Manuel T.J. and others v. Remold A.J. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943 MACA NO. 993 OF 2012** **AGAINST THE AWARD DATED 27.10.2011 IN OPMV 1229/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/PETITIONERS:** 1 MANUEL T.J. AGED 56 YEARS F/O.LATE DAVID, S/O.JOSHAW, 'BETH-APHREM', PALLURUTHY.P.O. 2 AMMINI AGED 52 YEARS W/O.MANEL, M/O.LATE DAVID, 'BETH-APHREM', PALLURUTHY.P.O. 3 JAMES AGED 28 YEARS S/O.MANUEL, B/O.LATE DAVID, 'BETH-APHREM', PALLURUTHY.P.O. 4 JEMIMAH AGED 20 YEARS D/O.MANUEL, SR/O LATE DAVID, 'BETH-APHREM', PALLURUTHY.P.O. 5 RHODA AGED 18 YEARS D/O.MANUEL, SR/O.LATE DAVID, 'BETH-APHREM', PALLURUTHY.P.O. BY ADVS. SRI.KISHOR B. SRI.AJAY JOHNS SRI.TOMS MATHEW **MACA NO. 993 OF 2012 2** ## **RESPONDENTS/RESPONDENTS:** 1 REMOLD A.J. ANCHUTHAIKAL HOUSE, CHULLICKAL, KOCHI-682005. 2 VINU S/O.MURALEEDHARAN, PUTHANATT CHIRA, NADAKKAVU P.O., UDAYAMPEROOR. 3 THE NEW INDIA ASSURANCE CO.LTD. ERNAKULAM, COCHIN-682 018. BY ADV LAL K.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 993 OF 2012 3** ## **Dated this the 2[nd ] day of November, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP(MV) 1229/2010 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of ’David’(deceased), the son of the appellants 1 and 2 and the brother of the appellants 3 to 5. It was their case that, on 07.06.2010, while the deceased was riding his motorcycle bearing registration No. KL 7/AL 9041 from Ernakulam to Thoppumpady, when he reached the BOT bridge, a car bearing registration No. KL 7/ AZ 2540 (car) driven by the 2[nd] respondent in a negligent manner, hit the motorcycle. The deceased sustained serious injuries and was rushed to the Medical Trust Hospital, Ernakulam. Even though he **MACA NO. 993 OF 2012 4** was treated for a period of 12 days, he lost his life on 19.06.2010. The deceased was a bachelor. He was employed as a supervisor with a private builder and was earning a monthly income of Rs.11,000/-. The car was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellants were the dependents of the deceased. The appellants claimed a compensation of Rs.37,27,000/- from the respondents, which was limited to Rs.20,00,000/-. 3. The 1[st] appellant, who was the pillion rider on the motorcycle, also filed OP(M.V) No.1261/2010 before the same Tribunal, seeking compensation on account of the injuries sustained in the same accident. 4. The respondents contested the claim petitions by filing separate written statements in both the claim petitions. They refuted the allegations in the claim petitions and contended that the accident occurred due to the negligence of the deceased and that the amounts claimed in ## **MACA NO. 993 OF 2012 5** the claim petitions were excessive. 5. The Tribunal consolidated and jointly tried the two claim petitions. 6. A witness was examined as PW1 on the side of the petitioners and Exhibits A1 to A24 were marked in evidence. Exhibits X1 and X2 were summoned and marked as court exhibits. 7. The Tribunal by its common award, allowed the captioned claim petition, by permitting the appellants to realise from the 3[rd] respondent an amount of Rs.13,17,360/with interest @ 8% per annum from the date of petition till the date of realisation and proportionate costs. The compensation amount was directed to be apportioned among the appellants in the ratio of 35:35:10:10:10. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard Sri.Kishore B., the learned counsel appearing for the appellants/petitioners and Sri.Lal K. ## **MACA NO. 993 OF 2012 6** Joseph, the learned counsel appearing for the third respondent/insurer. 10. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Exhibit A2 charge sheet filed by the Kochi City Traffic Police clearly substantiates that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. The 3[rd] respondent had admitted that the car had a valid insurance policy and had not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income of the deceased** 12. The appellants had averred that the deceased was a **MACA NO. 993 OF 2012 7** supervisor by profession and working with a private builder. They claimed that he was drawing a salary of Rs.11,000/-. They produced Exhibit A23 salary slip, Exhibit X1 and X2 pay slips and proved the same through PW1. However, the Tribunal after deducting the tax quotient, fixed the monthly income of the deceased at Rs.10,000/-. I do not find any error in the fixation of the monthly income of the deceased at Rs.10,000/- because, the Honourable Supreme Court in **Kalpanaraj and Others v. Tamil Nadu State Transport Corporation** [(2015) 2 SCC 764] has categorically held that the income tax and professional tax have to be deducted from the salary of the deceased/injured for fixation of the net income. Thus, I confirm the monthly income of the deceased at Rs.10,000/-. ## **Multiplier** 13. The deceased was aged 26 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and** **MACA NO. 993 OF 2012 8** **another** [(2009) 6 SCC 121], the relevant multiplier is ‘17’. ## **Personal living expenses of the deceased** 14. Undisputedly, the deceased was a bachelor. Going by the law in **Sarala Verma (supra) and National Insurance Co. Ltd. v. Pranay Sethi** [2017 (16) SCC 680], one half of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 15. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 26 years at the time of accident, I hold that the appellants 1,2, 4 and 5 are entitled to future prospects at 40% on the compensation for loss due to dependency. ## **Loss due to dependency** 16. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.10,000/-, the multiplier at ‘17’, future prospects at 40% and deducting one half of the compensation towards the **MACA NO. 993 OF 2012 9** personal living expenses of the deceased, I re-fix the compensation for loss due to dependency at Rs.14,28,000/instead of Rs.8,80,000/- fixed by the Tribunal. ## **Conventional heads of compensation** 17. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honurable Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely, funeral expenses, loss of estate, and loss of consortium at Rs.15000/-, Rs.15000/and Rs.40,000/- respectively. 18. In the instant case, the Tribunal has awarded an amount of Rs.7,500/- under the head ‘funeral expenses’. Therefore, I enhance the compensation under the said head by a further amount of Rs.7,500/-. The Tribunal has not awarded any amount under the heads ‘loss of estate’ and ‘loss of consortium’. Hence, I award an amount of Rs.15,000/- under the head ‘loss of estate’ and award an amount of Rs.40,000/- each to the appellants 1,2, 4 and 5, ## **MACA NO. 993 OF 2012 10** who are the dependents of the deceased towards ‘ loss of consortium’ which amounts to Rs.1,60,000/-. I decline to award ‘loss of consortium’ to the 3[rd] appellant because he was older to the deceased and leading an independent life. ## **Loss of love and affection** 19. The Tribunal has awarded an amount of Rs.25,000/- under the head ‘loss of love and affection’. 20. **New India Assurance Company Ltd. v. Somwati** and others [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation under the head ‘loss of consortium’ is awarded, no amount of compensation shall be awarded under the head ‘loss of love and affection’, as it amounts to duplication of the compensation. Therefore, I set aside the amount awarded under the said head. 21. With respect to other heads of claim, namely, transport expenses at Rs.2,500/-, medical expenses at Rs.3,77,360/-, and compensation for ‘pain and sufferings’ at Rs.25,000/-, I find the same to be reasonable and just. I ## **MACA NO. 993 OF 2012 11** confirm the compensation for ‘pain and sufferings’ at Rs.25,000/- because the deceased had lost his life only 12 days after the accident. 22. On a comprehensive re-appreciation of the pleadings and materials on record, and the law referred to in the afore-cited precedents, I hold that the appellants 1,2, 4 and 5 are entitled for enhancement of the compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded (in<br>rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Transportation<br>expenses|2500/-|2500/-| |2|Funeral expenses|7500|15,000| |3|Loss of estate|0|15,000| |4|Medical expenses|3,77,360|3,77,360| |5|Pain and suffering|25,000/-|25,000/-| ## **MACA NO. 993 OF 2012 12** |6|Loss of love and<br>affection|25,000/-|0| |---|---|---|---| |7|Loss of consortium|0|1,60,000| |8|Loss of dependency|8,80,000|14,28,000| ||Total|**13,17,360**|**20,22,860**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs. **7,05,500/-** with interest at the rate of 8% per annum from the date of petition till the date of deposit and proportionate costs. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation being deposited, the Tribunal shall disburse the above amount to the appellants 1,2,4 and 5 in the ratio of 30:30:20:20, respectively and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm3/11/2021