Manju Kuruvila and Others v. Sunith Kumar Fenn and United India Insurance Co. Ltd.

1 MACA 1635 OF 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** ## **MACA.No.1635 OF 2011(C)** **AGAINST THE AWARD IN OPMV 298/2001 DATED 31-01-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,TRIVANDRUM** ## **APPELLANT/S:** **1 MANJU KURUVILA,W/O.K.K.KURUVILA, FLAT NO.3,SAFA TOWERS,RAJALEKSHMI NAGAR,PATTOM,, THIRUVANANTHAPURAM-4.** - **2 SARAH KURUVILA, D/O.K.K.KURUVILA (DECLARED) AGED 12 YEARS,REP.BY MOTHER MANJU KURUVILA, FLAT NO.3,SAFA TOWERS,RAJALEKSHMI NAGAR,PATTOM, THIRUVANANTHAPURAM-4.** **3 MARIA KURUVILA, D/O.K.K.KURUVILA (DECLARED) AGED 10 YEARS,REP.BY MOTHER MANJU KURUVILA, FLAT NO.3,SAFA TOWERS,RAJALEKSHMI NAGAR,PATTOM, THIRUVANANTHAPURAM-4.IT IS DECLARED THAT THE APPELLANTS 2 AND 3 HAVE ATTAINED THE AGE OF MAJORITY AS PER ORDER DATED 17.06.2015 IN IA 2027/15.** **BY ADVS. SRI.PAUL JACOB (P) SRI.ENOCH DAVID SIMON JOEL SRI.RONY JOSE SRI.GEORGE A.CHERIAN SRI.LEO LUKOSE SMT.SUZANNE KURIAN SHRI.AMAL AMIR ALI SRI.PAUL JACOB (P)** ## **RESPONDENT/S:** - **1 SUNITH KUMAR FENN,MANAGING PARTNER, M/S.GATEWAY SYSTEMS, TC 11/781,VAYAL ROAD,, PLAMOODU,THIRUVANANTHAPURAM.695 004** - **2 UNITED INDIA INSURANCE CO.LTD., DIVISION OFFICE NO.11,MALANKARA BUILDINGS,, PALAYAM,THIRUVANANTHAPURAM.695002** **R2 BY ADV. SRI.P.JACOB MATHEW R2 BY ADV. SRI.MATHEWS JACOB SR.** - **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON** - **17.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 1635 OF 2011 ## **JUDGMENT** ## **Dated this the 17th day of September 2020** The appellants are the claimants in OP(MV) No.298/2001 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The appellants and Smt.Pennamma Kuruvila had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of K.K.Kuruvila in a motor accident on 15.6.2000. The parties are, for the sake of convenience, referred to as per their litigate status in the appeal. 2. It was the case of the appellants and Smt.Pennamma Kuruvila before the Tribunal that the deceased K.K.Kuruvila, the husband of the first appellant, father of appellants 2 and 3 and son of Smt.Pennamma Kuruvila, while travelling in a car bearing registration No.KL-01/S-1771, which was owned and driven by the first respondent and insured the second respondent, collided with tempo 3 MACA 1635 OF 2011 bearing registration No.KL-01/R-235, owned by the third respondent and insured by the fourth respondent in OP(MV)298/2001, and auto rickshaw bearing registration No.KCT-9753, owned by the fifth respondent and insured with the sixth respondent in OP(MV) 298/2001, on the Thiruvallom-Kovalam bye-pass road. The driver of the car lost control and it fell into a ditch. K.K.Kuruvila instantaneously succumbed to the fatal injuries. In the accident, passengers in three vehicles sustained injuries, and another passenger named Sreekumar also lost his life. 3. The appellants along with Smt.Pennamma Kuruvila filed the claim petition before the Tribunal, claiming a total amount of Rs.1,23,73,200/- as compensation, under various heads, which was limited to Rs.60,00,000/-. 4. The second respondent entered appearance and filed a written statement admitting the insurance policy. However, the second respondent denied negligence on the part of the 4 MACA 1635 OF 2011 first respondent. The second respondent also contended that the compensation claimed was excessive and exorbitant. 5. The legal representatives of the deceased-Sreekumar and another injured filed OP(MV) Nos 424/2001 and 1568/2001. A lady claiming to be the wife of Sreekumar filed OP(MV) 68/2002. 6. During the pendency of the claim petition, Smt.Pennamma Kuruvila died. Her legal representatives were impleaded as supplementary petitioners 5 to 11. 7. The Tribunal consolidated the four claim petitions and jointly tried the same. PWs 1 to 3 were examined on the side of the claimants and Exts A1 to A37 were marked in evidence. Exts X1 to X1(C) were marked as Court Exhibits. 8 After considering the pleadings and materials on record, the Tribunal by the impugned common award allowed OP(MV) No.298/2001, in part, by permitting the appellants to realise an 5 MACA 1635 OF 2011 amount of Rs.22,40,000/- as compensation from the respondents 1 and 2 jointly and severally, together with interest at the rate of 7.5% p.a from the date of the claim petition till the date of realisation. 9. The comparative table of compensation that was claimed by the appellants and that was awarded by the Tribunal is as follows:- |SI<br>No||Head of claim|Amount claimed<br>(in rupees)|Amount awarded by<br>the Tribunal(in<br>rupees)| |---|---|---|---|---| |1||Loss of dependency|Rs.77,83,200/-<br>(loss of earning<br>till age of 60)<br>Rs.35,00,000/-<br>(loss of expected<br>future earnings|21,83,680/-| |2||Loss of consortium to first<br>appellant<br>Loss of consortium to second<br>and third appellants|Rs.10,00,000/-|Rs.15,000/-| |||||Rs.15,000/-| |3||Transport to hospital|Rs.5,000/-|Rs.5,000/-| |||Funeral expenses|Rs.30,000/-|| |4||Pain and suffering|Rs.50,000/-|Rs.5,000/-| |5||Damage to clothing and<br>personal effects|Rs.5,000/-|Rs.1,000/-| |6||Loss of estate|Nil|Rs.15,000/-| |||Total|Rs.1,23,73,200/-<br>Claim limited to<br>Rs 60,00,000/-|22,39,680/-<br>compensation<br>was<br>rounded upto Rs<br>22,40,000/-.| 6 MACA 1635 OF 2011 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, under the various heads mentioned above, the appellants have preferred this appeal. 11. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the second respondent. 12. On going through the records, it is seen that, assailing the common award passed in favour of the appellants, the second respondent – Insurance Company had filed MACA No.173/2008 before this Court. A Division Bench of this Court by judgment dated 13.6.2008 dismissed the appeal, inter alia, holding that there was no illegality or irregularity in the impugned award warranting any interference. 13. In view of the dismissal of the appeal filed by the second respondent, and the finding with respect to the negligence of the first respondent becoming conclusive, the sole question that emerges for consideration in this appeal is 7 MACA 1635 OF 2011 whether the compensation fixed by the Tribunal is just, fair and reasonable. 14 A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 15. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Hon'ble Supreme Court has laid down the principles governing determination of quantum of compensation in the case of death in a motor accident. It has been held that 'just compensation' is 'adequate compensation', which is fair and equitable on the facts and circumstances of the 8 MACA 1635 OF 2011 case to make good the loss suffered as a result of a wrong as far as money can do so, by applying the well settled principles relating to award of compensation. ## **Monthly Salary of the deceased** 16. The deceased, on the date of the accident i.e., on 15.6.2000, was aged 37 years. As per Ext A9, the deceased was a M.Tech Post Graduate in Mechanical Engineering from the Indian Institute of Science, Banglore. Ext A10 is the salary certificate issued by the Senior Administration Officer (EST), Vikram Sarabhai Space Centre, Thiruvananthapuram, where the deceased was employed as Scientist/Engineer-SE. It certified that the deceased had a salary of Rs.21,585/-. The Tribunal after relying on Ext A10 salary certificate and Ext A11 Form-16 issued by the Income Tax Department fixed the salary of the deceased at Rs 17,060/-, after deducting the house rent allowance and income tax deductions. 17. The Hon'ble Supreme Court in 9 MACA 1635 OF 2011 **Kalpanaraj and others vs. Tamil Nadu State Transport Corporation [(2015) 2 SCC 764]** has, inter alia, held that house rent allowance cannot be deducted from the income to arrive at the net income of the deceased. In view of the categoric declaration of law in the afore-cited decision, I am of the considered opinion that only the income tax deduction can be taken into account to arrive at the net salary of the deceased. As per Ext A10, the deceased was drawing a monthly salary of Rs.21,585/-. Therefore, after deducting an amount of Rs.2,500/- as income tax deduction, the monthly salary of the deceased is fixed at Rs.19,000/-. ## **Future prospects** 18. On going through the award, it is seen that the Tribunal has erroneously not awarded any amount towards future prospects of the deceased. 19. In **Pranay Sethi and Sarla Verma** (supra), it has been held that while determining the income, 50% of the actual salary has to be added to the income of the deceased, to fix the future prospects, 10 MACA 1635 OF 2011 when the deceased had a permanent job and was below the age of 40 years. In the case on hand, undisputedly, the deceased had a permanent job and was only 37 years old on the ill-fated day. Therefore, I fix the future prospects of the deceased at 50%. ## **Multiplier** 20. Going by the ratio in **Sarla Verma & Pranay Sethi** (supra), as the deceased was aged 37 years, the correct multiplier is 15. The Tribunal wrongly fixed the multiplier as 16. In the said circumstances, I refix the multiplier as 15. ## **Personal and living expenses** 21. In **Sarla Verma** (supra), it has been held that, the personal and living expenses of the deceased should be deducted from the monthly income, to arrive at the contribution to the dependents. In the case on hand, the appellants (3 in number) are the only dependents of the deceased. Thus, one-third of the monthly income of the deceased is to be deducted towards his 11 MACA 1635 OF 2011 ## personal and living expenses. ## **Loss of dependency** 22. Towards loss of dependency, the Tribunal awarded an amount of Rs 21,83,680/-. In view of the finding of this Court that the income of the deceased is Rs.19,000/-, adding 50% towards future prospects and applying 15 as the multiplier after deducting one-third from the total amount, the loss of dependency is refixed as Rs.34,20,000/-, i.e., an additional amount of Rs.12,36,320/-. ## **Funeral Expenses, loss of consortium and loss of estate** 23. The Tribunal granted an amount of Rs.5,000/- towards funeral expenses, an amount of Rs.30,000/- towards loss of consortium and Rs.15,000/- towards loss of estate. 24. In view of the law laid down in **Pranay Sethi** (supra) which was followed in **Santosh Devi vs Mahaveer Singh [(2018) 9 SCC 146]** and **Sureshchandra Bagmal Doshi vs. New India** 12 MACA 1635 OF 2011 **Assurance Co. Ltd [(2018) 15 SCC 649]** the compensation payable under the conventional heads of loss of estate, loss of consortium and funeral expenses is Rs.15,000/-, Rs 40,000/- and Rs.15,000/-, respectively. The Tribunal awarded only an amount of Rs.5,000/- under the heads - transportation to hospital and funeral expenses. Hence, I enhance the same by an additional amount of Rs 10,000/-. Under the head - loss of consortium, the Tribunal awarded only an amount of Rs.30,000/-. In view of the decisions cited supra, I enhance the amount by Rs.90,000/-. 25. In respect of the head of claim- damage to clothing and personal effects, I find that reasonable and just compensation has been awarded. 26. Therefore, on an overall appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the considered opinion that the appellants are entitled for 13 MACA 1635 OF 2011 ## enhancement of the amounts as modified and recalculated above and given in the table below for easy reference. |SI<br>No||Head of claim|Amount claimed<br>(in rupees)|Amount<br>awarded by the<br>Tribunal(in<br>rupees)|Amounts<br>modified and re<br>calculated by<br>this Court| |---|---|---|---|---|---| |1||Loss of dependency|Rs.77,83,200/-<br>(loss of earning<br>till age of 60)<br>Rs.35,00,000/-<br>(loss of<br>expected future<br>earnings|Rs.21,83,680/-|Rs.34,20,000/-| |2||Loss of consortium to<br>first appellant<br>Loss of consortium to<br>second and third<br>appellants|Rs.10,00,000/-|Rs.15,000/-|Rs.1,20,000/-| |||||Rs.15,000/-|| |3||Transport to hospital|Rs.5,000/-|Rs.5,000/-|Rs.15,000/-| |||Funeral expenses|Rs.30,000/-||| |4||Pain and suffering|Rs.50,000/-|Rs.5,000/-|Rs.5,000/-| |5||Damage to clothing<br>and personal effects|Rs.5,000/-|Rs.1,000/-|Rs.1,000/-| |6||Loss of estate|Nil|Rs.15,000/-|Rs.15,000/-| |||Total|Rs.1,23,73,200/<br>-<br>Claim limited to<br>Rs 60,00,000/-|22,39,680/-<br>compensation<br>was<br>rounded<br>upto<br>Rs<br>22,40,000/-.|Rs.35,76,000/-| 27. The Tribunal has granted interest on the compensation amount @ 7.5% per annum. A three Judge Bench of the Hon'ble Supreme Court in **United India Insurance Co. Ltd v. Satinder** 14 MACA 1635 OF 2011 ## **Kaur @ Satwindr Kaur and Others [2020 (3)** **KHC 760 (SC)]** has directed interest to be paid @ of 12 % p.a. However, considering the fact that the entire amount that was awarded by the Tribunal has been paid to the appellants, I follow the decision of the Hon'ble Supreme Court in **MCD v. Uphaar Tragedy Victims Association [(2011) 14 SCC 481].** Accordingly, I fix the interest @ of 9% p.a. 28. In the result, the appeal is allowed in part. The compensation granted by the Tribunal is modified and enhanced by granting the appellants a further amount of Rs.13,36,000/- (Rupees Thirteen Lakhs Thirty Six Thousand only) by way of compensation, with interest @ of 9% p.a on the enhanced amount, from the date of petition till the date of realisation, excluding the period of delay of 1718 days in filing the appeal, and proportionate costs. The second respondent shall satisfy the additional compensation awarded in this appeal with interest and the proportionate costs by 15 MACA 1635 OF 2011 depositing the said amount before the Tribunal, within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the appellants towards balance court fee and legal benefit fund. The Tribunal shall disburse the additional compensation to the appellants, in accordance with law. Sks/17.9.2020 **C.S.DIAS JUDGE**