M.A.C.A.No.2527 of 2012

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ## `MACA NO. 2527 OF 2012` ``` AGAINST THE AWARD DATED 04.07.2012 IN O.P(M.V)NO. 287/2008 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL, OTTAPALAM ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE NEW INDIA ASSURANCE COMPANY LIMITED, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G. ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER. ``` ``` BY ADV SRI.VPK.PANICKER ``` ## `RESPONDENTS/RESPONDENTS 1, 2, 4 & 5 AND PETITIONER:` ``` 1J.MARIYAPPAN, S/O. JAMBULINGAM PILLAI, 205/72, NORTH STREET, RETTI THOTTAM, ALLIKULAM, ANNUR, TAMIL NADU - 641 653. 2M/S.AMBAL & CO., 79-D, AVINASHI ROAD, ANNUR, AVINASHI TALUK, TAMILNADU - 641 653. 3BALAKRISHNAN V., S/O. ITTRAPPAN NAIR, KANDATH PADINJHARE HOUSE, “K.P. HOUSE”, NEAR BHARATH GAS GODOWN, P.O. PALLIPPURAM, OTTAPALAM – 678006. 4SUSEELA K.P., W/O. BALAKRISHNAN NAIR, KANDATH PADINNARE HOUSE, “K.P. HOUSE”, NEAR BHARATH GAS GODOWN, P.O. PALAPPURAM, OTTAPALAM TALUK- 678 006. 5BINITHA K.P. W/O. LATE SANTHOSH, KANDATH PADINHARE HOUSE, “K.P. HOUSE”, NEAR BHARATH GAS GODOWN, P.O. PALLIPPURAM, OTTAPALAM TALUK - 678 006. BY ADV DR.GEORGE ABRAHAM ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2527 of 2012 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 15[th] day of March, 2023** This appeal is directed against an award passed by Motor Accident Claims Tribunal, Ottapalam (for short ‘the Tribunal’) on 04.07.2012 in O.P(M.V) No.287/2008. The appellant is the 3[rd] respondent/insurer of the offending vehicle before the Tribunal. 2. For the sake of clarity and convenient disposal of the matter on hand, the parties to this appeal will hereinafter be referred to as the 3[rd] respondent and respondents 1, 2, 4 and 5 and the petitioner in accordance with their status in the Original Petition. 3. Challenge was raised against the impugned award on twin grounds. Firstly, against the monthly income taken by the Tribunal as ₹10,000/- and secondly against the non-grant of right of recovery of the compensation amount in their favour despite adverse inference drawn by the Tribunal that the driver of the offending vehicle was not holding a valid driving ``` M.A.C.A.No.2527 of 2012 ``` ``` 3 ``` licence at the relevant time of the motor accident. 4. The factual milieu of the case in short are as follows: On 27.08.2006, one Mr.Santhosh succumbed to the injuries sustained in a motor accident occurred at about 11.45 hrs on 22.08.2006 at Tirupur. He was riding his Motorcycle bearing Registration No.KL 9S 2290 and upon reaching J.G.Nagar, Tirupur, a Tipper Lorry bearing Registration No.TN 40Y 6576 knocked him down owing to the rash and negligent driving by its driver. He sustained serious head injuries. He was rushed to Revathi Hospital at Tirupur. His condition being reported serious and critical, he was referred to Kovai Medical Center, Coimbatore for expert management. While undergoing treatment there as inpatient, he succumbed to the injuries on 27.08.2006. The motor accident was allegedly occurred due to the rash and negligent driving of the Tipper Lorry by its driver. A sum of ₹16,00,000/- was claimed as compensation. ``` M.A.C.A.No.2527 of 2012 ``` ``` 4 ``` 5. In the Original Petition, the driver, the owner and the insurer of the Tipper Lorry were arrayed as respondents 1 to 3. The parents of the deceased were arrayed as respondents 4 and 5 in the Original Petition on hand. All respondents were served with notice. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition. 3[rd] respondent filed written statement contending that the 1[st] respondent was not responsible for the motor accident as he was driving the Tipper Lorry in a careful manner, and that the motor accident in question was occurred due to the rash and negligent riding of the Motorcycle by the deceased himself. 3[rd] respondent further contended that the 1[st] respondent who was driving the Tipper Lorry was not holding a driving licence to drive the same at the relevant time of the motor accident and that the compensation claimed is excessive and without any basis. 6. 4[th] and 5[th] respondents had filed a joint written statement contending that they are parents of the ``` M.A.C.A.No.2527 of 2012 ``` ``` 5 ``` deceased and totally dependent on the deceased for their livelihood. 7. Before the Tribunal, evidence was adduced by both parties. Evidence of the petitioner consists of the deposition of PW1 who is none other than the employer of the deceased and Exts.A1 to A19 and Ext.X1. The evidence of the respondents consist of Ext.B1. On the basis of the evidence adduced, the Tribunal concluded that the petitioner and respondents 4 and 5, being the legal representatives of Santhosh are entitled to get compensation and arrived at ₹14,86,450/- as the compensation payable. It directed the 3[rd] respondent, insurer to deposit the said sum with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation. The compensation was directed to be realised from respondents 1 to 3 jointly and severally. The 3[rd] respondent was directed to deposit the sum within 30 days from the date of the award. ``` M.A.C.A.No.2527 of 2012 ``` ``` 6 ``` 8. The grievances of the insurer are already discussed with. According to the learned counsel for the insurer, the petitioner had claimed ₹25,000/- as the monthly income of Santhosh, the deceased in the Original Petition. He was alleged to be working as a Senior Merchandiser in Online Fashions, Tirupur. According to them he was aged 26 years at the relevant time of his death. The Manager of Online Fashions, Tirupur was examined before the Tribunal as PW1. He had gone to the extent of stating that the deceased was working as a Senior Merchandiser in the firm and drawing a salary of ₹25,000/-. He also caused to produce Ext.X1, the salary register to establish his version. But it is found that the deduction from the salary towards TDS is not shown in Ext.X1. Therefore, the Tribunal discarded the oral evidence of PW1 and Ext.X1 and fixed ₹10,000/- as the monthly income notionally. According to the learned counsel, since the Tribunal decided not to rely on Ext.A14 and Ext.X1, it ``` M.A.C.A.No.2527 of 2012 ``` ``` 7 ``` ought not to have fixed ₹10,000/- as the monthly income. The learned counsel canvassed for fixation of ₹6,750/- as the monthly income. 9. PW1 had gone to the extent of stating that TDS was not stated in Ext.X1. It is also noticed from the evidence of PW1 that he failed to state the date on which Mr.Santhosh joined the firm. PW1 also failed to say who was the Manager of the Firm at the relevant time. In the above circumstances, the Tribunal is justified in not relying on the oral evidence of PW1 and Ext.X1. The Tribunal is not justified in fixing the monthly income of the deceased notionally as ₹10,000/-. This Court is inclined to fix ₹6,750/- being a reasonable sum and to calculate compensation payable on its basis. 10. It is pertinent to note that the Tribunal failed to consider loss of future prospects while calculating compensation for loss of dependency. The Tribunal also failed to award the eligible amount as compensation ``` M.A.C.A.No.2527 of 2012 ``` ``` 8 ``` under the conventional heads. But, the Tribunal has awarded compensation under several heads, for which the petitioner and respondents 4 and 5 are not entitled to. In view of that, the award passed by the Tribunal and under challenge herein is set aside and the compensation payable is calculated afresh. 11. Mr.Santhosh died at his age of 26 years and therefore 40% is added to the monthly income fixed, in consideration of loss of future prospects. Thus, ₹9,450/(₹6,750/- + 40% of ₹6,750/-) is arrived at. Compensation for loss of dependency when calculated on the basis of the above, 17 as the multiplier, and 1/3[rd] as the deduction, ₹12,85,200/- (₹9,450/- X 17 X 12 x 2/3) is arrived at. 12. The petitioner and respondents 4 and 5 are also entitled to get ₹16,500/- each as compensation towards funeral expenses and loss of estate as directed by the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and** ``` M.A.C.A.No.2527 of 2012 ``` ``` 9 ``` **others [2017 (4) KLT 662 (SC)].** Similarly, petitioner and respondents 4 and 5 are also entitled to get ₹44,000/- each as compensation towards loss of consortium. Thus ₹1,32,000/- (₹44,000/- x 3) is arrived at. Therefore, compensation in tune with their entitlement are also awarded under the respective heads. 13. Medical bills for ₹81,413/- were produced by the petitioner before the Tribunal and that amount is also awarded towards treatment expenses. 14. In the above manner of assessment afresh, ₹15,31,613/- (Rupees Fifteen lakhs thirty one thousand six hundred and thirteen only) (₹12,85,200/- + ₹16,500/- + ₹16,500/- + ₹1,32,000/- + ₹81,413/-) is arrived at as the total compensation payable. 15. A specific contention was taken by the 3[rd] respondent in his written statement that the 2[nd] respondent was driving the tipper lorry at the relevant time of the motor accident without holding a driving ``` M.A.C.A.No.2527 of 2012 ``` ``` 10 ``` licence. The 3[rd] respondent had filed I.A. No.2258/2009 and sought for a direction against respondents 1 and 2 for production of the driving licence. Interlocutory Application was allowed and direction was issued by the Tribunal to the 1[st] and 2[nd] respondents to produce the driving licence. They did not produce it and therefore adverse inference was drawn against them by the Tribunal. Thus, direction was issued to the 3[rd] respondent to pay the total compensation arrived at by this Court now, with interest accrued on it at the rate of 7% per annum from the date of filing of the Original Petition till realisation, within a period of two months from the date of receipt of a certified copy of this Judgment, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019 and thereafter to get it recovered from respondents 1 and 2. M.A.C.A. is allowed in part accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB