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IN THE HIGH COURT OF KERALA AT ERNAKULAM
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THE HONOURABLE MR.JUSTICE BASANT BALAJI
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TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944
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(AGAINST THE AWARD DATED 08.09.2015 IN OP(MV)No.1524/2012 OF
ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL - IV, PATHANAMTHITTA)
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## **`APPELLANT/3[RD] RESPONDENT:`**
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RELIANCE GENERAL INSURANCE CO. LTD.,
PATHANAMTHITTA, REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
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## **`RESPONDENTS/CLAIMANTS:`**
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1YESODHARAN, S/O.VELAYUDHAN,
PALLIYIL VEEDU, KULAKKADA EAST.P.O,
NOW RESIDING AT ROBIN VILLA, KUDASSANADU.P.O,
POOZHIKKADU, PIN-689 512.
2SOBHANA, W/O.YESODHARAN, PALLIYIL VEEDU,
KULAKKADA EAST.P.O, NOW RESIDING AT ROBIN VILLA,
KUDASSANADU.P.O, POOZHIKKADU, PIN-689 512.
3NEETHU.P.S, D/O.YESODHARAN,
PALLIYIL VEEDU, KULAKKADA EAST.P.O,
NOW RESIDING AT ROBIN VILLA,
KUDASSANADU.P.O, POOZHIKKADU, PIN-689 512.
BY ADV SRI.A.N.SANTHOSH
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
(Dated: 19[th] July, 2022)
The 3[rd] respondent in O.P.(M.V.) No.1524 of 2012 on the files of the Motor Accidents Claims Tribunal, Pathanamthitta is the appellant (the parties are referred to as they are arrayed in the original petition).
2. The appeal is filed aggrieved by the quantum of compensation awarded to petitioners/respondents Nos. 1 to 3 in the road accident which occurred on 11.11.2012 at about 01.00 a.m. The deceased was travelling in a tourist bus bearing Reg.No.KA-01/AB-5377 from Bangalore to Adoor, through the Salem-Kovai NH-47 road. When the bus reached at Perundurai, the first respondent drove the bus in a rash and negligent manner as a result of which the bus hit the back side of a Truck, bearing Reg.No.TN-52/9946 moving in front of the bus. Due to the impact of the hit, the deceased and co-
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passengers sustained severe injuries. On the way to the hospital, the son of respondents 1 and 2 succumbed to the injuries. He was a Civil Engineer in Devasilpi Associates, Adoor, and he had secured better employment in Bangalore and was returning when the fatal accident occurred.
3. 1[st] and 2[nd] respondents remained ex-parte. The 3[rd] respondent insurance company alone filed a written statement contending that the 3[rd] respondent is not liable to indemnify the insured since the owner of the vehicle had violated the policy conditions. It was also contended that the first respondent was not having a valid driving licence at the time of the accident and he was not an employee of the insured at the material time. The insurance coverage of the vehicle was admitted. The Tribunal relying on Exts.A1 to A26 awarded compensation of Rs.43,57,000/- with 9% interest from the date of the petition.
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Aggrieved by the said award, the insurance company has filed this appeal.
4. Adv.George Cherian, learned senior counsel for the appellant/insurance company submits that the Tribunal has without any evidence taken the income of the deceased as Rs.25,000/- per month, wherein Ext.A24 is a certificate issued from the Devasilpi Associates, Adoor where he was working shows the income is Rs.18,000/- per month. Since he was in the age group of below 40 years and was self-employed, the Tribunal has awarded 50% increase in future prospects which is also against the decision reported in _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]**_ . The maximum increase in percentage that can be awarded as future prospects is 40% submits the senior counsel.
5. Adv.A.N.Santhosh, learned counsel for the respondents submits that the Tribunal has rightly taken the
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income as Rs.25,000/-, taking into consideration the deposition of the mother of the deceased, in which she has stated that, her son has gone to Bangalore in search of better employment and obtained a better job in Indi Info Pvt. Ltd., as a Civil Engineer and while returning home to take the articles to be taken back to Bangalore, he met with the accident and died. It was also stated that the company had offered an amount of Rs.30,000/per month with accommodation. She has also a case that the company has agreed that after six months of employment his income would be increased to Rs.45,000/- per month. Therefore, he prays that no grounds to interfere with the award of the Tribunal.
6. Ext.A24 produced by the claimants, which is the certificate issued by Devasilpi Associates, Adoor, on 05.11.2012, the date on which he resigned from the said firm. It is also submitted by the mother before the Tribunal that he
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was earning the said income while he was working in Devasilpi Associates before he got employment in Bangalore. Though it was not proved before the Court, the Court below has taken into consideration the academic qualification of the deceased, the fact that he had a chance to get a better job and higher salary in Bangalore and fixed the income as Rs.25,000/- per month. When the document showing the salary as Rs.18,000/- per month is produced by the claimants before the Tribunal, then without any other documentary evidence, the Tribunal was not justified in fixing the amount as Rs.25,000/- solely relying on the oral evidence of the mother of the deceased. When Ext.A24 is before the court, the Tribunal ought to have fixed the monthly income to Rs.18,000/- per month, as that was the only evidence before the court to prove the salary. Moreover, the decision reported in _**Pranay Sethi**_ future for a _(supra),_ prospects self-employed
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person below the age of 40 years, the maximum amount for future prospects can be awarded is only 40%, whereas the Tribunal has awarded 50% for future prospects.
7. In view of the matter, I am of the opinion that the Tribunal ought not to have fixed the monthly notional income as Rs.25,000/- and should have fixed the monthly income as Rs.18,000/- taking into consideration of Ext.A24. The amount shown in Ext.A24 is accepted and is taken by this Court for computation. When the monthly income is taken as Rs.18,000/-, 40% is to be added as future prospects. Thus the monthly income will be Rs.25,200/- per month. In such a case, the calculation would be 25200x12x18x1/2, which comes to Rs.27,21,600/-. So, the loss of dependency awarded by the Tribunal has Rs.40,50,000/- is refixed as Rs.27,21,600/-.
8. As far as the funeral expense is concerned, the Tribunal has awarded a sum of Rs.25,000/-. Going by the
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decision of the Apex Court in _**Pranay Sethi**_ (supra), it has to be scaled down to Rs.15,000/-. 10% escalation for three years. So the amount is refixed as Rs.16,500/-
9. For loss of consortium, the Tribunal did not grant any amounts. Petitioners 1 and 2 being the father and mother of the deceased are entitled to the consortium at the rate of Rs.40,000 + 10% (44,000x2) each on that head. So the claimants are entitled to Rs.88,000/-. When loss of consortium is awarded, loss of love and affection cannot be awarded, hence the amount of Rs.1,50,000/- awarded for loss of love and affection is set aside.
10. Regarding loss of estate, the Tribunal has awarded Rs.1,00,000/-, the maximum that can be awarded is Rs.15,000/-. Hence, that is also modified and the loss of estate is fixed to Rs.15,000 + 10%. Escalation for three years which amounts to Rs.16,500/-.
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11. Pain and suffering are concerned, the claimants claimed Rs.30,000/- and the entire amount was awarded by the Tribunal. In view of the decision reported in _**Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another [(2009) 6 SCC 121]**_ in a death case, pain and sufferings cannot be awarded. Hence, the amount awarded under the head pain and suffering is also set aside.
Accordingly, the following modifications are made to the
## award passed by the Tribunal:
|Sl.<br>No.|Head of Claim|Amt. Awarded by<br>Tribunal (Rs.)|Amt. fixed by this<br>Court (Rs.)|
|---|---|---|---|
|1.|Loss of dependency|40,50,000/-|27,21,600/-|
|2.|Funeral expenses|25,000/-|16,500/-|
|3|Loss of consortium|--|88,000/-|
|3.|Loss of love and affection|1,50,000/-|--|
|4|Loss of estate|1,00,000/-|16,500/-|
|5|Pain and sufferings|30,000/-|--|
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The appeal is allowed and the award of the Tribunal is modified and the compensation is re-fixed as shown above.
_Sd/-_
**BASANT BALAJI, JUDGE**
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