MACA.No.232 OF 2013

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942** **MACA.No.232 OF 2013** **AGAINST THE AWARD IN O.P.(M.V)No.246/2009 DATED 14-05-2012 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/4TH RESPONDENT IN THE O.P.(M.V.)** **THANKAMMA,** **W/O.LATE HARIHARAN, NOW RESIDING AT KALATHITHARA HOUSE, KOODANTHURUTH, KUTHIYATHODU P.O, CHERTHALA.** **BY ADV. SRI.T.R.SUGUNAN** ## **RESPONDENTS/PETITIONER (CLAIMANT)AND RESPONDENTS:** - **1 CHITHRA,W/O.PRAKESAN, AGED 25, PUTHUVALSALAM HOUSE, MARADU P.O., MARADU VILLAGE, ERNAKULAM. PIN - 682 304.** - **2 ALEX JACOB,S/O.BABU JOSEPH, H.NO.KVRA 351, VADEKKADU JUNCTION, 19TH WARD, THIRUVANANTHAPURAM CORPN. PIN – 695 146.** - **3 THE DIRECTOR, SURAT GOODS TRANSPORT PVT. LTD, XL/970, KANNAKKAT BUIDING, T.D ROAD, ERNAKULAM. PIN – 682 018.** - **4 HDFC GENERAL INSURANCE CO.LTD. 6TH FLOOR, LEELA BUSINESS PARK, ANDHERI-KURLA ROAD, ANDHERI WEST, MUMBAI-400 055.** - **5 ASHA, W/O.HARI, KALATHITHARA HOUSE, KOODANTHURUTH, KUTHIYATHODU P.O, CHERTHALA. PIN – 688 533** **R1 BY ADV. SMT.SATHI KUMARI S.S. R2 BY ADV. SRI.V.S.RAJAN R4 BY ADV. SRI.GEORGE CHERIAN (SR.) R4 BY ADV. SMT.K.S.SANTHI R4 BY ADV. SMT.LATHA SUSAN CHERIAN R5 BY ADV. SRI.R.DIVAKARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.232 OF 2013** **2** ## **JUDGMENT** **Dated this the 9[th] day of February, 2021** The award passed by Additional Motor Accidents Claims Tribunal, Ernakulam (for short, 'the Tribunal') on 14.05.2012 in O.P.(M.V.)No.246 of 2009 is taken under challenge in the appeal on hand by the 4[th] respondent. The Tribunal has awarded a sum of Rs.1,65,000/- (Rupees One Lakh Sixty Five Thousand only) as compensation in favour of the appellant and respondents 1 and 5 against a claim for compensation made for Rs.3,70,000/-. The 3[rd] respondent, the insurer of the offending vehicle was directed by the award to deposit the above sum awarded as compensation with interest at the rate of 9% per annum from the date of the petition till realisation. The compensation awarded was directed to be deposited within 30 days from the date of receipt of a copy of the award and paid in the ratio 5:90:5 to respondent No.1, appellant and respondent No.5 respectively. 2. According to Sri.Sugunan T.R., the learned counsel for the appellant though the monthly income of the deceased was **MACA.No.232 OF 2013 3** specifically pleaded in the petition seeking compensation as Rs.5,000/-, monthly income was fixed by the Tribunal notionally as Rs.3,000/- and compensation was assessed on its basis. It is further contended by the learned counsel that the compensation was awarded under the heads, transportation expenses, loss of dependency, funeral expenses, loss of Consortium, pain and sufferings, loss of love and affection and loss of estate are on the lower side and therefore unjust and unreasonable. According to the learned counsel, the victim died on the date of accident itself, while being transported to the hospital. Though Rs.5,000/- was claimed towards transportation expenses, the Tribunal failed to award any sum under that head. According to him, the deceased was a fisherman and since he died in the year 2009, the Tribunal ought to have taken Rs.5,000/- as the monthly income for assessment of compensation towards loss of dependency. Inviting this Court's attention to **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (5) KHC 350]** , it was contended that the petitioners are entitled to get Rs.15,000/- as compensation for funeral expenses and the Tribunal is unjustified in awarding only Rs.5,000/-. According to him, Rs.15,000/- each awarded by the Tribunal under the head loss of consortium and **MACA.No.232 OF 2013 4** loss of love and affection, when viewed in the light of **National Insurance Company Ltd** supra, wherein the direction of the Apex Court was to grant Rs.40,000/- each, is also on the lower side and interference is called for. 3. A perusal of **National Insurance Company Ltd** supra would reveal that the Apex court after holding a detailed analysis of the questions thereto, recorded the following conclusions: “(i) The two – Judge Bench in Santosh Devi should have been well advised to refer the matter to a Larger Bench as it was taking a different view than what has been sated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. **MACA.No.232 OF 2013** **5** (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, he tribunal and the Courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproudced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier.” 4. Since evidence either oral or documentary was not adduced by the claimant to establish that the deceased was getting a sum of Rs.5,000/- monthly from his job as a fisherman, the Tribunal was constrained to take the monthly income as Rs.3,000/- notionally. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** [(2011)13 SCC 236] the Apex Court had taken Rs.4,500/- as the monthly income for a coolie worker, who met with a motor accident in the year 2004. **MACA.No.232 OF 2013 6** Therefore the Tribunal is justified in taking Rs.5,000/- as the monthly income of the victim who died in a motor accident occurred in the year 2009. 5. The age of the deceased was stated by petitioner in the petition seeking compensation as 60 years but in Ext.A8 postmortem certificate produced by the claimant before the Tribunal the age is shown as 65 years. An authentic document to establish the age of the deceased is not forthcoming in evidence. In that context the Tribunal was constrained to take the age as shown in the postmortem certificate and the multipler of 7 corresponding to that. 6. The learned counsel for the respondent urged on the basis of the direction of the Apex Court in **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)] that 50% of the monthly income is liable to be deducted towards the personal living expenses of the deceased. The original claimant and the elder daughter of the deceased arrayed in the Original Petition as the 5[th] respondent had foregone their status as dependents of the deceased in view of their marriage. According to him, the appellant alone being the dependent of the deceased, only half of the **MACA.No.232 OF 2013** **7** monthly income must be taken as the monthly income contributed to her for the purpose of assessment of compensation. 7. In the context on hand, the deceased being aged above 60 years (65 years as per postmortem certificate) an addition to the annual income in consideration of future prospects is not possible. As held by the Apex Court in **Sarla Verma** supra, the deceased if married and left two-three family members as dependents, 1/3[rd] of the monthly income shall be deducted in consideration of personal and living expenses of the deceased or in other words, 2/3[rd] shall be taken as the contribution of the deceased to his family members consisting of two three members. In the case on hand, the deceased was survived by the appellant/wife and two daughters. The original claimant before the Tribunal was the younger daughter and the 5[th] respondent therein was the eldest daughter. The original claimant and the 5[th] respondent being married, cannot claim as dependents of the deceased. Therefore the appellant alone being the dependent, there is every justification for this Court to consider half of the monthly income of the deceased as contribution towards family. When compensation towards loss of dependency is assessed with the modified factors as above Rs.2,10,000/- (Rs.5000/- x 12 x 7 x ½ ) is arrived at as payable. **MACA.No.232 OF 2013 8** 8. The Apex Court has held in **National Insurance Company Ltd** supra that Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively would be reasonable sums payable as compensation under the conventional heads of loss of estate, loss of consortium and funeral expenses. Rs.5,000/- and Rs.15,000/having been awarded by the Tribunal under the respective heads funeral expenses and loss of consortium, in view of **National Insurance Company Ltd** supra, this Court is justified in granting Rs.10,000/- and Rs.25,000/- more respectively under those heads. Since the Tribunal failed to award any compensation under the head loss of estate, in view of **National Insurance Company Ltd** supra, the appellant is entitled to get Rs.15,000/-. The Tribunal failed to award any compensation towards transportation expenses, though a claim for Rs.5,000/-was made by the claimants. This Court finds it reasonable to award Rs.5,000/- itself towards transportation expenses. Enhancement sought for Pain and Sufferings cannot be granted for the reason that the deceased died on the way to the hospital itself. In the result, the appeal stands allowed. The total compensation payable is enhanced from Rs.1,65,000/- to Rs.3,10,000/-. The interest rate of 9% as fixed by the Tribunal is **MACA.No.232 OF 2013 9** maintained. In the fixation of compensation a sum of Rs.1,45,000/is found payable in addition to the original compensation awarded. The 4[th ] respondent shall deposit the compensation in favour of the appellant within two months from the date of receipt of a copy of this judgment. The appellant alone is entitled to get Rs.1,45,000/and its interest. The Tribunal shall disburse the amount to the appellant in accordance with the practice prevalent there. Sd/- MARY JOSEPH JUDGE MJL **MACA.No.232 OF 2013 10** ## **APPENDIX** ## **APPELLANT'S ANNEXURE:** ## **ANNEXURE I** **: THE ORIGINAL PASSBOOK NO.13067 OF FISHERMEN'S WELFARE FUND BOARD WITH MEMBERSHIP NO.3837 OF MUHMMA ULNADAN MATSYA VILLAGE, ALAPPUZHA.** **RESPONDENTS' ANNEXURE** : : **NIL** **/TRUE COPY/** **P A TO JUDGE**