Rekha P. Nair and Others v. M. Korapputty and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945** ## **MACA NO. 1884 OF 2010** **AGAINST THE ORDER/JUDGMENT OPMV 1658/2002 OF SPECIAL C** **SPE/CBI-I&3 ADDITIONAL DISTRICT COURT / I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONERS:** 1 REKHA P.NAIR AND OTHERS AGED 39 YEARS, W/O.LATE M.S.SAJAN,, RESIDING AT MAVELI HOUSE,K.S.THRIKKAKARA VILLAGE, B.M.C.P.O.,ERNAKULAM DISTRICT,COCHIN -21 2 APARNA SAJAN MINORAGED 12 YEARS DAUGHTER OF LATE M.S.SAJAN, -DO3 ANANTHU SAJAN MINORAGED 9 YEARS S/O.LATE M.S.SAJAN,, -DO4 M.SIVASANKARAN NAIR AGED 84 YEARS, S/O.MADHAVA KURUP BY ADVS. SRI.ANIL S.RAJ SRI.G.ARUN GOPAN ## **RESPONDENTS/RESPONDENTS:** 1 M.KORAPPUTTY AND OTHERS MADHAMKUTTOTH HOUSE, ELATHOOR P.O.,, KOZHIKODE, PIN-673003 2 MUHAMMED HANEEFA T. S/O.MAMMU T,THATTARAKKAL HOUSE,, PUTHIYANGADI, KOZHIKODE, PIN-673021 3 THE NATIONAL INSURANCE COMPANY LIMITED D.O,AJAY VIHAR, M.G.ROAD, COCHIN-682016 4 K.S.PURUSHOTHAMAN NAIR S/O.SANKARA PILLAI., KANNAMKULATH HOUSE,, THRIKKAKARA VILLAGE, B.M.C.P.O.,ERNAKULAM DIST, M.A.C.A No. 1884 of 2010 **==> picture [7 x 9] intentionally omitted <==** COCHIN-682021 5 THE ORIENTAL INSURANCE COMPANY LIMITED EDAPPALLY, COCHIN-682024. BY ADVS. SRI.LAL GEORGE SRI.GEORGE CHERIAN THIRUVALLA SRI.E.NARAYANAN SRI.SRINATH GIRISH SEBASTIAN VARGHESE(K/141/2000) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 1884 of 2010 3 ## **JUDGMENT** Appellants are the petitioners in O.P.(M.V) No. 1658/2002 on the files of the Additional Motor Accidents Claims Tribunal, Ernakulam. The aforesaid claim petition was submitted by them seeking compensation for the death of one Sajan due to the injuries sustained in a motor accident that occurred on 31.03.2002. The 1[st] appellant is the wife, 2[nd] and 3[rd] appellants are the children and 4[th] appellant is the father of the deceased. 2. According to the appellants, the accident occurred when the car in which the deceased was travelling collided with a mini lorry bearing registration No. KL-11/M 9079 driven by the 2[nd] respondent herein. The said vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The 4[th] respondent was the owner of the car, and the 5[th] respondent was the insurer of the said vehicle. According to the appellants, the deceased was working as a Village Extension Officer at the relevant time and he was aged 38 years. The claim petition was submitted in such circumstances. M.A.C.A No. 1884 of 2010 **==> picture [7 x 9] intentionally omitted <==** 3. The 1[st] respondent filed a written statement contending that the accident occurred due to the negligence of the driver of the car. The 3[rd] respondent/insurance company admitted the coverage of the policy in respect of the lorry but disputed the liability on various grounds. They also disputed the negligence and the quantum of compensation. The 5[th] respondent/insurance company also filed a written statement admitting the coverage of the policy with respect to the car but disputed the liability. They also disputed the negligence and quantum. The aforesaid claim petition was tried along with O.P.(M.V).Nos. 1521/2002, 1650/2002, 1652/2002, 1654/2002, 1656/2002 and 1659/2002. 4. The evidence in this case consists of oral testimonies of PWs 1 to 3 and Exts.A1 to A55 from the side of the claimants. From the side of the respondents, RW1 was examined and Ext.B1 was marked. After the trial, the Tribunal came to the conclusion that both the drivers contributed to the accident, and the liability was apportioned among them at the ratio of 70:30, i.e. 70% on the part of the driver of the mini lorry and 30% on the part of the driver of the car. The quantum of compensation in this case was determined as Rs.6,01,560/-and the respondents/insurance M.A.C.A No. 1884 of 2010 5 companies were directed to deposit in the proportion mentioned above. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 5. Heard, Smt.K.N Rajani, the learned counsel appearing for the appellants, Sri.Sebastian Varghese, the learned counsel appearing for the 3[rd] respondent, and Smt.Latha Susan Cherian, the learned counsel appearing for the 5[th] respondent. 6. The main contention put forward by the learned counsel appearing for the appellants is with respect to the inadequacy of the compensation awarded by the Tribunal. According to the learned counsel, while computing the compensation for loss of dependency, the Tribunal failed to make any addition towards the future prospectus, which was against the principles laid down by the Honourable Supreme Court in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)].** The said contention has to be accepted in the light of the decision referred to above. It is evident from the records that the monthly income of the deceased was properly proved as Rs.4,520/-, which he was earning from his service as a Village Extension Officer, and there is no dispute as far as the monthly income of the deceased is M.A.C.A No. 1884 of 2010 6 concerned. Since he was a person with permanent employment with regular income, an addition of 50% ought to have been made by the Tribunal towards future prospects. Since the deceased was aged 38 years, the proper multiplier to be applied was 15. While re-assessing the compensation with the above revised criteria, the compensation under the head of loss of dependency would come to Rs.9,15,300/- [(4520+50%) x 12 x 15 x 3/4]. The amount already awarded by the Tribunal under the head is Rs.5,78,560/and after deducting the same, the additional compensation would come to Rs.3,36,740/-. 7. When moving on to the other heads, it can be seen that the Tribunal awarded an amount of Rs.8,000/- towards transportation and funeral expenses. As per principles laid down in **Pranay Sethi** ( _supra_ ), towards funeral expenses, an amount of Rs.15,000/- is to be granted. Therefore, I deem it appropriate to re-fix the compensation under the head of transportation and funeral expenses separately. In the facts and circumstances of the case, I fix Rs.1,000/- as the compensation towards transportation expenses and Rs.15,000/- towards funeral expenses. Thus, the additional compensation receivable by the appellants under these M.A.C.A No. 1884 of 2010 7 heads would come to Rs.8,000/-. Another head which requires reconsideration is loss of estate. The Tribunal awarded Rs.5,000/under this head, whereas the proper compensation to be awarded as per **Pranay Sethi** ( _supra_ ), is Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is granted under the said head. It is seen that no amount was awarded by the Tribunal towards the loss of consortium. As per the principles laid down in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others [2018 (3) KLT Online 3095 (SC)]** and **United India Insurance Co.Ltd v. Satinder Kaur [2021(4) KLT SN 10(C.No.8) SC]** , appellants, being the wife, children and father of the deceased, are entitled to compensation for loss of consortium at the rate of Rs.40,000/each. Therefore, an amount of Rs.1,60,000/- has to be awarded under the said head. It is seen from the award that Rs.5,000/- is granted for love and affection. It is a well settled position of law as per **Satinder Kaur** (supra) and **New India Assurance Co.Ltd.v. Somwati and Others [(2020) 9 SCC 644],** when compensation is awarded for loss of consortium, no separate compensation for loss of love and affection has to be granted. Therefore, Rs.5,000/- granted towards loss of love and affection M.A.C.A No. 1884 of 2010 8 can be adjusted towards loss of consortium. Thus, the additional compensation under this head is fixed as Rs.1,55,000/-. Accordingly, the total additional compensation receivable by the appellant is determined as Rs.5,09,740/- [336740 + 8000 + 10000 + 155000]. In the light of the aforesaid observations and findings, the award dated 31.12.2009 passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV).No.1658 of 2002 is hereby modified by granting an additional compensation of Rs.5,09,740/(Rupees five lakhs nine thousand, seven hundred and forty only) and the 3[rd] and 5[th] respondents, Insurance Companies are directed to deposit the said amount along with interest at the rate of 7% per annum with proportionate costs from the date of petition till realization, in the proportions determined in the award, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk/DG