MACA Nos. 1307 of 2012 and 1229 of 2012, IN THE HIGH COURT OF KERALA AT ERNAKULAM

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 ``` ``` MACA NO. 1307 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 1070/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM ``` ## **`APPELLANT/S:`** ``` 1ATHIRA V., 49/689 B, SIVA PARAVATHY, RAJEEV NAGAR, ELAMAKKARA.P.O., EDAPPALLY SOUTH VILLAGE, ERNAKULAM DISTRICT. 2A.DURGA MINOR D/O.LATE HARI KRISHNAN.T., REPRESENTED BY NEXT MOTHER ATHIRA.V, -DO-, -DO- 3SANTHAKUMARI W/O.LATE THILAKAN PILLAI, -DO-, -DO- BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/S:`** ``` 1M/S.AUTO CARS A/P CHITEGAON, TQ PAITHAN, AURANGABAD DISTRICT. 2SYED BASHEER CHAND S/O.SYED CHAND, C/O.AUTO CARS, -DO-, -DO- 3THE ORIENTAL INSURANCE CO.LTD. REGIONAL OFFICE, ERNAKULAM, COCHIN-18. ``` ## **`OTHER PRESENT:`** ``` RES SRI.A.N.SANTHOSH, ADV GEORGE A CHERIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2023, ALONG WITH MACA.1229/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.1307 & 1229 of 2012 : 2 : # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023/26TH ASWINA, 1945 MACA NO. 1229 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 1070/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## **`APPELLANT/S:`** ``` THE ORIENTAL INSURANCE CO. LTD., ERNAKULAM, REPRESENTED BY ITS ASSISTANT MANAGERREGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. ``` ``` BY ADV SRI.GEORGE CHERIAN (THIRUVALLA) ``` ## **`RESPONDENT/S:`** ``` 1ATHIRA V., 49/689B, 'SIVA PARVATHI', RAJEEV NAGARELAMAKKARA P.O., EDDAPPALLY SOUTH VILLAGEKANAYANNUR TALUK, ERNAKULAM DISTRICT.PIN.682 026 2A. DURGA MINOR DATE OF BIRTH 8.9.2006 D/O. LATE HARI KRISHNAN T., REP. BY NEXT FRIEND MOTHER, 1ST RESPONDENT ATHIRA. V.49/689B, 'SIVA PARVATHI', RAJEEV NAGAR ELAMAKKARA P.O., EDDAPPALLY SOUTH VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT.PIN.682 026. ``` ``` 3SANTHAKUMARI WO.LATE THILAKAN PILLAI 49/689B, 'SIVA PARVATHI', RAJEEV NAGAR ELAMAKKARA P.O., EDDAPPALLY SOUTH VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT.PIN.682 026. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2023, ALONG WITH MACA.1307/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.1307 & 1229 of 2012 : 3 : ## JUDGMENT These appeals arise from the award in OP(MV) No.1070/2007 passed by the Motor Accident Claims Tribunal, Ernakulam. M.A.C.A. No.1307/2012 is filed by the claimants in the claim petition, whereas the 3rd respondent/insurance company filed M.A.C.A. No.1229/2012 in the claim petition. The parties in these appeals are hereinafter referred to based on their respective ranks in the claim petition. 2. The appellants 1 to 3 in M.A.C.A. No.1307/2012 have filed the claim petition seeking compensation for the death of one Harikrishnan due to the injuries sustained in a motor accident that occurred on 25.01.2007. The accident occurred when the Innova car, in which the deceased was travelling along with others, was hit by a container lorry bearing registration No.MH-20/AA-7932. In the accident, three passengers in the car, including the deceased, M.A.C.A. Nos.1307 & 1229 of 2012 : 4 : sustained injuries and all of them passed away. The petitioners contended that the deceased was aged 30 years at the time of the accident and was working as a Service Manager in a private firm with a monthly income of Rs.17,500/-. He was a B-Tech Degree holder. The claim petition was submitted in such circumstances. 3. The said claim petition was tried along with OP(MV) No.1072/2007 and 1074/2007 and was disposed of by a common award. The 3[rd] respondent insurance company alone contested the matter by filing a written statement, wherein they admitted the coverage of the policy but disputed the liability on various grounds. They also disputed the negligence and the quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A21 from the side of the claimants and the respondents adduced no evidence. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part M.A.C.A. Nos.1307 & 1229 of 2012 : 5 : of the driver of the lorry and being the insurer of the said vehicle, the 3[rd] respondent herein was held liable to pay the compensation. The quantum of compensation, in this case, was fixed as Rs.18,34,000/- and the 3[rd] respondent insurance company was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation. The claimants have filed the appeal seeking enhancement of compensation, whereas the insurance company filed the appeal challenging the quantum of compensation. 6. Heard Sri. A.N. Santhosh, the learned counsel appearing for the petitioners who are the appellants in M.A.C.A. No.1307/2012 and Smt. Latha Susan Cherian, the learned counsel appearing for the insurance company. 7. The rival contentions are raised by the parties concerning the quantum of compensation fixed by the tribunal. It is discernible from the material placed on record that, to assess the compensation for loss of dependency, the M.A.C.A. Nos.1307 & 1229 of 2012 : 6 : tribunal has taken the annual income of the deceased as Rs.1,68,000/- after deducting the tax payable. The aforesaid assessment was made based on the income tax returns the deceased submitted; therefore, I do not find any reasonable ground to interfere with the same. However, the tribunal, while assessing the compensation, did not make any addition towards future prospects even though the deceased was aged 30 years, and therefore 40% of the income ought to have been added in the light of the principles laid down in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]. Similarly, yet another mistake highlighted by the learned counsel for the insurance company is that the deduction made by the tribunal was only ¼, whereas the number of dependents was only 3. Therefore, the proper deduction was 1/3. Another error pointed out by the learned counsel for the petitioners is that the multiplier adopted was 14, whereas the appropriate multiplier as per the age of the deceased was 16. 8. After considering the materials placed on record, M.A.C.A. Nos.1307 & 1229 of 2012 : 7 : in the light of the well settled position of law on the above aspects, all the said contentions are to be accepted. To be precise, the deduction has to be 1/3 towards the personal expenses, and an addition of 40% towards future prospects has to be made. Thus, while reassessing the compensation for loss of dependency with the above revised criteria, the amount would come to Rs.25,08,800/- [(1,68,000+40%) x16x2/3]. After deducting Rs.17,64,000/-, the additional amount receivable by the appellants would come to Rs.7,44,800/-. 9. When moving on to the other heads, it can be seen that the amount awarded under the head of funeral expenses was only Rs.5,000/,- whereas the actual amount is Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is awarded. Similarly, for loss of estate, a further amount of Rs.10,000/- is awarded as the amount granted by the tribunal is only Rs.5,000/-. In the light of the principles laid down by the Hon’ble Supreme Court in Magma General Insurance Co.Ltd. v.Nanu Ram and Others [2018 ACJ 2782] New India M.A.C.A. Nos.1307 & 1229 of 2012 : 8 : Assurance Company Limited v. Somwati and Others [(2020)9 SCC 644 **`],`** the petitioners are entitled to loss of consortium at the rate of Rs.40,000/- each thereby making it a total amount of Rs.1,20,000/-. However, the tribunal awarded only Rs.20,000/- towards the loss of the consortium. But, the learned counsel for the insurance company would point out that the tribunal awarded a further sum of Rs.25,000/- under the head of loss of love and affection and in the light of the observations made by the Hon’ble Supreme Court in United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780] and New India Assurance Company Ltd. v. Somwati & Ors. [(2020) 9 SCC 644 ], the said compensation ought not to be granted since the compensation for loss of consortium is awarded. Therefore, the amount of Rs.25,000/- for loss of love and affection can be adjusted towards the compensation now redetermined under the head of loss of consortium. Thus, the additional compensation under this head is determined a Rs.75,000/- [120000 – M.A.C.A. Nos.1307 & 1229 of 2012 : 9 : (25000 + 25000]. Thus, the total additional compensation is determined as Rs.8,39,800/- (744800 + 10000 + 10000 + 75000). In the light of the aforesaid observations and findings, these appeals are disposed of by modifying the award dated 14.07.2011 passed by the Motor Accident Claims Tribunal, Ernakulam in OP(MV) No.1070/2007 by granting an additional compensation of Rs.8,39,800/- (Rupees eight lakhs thirty nine thousand eight hundred only) and the 3[rd] respondent insurance company shall deposit the said amount along with interest at the rate as ordered by the tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. Sd/- ZIYAD RAHMAN A.A. JUDGE ncd