M.A.C.A.No. 3323 of 2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 09TH DAY OF JANUARY 2019 / 19TH POUSHA, 1940** **M.A.C.A.No. 3323 of 2015** **AGAINST THE AWARD IN O.P.(M.V.)No.1343/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL,PATHANAMTHITTA DATED 04-03-2015** ## **APPELLANTS/RESPONDENTS 2 AND 3 IN O.P(M.V):** - **1 THE CHAIRMAN, SABARIMALA SANITATION SOCIETY & THE DISTRICT COLLECTOR, PATHANAMTHITTA COLLECTORATE,PATHANAMTHITTA.** - **2 KERALA STATE INSURANCE DEPARTMENT DISTRICT INSURANCE OFFICE, PATHANAMTHITTA.** **BY SMT.REHNA N S, PUBLIC PROSECUTOR** ## **RESPONDENTS/PETITIONRS AND 1ST RESPONDENT IN O.P(M.V.):** - **1 SOJI CHERIAN W/O. LATE ADV.THOMAS MATHEW, CHIRAVARAMBIL PUTHEN VEEDU, MANTHUKA P.O., KULANADA VILLAGE-689 519.(WIFE OF THE DECEASED).** - **2 SHERIN ANN MATHEW D/O. LATE ADV.THOMAS MATHEW, CHIRAVARAMBIL PUTHEN VEEDU, MANTHUKA P.O., KULANADA VILLAGE-689 519. (DATE OF BIRTH 27.01.2004) (MINOR DAUGHTER OF THE DECEASED).** - **3 SHERIL MARIAM MATHEW D/O. LATE ADV.THOMAS MATHEW, CHIRAVARAMBIL PUTHEN VEEDU, MANTHUKA P.O., KULANADA VILLAGE-689 519. (DATE OF BIRTH 20.05.2005) (MINOR DAUGHTER OF THE DECEASED) (THE SECOND AND THIRD PETIITONER ARE REPRESENTED BY THEIR MOTHER FIRST PETITIONER AS THEIR NEXT FRIEND AND GUARDIAN)** - **4 JOHN MATHEW** - **S/O. LATE VARGHESE MATHAI, CHIRAVARAMBIL PUTHEN VEEDU, MANTHUKA P.O., KULANADA VILLAGE-689 519. (FATHER OF THE DECEASED).** **M.A.C.A.No. 3323 of 2015 2** **5 KUNJAMMA JOHNSON S/O. LATE VARGHESE MATHAI, CHIRAVARAMBIL PUTHEN VEEDU, MANTHUKA P.O., KULANADA VILLAGE-689 519. (MOTHER OF THE DECEASED).** **6 V.R.MURALEEDHARAN NAIR S/O. RAGHAVAN PILLAI, VILAYIL VEEDU, MARINJAKAL, KOODAL P.O., PATHANAMTHITTA-689 693.[DELETED]** **[6TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS AS PER ORDER DATED 11.05.2016 IN IA 1490/16.]** **BY ADVS.** **R4 AND R5 BY SMT.S.LEKHA R1 BY SRI.NAGARAJ NARAYANAN SRI.BENOJ C AUGUSTIN SRI.SAIJO HASSAN SRI.U.M.HASSAN SRI.VISHNU BHUVANENDRAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 3323 of 2015 3** ## **JUDGMENT** The appeal on hand is directed against the award dated 04.03.2015, of the Motor Accidents Claims Tribunal, Pathanamthitta (for short 'the Tribunal') in O.P.(M.V.)No.1343 of 2007. Respondents 2 and 3 before the Tribunal are the appellants herein. The challenge is against the finding of the Tribunal on negligence on the part of the second respondent and exorbitance in the quantum of compensation awarded. 2. Smt.Rehna.N.S, the learned Government Pleader advanced arguments on behalf of the appellants and Sri.Saijo Hassan advanced arguments on behalf of the respondents. Before adverting to the rival contentions raised by the respective counsel, it is relevant to have an idea about the facts of the case in brief. Sri.Thomas Mathew met with a motor accident at about 2.30 pm on 29.08.2007, when the motor cycle ridden by him through Kozhencherry-Pathanamthitta public road was dashed by a jeep. He sustained fatal injuries and died at the spot of accident itself. He was survived by his wife aged 27 years, two minor children aged 3 years and 2 years respectively and father ## **M.A.C.A.No. 3323 of 2015 4** and mother aged 65 years and 59 years respectively. Contending that the accident was occurred due to rash and negligent driving of the jeep bearing registration No.KL-03F/5667, and claiming for a sum of Rs.50,000/- as total compensation, claim petition as above was preferred by the survivors and dependents of Thomas Mathew before the Tribunal. 3. The claim petition was tried by the Tribunal. On the side of petitioners, the wife of Thomas Mathew was examined as PW1. His clerk and colleague were also examined as PW2 and PW3. Exts.A1 to A23 were also marked in evidence. The contesting respondents did not adduce oral or documentary evidence. On appreciation of the evidence on record, the Tribunal found the second respondent in the claim petition, who was the driver of the jeep rash, negligent in driving the same at the relevant time of accident and arrived at a sum of Rs.47,76,000/- as compensation payable to the petitioners. The offending vehicle having been established as insured with the third respondent, the third respondent was directed to deposit the amount awarded with interest at the rate of 9% per annum from the date of the claim petition till the date of ## **M.A.C.A.No. 3323 of 2015 5** realisation with Rs.2,75,833/- as proportionate costs. 4. Aggrieved by the finding of negligence against the second respondent, the exorbitance in the quantum of compensation arrived at and the proportionate costs awarded that the second and third respondents have approached this Court in the captioned appeal. The evidence on record is appreciated in the backdrop of the rival contentions advanced by the parties to the appeal on hand. 5. According to petitioners Thomas Mathew was aged 33 years at the relevant time of accident and was an Advocate by profession. His monthly income was claimed by the petitioners as Rs.30,000/- at the relevant time of accident. PW1, the wife of the deceased had deposed strictly in tune with the claims made in the claim petition. According to PW1, her husband was having lucrative practice as an Advocate and was earning Rs.50,000/- as monthly income. To establish the occupation of the deceased as an Advocate, a certificate dated 17.10.2014 issued from the District Bar Association, Pathanamthitta was produced and marked in evidence as Ext.A17. It is established from Ext.A17 that, the deceased was practicing as an Advocate at Pathanamthitta from 21.05.2001 ## **M.A.C.A.No. 3323 of 2015 6** till his death on 29.08.2007. The Secretary of the District Bar Association, Pathanamthitta had certified in Ext.A17 that the deceased as an advocate was maintaining an established office at the relevant time. PW2, Mr.Thankappan was the clerk of Sri.Thomas Mathew. According to PW2, Thomas Mathew was having satisfactory practice as an Advocate and started office independently in the year 2005. According to him, Sri.Thomas Mathew was earning approximately Rs.50,000/- per month and he was paid Rs.5,000/- monthly. According to him, most of the cases dealt with by Thomas Mathew were motor accident claims. PW3, is a colleague of Thomas Mathew while he was practicing as a junior to Adv.P.K.Mathew. According to him, at the time when he was practicing as a junior Advocate, he had sufficient number of cases of his own, criminal, civil, family court matters and motor accident claims. He had also laid joint vakkalath with Thomas Mathew in certain cases. At the time when he was a junior Advocate itself Sri.Thomas Mathew was earning a sum of Rs.30,000/- monthly. PW3 has also gone to the extent of stating that 5.6 acres of rubber plantation was purchased by him at Thumbaman and Adoor and that was also a source of income for him. The learned counsel for the ## **M.A.C.A.No. 3323 of 2015 7** appellant has raised a challenge against fixation of monthly income of Rs.20,000/- by the Tribunal for the reason that it is excessive. According to the learned counsel, Thomas Mathew was having only 7 years' experience as an Advocate at the Bar and it is unlikely for him to earn Rs.30,000/- as monthly income. The learned counsel seeks for interference with the fixation of monthly income by the Tribunal. In the backdrop of the evidence available, this Court finds that Sri.Thomas Mathew, at the relevant time of his death was maintaining a large family consisting of his wife, two minor children and age old parents. Therefore, apart from himself five other members were also depending on him for their livelihood. It has come out from the evidence of PW1, the wife of the deceased that, he was maintaining two different Life Insurance policies, towards which, annual premium respectively of Rs.2,619/- and Rs.2,095/- had been paid by him. Therefore, it is emerged from the oral evidence of the witnesses that Sri.Thomas Mathew was getting about Rs.50,000/- as income monthly from his profession as an Advocate. It is also discerned that Sri.Thomas Mathew had landed properties at various places. But, there is absolutely no materials to establish that the properties have ## **M.A.C.A.No. 3323 of 2015 8** been purchased by him from his own income. Whether he had availed a loan for purchasing the properties and was paying any sum towards loan dues are not evidenced. Admittedly, Rs.5,000/- was paid to PW2 monthly. Therefore, after meeting the expenditures as stated above, Sri.Thomas Mathew must have to retain a reasonable sum for maintaining his family. Therefore, the Tribunal cannot be found fault with in fixing Rs.20,000/- as the monthly income for the purpose of calculation of compensation. Absolutely no reason is noticed by this Court to interfere with the fixation of monthly income as above by the Tribunal and the plea to reduce it is repelled. 6. It is relevant to notice that, to prove the age of Sri.Thomas Mathew Ext.A10, the PAN Card is produced. The date of birth of Sri.Thomas Mathew as revealed from Ext.A10 is 25.04.1974. Therefore, the deceased had completed 33 years at the relevant time of his death. In view of _**Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802 (SC)]**_ the multiplier appropriate to the age of 33 years is 16. The Tribunal has correctly taken 16 as the multiplier and therefore interference is uncalled for. But, 50% addition to the monthly income by the Tribunal in consideration of future prospects is ## **M.A.C.A.No. 3323 of 2015 9** unjust. For persons upto the age of 40 years, 40% addition to the monthly income in consideration of future prospects is found reasonable by the Constitution Bench of the Apex Court in _**National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662 (SC)]**_ . Therefore, this Court is inclined to substitute 40% in the place of 50% considered by the Tribunal. 7. As discerned from the evidence on record, the deceased was survived by five members. Therefore, in view of _**Pranay Sethi's**_ case _supra,_ 1/5[th] needs to be deducted in consideration of personal expenses likely to be incurred by Thomas Mathew, had he been alive. The Tribunal has deducted 1/4[th] towards personal expenditure. It being incorrect in view of _**Pranay Sethi's**_ case _supra_ , this Court is inclined to deduct 1/5[th] from the monthly income towards personal expenditure. When calculated with the factors modified as above, the monthly income relevant for arriving at compensation for dependency will be Rs.22,400/- [(20000+40% of 20000)-1/5[th] ] **.** When the annual income is multiplied with the multiplier of 16, a sum of Rs.43,00,800/- is arrived at (22400x16x12). Since Rs.43,20,000/- was awarded by the Tribunal by the impugned award, there will be a reduction of Rs.19,200/- (43,20,000- ## **M.A.C.A.No. 3323 of 2015 10** 43,00,800) from the compensation awarded by the Tribunal under that head. 8. In view of _**Pranay Sethi's**_ case _supra_ , the sum payable as compensation under the conventional heads of funeral expenses and loss of estate being Rs.15,000/- each and loss of consortium being Rs.40,000/- and the amount awarded by the Tribunal as compensation respectively under these heads being Rs.1,00,000/-, Rs.25,000/- and Rs.1,00,000/- this Court is inclined to deduct Rs.85,000/-, Rs.10,000/- and Rs.60,000/therefrom. Accordingly, petitioners will get Rs. Rs.15,000/- each as compensation for funeral expenses and loss of estate and Rs.40,000/- as compensation for loss of consortium. A challenge was also raised by the learned counsel for the appellants against Rs.2,20,000/- awarded as compensation for loss of love and affection. It is true that, the Constitution Bench is silent in _**Pranay Sethi's**_ case _supra_ on grant of compensation under the head loss of love and affection. Apex Court had held _**Rajesh and others v. Rajbir Singh and others [2013 ACJ**_ _**1403 (SC)],**_ wherein Rs.1,00,000/- each was awarded as compensation for loss of love and affection to two children of the deceased, no longer a binding precedent. In _**Magma**_ ## **M.A.C.A.No. 3323 of 2015 11** ## _**General Insurance Co.Ltd v. Nanu Ram and Others [2018**_ _**ACJ 2782 (SC)],**_ the Apex Court has maintained the grant of a sum of Rs.1,00,000/- as compensation by the High Court for love and affection in respect of two minor children. Therefore, award of a sum of Rs.2,20,000/- as compensation by the Tribunal for loss of love and affection to five surviving members of the deceased is a reasonable sum and that is maintained. 9. In the refixation as above, there will be a reduction of Rs.1,74,200/- from the total amount awarded as compensation by the Tribunal vide the award under challenge. 10. A challenge was also raised against the award of interest at the rate of 9% per annum. The claim petition was filed in the year 2007 and the award under challenge was passed in the year, 2015. Therefore, the Tribunal is justified in fixing interest at the rate of 9% per annum for the compensation arrived at as payable and this Court is declined to interfere with the same. Rs.2,75,833/- was awarded by the Tribunal as proportionate cost and a challenge is also raised against that. Award of proportionate costs of Rs.2,75,833/appears to this Court excessive and therefore, is set aside. The Tribunal shall fix the cost in proportion to the compensation ## **M.A.C.A.No. 3323 of 2015 12** modified by this Court. In the result, the appeal stands allowed in part. The petitioners are entitled to get a sum of **Rs.46,01,800/-** with interest at the rate of 9% per annum as directed by the Tribunal in the impugned award. The proportionate cost shall be calculated by the Tribunal on the basis of the compensation modified by this Court and found as payable. The third respondent, insurer shall deposit the aforesaid sum with interest at the rate and with proportionate costs within a period of two months from the date of receipt of a copy of this judgment. **MARY JOSEPH JUDGE** ab