MACA No.1947 of 2017

MACA No.1947 of 2017 1 ## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943 ## MACA NO. 1947 OF 2017 AGAINST THE AWARD IN OP(MV) NO.860/2009 DATED 30-09-2016 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR ## APPELLANTS: 1 SINDHU AGED 46 YEARS W/O.LATE RAVI, RESIDING AT MEPPURATH HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT. 2 JITHIN AGED 22 YEARS S/O.LATE RAVI, RESIDING AT MEPPURATH HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT. 3 NITHIN AGED 19 YEARS S/O.LATE RAVI, RESIDING AT MEPPURATH HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT. 4 VASU AGED 77 YEARS S/O.LATE KUTTAPPU, RESIDING AT MEPPURATH HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT. 5 LEELA W/O.VASU, AGED 67 YEARS,RESIDING AT MEPPURATH HOUSE,P.O.CHAZHUR, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## RESPONDENTS/RESPONDENTS: 1 K.A.KABEER MACA No.1947 of 2017 2 S/O.ABDULLA, RESIDINGAT KUMMANKANDATHIL HOUSE,VADAKKUMMURI, P.O.PERINGOTTUKARA,THRISSUR DISTRICT, PIN: 680 565. 2 SUNIL, S/O.SUBRAMANIAN RESIDING AT IKKANDAMPARAMBIL HOUSE,P.O.PULLU, ANTHIKKAD, THRISSUR DISTRICT, PIN: 680 641. 3 THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH THRISSUR - 680 001. BY ADV SRI.N.S.NAJEEB SMT.K.S.SANTHI FOR R3 THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.1947 of 2017 3 ## JUDGMENT This is an appeal submitted by the claimants seeking enhancement of compensation. 2. The claim petition was filed by them seeking compensation for the death of one Ravi, who was a tailor by profession, due to the injuries sustained in a motor accident on 23.02.2009. The appellants/claimants are the wife, minor children and parents of the deceased. The deceased was aged 42 at the time of accident and according to the claimants, he was earning an amount of Rs.9,000/per month from his avocation. The total compensation claimed was Rs.17,70,000/-. 3. The Insurance Company alone contested the matter. They filed a written statement admitting the coverage of policy of the vehicle in question but disputed the liability on various other grounds. The evidence in this case consists of Exts.A1 to A14 from the side of the appellants. No evidence was adduced from the side of the respondents. MACA No.1947 of 2017 4 4. After the trial, the Tribunal came to the conclusion that, the accident occurred due to the negligence of the driver of the vehicle involved in the accident and respondents 1 to 3 were held liable to pay the compensation. The quantum of compensation was fixed as Rs.11,21,000/- and the 3[rd] respondent-Insurance Company was directed to deposit the said amount along with interest at the rate of 9% per annum. Being dissatisfied with the quantum of compensation, this appeal is filed. 5. Heard the learned counsel for the appellants and the learned counsel for the Insurance Company. 6. It is contended on behalf of the appellants that, the monthly income taken by the Tribunal is on lower side. Even though the deceased was earning an amount of Rs.10,000/- which was sought to be substantiated by production of Ext.A10 salary certificate issued by a private employer, the Tribunal fixed a monthly income of Rs.5,000/-only. Exhibit A10 certificate was not accepted by the Tribunal on the reason that, the same was not proved by examining the author of the said document. The learned counsel for the appellants points out that, from a perusal MACA No.1947 of 2017 5 of Ext.A1 F.I.R., it can be seen that, the deceased was a tailor by profession. The person who gave the F.I.statement had specifically stated that, he was working with him. The avocation of the person who gave the F.I. statement was stated to be a tailor as revealed from the same. Exhibit A10 coupled with the above statement contained in the F.I.statement, clearly shows that the deceased was a tailor by profession and hence the monthly income appears to be on lower side. 7. Going by the principles laid down by Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236] and Syed Sadiq v. Divisional Manager, United Indian Insurance Company Limited [(2014)2 SCC 735], the monthly income even for a coolie can be taken as Rs.4,500/- for the year, 2004. Based on the principles laid down by the above judgment, even in the cases where the claim in respect of a person without any source of income, this Court is consistently computing the compensation by fixing the monthly income as Rs.4,500/for the year, 2004 and by adding Rs.500/- each for the subsequent years, in respect of the accidents occurred in the years after 2004. However, that criteria is usually MACA No.1947 of 2017 6 made applicable to persons who failed to produce any evidence for employment as well as income. When there is some evidence showing the existence of a more profitable avocation, slightly higher amount can be adopted. Ext.A10 statement can be relied upon for altleast deciding the question of avocation of the deceased, particularly when, another tailor who made the Ext. A1 FI statement in respect of the accident, had stated that the deceased was a coworker. The incident in this case occurred in the year, 2009. Taking note of the date of accident and also the nature of avocation, I am of the view that the amount of Rs.9,000/- as monthly income is reasonable. Therefore, the monthly income is fixed as Rs.9,000/-. Another aspect is the addition to be made in the monthly income, towards future prospects. The Tribunal made an addition of Rs.30% which is on higher side. Going by the principles laid down by the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT 662], proper addition should have been 25% as the deceased is coming within the age group of 40-50. Therefore, instead of 30%, the addition to be made towards future prospects is fixed at 25%. If that be so, the amount of compensation which the appellants will be entitled for compensation for loss of dependency MACA No.1947 of 2017 7 will come to Rs.14,17,500/-(Rs.(9000+2250)x12x14x3/4). The Tribunal has awarded an amount of Rs.8,19,000/- under this head. Hence, the balance amount receivable by the appellants is Rs.5,98,500/-. 8. Going by the compensation awarded by the Tribunal, it can be seen that, an amount of Rs.1,00,000/- has been granted by the Tribunal under the head of loss of consortium to the wife and a further amount of Rs.1,50,000/- is seen granted under the head of loss of love and affection. Going by the principles laid down by the Hon’ble Supreme Court in Pranay Sethi (supra), the compensation of loss of consortium can be fixed as Rs.40,000/- each to all the appellants (including compensation for parental and filial consortium to children and parents respectively). As per the principles laid down by the Hon’ble Supreme Court of India in New India Assurance Company Limited v. Somwati and Others [(2020)9 SCC 644] an amount of compensation under the head of loss of love and affection need not be granted, when compensation is awarded under the head of loss of consortium. Therefore, the award of amounts by the Tribunal under both the heads simultaneously, is not sustainable. In MACA No.1947 of 2017 8 the light of the above principles, the wife is entitled spousal consortium of Rs.40,000, children are entitled for parental consortium and the parents are entitled filial consortium, at the rate of Rs.40,000/- each. Accordingly, the loss of consortium granted by the Tribunal is re-fixed as Rs.2,00,000/- in total. Thus, the claimants are entitled to get an additional amount of Rs.1,00,000/- under the head of loss of consortium. Similarly, in the light of the principles in Somwati’s case (supra) the entire amount of Rs.1,50,000/- granted under the head of loss of love and affection shall stand deleted. Apart from the above, an amount of Rs.25,000/- is seen granted under the head of funeral expenses which is in excess of Rs.10,000/- going by the principles laid down in Pranay Sethi (supra). Therefore, an amount of Rs.10,000/- has to be deducted under that head. Similarly, under the head of loss of estate, what is awarded by the Tribunal is only Rs.10,000/whereas the actual entitlement is Rs.15,000/-. Hence, an amount of Rs.5,000/- is added under that the head. In the result, the additional compensation is fixed as Rs.5,43,500/- (Rupees Five Lakhs Forty three thousand and five hundred only)(Rs.5,98,500+1,00,000+5000-10,000- MACA No.1947 of 2017 9 1,50,000). The third respondent-Insurance Company is directed to deposit the said amount, along with interest and proportionate costs, as ordered by the Tribunal, within a period of three months from the date of receipt of a copy of this judgment. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk