Rajan Pillai and others v. Gopalakrishnan Nair and others and Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 23RD DAY OF MAY 2018 / 2ND JYAISHTA, 1940 MACA.No. 2313 of 2015** **AGAINST THE AWARD DATED 12-05-2015 IN O.P.(MV) NO.887/2012 of M.A.C.T.,KOLLAM** **APPELLANTS/PETITIONERS:-** **------------------------** - **1 RAJAN PILLAI, AGED 55 YEARS, S/O. BHASKARAN PILLAI, ARUN SADANAM, IVERKALA NADUVIL, IVERKALA EAST P.O., PUTHOOR(VIA), KOLLAM-691507. 2 KUMARI,AGED 50 YEARS, W/O. RAJAN PILLAI, ARUN SADANAM, IVERKALA NADUVIL, IVERKALA EAST P.O., PUTHOOR (VIA), KOLLAM-691507.** **3 ARUN RAJ,AGED 22 YEARS, S/O. RAJAN PILLAI, IVERKALA NADUVIL, IVERKALA EAST P.O., PUTHOOR (VIA), KOLLAM-691507.** **BY ADVS.SRI.M.H.HANIL KUMAR** **SMT.M.R.JAYALATHA** **SRI.M.R.DHANIL** ## **RESPONDENTS/RESPONDENTS:-** **--------------------------** **1. GOPALAKRISHNAN NAIR, S/O. SANKARAN, KAIRALI, PAVUMPA P.O., KARUNAGAPPALLY P.O., KOLLAM DISTRICT-690518.** **2. N.DEVARAJAN, S/O. NANU, KOYIKKAL THARAYIL VEEDU, MADATHIL KARAZHMA, OACHIRA, KARUNAGAPPALLY P.O., KOLLAM DISTRICT-690518.** **3. JAYAKUMAR.K., S/O. KRISHNAN KUTTY PILLAI, MADATHIL THARAYIL (HARI MANDIRAM) PAVUMBA THEKKU, KARUNAGAPPALLY P.O., KOLLAM DISTRICT-690518.** **4. M/S. ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, KOLLAM BRANCH, KAYAMKULAM P.O., KOLLAM DISTRICT-690502.** **R4 BY ADV. SRI.K.B.RAMANAND BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** ## **M.A.C.A. No.2313 of 2015(D)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 23[rd] day of May, 2018_ ## **J U D G M E N T** The appellants are the petitioners in O.P.(MV) No.887 of 2012 of the Motor Accidents Claims Tribunal _(hereinafter referred to as 'the Tribunal')_ , Kollam. They are the father, mother and brother of deceased Akhil Raj, who died in a road traffic accident. According to them, while the deceased Akhil Raj was travelling in the offending bus, the 2[nd] respondent, who was the Driver of the bus, had driven the vehicle in a rash and negligent manner and he abruptly applied brake of the vehicle and thereby the deceased Akhil Raj was thrown out of the bus, sustained serious head injuries and succumbed to the injuries. Thus, the accident was caused by the rash and negligent driving of the offending bus by the 2[nd] respondent. ## **M.A.C.A. No.2313 of 2015(D)** ## **-: 2 :-** 2. The 4[th] respondent Insurance Company disputed the claim and cause of accident; but admitted the coverage of the insurance policy. However, after considering the evidence on record, the Tribunal found that the accident was caused by the rash and negligent driving of the bus, by the 2[nd] respondent and thereby the 1[st] respondent was liable to pay compensation to the appellants and the 4[th] respondent is liable to indemnify the 1[st] and 2[nd] respondents by paying compensation to the appellants. Though, the appellants claimed `10,00,000/- as compensation, the Tribunal passed the impugned award granting `3,82,000/- as compensation. The inadequacy and correctness of the quantum of compensation determined under various heads of claim, are challenged in this appeal. 3. Heard the learned counsel for the appellants and the learned Standing Counsel for the **M.A.C.A. No.2313 of 2015(D)** ## **-: 3 :-** 4[th] respondent Insurance Company. 4. It is contended by the learned counsel for the appellants that the quantum of amount fixed as monthly notional earnings of the deceased Akhil Raj is too low and inadequate, after discarding Ext.A11 salary certificate produced by the appellants. According to the learned counsel, the Tribunal ought to have accepted and taken `6,000/- shown in Ext.A11 salary certificate, as income of the deceased. Further, it is contended that the quantum of compensation granted under the heads 'loss of estate' and 'loss of love and affection' is inadequate. The Tribunal has omitted to grant compensation for 'pain and sufferings', the learned counsel contends. 5. Per contra, the learned counsel for the 4[th] respondent Insurance Company advanced arguments to justify the fixation of monthly income and the ## **M.A.C.A. No.2313 of 2015(D)** ## **-: 4 :-** quantum of compensation determined under the aforesaid heads of claim. According to the learned counsel, in the absence of sufficient evidence to prove the exact income of the deceased, who aged 18 years only at the time of accident, the Tribunal is justified in taking `3,000/-, as his monthly income. 6. The short point that arises for consideration in this appeal is, whether the Tribunal is justified in fixing the monthly income and the quantum of compensation under the heads 'loss of estate' and 'pain and sufferings'. Admittedly, the deceased Akhil Raj was aged 18 years and nine months only at the time of accident. According to the appellants, he was working as an electrician in Jayan Electricals and he has completed the trade electrician course during the year 2010-12. 7. Going by the award, it is seen that though ## **M.A.C.A. No.2313 of 2015(D)** ## **-: 5 :-** the appellants have claimed that he was working as an electrician trainee in a firm by name Jayan Electricals and produced Ext.A11 salary certificate, the said employer, who issued Ext.A11 certificate was not examined in evidence. Therefore, the Tribunal is justified in not relying on Ext.A11 salary certificate for the determination of the monthly income of the deceased at the time of accident. There is no other evidence to prove the exact income of the deceased Akhil Raj. In such circumstances, the Tribunal is justified in taking notional income only. But, the accident has occurred on 29.03.2012. There arises a question, can the Tribunal be justified in taking `3,000/only as income of the deceased, who died in the year 2012? In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236], the Supreme Court held that in the case of an accident ## **M.A.C.A. No.2313 of 2015(D)** ## **-: 6 :-** occurred in the year 2004, `3,500/- to `4,500/- can be taken, as monthly income of the deceased, if there is no evidence to prove the exact income of the deceased. Considering the long passage of time, the decrease in the money value and the increase in the living index, after 2004, the Tribunal is not justified in taking `3,000/- only, as monthly income and the same would stand enhanced to `6,000/-. 9. The learned counsel for the appellants vehemently contended that 50% of the said notional income also has to be added, considering 'future prospects' of the deceased, had he been alive. The learned counsel cited _**National Insurance Company Limited v. Pranay Sethi and Others**_ [2017(5) KHC 350 (SC)] to fortify the said argument. I have gone through the aforesaid decision in _**Pranay Sethi**_ 's case(supra). In the aforesaid decision, the Supreme Court held that in the case of the deceased having ## **M.A.C.A. No.2313 of 2015(D)** ## **-: 7 :-** permanent job or self employed or having a fixed salary, 'future prospects' of the deceased could be taken for calculating the 'loss of dependency'. In the instant case, in the absence of evidence to prove the exact income or permanent employment, the notional income alone was taken as income of the deceased. In a case where notional income is taken as the income of the deceased, it is not just and proper to add any amount as 'future prospects'. Therefore, the aforesaid argument claiming addition to the notional income, as 'future prospects' would stand rejected. 10. Thus, the appellants are entitled to get compensation for 'loss of dependency', taking `6,000/- as notional income of the deceased, Akhil Raj and they are given `6,48,000/-(3,000 x 12 x 18) as compensation for 'loss of dependency'. `3,24,000/- is given to them as additional ## **M.A.C.A. No.2313 of 2015(D)** ## **-: 8 :-** compensation under the head, 'loss of dependency'. 11. As rightly contended by the learned Counsel for the appellant, no amount was granted under the head, 'pain and sufferings'. It has come out in evidence that the deceased died one hour after the accident. Certainly, the appellants are entitled to get the compensation for 'pain and sufferings' of the deceased for one hour. Hence, they are given `10,000/- as compensation under the head 'pain and sufferings'. Similarly, the appellants were given `5,000/- only under the head, 'loss of estate'. In view of the decision in _**Pranay Sethi'** s_ case (supra) _**,**_ they are entitled to get `15,000/- under the head, 'loss of estate'. Thus, they are given `10,000/- more as additional compensation under the head, 'loss of estate'. 12. As contended by the learned Counsel for the appellant, the deceased was aged only 18 years and ## **M.A.C.A. No.2313 of 2015(D)** ## **-: 9 :-** 09 months at the time of accident and the 1[st] appellant was aged only 55 years and 2[nd] appellant was aged only 50 years at that time. Having regard to the age of the deceased and the age of the appellants, this Court is of the view that `25,000/granted as compensation under the head, 'loss of love and affection' is also inadequate and the same would stand enhanced to `50,000/-. The additional compensation under this head is `25,000/-. Thus, the appellants are given additional compensation of `3,69,000/- (Rupees Three Lakhs Sixty Nine Thousand Only)(3,24,000 + 10,000 + 10,000 + 25,000) with interest as stipulated by the Tribunal. All other findings, would stand undisturbed and operative. The 4[th] respondent, Insurance Company is directed to deposit the entire compensation with interest within a period of three months from today and the appellants are allowed to withdraw the said ## **M.A.C.A. No.2313 of 2015(D)** **-: 10 :-** amount at the ratio 25:50:25 respectively, as stipulated by the Tribunal. Sd/- **K. HARILAL, JUDGE** DST/rk //True copy// P.A. To Judge