M.A.C.A. Nos. 22/2010 & 2310/2009, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943** **MACA NO. 22 OF 2010** **AGAINST THE AWARD DATED 01.04.2009 IN OPMV 3064/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM.** ## **APPELLANTS/ ORIENTAL PETITIONERS:** - **1 K.BENNY PETER, S/O. K.O. PETER, 40/1018, ST.VINCENT ROAD, PALARIVATTOM, COCHIN-25, ERNAKULAM DISTRICT.** - **2 K.AKASH BEN PETER S/O. BENNY PETER, -DO- -DO-** ## **BY ADV SRI.G.BALAMURALEEDHARAN (PARAVUR)** ## **RESPONDENTS/ORIGINAL RESPONDENTS:** - **1 ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, 3RD FLOOR, MAHESWARI BUILDINGS, M.G.ROAD, THRISSUR.** - **2 SHANAVAS, SIBI MANZIL, PAZHAMBALAKKODU, PALAKKAD.** - **3 VIJAYAN P.M., S/O. ACHUTHAN, VILAKKAKUNNEL HOUSE, PILAKKODE, CHELAKKARA, THRISSUR.** - **4 P.A.JOSEPH, JOSE VILLA, KURIANAD P.O., KURAVILANGAD.** - **5 PENNAMMA JOSEPH, WO. JOSEPH,JOSE VILLA, KURIANAD.** **BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, ALONG WITH MACA.2310/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.22/2010 & 2310/2009 -:2:- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 MACA NO. 2310 OF 2009** **AGAINST THE AWARD DATED 01.04.2009 IN OPMV 3064/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM.** ## **APPELLANT/1ST RESPONDENT:** **THE ORIENTAL INSURANCE COMPANY LTD., THRISSUR, NOW REPRESENTED BY ITS ASSISTANT, MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 K.BENNY PETER, S/O. K.O. PETER, 40/1018, ST.VINCENT ROAD, PALARIVATTOM, COCHIN-25, ERNAKULAM DISTRICT.** **2 K.AAKASH BEN PETER, MINOR, S/O. K.BENNY PETER, REPRESENTED BY HIS FATHER K.BENNY PETER, -DO- -DO-** **BY ADVS.SRI.G.BALAMURALEEDHARAN PARAVUR SRI.MATHEWS V.JACOB PARAVUR SRI.N.T.NANDAKUMAR PARAVUR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, ALONG WITH MACA.22/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.22/2010 & 2310/2009 -:3:- _Dated this the 7[th] day of October,2021_ ## **C O M M O N J U D G M E N T** As the appeals arise out of the same award in O.P. (MV) No.3064/2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 'Shiji Jose'(deceased), the wife of the first petitioner and the mother of the second petitioner. It was their case that, on 11.04.2004, while the deceased was in a Maruti car travelling bearing registration No.TN-59/M 3649 from Madhurai to Chalakkudy, which was driven by the first petitioner, when the car reached a place named 'Kodimedu Nal road', in M.A.C.A.Nos.22/2010 & 2310/2009 -:4:- Udumalai, a lorry bearing registration No.NL-02/D-1139(lorry), travelling from the opposite direction, driven by the third respondent in a rash and negligent manner, hit the car. The petitioners and the deceased sustained serious injuries. The deceased lost her life on the way to hospital. The second respondent was the owner and the first respondent was the insurer of the lorry. The respondents 4 and 5 were the parents of the deceased. The deceased was a Senior Grade Lecturer, Department of Sociology, in the Fathima Madhurai. She was a College, drawing monthly salary of Rs.22,985/. The petitioners were the dependants of the deceased. Hence, they claimed a compensation of Rs.35,28,000/- from respondents. 3. The petitioners 1 and 2 filed independent claim petitions as O.P.(MV)Nos.559 & 560/2005 before the same Tribunal, seeking compensation on account of the injuries sustained to them in the accident. 4. The respondents 2 and 3 did not contest the M.A.C.A.Nos.22/2010 & 2310/2009 -:5:- proceedings and were set _ex parte_ . 5. The first respondent had filed a written statement admitting that the lorry had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the first petitioner. The first respondent also disputed the age, income and occupation of the deceased. 6. The Tribunal consolidated and jointly tried the three claim petitions. 7. The first petitioner was examined as PW1 and Exts.A1 to A32 were marked through him in evidence. The first respondent produced the AMVI report, which was marked as Ext.B1 in evidence. 8. The Tribunal by its common award allowed the captioned claim petition, by permitting the petitioners 1 and 2 to realise from the first respondent an amount of Rs.23,00,000/- with interest and costs. The compensation amount was directed to be apportioned between the petitioners in the ratio of M.A.C.A.Nos.22/2010 & 2310/2009 -:6:- 35:65. 9. Dissatisfied with the quantum of compensation, the petitioners have filed M.A.C.A.No.22/2010 and aggrieved by the impugned award, the first respondent/insurer has filed M.A.C.A.No.2310/2009. 10. Heard; Sri. G. Balamuraleedharan (Paravur), the learned counsel appearing for the appellants/petitioners in M.A.C.A.No.22/2010 and Sri. P. Jacob Mathew, the learned counsel appearing for the first respondent-insurer in M.A.C.A.No.22/2010 and the appellant in M.A.C.A.No.2310/2009. 11. The sole question that emerges for consideration in these appeals is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 12. Ext.A3 chargesheet filed by the Gomangalam Police in Crime No.67/2004 substantiates that the M.A.C.A.Nos.22/2010 & 2310/2009 -:7:- accident occurred due to the negligence of the third respondent. Exts.A5 and A6 judgments substantiate that the third respondent was convicted for the offences charged against him, pursuant to Ext.A3 chargesheet. Thus, it is proved beyond semblance of any doubt that the third respondent was negligent in causing the accident. Admittedly, the second respondent was the owner and the first respondent was the insurer of the lorry. The first respondent has admitted that the lorry had a valid insurance coverage and has not proved that the second respondent has violated the insurance policy conditions. Therefore, the first respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income of the deceased:** 13. The petitioners had asserted in the claim petition that the deceased was employed as a Senior Grade Lecturer in the Department of Sociology of the Fathima College, Madhurai. They claimed that she was M.A.C.A.Nos.22/2010 & 2310/2009 -:8:- drawing a monthly salary of Rs.22,985/-. They produced Ext.A14 salary certificate to prove their assertion. They also produced Ext.A17 Tax Deducted at Source(TDS) certificate, which shows that an amount of Rs.30,880/- was deducted as TDS from the salary of the deceased. Therefore, the net monthly income of the deceased, after deduction of the tax and as laid down by the Hon'ble Supreme Court in _**Kalpanaraj & Ors. v. Tamil Nadu State Transport Corporation**_ [(2015) 2 SCC 764], is Rs.20,411/- per month. ## **Multiplier** 14. The deceased was aged 40 years on the date of the accident/death. In the light of the law laid down in _**Sarala Varma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)], the relevant multiplier is '15', instead of '11' fixed by the Tribunal. ## **Personal living expenses of the deceased:** 15. Undisputedly, the petitioners were the M.A.C.A.Nos.22/2010 & 2310/2009 -:9:- husband and son of the deceased. They are two in number. In view of the ratio in _**Sarla Verma**_ (supra) and _**National Insurance Company Ltd. v. Pranay Sethi**_ [(2017) 16 SCC 680],[1] /3rd of the compensation for 'loss of dependency' has to be deducted towards the 'personal living expenses' of the deceased. ## **Future prospects:** 16. Again, following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra) and considering the fact that the deceased was aged 40 years at the time of her death, and that she was a permanently employed, the petitioners are entitled for 'future prospects' at 30%, instead of 40% awarded by the Tribunal. ## **Loss due to dependency:** 17. Taking into account the above-mentioned factors, i.e, the monthly income of the deceased at Rs.20,411/-, the multiplier at '15', future prospects at 30% and deducting[1] /3rd of the compensation towards the 'personal living expenses' of the deceased, I re-fix M.A.C.A.Nos.22/2010 & 2310/2009 -:10:- the compensation for 'loss of dependency' at Rs.31,84,116/-, instead of Rs.22,41,217/- awarded by the Tribunal. ## **Conventional heads of compensation:** 18. In clause (viii) of paragraph 61 of _**Pranay Sethi**_ (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, 'funeral expenses', 'loss of estate' and 'loss of consortium' at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 19. In the instant case, the Tribunal has awarded an amount of Rs.10,000/- towards 'funeral expenses' and Rs.5,000/- towards 'loss of estate'. Therefore, I enhance the compensation under the above heads by a further amount of Rs.5,000/- and Rs.10,000/-, respectively, i.e., totalling to Rs.15,000/- each under the said heads. 20. The Tribunal has awarded an amount of M.A.C.A.Nos.22/2010 & 2310/2009 -:11:- Rs.15,000/- towards 'loss of consortium and companionship'. 21. Going by the law laid down in _**Pranay Sethi**_ (supra), both the petitioners are entitled to Rs.40,000/each, i.e., an enhancement by Rs.65,000/- under the said head. ## **P ain and sufferings and loss of love and affection:** 22. It is seen that the Tribunal has awarded an amount of Rs.10,000/- towards compensation for 'pain and sufferings' and Rs.15,000/- towards 'loss of love and affection'. 23. In paragraph No.19 of _**Sarla Verma**_ (supra), the Hon'ble Supreme Court has categorically held that no amount shall be awarded under the head 'pain and sufferings' to the dependants of the deceased. The said view has been reiterated by the Hon'ble Supreme Court in _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others**_ M.A.C.A.Nos.22/2010 & 2310/2009 -:12:- [2020(3)KHC 760]. therefore, I set aside the amount of Rs.10,000/- awarded under the said head. 24. In _**New India Assurance Company Ltd. v. Somwati & Ors.**_ [2020(9)SCC 644] the Hon'ble Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no compensation shall not be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. Therefore, I set aside the amount of Rs.15,000/- awarded under the head 'loss of love and affection'. 25. As the deceased had to be transported after her death, I award an amount of Rs.1,000/- under the said head 'transportation expenses'. 26. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners in M.A.C.A.No.22/2010 are entitled for enhancement of compensation as modified M.A.C.A.Nos.22/2010 & 2310/2009 -:13:- and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Transport|Nil|1,000| |2|Funeral expenses|10,000|15,000| |3|Pain and sufferings|10,000|Nil| |4|Loss of love and<br>affection|15,000|Nil| |5|Loss of estate|5,000|15,000| |6|Loss of consortium|15,000|80,000| |7|Loss<br>of<br>dependency|22,41,217|31,84,116| ||**Total**|**2296217**<br>Rounded as Rs.<br>**23,00,000**|**32,95,116**| In the result, M.A.C.A.No.2310/2009 is dismissed and M.A.C.A.No.22/2010 is allowed by enhancing the compensation by a further amount of **Rs.9,95,116/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting M.A.C.A.Nos.22/2010 & 2310/2009 -:14:- interest for a period of 58 days i.e., the period of delay in preferring this appeal and as directed by this Court on 15.09.2021 in C.M.Appln.No.1/2010, and a cost of Rs.4,000/-. The first respondent/insurer in M.A.C.A.No.22/2010 is directed to deposit the enhanced compensation with interest and proportionate cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellants/petitioners in M.A.C.A.No.22/2010 in the ratio of 50:50 and in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST/07.10.2021 //True copy/ P.A.To Judge