M.A.C.A.No.1503/2014 (Against the Award dated 24-05-2011 in O.P.(MV) No.1755/2010 of II Addl. MACT, Kozhikode)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939** ## **AGAINST THE AWARD DATED 24-05-2011 IN O.P.(MV) NO.1755/2010 of II ADDL. MACT, KOZHIKODE** **APPELLANTS/PETITIONERS:** **----------------------** - **1 KRISHNA KUMARI, AGED 36 YEARS, W/O LATE SIVASADAN, THIYYAKANDY MEETHAL HOUSE, PALLIPOYIL P.O, PALATH, KOZHIKODE.** - **2 VYSHNAV (MINOR),** - **S/O LATE SIVASADAN, THIYYAKANDY MEETHAL HOUSE, AGED 3½ YEARS, PALLIPOYIL, P.O. PALATH, KOZHIKODE ( 2ND APPELLANT IS A MINOR EVEN NOW AND HENCE REPRESENTED BEFORE THIS HON'BLE COURT BY HIS MOTHER IST APPELLANT HEREIN)** **BY ADV.SMT.K.V.RESHMI** ## **RESPONDENTS/RESPONDENTS:** **------------------------** **1. V.P. SURENDRAN, S/O RAMAN, VELUTHEDATHKANDY HOUSE, P.O. GA COLLEGE, KOZHIKODE 673 014** **2. SANTHOSH KUMAR.V.K, S/O VASUDEVAN NAIR, NANDANATH HOUSE, P.O. GA COLLEGE, KOZHIKODE 673 014** **3. THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE 673032** **R3 BY ADVS. SRI.A.A.ZIYAD RAHMAN** **SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.Harilal,J.** ==================================== M.A.C.A.No.1503/2014 ==================================== Dated this the 21[st] day of March, 2018. ## **JUDGMENT** 1.The appellants are the petitioners in O.P. (MV)No.1755/2010 on the files of the 2[nd] Additional Motor Accidents Claims Tribunal, Kozhikode. The aforesaid original petition was filed under section 166 of the Motor Vehicles Act, claiming compensation for the loss caused by the death of Shri.Sivadasan and the appellants are the legal representatives of the said Sivadasan. They claimed an amount of Rs.8,00,000/-. But, the Tribunal passed the impugned award granting Rs.4,28,000/- as compensation. This appeal is filed, challenging the adequacy and correctness of the quantum of compensation determined under various heads of Maca1503/2014 ## -:2:- claim by the Tribunal. - 2.Heard the learned counsel for the appellants, the learned counsel for the party respondents and the learned standing counsel for the insurance company. - 3.Learned counsel for the appellants submits that the quantum of compensation granted under the heads, funeral expenses, loss of consortium and loss of estate, is inadequate and disproportionate with the actual sufferings and losses met by the appellants. No amount was granted under the head, loss of love and affection and the monthly income determined by the Tribunal is very low. So also it is contended that in view of the decision of the Apex Court in _**National Insurance Company v. Pranay Sethi & others**_ **[2017 (5) KHC 350]** , the Maca1503/2014 ## -:3:- Tribunal ought to have considered the future prospects of the deceased while determining the monthly income of the deceased. - 4.Per contra, the learned counsel for the insurance company advanced arguments, to justify the quantum of compensation determined under the various heads of claim. According to him, the monthly earnings determined by the Tribunal is just and fair and there is no scope for any interference under any of the heads of claim. In view of the arguments at the bar, the point to be considered is, whether the Tribunal is justified in determining the quantum of compensation under the aforesaid heads of claim. Is the compensation granted by the Tribunal just and fair? - 5.According to the appellants, the deceased Maca1503/2014 -:4:- Sivadasan was aged 44 years only at the time of accident and he was working as a goods autorickshaw driver and he was earning an average income of Rs.8,500/- per month. The Tribunal has taken Rs.3,500/- only as the monthly income. Going by the decision of the Supreme Court in _**Pranay Sethi** 's case (supra_ ), this Court finds that in the aforesaid decision the Supreme Court held that in the case of an accident occurred in the year 2004, Rs.3,500/to Rs.4,500/- can be taken as the monthly notional income. In the instant case, the accident occurred in the year 2010. Having regard to the long lapse of time after 2004, and consequential decrease in money value, this Court finds that the quantum of compensation determined as monthly income is too low and Maca1503/2014 ## -:5:- requires enhancement. Consequently, the quantum of the monthly income of the deceased would stand enhanced and modified to Rs.6,000/- per month. 6.As rightly pointed out by the learned counsel for the appellants, the loss of future prospects in the income of the deceased was not taken into account while determining the loss of dependency. In _**Pranay Sethi** 's case (supra_ ), the Supreme Court held that in cases where the deceased was self-employed or on a fixed salary, an addition of 25% can be made where the deceased was between the age of 40 to 50 years. In the instant case, it is not disputed that the deceased was aged 44 years at the time of accident. In the above view, the total monthly income of the deceased, including the Maca1503/2014 ## -:6:- future prospects at 25%, is Rs.7,500/- per month. Consequently, the compensation for loss of dependency would stand enhanced to Rs.8,40,000/- (7,500 x 12 x 14 x 2/3). - 7.As rightly pointed out by the learned counsel for the appellants, no amount was granted for loss of love and affection. Having regard to the age of the deceased and the age of the appellants, the Tribunal ought to have granted compensation under the head, loss of love and affection also. Hence, the appellants are given Rs.25,000/- towards loss of love and affection. As rightly submitted by the learned counsel for the appellants, Rs.3,000/- was granted for funeral expenses, Rs.10,000/- for loss of consortium and Rs.5,000/- for loss of estate. In view of the decision of the Supreme Court in Maca1503/2014 ## -:7:- _**Pranay Sethi** 's case (supra_ ), the quantum of compensation determined under the aforesaid heads is also inadequate and the same would stand enhanced to Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, respectively. Thus, the total compensation payable to the appellants is Rs.9,48,000/- (2,000 + 1,000 + 15,000 + 40,000 + 15,000 + 10,000 + 8,40,000 + 25,000). 8.It is needless to say, the aforesaid total compensation would carry interest, as stipulated by the Tribunal. All other findings and directions of the Tribunal will stand undisturbed and operative. The third respondent insurance company is directed to deposit the additional compensation granted by this Court also within three months from today. The first appellant is allowed to withdraw 50% of the Maca1503/2014 -:8:- additional compensation granted in this appeal and the balance 50% of the additional compensation shall be deposited in the name of the 2[nd] appellant in any nationalized bank for a period till he attains the age of 18 years and he is also allowed to withdraw the interest for the said fixed deposit, periodically. The 2[nd] appellant is allowed to withdraw the entire amount of compensation, when he attains the age of 18 years. - 9.The M.A.C.A. is disposed of accordingly. All the pending interlocutory applications will stand closed. Sd/- ## **K.Harilal, Judge** sl. //True copy// P.S. To Judge