MACA Nos. 1214 & 2129 of 2015

MACA.Nos.1214 & 2129/2015 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 ``` ## **`M.A.C.A. NO.2129 OF 2015`** ``` (AGAINST THE AWARD DATED 5.5.2014 IN OP(MV)No.397/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA) ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1MURALEEDHARAN NAIR, S/O. GOPALA PILLAI, THUNDILAYYATH, ARUKALICKAL WEST, VAYALA P.O. 2K.P SARASWATHY, D/O.KUNJIPENNAMMAL, VAIKKATHUVILA HOUSE, ARUKALICKAL WEST, VAYALA P.O. (1ST APPELLANT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER THE 2ND APPELLANT) BY ADV SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/3[RD] RESPONDENT:`** ``` THE DIVISIONAL MANAGER, SHRIRAM GENERAL INSURANCE COMPANY LTD, E-8 RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJSTHAN-302 022. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2022, ALONG WITH MACA.1214/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA.Nos.1214 & 2129/2015 2 ## I **`N THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 ``` ## **`M.A.C.A. NO.1214 OF 2015`** ``` OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA) ``` ## **`APPELLANT/3[RD] RESPONDENT:`** ``` SHRIRAM GENERAL INSURANCE COMPANY LTD., HEAD OFFICE 10003, E8, RIICO, INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTAN, REP. BY ITS AUTHORISED SIGNATORY. ``` ``` BY ADV SRI.RAJAN P.KALIYATH ``` ## **`RESPONDENTS/CLAIMANTS:`** ``` 1MURALEEDHARAN NAIR, AGED 60 YEARS, S/O.GOPALA PILLAI, THUNDILAYYATH, ARUKALICKAL WEST, VAYALA POST, PIN-686 587. ``` ``` 2K.P.SARASWATHY, AGED 58 YEARS, D/O.KUNJIPENNAMMAL, VAIKKATHUVILA HOUSE, ARUKALICKAL WEST, VAYALA POST, PIN-686 587. BY ADV SRI.A.N.SANTHOSH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2022, ALONG WITH MACA.2129/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA.Nos.1214 & 2129/2015 3 ## **JUDGMENT** (Dated: 19[th] July, 2022) Aggrieved by the award of compensation, MACA No.1214 of 2015 is filed by the 3[rd] respondent. MACA No.2129 of 2015 is filed by the appellants/petitioners in O.P.(M.V.) Nos.397 &412 of 2009 on the files of the Motor Accidents Claims Tribunal, Pathanamthitta (the parties are referred to as they are arrayed in the petition). 2. Brief facts necessary for the disposal of the cases are as follows: On 23.02.2009 at about 09.30 p.m., the deceased Mukesh was riding a motorcycle bearing Reg.No.KL-26/1465 from Parakodu to Paranthal through the Kottarakkara – Pandalam MC Road and when the vehicle reached in front of Adoor KSRTC bus stand, a JCB bearing Reg.No.PY-01/AC1255 came in a rash and negligent manner and hit upon the motorcycle, as a result of which the deceased sustained injuries MACA.Nos.1214 & 2129/2015 4 and was immediately taken to the local hospital, but on the way to the hospital the deceased succumbed to the injuries. The accident happened due to negligence on the part of the driver of the JCB. At the time of the accident, the deceased was aged 24 years, a B-Tech final year student. The petitioners claimed an amount of Rs.30,00,000/- as compensation. 3. 1[st] respondent remained ex-parte and 2[nd] respondent owner filed a written statement denying the negligence on the part of the 1[st] respondent. The 3[rd] respondent admitted the insurance policy but denied the liability on the ground that the 1[st] respondent was not negligent in the accident. It was also contended that there was contributory negligence and the liability is to be apportioned between the deceased as well as the insurer. The amount of compensation claimed is also high. The Tribunal by the impugned award relying on Exts.A1 to A18 and the oral evidence of PW1, awarded compensation of MACA.Nos.1214 & 2129/2015 5 Rs.18,16,000/- with 9% interest from the date of the petition. Aggrieved by the said award, the claimants, as well as the 3[rd] respondent insurance company have filed these appeals. the filed the 4. Taking up appeal by appellants/petitioners (claimants), Adv.A.N.Santhosh, learned counsel for the appellants in MACA No.2129 of 2015 submits that the deceased was a final year B.Tech student, aged 24 years at the time of the accident. Exts.A8 and A9 certificates would show that he was a brilliant student. Ext.A14 shows that he was drawing an annual salary of Rs.86,292/- from 01.06.2006. Ext.A16 series mark lists show that he secured more than 60% in B.Tech semester examinations in the year 2009. These facts would show that he had a bright future and if he is employed as a qualified engineer, he would have earned a decent income per month. The Tribunal had gone through these documents and marked them as Exts.A8 to A16 and fixed the monthly notional MACA.Nos.1214 & 2129/2015 6 income as Rs.10,000/- and added 50% towards future prospects relying on the decision of _**Rajesh and Others v. Rajbir Singh and Others (2013 ACJ 1403).**_ It was contended by the counsel for the appellants/petitioners that the Tribunal went wrong and took the monthly notional income as Rs.10,000/- and it should have been at least Rs.15,000/- per month. For this, he relied on the judgment of this Court in _**National Insurance Co. Ltd,**_ _**Chennai v. Fathimath Zuhara @ Zuhra Razak and Another (2016 KHC 691)**_ , wherein the monthly notional income of a student aged 19 years studying for Engineering took the monthly notional income as Rs.12,000/- and added 50% as future prospects. In the said case, the accident happened on 10.09.2005. In the present case, the accident which happened in the year–2001 and relying on the judgment mentioned above, the monthly income fixed ought to have been more than Rs.12,000/- per month. Hence, I fix the monthly notional income of the deceased at MACA.Nos.1214 & 2129/2015 7 Rs.15,000/- per month, as there is a difference of 4 years from the date of the accident, in the judgment mentioned above as well as in this case. When the monthly notional income is taken as Rs.15,000/- and the deceased was aged 24 years, for future prospects, an addition of 40% is also warranted since he has not had a permanent job. Hence, his monthly income would be 15000+40% = 6000 + 15000 = 21000/-. Since the deceased was aged 24 years, the multiplier to be adopted is 18 and was a bachelor ½ has to be deducted. So, the compensation for loss of dependency can be worked out as 21000x12x18/2 = Rs.22,68,000/-, out of which the Tribunal has awarded a sum of Rs.16,20,000/-. 5. As far as loss of estate is concerned, the Tribunal has awarded only a sum of Rs.10,000/-, which has to be refixed as Rs.15,000+10% (escalation for three years) relying on the MACA.Nos.1214 & 2129/2015 8 decision reported in _**National Insurance Co. Ltd. v. Pranay Sethi [(2017) 16 SCC 680].**_ 6. As far as loss of consortium is concerned, the Tribunal did not award any amount. As the claimants are the parents of the deceased, Rs.40,000/- and 10% each has to be awarded as loss of consortium, hence the claimants would be entitled to an amount of Rs.88,000/- under the head loss of consortium. ## Accordingly, the following enhancements are made to the ## award passed by the Tribunal: |Sl. No.|Head of Claim|Amt. Awarded by<br>Tribunal (Rs.)|Amt. Enhanced in<br>appeal (Rs.)| |---|---|---|---| |1.|Loss of dependency|16,20,000/-|22,68,000/-| |2.|Loss of estate|10,000/-|16,500/-| |3|Loss of consortium|--|88,000/-| |4|Loss of love and affection|1,50,000/-|--| |5|Pain and suffering|5,000/-|--| MACA.Nos.1214 & 2129/2015 ## 9 |6|Funeral expenses|25,000/-|16,500/-| |---|---|---|---| ||Total|18,10,000/-|23,89,000/-| ||Amount enhanced =**23,89,000 – 18,10,000 = 5,79,000/-**||| 7. In MACA No.1214 of 2015, the insurance company challenged the quantum of compensation awarded to certain heads. 8. Adv.Rajan P.Kaliyath, learned counsel for the appellant/insurance company submits that the Tribunal was right in taking the monthly notional income as Rs.10,000/-, and adding 50% as future prospects since he has produced Ext.A14 document to show that his annual salary was Rs.86,292/- from 01.06.2006. The Tribunal went wrong in awarding Rs.1,50,000/- for love and affection and Rs.5,000/- for pain and suffering. For funeral expenses, the Tribunal has awarded Rs.25,000/-, which is more than what is to be granted. MACA.Nos.1214 & 2129/2015 **==> picture [14 x 8] intentionally omitted <==** 9. As far as the funeral expense is concerned, going by the decision reported in _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** ,_ the maximum amount that can be awarded is Rs.15,000 + 10%. 10. For pain and suffering, the Tribunal has awarded Rs.5,000/- since this is a case of death, the amount of pain and suffering cannot be awarded. Hence the amount awarded under the head of pain and suffering is set aside. 11. As far as love and affection are concerned, Rs.1,50,000/- was awarded but no consortium was awarded. When I considered the appeal filed by the appellants/claimants in MACA No.2129 of 2015, I have already awarded a sum of Rs.88,000/- towards the loss of consortium. In view of the matter, the compensation for loss of love and affection granted as Rs.1,50,000/- is set aside. MACA.Nos.1214 & 2129/2015 11 ## Accordingly, the following enhancements are made to the ## award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by<br>Tribunal<br>(Rs.)|Amt.<br>Enhanced in<br>appeal (Rs.)| |---|---|---|---| |1.|Loss of dependency|16,20,000/-|22,68,000/-| |2.|Loss of estate|10,000/-|16,500/-| |3|Loss of consortium|--|88,000/-| |4|Loss of love and<br>affection|1,50,000/-|--| |5|Pain and sufferings|5,000/-|--| |6|Funeral expenses|25,000/-|16,500/-| ||Total|18,10,000/-|23,89,000/-| ||Amount enhanced: 23,89,000 – 18,10,000 = 5,79,000/-||| In the result, both the appeals are allowed. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of the MACA.Nos.1214 & 2129/2015 12 petition. If any amounts have already been paid, the same shall be granted set off. The appellant/petitioner shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and the amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the insurance company fails to deposit the amount as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of the petition. _Sd/-_ ## **BASANT BALAJI, JUDGE** ss