M.A.C.A.No.563 of 2014

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 29TH DAY OF MAY 2019 / 8TH JYAISHTA, 1941** ## **M.A.C.A.No.563 of 2014** **AGAINST THE AWARD DATED 31-07-2013 IN O.P.(MV)NO.1227/2007 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/3RD RESPONDENT IN THE OP:** **THE ORIENTAL INSURANCE CO. LTD., THODUPUZHA, REPRESENTED BY ITS AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI -18.** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENTS/CLAIMANTS IN THE OP:** **1 SMT. ANUPAMA, W/O. RAKESH, “ARAVINDAM”, ZEALOT STREET, GOVINDAPURAM, KOZHIKKODE - 673016. 2 VISHNU, S/O. RAKESH (MINOR) -DO- -DO3 ANAGHA, D/O. RAKESH (MINOR) -DO- -DO-** **4 SMT. HYMA RAGHAVAN, W/O. RAGHAVAN, RESIDING AT RAGAM, FC ROAD, RAMANATTUKARA POST, CALICUT.673633 (MINOR RESPONDENTS 2 AND 3 REPRESENTED BY THEIR MOTHER AND NEXT FRIEND -THE IST RESONDENT)** **BY ADV. SRI.K.LAKSHMINARAYANAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2019, ALONG WITH CO.97/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.563 of 2014 & CROSS OBJECTION No.97 of 2014 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 29TH DAY OF MAY 2019 / 8TH JYAISHTA, 1941** **CROSS OBJECTION.No.97 of 2014 IN M.A.C.A.563/2014** **AGAINST THE AWARD DATED 31.07.2013 IN O.P.(MV)NO.1227/2007 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD** ## **CROSS OBJECTORS/RESPONDENTS 1 TO 4 IN MACA 563/14** **1 SMT.ANUPAMA, W/O.RAKESH, ARAVINDAM, ,ZEALOT STREET, GOVINDAPURAM, KOZHIKODE - 16. 2 VISHNU (MINOR), S/O.RAKESH, ARAVINDAM, ZEALOT STREET, GOVINDAPURAM, KOZHIKODE - 16. 3 ANAGHA (MINOR), D/O.RAKESH, ARAVINDAM, ZEALOT STREET, GOVINDAPURAM, KOZHIKODE - 16. (MINOR 2 AND 3 REPRESENTED BY THEIR MOTHER AND NEXT FRIEND THE 1ST RESPONDENT) 4 SMT.HYMA RAGHAVAN, W/O.RAGHAVAN, RESIDING AT RAGAM, F.C.ROAD, RAMANATTUKARA POST, CALICUT.** **BY ADV. SRI.K.LAKSHMINARAYANAN** ## **RESPONDENTS/APPELLANT IN MACA 563/14:** **THE ORIENTAL INSURANCE CO.LTD., JYOTHI SUPER BAZAR, THODUPUZHA, IDUKKI - 685 584. (INSURER OF TIPPER LORRY POLICY NO.2007/16124)** **BY ADV. SRI.A.R.GEORGE** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2019, ALONG WITH MACA.563/2014, THE COURT ON THE SAME DAY** M.A.C.A.No.563 of 2014 & CROSS OBJECTION No.97 of 2014 -3- ## **DELIVERED THE FOLLOWING:** ## **M.A.C.A.No. 563 of 2014** ## **& Cross Objection No.97 of 2014** ## **--------------------------------------------------** ## **J U D G M E N T** The appeal is by the insurer in a proceedings for compensation before the Motor Accident Claims Tribunal challenging the quantum of compensation granted by the Tribunal and the cross objection is by the claimants challenging inadequacy of the quantum of compensation. 2. One Rakhesh died in a motor accident took place on 16.10.2007. He was aged 42 years at the time of accident. Rakhesh was working in a private pharmaceutical company. His wife, two minor children and mother were the claimants in the proceedings. A sum of Rs.33,90,000/- was claimed by way of compensation in the proceedings. The Tribunal, on an appraisal of the materials on record, granted to the claimants a sum of Rs.25,13,720/-. As noted, both the insurer as also the claimants are aggrieved by the quantum of compensation fixed by the Tribunal. Hence this appeal and cross objection. M.A.C.A.No.563 of 2014 & CROSS OBJECTION No.97 of 2014 -4- 3. Heard the learned counsel for the appellant as also the learned counsel for the cross objectors. 4. Placing reliance on Exts.A6 and A7 series pay slips produced by the claimants to prove the income of the deceased, it was contended by the learned counsel for the appellant that the net income drawn by the deceased in terms of the said pay slips includes approximately Rs.7,000/- received by him by way of travelling allowance also. According to the learned counsel, in the matter of computing the compensation for loss of dependency, the Tribunal should not have taken into account the travelling allowance earned by the deceased. It was also contended by the learned counsel that in so far as the deceased was aged 42 years, only 25% of the income should have been added towards future prospects and the Tribunal, instead, added 30% of the income towards future prospects. 5. Per contra, the learned counsel for the claimants contended that the travelling allowance shown in the pay slips was part of the salary package of the deceased and he was entitled to receive the same M.A.C.A.No.563 of 2014 & CROSS OBJECTION No.97 of 2014 -5- irrespective of the fact whether he is travelling. As such, according to the learned counsel, the Tribunal cannot be found fault with for having reckoned the entire amount shown in the pay slips as the monthly income of the deceased. It was also contended by the learned counsel that the Tribunal has deducted 1/3rd of the income of the deceased towards personal expenses. It was pointed out that in so far as the dependants of the deceased were four in number, the Tribunal should have deducted only 1/4th of the income towards personal expenses. It was also contended by the learned counsel that no compensation has been granted to the claimants towards pain and suffering. It was also pointed that the compensation granted by the Tribunal towards loss of love and affection is grossly inadequate. 6. It is seen that the Tribunal has reckoned 30% of the income of the deceased towards future prospects . In the light of the decision of the Apex Court in ## **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], in so far the deceased was aged 42 M.A.C.A.No.563 of 2014 & CROSS OBJECTION No.97 of 2014 -6- years at the time of accident, only 25% of the income could have been reckoned for future prospects. The contention raised by the appellant in this connection is, therefore, to be accepted. 7. It is seen that Exts.A6 and A7 series pay slips have been proved by the claimants through an officer of the employer of the deceased. The said documents would indicate that the deceased was drawing Rs.18,769/Rs.17,666/- and Rs.17,385/- by way of gross salary during July, August and September 2007. The average of the said amount would come to Rs.17,940/-. In the light of the said documents, the Tribunal has reckoned the monthly income of the deceased at Rs.18,000/-. These documents, however, show that approximately Rs.7,000/-was being disbursed every month by the employer to the deceased by way of travelling allowance. As noted, the contention raised by the learned counsel for the appellant is that the travelling allowance paid to the deceased was by way of reimbursement of the expenses incurred in that connection and the same cannot, therefore, be regarded as the M.A.C.A.No.563 of 2014 & CROSS OBJECTION No.97 of 2014 -7- income of the deceased. Materials on record are not sufficient to come to a correct conclusion as to the rival contentions raised by the parties on this aspect. Though the representative of the employer who issued Exts.A6 and A7 series pay slips was examined as PW1, he was not cross-examined by the appellant on this aspect. As compensation is granted to the claimants in terms of a welfare legislation intended for their benefit, according to me, the benefit of this doubt shall go in favour of the claimants. Of course, 10% of the income has to be deducted towards income tax as it has come out that the deceased was an income tax assessee. The monthly income of the deceased to be reckoned for computing the compensation payable for loss of dependency would, therefore, be Rs.16,200/-. The compensation for loss of dependency payable to the claimants would thus work out to be Rs.25,51,500/-(Rs.16,200x125/100x14x12x3/4). In so far as the Tribunal has granted a sum of Rs.23,58,720/- to the claimants, they are entitled to a further sum of Rs.1,92,780/- by way of compensation under the said head. M.A.C.A.No.563 of 2014 & CROSS OBJECTION No.97 of 2014 -8- As rightly pointed out by the learned counsel for the claimants, no compensation is granted by the Tribunal towards pain and suffering. A sum of Rs.10,000/- should have been granted by the Tribunal under that head. Similarly, only a sum of Rs.25,000/- has been granted towards compensation for love and affection. In the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), according to me, the Tribunal should have granted a sum of Rs.40,000/- to the mother of the deceased towards filial consortium and Rs.40,000/- each to the children towards parental consortium. In other words, a sum of Rs,1,20,000/- should have been granted in the place of Rs.25,000/-. In other words, the claimants are entitled to an additional compensation of Rs.95,000/- under those heads. Likewise, towards loss of estate, only a sum of Rs.5,000/- is seen granted. In the light of the decision of the Apex Court in **Pranay Sethi,** the claimants are entitled to a minimum of Rs.15,000/- under that head. The claimants are, therefore, entitled to a further sum of Rs.10,000/- under M.A.C.A.No.563 of 2014 & CROSS OBJECTION No.97 of 2014 -9- that head. Thus, the total additional compensation payable to the claimants would work out to be Rs.3,07,780/-. 8. It is seen that the wife of the deceased was entitled to only a sum of Rs.40,000/- by way of compensation for loss of consortium and the Tribunal has granted a sum of Rs.1,00,000/- in that place. Again, towards funeral expenses, the claimants were entitled to only a sum of Rs.15,000/- and the Tribunal has granted a sum of Rs.25,000/- under that head. In other words, a sum of Rs.70,000/- has been granted by the Tribunal in excess under the aforesaid heads. If the excess amount granted by the Tribunal is adjusted against the additional compensation to which the claimants are found entitled, the net additional compensation payable to the claimants would be Rs.2,37,780/-. 9. In so far as it is found that the claimants are entitled to more compensation than what was granted, the appeal preferred by the insurer is liable to be dismissed and the cross-objection is liable to be allowed in part. In the result, the appeal is dismissed and the M.A.C.A.No.563 of 2014 & CROSS OBJECTION No.97 of 2014 -10- cross objection is allowed granting to the claimants an additional compensation of Rs.2,37,780/-. Needless to say, the claimants will be entitled to interest for the additional amount of compensation at the rate of 7.5%. The parties are at liberty to move the Tribunal for directions as regards deposit of the additional compensation granted and for the disbursal thereof. ## **Sd/-** **P.B.SURESH KUMAR** **JUDGE** vv