MACA Nos. 1832/2012 and 1754/2012 (In the High Court of Kerala at Ernakulam)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 ``` ## `MACA NO. 1832 OF 2012` ``` [AGAINST THE AWARD DATED 18.06.2010 IN OP(MV)NO.1243 OF 2002 ON THE FILE OF THE LEARNED MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR] ``` ## `APPELLANT/PETITIONERS 2 TO 8:` - `1 KUNJUPENNU, (MOTHER OF THE DECEASED), CHARUVILA PUTHEN VEEDU, NALLAMKULAM, VETTITHITTA P.O., PUNALUR.` - `2 RADHA, (SISTER OF THE DECEASED), CHARUVILA PUTHEN VEEDU, NALLAMKULAM, VETTITHITTA P.O., PUNALUR.` - `3 ANIRUDHAN, (BROTHER OF THE DECEASED), CHARUVILA PUTHEN VEEDU, NALLAMKULAM, VETTITHITTA P.O.,PUNALUR.` - `4 REMANI, D/O.KOCHU KUNJU,CHARUVILA PUTHEN VEEDU, NALLAMKULAM, VETTITHITTA P.O.,PUNALUR.` - `5 REMANAN S/O.KOCHUKUNJU,CHARUVILA PUTHEN VEEDU, NALLAMKULAM, VETTITHITTA P.O.,PUNALUR.` - `6 THANKAMONY, D/O.KOCHU KUNJU,CHARUVILA PUTHEN VEEDU, NALLAMKULAM, VETTITHITTA P.O.,PUNALUR.` - `7 BHANU, D/O.KOCHU KUNJU, CHARUVILA PUTHEN VEEDU, NALLAMKULAM, VETTITHITTA P.O.,PUNALUR.` ``` BY ADV ``` ``` SRI.MANOJ RAMASWAMY ``` ## `RESPONDENTS / RESPONDENTS:` ``` 1PREMKUMAR, S/O.SH.DHOOL JI PATIDAR R/O, DUNGARPUR, RAJASTHAN, PIN 314 001. ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -2- ``` - `2 KANCHILAL, C/O.SIYALEDHERI, DUNGARPUR, RAJASTHAN, PIN:314 001.` - `3 UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE, SAHARA CHAMBERS, TONK ROAD, JAIPUR, PIN-302 001.` - `4 AJAY BHAI JAYANTHI BHAI RAJ PUT, RESIDENT OF 1266/3, MORLIGHARVIRO, NEAR RAIPUR, DARVAJA, AHAMMADABAD, PIN-380001.` - `5 NEW INDIA ASSURANCE CO LTD., ASHRAM ROAD, AHMEDABAD, PIN-380009.` ``` BY ADVS. SMT.S.JAYASREE, SC RAJI T.BHASKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2023, ALONG WITH MACA.1754/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -3- ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, ``` ## `1944` ## `MACA NO. 1754 OF 2012` ``` [AGAINST THE AWARD DATED 18.06.2010 IN OP(MV)NO.1242 OF 2002 ON THE FILE OF THE LEARNED MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR] ``` ## `APPELLANT/PETITIONER:` ``` ANIL KUMAR, S/O. RAGHAVAN PILLAI, LEKSHMI VILASAM, VETTITHITTA P.O., PUNALUR. ``` ``` BY ADV SRI.MANOJ RAMASWAMY ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1PREMKUMAR, S/O. SH. DHOOL JI PATIDAR R/O, DUNGARPUR, RAJASTHAN - 314 001. DUNGARPUR (P.O). 2KANCHILAI, C/O. SIYALEDHERI, DUNGARPUR, RAJASTHAN - 314 001. DUNGARPUR (P.O). 3UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE, SAHARA CHAMBERS, TONK ROAD, JAIPUR - 302 001. DUNGAR PUR ( P.O). ``` ``` *ADDL. R4AJAY BHAI JAYANTHI BHAI RAJ PUT RESIDENT OF 1266/3, MORLIGHARVIRO, NEAR RAIPUR DARVAJA, AHAMMADABAD- 380 001. MORLIGHARVIRO (P.O). ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -4- ``` ``` R5NEW INDIA ASSURANCE CO. LTD., ASHRAM ROAD, AHMEDABAD - 380 009. MORLIGHARVIRO ( P.O). ``` ``` BY ADVS. S.JAYASREE SRI.M.PREMCHAND ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2023, ALONG WITH MACA.1832/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -5- ``` ## `JUDGMENT` ``` [MACA Nos.1832/2012, 1754/2012] ``` ``` Even though these Appeals have been filed by two different persons, I have heard them together because it emanates out of the same accident and from a common judgment of the Motor Accidents Claims Tribunal, Punaloor (‘Tribunal’, for short). 2.While,theappellantsinMACA No.1832/2012 are the legal heirs of Rajan - who unfortunately died in a road accident, when travelling in the offending vehicle, namely a bus, through the Rajasthan – Ahammedabad Highway in the year 2002; the appellant in MACA No.1754/2012 is a person who was injured in the ``` ``` same accident. ``` ``` 3.The appellants in MACA No.1832/2012 filed OP(MV)No.1243/2002 before the Tribunal ``` ``` seeking compensation for the death of Rajan, to ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -6- ``` ``` a sum of Rs.3,00,000/-; but which has been ``` ``` awarded by the Tribunal only to the extent of ``` ``` Rs.1,38,500/-; while, the appellant in MACA No.1754/2012 also sought for Rs.3,00,000/-, but ``` ``` which has been awarded for an amount of Rs.96,558/- only. ``` ``` 4.Sri.Manoj Ramaswamy – learned counsel ``` ``` for the appellants in both the cases, argued that the notional income taken for both late ``` ``` Rajan and the injured - Sri.Anil Kumar, is ``` ``` exiguous because, going byRamachandrappa v. Manager, Royal Sundaram Alliance Insurance ``` ``` Company Ltd. [(2011) 13 SCC 236], the minimum to ``` ``` be adopted was Rs.3,500/- and not Rs.2,000/-, as ``` ``` has now been reckoned by the Tribunal. He then added that, as far as late Rajan is concerned, no amount towards future prospects have been ``` ``` granted, even when the Tribunal noticed that he ``` ``` was aged only 23 years at the time of the ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -7- ``` ``` accident and his unfortunate death. He thus prayed that the compensation awarded by the Tribunal in OP(MV)No.1243/2002 – being the subject matter of MACA No.1832/2012 - be revised; and further sought that sufficient and just compensation be awarded under the head “Loss of Consortium” also, since it has been fully denied. ``` ``` 5.Coming to the claimant in MACA No. ``` ``` 1754/2012, Sri.Manoj Ramaswamy argued that the amount granted to him under the head “Transport” and for “Extra Nourishment” are too low; while, the compensation granted for “Pain and Suffering” is inadequate. He then submitted that ``` ``` the compensation for “Permanent Disability” has been incorrectly awarded, since the Tribunal has taken only ‘15’ to be the percentile of his disability, though Ext.A10 – Disability Certificate would clearly show that it is much ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -8- ``` ``` more. He prayed that, in addition, sufficient amount be also granted under the head “Loss of Amenities”. ``` ``` 6.In response, Smt.S.Jayasree – learned ``` ``` Standing Counsel appearing for the respondent - ``` ``` Insurance Company, argued that the compensation ``` ``` awarded by the Tribunal is irreproachable and therefore, prayed that both these Appeals be ``` ``` dismissed. She, however, conceded, to a pointed question from this Court, that, going by ``` ``` Ramachandrappa (supra), notional income of both ``` ``` late Rajan and the injured could have been taken ``` ``` as Rs.3,500/-; but argued that, since the claimants in both cases did not lead any ``` ``` evidence in substantiation of this, the Tribunal was right in not accepting it. ``` ``` 7.I have considered the afore rival ``` ``` submissions on the touchstone of the evidence on record – copies of which have been handed over ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -9- ``` ``` across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. ``` ``` 8.I propose to deal with MACA No.1832/2012 ``` ``` first, since it relates to the unfortunate death ``` ``` of Rajan, who succumbed to the injuries sustained in the accident. ``` ``` 9.There can be little doubt that, going by ``` ``` Ramachandrappa (supra), the notional income of ``` ``` the deceased ought to have been taken as ``` ``` Rs.3,500/- and that the Tribunal has erred in ``` ``` adopting it as being only Rs.2,000/-. The ``` ``` argument of Smt.S.Jayasree, that evidence ought ``` ``` to have been led even for this purpose, cannot ``` ``` appeal to me because, in Ramachandrappa (supra), ``` ``` what is postulated is the adoption of certain ``` ``` figures even without evidence, particularly in ``` ``` the case of persons whose income is ``` ``` unascertainable. In such perspective, I have no ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -10- ``` ``` hestitation that the notional income of late Rajan ought to have been taken as Rs.3,500/-, ``` ``` along with 40% future prospects being added to ``` ``` it, as perNational Insurance Company Ltd. v. Pranay Sethi[2017 (4) KLT 662 (SC)]. The ``` ``` multiplier to be adopted is conceded to be 18; and it is also without contest that he was a bachelor, thus requiring 50% of his income to be reduced as personal expenses. Trowelling by such standards, the amount which the Tribunal ought to have granted as compensation for the death of the deceased was Rs.5,29,200/-, instead of Rs.96,000/-, as has now been done. 10.That being said, the Tribunal has also erred in not granting compensation for “Loss of Consortium”, at least to the parents of late Rajan. Of course, claimants 3 and 4 have also sought for it, on the ground that they were dependents of the deceased, but I may not be ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -11- ``` ``` able to grant it to them, taking note of the fact that they are both elder to late Rajan and also since they did not lead any evidence to establish their dependency. An amount of ``` ``` Rs.80,000/- certainly, therefore, is grantable under this head. ``` ``` 11.I further notice that the learned ``` ``` Tribunal has granted Rs.22,500/- under the head ``` ``` “Loss of Estate”, which is more than what is ``` ``` permissible as perPranay Sethi(supra); and ``` ``` Rs.15,000/- under the head “Transport and ``` ``` Funeral Expenses” which is inadequate, again as ``` ``` per Pranay Sethi(supra) which authorizes such figure for “Funeral Expenses” alone. Further it ``` ``` has offered Rs.10,000/- towards “Love and ``` ``` Affection”, even after the compensation for ``` ``` “Loss of Dependency” has been granted which is also incorrect. {See for support, United India Insurance Company Ltd. v. Satinder Kaur @ ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -12- ``` ``` Satwinder Kaur [(2021) 11 SCC 780]}. ``` ``` 12.Coming to MACA No.1754/2012, I cannot ``` ``` find fault with the Tribunal in having taken the ``` ``` percentile of disability of the appellant to be ``` ``` 15, though the amounts granted for “Pain and ``` ``` Suffering” and denial of compensation for “Loss ``` ``` of Amenities” does not appeal to me. This is because, going by the medical evidence on record, particularly, the Wound Certificate, the appellant/injuredsufferedthefollowing injuries: ``` **==> picture [36 x 239] intentionally omitted <==** ``` “(1)Fracture both bone Lt.Leg ORIF done. ``` ``` (2)Fracture Calcanium ORIF done. ``` - `(3) Fracture both bone Lt.Hand ORIF done.` ``` (4)Fracture (Lt) humurous. (5)Fracture Clavicle (Rt). ``` ``` (6)Tendon injury(Lt) ankle. ``` ``` (7)Loss of skin, deep (Lt) leg.” (sic) ``` ``` 13.There can be no doubt that the appellant ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -13- ``` ``` suffered greatly on account of the afore injuries; and hence, the compensation awarded by the Tribunal is certainly exiguous. ``` ``` 14.That being said, I cannot, however, find favour with the submission of Sri.Manoj ``` ``` Ramaswamy, that the amounts spent by his client for “Transport” from the hospital and for “Extra Nourishment” are inadequate. This is because, there is no evidence led by the appellant to such effect, particularly when, what is being ``` ``` compensated is liquidated damages”. ``` ``` Further, the notional income of the ``` ``` appellant deserves to be taken as Rs.3,500/-, ``` ``` for the same reasons as afore stated, while ``` ``` dealing with MACA No.1832/2012. ``` ``` In the afore circumstances, these Appeals ``` ``` are disposed of in the following manner: ``` ``` MACA No.1832/2012 ``` ``` (a)Compensation under the head “Loss of ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -14- ``` ``` Dependency” is revised to Rs.5,29,200/-, instead ``` ``` of Rs.96,000/-, as awarded by the Tribunal, reckoning the notional income of the appellant to be Rs.3,500/- and 40% future prospects being ``` ``` added to it, then deducting one half towards ``` ``` “Personal Expenses”. ``` ``` (b)An amount of Rs.80,000/- is granted ``` ``` under head “Loss of Consortium” for claimants 1 and 2 (parents). ``` ``` (c)The compensation awarded by the Tribunal ``` ``` for “Loss of Love and Affection” is deleted. ``` ``` (d)The compensation under the head “Loss of ``` ``` Estate” is revised to Rs.15,000/-, instead of ``` ``` Rs.22,500/- now granted. ``` ``` (e)An amount of Rs.5,000/- is additionally ``` ``` granted as “Transport Charges”. ``` ``` (f)The compensation granted for “Pain and ``` ``` Suffering” of the deceased is deleted. ``` ``` Consequently, the appellants will be at full ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -15- ``` ``` liberty to recover the compensation, as enhanced ``` ``` by this Court, from the Insurance Company, along with interest at the rate of 7.5%, as awarded by the Tribunal, from the date of claim until it is ``` ``` recovered. They will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` MACA No.1754/2012 ``` ``` (a)Thecompensationfor“Permanent ``` ``` Disability” is revised to Rs.1,00,800/-, instead ``` ``` of Rs.61,200/-, taking the notional income of ``` ``` the appellant to be Rs.3,500/- per month, and ``` ``` his permanent disability to be 15%. ``` ``` (b)The compensation for “Pain and ``` ``` Suffering” is enhanced to Rs.30,000/-, instead of Rs.10,000/-. ``` ``` (c)Additionally, an amount of Rs.20,000/- ``` ``` is awarded under the head “Loss of Amenities”. ``` ``` (d)Taking the notional incomeof the ``` ``` MACA Nos.1832 & 1754/2012 ``` ``` -16- ``` ``` appellant to be Rs.3,500 per month, the “Loss of ``` ``` Earning” for four months is revised to Rs.14,000/-, instead of Rs.8,000/- as now granted. ``` ``` (e)All the other holdings of the Tribunal ``` ``` will remain unaltered. ``` ``` Consequently, the appellant will be at ``` ``` liberty to recover the compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 7.5%, as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ## `Sd/-` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```