New India Assurance Co. Ltd. v. Gopalakrishnan P. S/o Karunakaran Nair and Seemanthini K.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940** ## **MACA.No. 1183 of 2016** **AGAINST THE AWARD IN OP(MV)NO.383/2015 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA DATED 04-12-2015** ## **APPELLANT/3rd RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD. REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER.** **BY ADV. SRI.V.P.K.PANICKER** ## **RESPONDENT/PETITIONERS:** **1 GOPALAKRISHNAN P. S/O.KARUNAKARAN NAIR, PAYYADAKKATH HOUSE, KOZHUMMAL.P.O, TALIPARAMBA TALUK, KANNUR DISTRICT-670521. 2 SEEMANTHINI.K, W/O.GOPALAKRISHNAN.P, PAYYADAKATH HOUSE, KOZHUMMAL.P.O, TALIPARAMBA TALUK, KANNUR DISTRICT-6705621. BY ADVS. SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.T.SAJI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1183/2016 2 ## **JUDGMENT** The appeal on hand is directed against the award dated 4.12.2015 of the Motor Accidents Claims Tribunal, Taliparamba (for short 'the Tribunal') in O.P(MV) No.383/2015. The appellant is the insurer/3[rd] respondent before the Tribunal. The attack on the award was mainly based on the exorbitance of the sum awarded by the Tribunal as compensation. 2. Sri.V.P.K.Panicker and Sri.T.V.Jayakumar Namboothiri, the respective counsel advanced arguments on behalf of the appellant and respondents in the appeal. 3. Before adverting to the rival contentions raised by either counsel, it is relevant to have a discussion about the facts of the case. While travelling as pillion rider in a motorcycle bearing registration No.KL-05-H-8514, a Scorpio Car bearing registration No.KL-05-S-5682, dashed against it and thereby a man sustained serious injuries. He was rushed to the hospital for treatment but on the day succeeding to the date of accident, he succumbed to the injuries. He was an engineering graduate, employed in a private software company and was getting Rs.10,000/- as monthly income. Alleging that the accident was occurred due to rash and negligent driving of the Car by its driver and seeking for a sum of Rs.15,00,000/- as compensation, the claim petition as above was preferred by the parents of the deceased MACA.No.1183/2016 3 before the Tribunal. The driver, owner and insurer of the car and the owner, driver and insurer of the motorcycle were arrayed as respondents 1 to 6 in the claim petition. 4. Though served with notice from the Tribunal, respondents 4 and 5 remained ex-parte. Respondents 1 and 2 filed joint written statement contending that the accident was not occurred due to rash and negligent driving by the 1[st] respondent, the driver of the car, that he was driving the same with utmost care and caution, that the accident was caused due to sole negligence of the rider of the motorcycle and that the compensation claimed is excessive and without any basis. The insurance coverage of the car with the 3[rd] respondent was admitted in the written statement. 5. The 3[rd] respondent, insurer of the car has filed written statement before the Tribunal admitting insurance coverage of the car as on date of accident. The liability to compensate the petitioners is denied and contended that the accident was occurred due to negligence of the rider of the motorcycle and that compensation claimed is exorbitant and devoid of basis. 6. The 6[th] respondent, the insurer of the motorcycle had filed written statement before the Tribunal admitting insurance coverage of the same as on the date of accident. It was contended that the accident was occurred due to rash and negligent driving of 1[st] respondent, the driver of the car, that the rider of the motor cycle was not responsible MACA.No.1183/2016 4 for the accident and that compensation claimed is exorbitant and devoid of basis. 7. Before the Tribunal, claimants have adduced documentary evidence as Exts.A1 to A8. Either oral or documentary evidence was not adduced by the 3[rd] respondent. The Tribunal appreciated the documentary evidence on record and arrived at a finding that the accident was resulted due to rash and negligent driving of car by its driver, who was none other than 2[nd] respondent in the claim petition. The Tribunal has also found the petitioners entitled to get compensation for the death of their son and arrived at a sum of Rs.16,94,000/-as the compensation payable to the petitioners. It is aggrieved by the aforesaid fixation of compensation that the insurer of the car approached this Court in the captioned appeal. 8. The prime contention raised by Sri.V.P.K.Panicker, the learned counsel for the appellant was that the Tribunal was highly unjustified in fixing Rs.10,000/- as the monthly income for the purpose of calculation of compensation for loss of dependency. According to him, the Tribunal has deducted 1/3[rd] from the monthly income fin consideration of personal expenditure, likely to have spent by the deceased, had he been alive. According to the learned counsel, the deceased being a bachelor, ,half of the monthly income ought to have been deducted by the Tribunal instead of 1/3[rd] . MACA.No.1183/2016 5 9. The contention secondly advanced by the counsel was that the compensation awarded by the Tribunal under the conventional heads of funeral expenses and loss of estate, being Rs.25,000/- each, excessive in view of **National Insurance Co.Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)],** interference and modification is warranted. According to the learned counsel, Rs.15,000/- being the sum directed by the Constitutional Bench of the Apex Court to be paid as compensation under the respective heads, Rs.10,000/- each needs to be deducted from Rs.25,000/- the sum awarded by the Tribunal under the respective heads. 10. The contention thirdly advanced by the learned counsel was that Rs.1,00,000/- was awarded by the Tribunal under the head loss of love and affection. According to him, the dictum in **Rajesh and Others** **v. Rajbir Singh and others** [2013 ACJ 1403 SC] having been declared by the Constitution Bench of the Apex Court in **Pranay Sethi** 's case (supra) as no longer a binding precedent, the Tribunal is highly unjustified in granting Rs.1,00,000/- as compensation towards loss of love and affection. Though the deceased was a bachelor aged 21 years, the Tribunal has awarded Rs.1,00,000/- as compensation towards loss of consortium. Even in **Pranay Sethi** 's case (supra), the Constitution Bench has limited the sum payable under the head loss of consortium to Rs.40,000/-. Therefore, the contention of the learned counsel was that Rs.1,00,000/- each awarded by the Tribunal under the respective heads MACA.No.1183/2016 6 of loss of love and affection and loss of consortium need to be interfered with to make those in tune with the sum directed to be paid by the apex court in **Pranay Sethi** 's case (supra). 11. In view of the contentions raised as above by the learned counsel for the appellant, this Court ventured to appreciate the evidence in detail to see whether any of those will sustain. The main attack of the appellant was on the monthly income fixed by the Tribunal as Rs.10,000/-. The claim of the petitioners was that the deceased was getting monthly income of Rs.10,000/- from his employment in a private firm. It is established from Ext.A6 that the deceased had passed SSLC in first class. It is further disclosed from Exts.A7 and A8 that the deceased had completed Bachelor of Engineering successfully. Though no evidence was adduced to establish that the deceased was employed in a private firm as claimed by the petitioners, it is relevant to notice on the basis of Exts.A7 and A8 that there is every probability for the deceased to get a better placement elsewhere with a reasonable salary, had he not been met with the motor accident and died following the injuries sustained thereby. As canvassed by the learned counsel, the deceased being a bachelor, half of the amount ought to have been deducted from the monthly income in consideration of personal expenditure instead of 1/3[rd,] which has been deducted by the Tribunal. It seems from the calculation of compensation that addition was not made by the Tribunal to the monthly income in consideration of future MACA.No.1183/2016 7 prospects. In **Pranay Senthi** 's case (supra), the Apex Court has considered addition of 40% to the monthly income of persons of the age group of the deceased, in consideration of future prospects. When Rs.10,000/- is taken as the monthly income, 40% added to that and half of the amount deducted therefrom, the multiplicand for the purpose of calculation of compensation will be Rs.84,000/-. In the absence of any challenge from the side of the claimants, this Court is declined to interfere with the mode of calculation adopted by the Tribunal. For the very reason, this Court is reluctant to interfere with Rs.10,000/- fixed by the Tribunal as monthly income. The fixation of monthly income by the Tribunal as Rs.10,000/- is also justified in view of the decision of the Apex Court in **Ramulamma v. Venkatesh [(2011) ACJ 1702]** . In the circumstances, Rs.14,40,000/- arrived at by the Tribunal under the head loss of dependency is maintained. 12. Having found basis in the contention secondly raised by the counsel for the appellant, to make the compensation granted under the conventional heads, loss of estate and funeral expenses in tune with the direction of the Constitution Bench of the Apex Court in **Pranay Sethi** 's case (supra) Rs.10,000/- each is deducted from Rs.25,000/- each awarded by the Tribunal under those heads. 13. In **Magma General Insurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors.** [2018 (11) SCALE 247] the Division Bench of the Apex Court has dealt with the need for grant of compensation towards MACA.No.1183/2016 8 parental consortium, in the case of an only son predeceased the parents. In the case on hand, the deceased being the only son of the petitioners and being a bachelor aged 21 years at the relevant time of his death, there is every justification in view of **Magma General Insurance Company** 's case (supra) to grant Rs.80,000/- (Rs.40,000/- each) to the petitioners towards parental consortium. In the fixation as above, a sum of Rs.20,000/- is liable to be deducted from Rs.1,00,000/- already awarded by the Tribunal under the head loss of consortium. The petitioners having not been left with any other issues, this Court is justified in granting Rs.50,000/- each to the petitioners as compensation towards loss of love and affection, in view of **Magma General Insurance Company** 's case (supra), wherein Rs.1,00,000/- awarded by the High Court as compensation towards loss of love and affection in respect of the children of the deceased father was maintained. Therefore, there will be a reduction of Rs.40,000/- (10,000 + 10,000 + 20,000) from the sum already arrived at by the Tribunal as compensation payable to the petitioners by the award under challenge. Therefore, the petitioners are entitled to get a total sum of Rs.16,54,000/- (16,94,000-40,000) as compensation. In the result, the appeal is allowed in part. The petitioners are entitled to get Rs.16,54,000/- with interest @ 9% per annum from the date of the petition till the date of realisation and proportionate costs. The 3[rd] respondent shall deposit the modified compensation as above MACA.No.1183/2016 9 with interest and proportionate costs within one month. The compensation awarded being excess of the claim made by the petitioners in the claim petition, the petitioners are liable to pay proportionate court fee for the excess sum. The 3[rd] respondent shall see while depositing the amount that two cheques are issued, one towards payment of court fee and the other towards compensation. Sd/- **MARY JOSEPH** **Judge** ab