M.A.C.A.No. 3892 of 2016

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ## **`THURSDAY, THE 1[ST] DAY OF DECEMBER 2022/10TH AGRAHAYANA,1944`** ## **`MACA NO. 3892 OF 2016`** ## **`AGAINST THE ORDER/JUDGMENTOPMV 301/2010 OF MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL ALAPPUZHA`** ## **`APPELLANT/S:`** - `1 KUNJUMON, AGED 69 YEARS, AGED 69 YEARS, S/O LATE CHACKO, VADAKKERANADU,KANNANKARA PO, CHERTHALA, PIN.688527.` - `2 ELIYAMMA, W/O KUNJUMON, VADAKKERANADU, KANNANNKARA PO,CHERTHALA, PIN.688527.` - `3 ANEETAMOL JOSEPH, D/O KUNJUMON, VADAKKERANADU, KANNANKARA PO,CHERTHALA, PIN. 688527.` - `4 ANOOP JOSEPH,S/O KUNJUMON, VADAKKERNANDU,KANNANKARA PO, CHERTHALA, PIN.688527.` ``` BY ADVS. SRI.NOBLE MATHEW SRI.JOLLY GEORGE ``` ## **`RESPONDENT/S:`** - `1 PRINCE,S/O PEETHAMBARAN,ELANJAMKULANGARAVELY, KAREEKKAD PO, P/W-13, CHERTHALA.` ``` 2THE BRANCH MANAGER, ORIENTAL INSURANCE CO.LTD, ANNAPURAN MANDIR,MULLACKAL, ALAPPUZHA. (POL.NO.44190/31/2009/8057, VALID FROM 9.3.2009 TO8.3.2010) ``` ``` BY ADVS. SRI.M.R.SARIN SRI.GEORGE CHERIAN (SR.) SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- M.A.C.A.No. 3892 of 2016 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== M.A.C.A.No. 3892 of 2016 ============================================================= Dated this the 1[st] day of December, 2022 ## **JUDGMENT** This appeal is filed against the award dated 12.07.2016 in OP(MV) No.301/2010 on the file of the Motor Accidents Claims Tribunal, Alappuzha. Appellants are the legal heirs of deceased Anilkumar, who died in a motor accident. ## 2. Short facts are like this: On 01/11/2009 at about 5.30 pm, while deceased Ajimon was travelling in KL-4/U-7765 autorickshaw driven by the 1[st] respondent, through Pottikavala – Manaveli road, another autorickshaw came from the side road, and on seeing that the 1[st] respondent rashly and negligently applied sudden brake, and the autorickshaw skidded and capsized. Sri.Ajimon was thrown out to the road, and he sustained grievous injuries including fracture to skull. Even though he was taken to the hospital, he succumbed -3- M.A.C.A.No. 3892 of 2016 to the injuries on 03.11.2009. The claim petition is filed claiming compensation to the tune of Rs.17,00,000/-. 3. To substantiate the case, Exts.A1 to A11 were marked. One witness was examined on the side of the claimant as PW1. After going through the evidence and the documents, the tribunal fixed the compensation as Rs.14,22,150/-. Dissatisfied with the the quantum of compensation, this appeal is filed. 4. Heard the counsel for the appellants and the learned counsel appearing for the 1[st] and 2[nd] respondents. 5. The counsel for the appellant submitted that the tribunal erred in fixing the income of the deceased. The appellants had claimed that the deceased was a chief technician at Popular Automobiles, Kochi and earning a monthly income of Rs.10,560/-. The salary certificate was produced and the person who issued the same is also examined as PW1. The counsel submitted that as per the salary certificate the income earned by -4- M.A.C.A.No. 3892 of 2016 the deceased was Rs.10,560/-. The counsel submitted that the tribunal ought to have fixed the above amount treating the income of the deceased as Rs.10,560/-. Instead of that, the Tribunal fixed the notional income of the deceased as Rs.6,000/-, is the grievance. 6. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd., [(2011) 13 SCC 236],** the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 7. Following the ratio in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2009, and also Ext.A1 which is proved through PW1, I am of the firm opinion that the monthly income of the deceased can safely be fixed at Rs.10,500/- per month. The Tribunal rejected Ext.A1 mainly for the reason that, the bank details are not produced. I cannot agree with the same. Ext.A1 is proved through PW1 and -5- M.A.C.A.No. 3892 of 2016 there is nothing to disbelieve the evidence of PW1. So Ext.A1 can be accepted and the monthly income can be fixed as Rs.10,500/-. Again following the principles laid down in **Sarla Verma and Pranay Sethi (supra)** and considering that the deceased was aged 28 years on the date of his death, I hold that the appellants are entitled to future prospects at 40% and the monthly income can be fixed as Rs.14,700/- _(10500 x_ . _40%=4200) (10500 + 4200 = 14700)_ 8. The deceased was aged 28 years on the date of his death. In the light of the law laid down in **Sarla Varma and others v. Delhi Transport Corporation and others [(2010) 2 KLT 802 (SC)** ], the tribunal took the correct multiplier as '17'. 9. In the light of the fact that the deceased was unmarried, following the ratio in **Sarla Verma (supra)** reiterated in **National Insurance Company Ltd. v. Pranay Sethi [2017** -6- M.A.C.A.No. 3892 of 2016 **(4) KLT 662(SC)],** 1/2 of the income of the deceased has to be deducted towards the personal living expenses of the deceased. 10. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.10,500/-, the multiplier at 17, future prospects at 40% and deducting 1/2 of compensation for loss of dependency towards the personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.14,99,400/- _(14700 x 12 x 17 x ½)_ instead of Rs.12,24,000/- fixed by the Tribunal. Therefore, the appellants are entitled an enhanced amount of Rs.2,75,400/-. (14,99,40012,24,000 = 2,75,400) 11. In **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/-, -7- M.A.C.A.No. 3892 of 2016 Rs.15,000/- and Rs.40,000/-, respectively. The dependents are entitled Rs.40,000/- each towards ‘lose of consortium’. 12. In the instant case, the Tribunal has awarded an amount of Rs.25,000/- towards 'funeral expenses' which is in excess. No amount has been awarded towards 'loss of estate' and towards 'loss of consortium’. Therefore, following the law in **Pranay Sethi (supra)** , I reduce an amount of Rs.10,000/- under the head 'funeral expenses'. I award an amount of Rs.15,000/under the head ‘loss of estate’ and Rs.1,60,000/-under the head 'loss of consortium', i.e., Rs.40,000/- each to the appellants. 13. It is seen that the Tribunal has awarded an amount of Rs.1,00,000/- under the head 'loss of love and affection' and Rs.25,000/- under the head 'pain and sufferings'. ## 14. In **New India Assurance Company Ltd. v. Somwati &** **Ors. [2020 (9) SCC 644]** , the Hon'ble Supreme Court has held that once compensation under the head 'loss of consortium' is -8- M.A.C.A.No. 3892 of 2016 awarded, no amount can be awarded under the head 'loss of love and affection', as it amounts to duplication of compensation. Similarly, **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others [2020(3)KHC 760]** , the Hon'ble Supreme Court has held that in the case of death, no amount can be awarded under the head 'pain and sufferings'. Accordingly, I set aside the amounts of Rs.1,00,000/- and Rs.25,000/- awarded under the above two heads. 15. With respect to the compensation awarded under the other heads, I find the same to be reasonable and just. 16. Therefore, the enhanced amount entitled by the appellants are like this: Loss of dependency - 2,75,400 - Loss of consortium 1,60,000 - Loss of estate 15,000 4,50,400 -9- M.A.C.A.No. 3892 of 2016 From the above amount Rs.1,35,000/- (1,00,000 + 25,000 + 10,000) should be deducted in the light of the discussion in paragraphs 12 to 14. Therefore, the appellants are entitled only an enhanced amount of **Rs.3,15,400/-** (4,50,400 – 1,35,000). In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.3,15,400/-** with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2[nd] respondent/insurer is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest within a period of sixty days from the date of receipt of a certified copy of this judgment. **SD/-** **P.V.KUNHIKRISHNAN JUDGE** das