2017 9 petition till realisation with proportionate costs. The 3[rd] respondent insurer was directed to satisfy the award. The split up of the compensation awarded by the Tribunal under different heads is given below: |**Heads**|**Amount**<br>**Claimed**|**Amount**<br>**Awarded**| |---|---|---| |Loss<br>of<br>dependency|1620000|4143750| |Damage<br>to<br>clothing||5000| |Funeral<br>expenses<br>&<br>transportation<br>expenses,|8875|25000| |Medical<br>expenses|0|0| |Compensation<br>for pain and<br>sufering|200000|0| |Compensation<br>for loss of<br>estate|100000|0| |Compensation<br>for loss of love<br>& afection|0|25000| |Total|19,28,875|41,98,750| Though the petitioners claimed treatment expenses of the 1[st] MACA 1859/2016 & 1161/2017 10 petitioner, special damages for wiping off the educational loan liability of the deceased and the marriage expenses of the 4[th] petitioner, the Tribunal held that the petitioners have no right to claim such amount under the Motor Vehicles Act. Aggrieved by the inadequacy of compensation granted by the Tribunal, petitioners 2 to 4 have preferred MACA No.1859/2016. The 1[st] petitioner expired before the filing of the appeal. 9.MACA No.1161/2017 is preferred by the 3[rd] respondent insurer contending that the amount awarded by the Tribunal is excessive. It is contended that the Tribunal went wrong in relying on Ext.A30(a) to arrive at the annual income of the deceased and that the compensation awarded under the head loss of dependency is without any basis. 10.Heard Sri. S James Vincent, the learned counsel for the appellants in MACA 1859/2016, Sri. K.M Faizal, the learned Government Pleader for the appellant in MACA No.1161/2017 and Smt. K. S Santhi, the learned counsel for MACA 1859/2016 & 1161/2017 11 the 5[th] respondent insurance company. 11.It is contended by Sri. James Vincent that, the deceased was aged 27 years at the time of accident and the Tribunal should have taken a multiplier of ‘18’ instead of ‘17’. It is further contended that the 1[st] petitioner shall also be treated as dependent on the deceased for the purpose of compensation under the Motor Vehicles Act. It is contended that had Krishnanunni been alive, he would have met the treatment expenses of the 1[st] petitioner from his salary, as the first charge on the 50% deduction towards personal expenses of the deceased. Sri. James Vincent would contend that the deceased had availed educational loan which the 1[st] petitioner had to repay by selling his landed property and that, had the accident not happened, the said liability would have been discharged by the deceased and therefore, the petitioners are entitled for Rs.11,78,900/- as special damages in Torts for wiping off the educational loan liability. Sri. James Vincent would rely on the following decisions in support of his MACA 1859/2016 & 1161/2017 12 contentions: (1) **Santosh Devi** _**v**_ . **National Insurance Co. Ltd** [AIR 2012 SC 2185], (2) **Manjuri Bera** _**v**_ **. Oriental Insurance Co. Ltd.** [AIR 2008 SC 1474], (3) **R.D Hattangadi** _**v**_ **. M/s Pest Control (I) Ltd.** [AIR 1995 SC 755], (4) **C.K. Subramonia Iyer** _**v**_ **. Kunhikrishnan Nair** [AIR 1970 SC 376], (5) **Gobald Motor Services Ltd.** _**v**_ **. RMK Veluswami** [1958-65 ACJ 179 (SC)], (6) **Kallidukkil-Mammi** _**v.**_ **Thoniyadath Ummerkutty** [AIR 1996 Ker 182 (DB)], (7) **New India Assurance Co. Ltd.** _**v**_ **. Kayicha Umma** [ILR (1987) 1 Ker 388 (DB)], (8) **Veeran** _**v**_ **. Krishnamoorthy** [1965 KLT 1172], (9) **Concord-Insurance Co.** _**v**_ **CK Subramonia Iyer** [1964 KLT 1077 (DB)]. It is also contended that the Tribunal ought to have awarded compensation for loss of consortium, loss of estate and the marriage expenses of the 4[th] petitioner and that the Tribunal ought to have granted 12% interest on the amount awarded as compensation. 12.Per contra, Sri.Faizal would contend that the petitioners are not entitled for special damages claimed and they can claim only the compensation permissible under the MACA 1859/2016 & 1161/2017 13 Motor Vehicles Act. It is contended that the Tribunal ought not have relied on Ext.A30(a) salary certificate which is not proved through independent witness. Sri. Faizal would also contend that the petitioners have not produced the income tax returns of the deceased to prove his income. 13. The foremost question to be considered is whether the 1[st] petitioner-father was dependent on the deceased son. The principle of standardization of compensation, particularly with respect to future prospects, evolved in **Sarla Verma and others** _**v**_ **. Delhi Transport Corporation and another** [2009 KHC 4634: 2010 (2) KLT 802 (2009) 6 SCC 121: AIR 2009 SC 3104] was reiterated in **Reshma Kumari and others** _**v**_ **. Madan Mohan and another** [2013 KHC 4253: 2013 (9) SCC 65: 2013 (2) KLT 304] and approved by the Constitution Bench in **National Insurance Company Limited** _**v**_ **. Pranay Sethi and others** [2017 (5) KHC 350: 2017 (16) SCC 680: 2017 (4) KLT 662: ILR 2017 (4) Ker. 513]. In **Sarla Verma** , the Hon'ble Supreme Court observed that, where the MACA 1859/2016 & 1161/2017 14 deceased was a bachelor and the claimants are the parents, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. The Court also observed that, in the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father. 14. In the original petition, it is stated that the 1[st] petitioner is a Lawyer of about 38 years' standing in the High Court of Kerala. The 1[st] petitioner who was examined as PW1 deposed before the Tribunal that he is an Advocate practicing in the High Court of Kerala and has got own office and juniors and has an income of about Rs. 3,00,000/- per annum and is paying income tax. In cross examination, when a question was put to him as to whether they were depending on the income of the deceased for their living, PW1 has answered that in future they could have lived depending on the income MACA 1859/2016 & 1161/2017 15 of the son. An application to amend the original petition was filed on 13.08.2015 stating that the 1[st] petitioner was suffering from Asthma for over the last five years which has affected his volume of work and income and this would have made him heavily dependent on the deceased son during these years and in future and the respondents are bound to compensate him. Ext. A42 series are income tax returns for the assessment years 2011 to 2015. Krishnanunni died on 12.10.2011. The evidence adduced before the Tribunal shows that the 1[st] petitioner was having his own income and was not dependent on the deceased. The brother and sister of the deceased were dependent on the father. 15. Exts.A37 series to A41 and A43 and A44 are the documents which would show the medical expenses incurred by the 1st petitioner towards his hospital bills, by-stander expenses _etc_ after the death of Krishnanunni. I have already found that the 1[st] petitioner was not dependent on the deceased and therefore, the 1[st] petitioner is not entitled for MACA 1859/2016 & 1161/2017 16 his treatment expenses and the insured and the insurer cannot be made liable for the said expenses. Sri. James Vincent relied on the decision in **Annamkutty** _**v**_ **. The Manager, United India Insurance Co. Ltd** [2012 (3) KLT 246: 2012 (3) KHC 826] in support of his contention. In **Annamkutty** , this Court refused to interfere with the award of the Tribunal directing the insurer to reimburse the air fare expended by the son to come down from London to attend the funeral of his father who died in the accident. The said decision will not support the claim of the petitioners for reimbursement of the medical expenses incurred by the father after the death of the son. 16. According to the petitioners, the deceased had availed an educational loan with 1[st] petitioner as co-obligant which became due in 2008 and the 1[st] petitioner discharged the liability selling his property on the understanding that the deceased would reimburse the same on getting a decent employment and the petitioners are entitled to Rs. MACA 1859/2016 & 1161/2017 17 11,78,900/- as special damages for wiping off the educational loan liability of the deceased. The 1[st] petitioner has cleared the loan liability much before the death of Krishnanunni. Even assuming that there was such an understanding or any contract to the said effect between the deceased and the 1[st] petitioner, and proved, the Tribunal is empowered to adjudicate only the statutory liability under the Motor Vehicles Act and the petitioners are not entitled to claim such damages under Section 166 of the Motor Vehicles Act and the insured and the insurer are not liable for such amounts. 17.Sri. James Vincent cited certain English decisions as regards assessment of compensation. Here, it is apposite to refer to the decision of the Hon'ble Supreme Court in **Puttamma and others** _**v**_ **. K. L. Narayana Reddy and anothe** r, [2013 KHC 4997: 2014 (1) KLT 738: 2014 (1) KHC SN 6: AIR 2014 SC 706: 2014 (1) KLJ 777: 2013 (15) SCC 45] wherein the Apex Court observed as follows: “16. Thus according to the English Law compensation / damages were payable according to the MACA 1859/2016 & 1161/2017 18 proportionate loss whereas in India compensation is payable which appears to the Tribunal to be just is payable. The approach of the Courts according to the English law and according to the Indian Law have to be distinct and separate. Indian Law recognizes just compensation whereas English law required compensation proportionate to the loss suffered. English Courts have been calculating loss of money as a bargain as to how much monetary loss has been caused to the claimant, as a result the death of bread earner / deceased. The English Law being different, English judges were having different approach towards the grant of compensation to the deceased’s family." 18. Since the petitioners are aggrieved as to the adequacy of compensation and the insurer contends that there is overcompensation by the Tribunal, this Court has to consider what is the fair, just and reasonable compensation the petitioners are entitled to? 19.Ext.A30 is the appointment letter issued by M/s Sutherland Global Services Pvt Ltd. to the deceased and Ext.A30(a) is the details of the salary payable to him. PW3 is the Senior Manager (HR) of M/s Sutherland Global Services who has proved Ext.A30. I find nothing wrong in the Tribunal relying on Ext.A30(a) and taking the annual income of the deceased as Rs.3,25,000/-. Since the deceased was aged 27 MACA 1859/2016 & 1161/2017 19 years at the time of the accident, as per the decision of the Hon'ble Supreme Court in **Pranay Sethi** (supra), the multiplier to be adopted is ‘17’. The Tribunal has rightly taken the multiplier as ‘17’. 20. Ext.A30 shows that Krishnanunni was appointed as 'Senior Consultant' in M/s Sutherland Global Services (P) Ltd and that he will be on probation for a period of 6 months. Krishnanunni died before his probation was declared. For that reason, it cannot be construed that the employment was not of permanent nature. The employment of the deceased was of permanent nature and the Tribunal is right in adding 50% of the income towards future prospects resulting in the annual income of Rs.4,87,500/-. In the light of the decisions in **Sarla Verma** and **Reshma Kumari** (supra), only the mother can be treated as a dependant of the deceased. There is no evidence on record to hold that petitioners 3 and 4, the brother and sister, were dependent on the deceased. Accordingly, the Tribunal has deducted one-half of the income MACA 1859/2016 & 1161/2017 20 towards personal living expenses of the deceased. The Tribunal has, thus, rightly awarded an amount of Rs.41,43,750/- (4,87,500×17×1/2) as compensation for loss of dependency. 21.Towards funeral expenses, the Tribunal has awarded an amount of Rs.25,000/-. The petitioners are entitled only for an amount of Rs.15,000/- under the said head in the light of the decision in **Pranay Sethi** (supra). Therefore, an amount of **Rs.10,000/-** has to be deducted from the total compensation. 22.No amount has been awarded under the head loss of estate. The petitioners are entitled for an amount of **Rs.15,000/-** towards compensation for loss of estate in the light of the decision in **Pranay Sethi** (supra). It is granted. 23.No amount is seen awarded under the head loss of consortium. The petitioners 1 and 2 who are the parents of the deceased are entitled for an amount of Rs.40,000/- each towards loss of consortium (filial) in the light of the decision MACA 1859/2016 & 1161/2017 21 in **Magma General Insurance Co. Ltd.** _**v**_ **. Nanu Ram @ Chuhru Ram** [2018 KHC 6697 : 2018 (18) SCC 130]. Accordingly, an amount of **Rs. 80,000/-** is awarded under the said head. The siblings are not entitled for compensation under the head loss of consortium. The Hon'ble Supreme Court has held in **Satinder Kaur** (supra) that when compensation is awarded for loss of consortium, there is no justification in awarding compensation towards loss of love and affection as a separate head. Therefore, **Rs.25,000/-** awarded under the said head has to be deducted from the total compensation. 24. In the facts and circumstances of the case I find that the rate of interest of 9% awarded by the Tribunal is just and reasonable and need not be scaled down. 25. The petitioners are entitled for an enhanced compensation of **Rs.60,000/-** . 26. Thus, on a re-appreciation of the pleadings and materials on record, I find that the amount awarded by the MACA 1859/2016 & 1161/2017 22 Tribunal has to be modified and enhanced as held above. 27.In the result, M.A.C.A. No.1859 of 2016 is allowed holding that the petitioners are entitled for an amount of **Rs.42,58,750/-** [41,98,750 + 60,000] as total compensation with 9% interest per annum from the date of petition till realisation with proportionate costs. M.A.C.A No.1161 of 2017 filed by the insurer is dismissed. As per order dated 10.01.2018 in M.A.C.A. No.1161 of 2017, an amount of Rs.21 lakhs was directed to be deposited by the insurer before the Tribunal and the petitioners were permitted to withdraw the said amount. The appellant in M.A.C.A. No.1161 of 2017 shall deposit the balance award amount as modified by this Court with interest and 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** spc/ ## M.A.C.A.No.1859 of 2016 This Court doth order and decree that the respondents do pay the appellants a sum of € 149/-(Rupees One hundred and forty nine only) being their proportionate costs in the appeal. ## Memo of costs for the appella_n± Court Fee paid : i 1®®/Stamp on Vakalath : I 10/Senior Advocate's Fee : I 5,4®®/- (certified) Junior Advocate's Fee : I 1,80®/- (certified) Cost incurred in getting L.C judgment and decree : i 23/- Petition Fee : i loo/- Process Fee Total : i 1®/I 7'443/. Proportionate cost for the appellant in M.A.C.A.No.1859 of 2016 : I 148.86 (Rupees One hundred and forty eight and paise eight six only) Sd/Joint Registrar Signed on: 06/02/2®23 / /trure ornyry / / sect/#Ler d'