SINI ACQUINOSE M. and others v. Renjith Kumar K S and others (The Oriental Insurance Company Limited and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 09TH DAY OF JANUARY 2019 / 19TH POUSHA, 1940** **MACA.No. 3752 of 2016** **AGAINST THE AWARD IN OP(MV) 301/2015 of M.A.C.T., TALIPARAMBA DATED 01-12-2015** **APPELLANT/PETITIONERS 2, 3 AND 10:** **1 SINI ACQUINOSE.M, W/O.LATE MATHUKUTTY P V, VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, TALIPARAMBA, KANNUR DISTRICT.** **2 PHILIPPO, AGED 8 YEARS, S/O.LATE MATHUKUTTY P V, REPRESENTED BY HIS MOTHER SINI ACQUINOSE M, VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, TALIPARAMBA, KANNUR DISTRICT. 3 ROSEMARY MATHUKUTTY, AGED 6 YEARS, D/O.LATE MATHUKUTTY P V, REPRESENTED BY HIS MOTHER SINI ACQUINOSE M, VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, TALIPARAMBA, KANNUR DISTRICT.** **BY ADVS. SRI.P.C.THOMAS SRI.ROJO J.THURUTHIPARA** ## **RESPONDENT/RESPONDENTS AND PETITIONERS 1, 4 TO 9:** **1 RENJITH KUMAR K S/O.NARAYANAN, KALIYAN HOUSE, VELLORA P O, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670141 DRIVER OF THE BUS BEARING REGISTRATION NO KL-13/H9615). 2 K.V SUKUMARAN S/O.KANNAN KUMARAN, KAVULLAVALAPPIL HOUSE, M M BAZAR, VELLORA P O, TALIPARAMBA -670141, (R.C.OWNER OF THE BUS BEARING REGISTRATION NO KL13/H-9615)** MACA.No. 3752 of 2016 2 - **3 THE ORIENTAL INSURANCE COMPANY LIMITED REPRESENTED BY GENERAL MANAGER, MARINA SHOPPING CENTRE, N H TALIPARAMBA,** - **(INSURER OF THE BUS BEARING REGISTRATION NO KL.13/H-9615), VIDE POLICY NO.441604/31/2010/5213, VALID FROM 29/8/2009 TO 28/8/2010-PIN-670141.** - **4 MARIAYAMMA,** - **W/O.LATE PHILIPOSE VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, THALIPARAMBU, KANNUR DISTRICT-670141.** - **5 JOSEPH P V S/O.LATE PHILIPOSE, VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, THALIPARAMBU, KANNUR DISTRICT-670141.** - **6 LOVELY P V S/O.LATE PHILIPOSE, VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, THALIPARAMBU, KANNUR DISTRICT-670141** - **7 DOLLY P V D/O.LATE PHILIPOSE, VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, THALIPARAMBU, KANNUR DISTRICT-670141** - **8 JIJI P V S/O.LATE PHILIPOSE, VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, THALIPARAMBU, KANNUR DISTRICT, KANNUR DISTRICT-670141** - **9 LEENA P V D/O.LATE PHILIPOSE, VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, THALIPARAMBU, KANNUR DISTRICT-670141** - **10 ANCY P V** - **D/O.LATE PHILIPOSE, VALOLIKKAL HOUSE, KARIAPALLI, VELLORA P O, THALIPARAMBU, KANNUR DISTRICT-670141** **BY SRI.A.R.GEORGE - SC FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 3752 of 2016 3 ## **JUDGMENT** This appeal is directed against the award dated 1.12.2015 in O.P(MV) No.301/2015 on the files of the Motor Accident Claims Tribunal, Taliparamba (for short 'the Tribunal'). The appellants are the petitioners before the Tribunal. The case of the appellants was that on 3.4.2010, one Mr.Mathukutty Valolikkal, who was riding a motor cycle bearing registration No.KL-60-3551 from Vellora to Perumbadavu was knocked down by a bus bearing registration No.KL-13/H-9615 at Kanhiram and thereby fatal injuries were caused to him and he succumbed to those. He was a driver and was earning Rs.30,000/- per month. It is also claimed that from the landed properties owned by him, he was getting a monthly income of Rs.15,000/-. It was further averred that he was also getting income to the tune of Rs.15,000/- by driving a taxi vehicle owned by a man named Kuriakose Ittiyappara. Alleging that the accident was occurred due to rash and negligent driving of the bus by it's driver and claiming a total sum of Rs.34,16,000/- as compensation, the claim petition as above was preferred by the survivors and dependents of the deceased before the Tribunal. The driver, owner and insurer of the bus were arrayed as respondents 1 to 3 in the MACA.No. 3752 of 2016 4 claim petition filed before the Tribunal. The Tribunal tried the claim petition. The driver and owner, who were arrayed as 1[st] and 2[nd] respondents remained ex-parte. The 3[rd] respondent, the sole contesting respondent before the Tribunal had filed written statement admitting insurance coverage of the bus as on date of accident. It was contended that the 1[st] respondent, the driver of the bus was not responsible for the accident which was occurred solely due to negligent riding of the motor cycle by the deceased. The authority to drive the vehicle, the permit for the vehicle, the quantum of compensation claimed, and claims made of age, occupation and monthly income were disputed. On the side of petitioners, the wife of the deceased was examined as PW1 and the alleged employer of the deceased was examined as PW2. Exts.A1 to A16 were also marked. 2. On appreciation of the entire evidence on record, the Tribunal found the 1[st] respondent, the driver of the bus liable for the accident by his rash and negligent driving. The Tribunal had also arrived at a sum of Rs.12,74,000/- as total compensation payable to the petitioner and directed the 3[rd] respondent, the insurer of the bus to deposit the same with interest at the rate of 9% per annum from the date of the petition till the date of realisation with proportionate costs. Alleging that the quantum of compensation awarded by the Tribunal is on the lower side and MACA.No. 3752 of 2016 5 seeking for enhancement the petitioners have filed the captioned appeal. 3. Sri.Rojo Joseph, the learned counsel for the petitioners has contended that the monthly income for the purpose of calculation of compensation for loss of dependency was fixed by the Tribunal as Rs.4,500/- against a claim for Rs.30,000/- made by him in the claim petition. According to him, originally when the claim petition was filed, a claim was made by the petitioners that the deceased was a driver under a school namely St.Elizabeth English Medium School, Kariapalli, Vellora P.O, Thaliparamba Taluk and was earning Rs.6,000/- as monthly salary. Lateron, the claim petition was sought to be amended, incorporating certain engagements also as his other sources of monthly income. The amendment sought was allowed and claim petition was amended. As per the amended pleadings, the deceased was working as driver under St.Elizabeth English Medium School, Kariapalli and was getting a monthly income of Rs.30,000/-. It is also disclosed from the pleadings as amended that the deceased was also engaged in driving a tourist Tata Sumo van as taxi and getting Rs.15,000/- per month therefrom. It is also disclosed from the amended pleadings that the deceased was in ownership and possession of 1.50 acres of landed property in Kariapalli, Vellora Village, where rubber, coconut and aracanut MACA.No. 3752 of 2016 6 trees were planted. A claim was also raised that the deceased himself was doing the agricultural operations including tapping of 200 rubber trees that were planted in the property and was getting an annual income of Rs.1,50,000/- therefrom. According to the learned counsel, though the claim petition was amended to that effect and evidence was adduced to establish those, the Tribunal failed to appreciate the same and fixed the monthly income notionally as Rs.4,000/-. The further contention advanced by the learned counsel was centered on the impropriety in the mode of calculation adopted by the Tribunal in arriving at the compensation under various other heads. Accordingly, the learned counsel seeks for interference and modification of the compensation by way of enhancement. 4. Per contra, Sri.A.R.George, the learned standing counsel on behalf of the 3[rd] respondent insurer has pointed out that the Tribunal has awarded compensation higher than those directed to be paid under the conventional heads of loss of consortium, funeral expenses and loss of estate by the Constitutional Bench of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi (2017(4) KLT 662 (SC).** According to him, in **Pranay Sethi** 's case supra, the Constitutional Bench has directed payment of Rs.15,000/- each towards funeral expenses and loss of estate and Rs.40,000/- MACA.No. 3752 of 2016 7 towards loss of consortium. According to him, the Tribunal has awarded compensation higher than the figures as directed by the Constitutional Bench of the Apex Court and therefore those are required to be set right in interference. The further contention advanced by the learned counsel was that though in **Pranay Sethi** 's case the Constitutional Bench had interfered with the grant of Rs.1,00,000/- as compensation per head towards loss of love and affection as granted in **Rajesh and others v. Rajbir Singh and others** [2013 ACJ 1403 (SC)] it did not issue any direction regarding the compensation payable under that head. The Apex Court in **Magma General Insurance Co.Ltd v. Nanu Ram @ Chuhru Ram and Others** [2018 (11) SCALE 247] has confirmed grant of Rs.1,00,000/- by the High Court as compensation under the head loss of love and affection for two surviving children. The Tribunal having been awarded a sum of Rs.3,10,000/- under the head, it is pleaded by the learned counsel that the same needs to be interfered with. The further contention advanced by the learned counsel was that in the absence of cogent evidence to establish the pleas regarding occupation and monthly income, the Tribunal was constrained to fix the monthly income notionally as Rs.4,000/- while arriving at the compensation payable to the petitioners. According to the learned counsel, addition of 50% to the monthly income adopted MACA.No. 3752 of 2016 8 by the Tribunal in consideration of future prospects is incorrect. According to the learned counsel, the deceased being a man aged 33 years at the relevant time of his death, only 40% addition to the monthly income in consideration of future prospects alone will sustain legally in view of **Pranay Sethi** 's case supra. The learned counsel canvassed for modification of compensation on the above counts by necessary interference. 5. In view of the rival contentions advanced as above, this Court ventured to analyse the evidence on record to see the impropriety, illegality and incorrectness in the mode by which the calculation of compensation was arrived at by the Tribunal. As already stated, the wife of the deceased had mounted the witness box and tendered oral evidence as PW1 and one among the several employers of the deceased was examined as PW2. The wife of the deceased as PW1 has stated that her husband Mathukutty was aged 33 years at the relevant time of his death due to the accident and was a driver by profession. According to her, he was holding a valid driving licence and badge for driving light motor vehicle, motorcycle with gear, heavy passenger motor vehicle and heavy goods motor vehicle. It is also stated by PW1 that though her husband was mainly engaged as a driver at St.Elizabeth English Medium School, during hours out of his engagement as such, he was driving a taxi vehicle under one MACA.No. 3752 of 2016 9 Mr.Kuriakose. According to her, about 1.5 acres of rubber plantation was owned by her husband and the agricultural operations therein including the tapping work were done by him on his own and was getting of Rs.2,00,000/- as income therefrom annually. The owner of the tourist taxi vehicle under whom the deceased was allegedly engaged as driver was examined before the Tribunal as PW2. His examination-in-chief would reveal that the deceased was working as a driver under him and was paid Rs.400/- and Rs.100/- respectively as daily wages and batta. PW2 has also stated in the chief examination that when the rent obtained from taxi service exceeds Rs.2,000/-, 10% of the same will also be paid to him as additional batta. Accordingly, PW2 has stated in the chief examination that the deceased was paid by him a total sum of Rs.15,000/- monthly. But, it is pertinent to note that towards the last part of his affidavit filed in lieu of chief examination, he had sworn that the Tata Sumo tourist vehicle bearing registration No.KL-59/1620 was sold by him to some other person in the year 2010. When cross examined by the 3[rd] respondent, it was stated by him that a trip sheet was not maintained to establish the number of days the deceased was engaged by him to drive the vehicle. He has also denied the issuance of a certificate in favour of the petitioners to establish the wages paid by him to the deceased. It is pertinent to note MACA.No. 3752 of 2016 10 that though the application seeking amendment was allowed in his favour, the claim petition was not amended accordingly. PW2, the alleged employer though stated during examination in chief that the deceased was a driver under him at the relevant time of accident on 3.4.2010, he has added stating that the vehicle bearing No.KL-59/1620 in which the deceased was engaged as driver by him was sold in the year 2010 itself to some other person. The accident that caused the death being occurred in the year 2010, the alleged engagement of the deceased as driver by PW2 in the year 2010 is something improbable to happen in view of the sale of the vehicle to some other person in the year 2010 itself by PW2. Therefore, the evidence of PW2 cannot be given much credit to in view of the inconsistency involved as above in his version. Ext.A6 is a certificate allegedly issued by the Manager of St.Elizebeth English Medium School, Kariyappilly where the deceased was working as a driver as claimed by petitioners. It is pertinent to note that the Manager of the school, who had issued Ext.A6 certificate was not examined. Therefore, Ext.A6 was not proved before the Tribunal. Another discrepancy noticed from the claim petition was that though an amendment was sought and allowed in favour of the petitioner, he failed to carry out the amendment in paragraphs 4 and 5 of the claim petition as permitted to be carried out. In Sl.No.6 of the MACA.No. 3752 of 2016 11 claim petition, the monthly income shown originally as Rs.6,000/- was found substituted as Rs.30,000/- by way of the amendment as ordered. Therefore, what was derived from the amendment carried out in Sl.No.6 was that the deceased was earning Rs.30,000/- from his engagement as a driver at St.Elizebeth English Medium School, Kariyappilly. The amendment as directed was found carried out in paragraph 28 of the claim petition. But in view of the amendment carried out in clause (a) of para 28, it is noticed that the the deceased was getting Rs.30,000/- from his job as a driver under St.Elizabeth English Medium School, Kariyappally. But the amendment brought in Clause (b) of paragraph 28 was to the following effect:- “The deceased Mathukutty was working as a Taxi Driver and he was driving a Tourist Tatta Sumo Van. He earned an average income of Rs.15,000/- per month by working as a Taxi Driver. The deceased Mathukutty was in ownership and possession of 1.50 Acers of landed properties in Kariyappally Vellora Village, and the above property was planted with Rubber, coconut and Aracanut Trees. The deceased Mathukutty himself was doing the Agricultural works in the property himself including the tapping of the 200 Rubber trees in the property and was managing the agricultural activities. He was getting an annual income of Rs.1,50,000/- from the landed properties.” 6. In view of the inconsistency noticed as above, it MACA.No. 3752 of 2016 12 appears that the petitioners themselves have no idea about the monthly income earned by the deceased. In the aforesaid circumstances, the Tribunal was constrained to fix the notional income as the monthly income for arriving at compensation for loss of dependency. The Tribunal is perfectly justified in fixing the monthly income notionally, but Rs.4000/- fixed is too low, since the cause of action originated from an accident that was occurred in the year 2010, this Court is inclined to re-fix the monthly income as Rs.6,000/-. Since the addition appropriate to the monthly income in consideration of future prospectus being 40%, in view of **Pranay Sethi** 's case supra, this Court is inclined to substitute the same in the place of 50%, wrongly taken by the Tribunal. The deceased having been survived by his wife, two minor children and mother, 1/4[th] of the monthly income arrived at as above needs to be deducted in consideration of personal expenditure of the deceased, likely to be met by him, had he been alive. The Tribunal has rightly deducted 1/4[th] of the monthly income towards personal expenditure. Therefore, the monthly income for the purpose of calculation of compensation for dependency is arrived at as Rs.6,300/- [6000+40% of 6000(-1/4)]. The Tribunal has adopted the multiplier of 15 which in view of ## **Sarla Verma v. Delhi Transport Corporation (2010(2) KLT** **802 (SC),** is incorrect. The age of the deceased having been MACA.No. 3752 of 2016 13 established as 33 years, the correct multiplier is 16, and it is adopted. When the compensation for loss of dependency is calculated with monthly income fixed as Rs.6,300/- and the multiplier as 16, the sum arrived at will be Rs.12,09,600/(6300x12x16). Since Rs.8,10,000/- is already awarded by the Tribunal, a sum of Rs.3,99,600/- is payable additionally under the head loss of dependency. Though enhancement was sought by the learned counsel for the petitioners under other heads of compensation, this Court finds interference as totally unwarranted for the reason that reasonable compensation have already been awarded by the Tribunal. Since the Tribunal has awarded Rs.1,00,000/- towards loss of consortium and Rs.25,000/- each towards funeral expenses and loss of estate, this Court is perfectly justified in reducing the said sums and re-fixing those as Rs.40,000/- and Rs.15,000/- each as directed by the Constitutional Bench of the Apex Court in **Pranay Sethi** 's case supra. Therefore, a sum of Rs.60,000/- will be reduced from the compensation already awarded by the Tribunal under the head loss of consortium, and Rs.10,000/- each from the compensation already awarded by the Tribunal under the heads loss of estate and funeral expenses. In **Magma General Insurance Company's** case supra Rs.1,00,000/- awarded to two children of the deceased by the High Court under the head loss of love and MACA.No. 3752 of 2016 14 affection was maintained by the Apex Court. Therefore, this Court is justified in granting Rs.50,000/- each to the minor son and parents of the deceased. Accordingly a total sum of Rs.1,50,000/- is found payable to the petitioners towards loss of love and affection. In view of **Magma General Insurance Company's** case supra, petitioners 2 to 4 are also entitled to get Rs.40,000/- each as compensation under the respective heads, filial consortium and parental consortium. Therefore, the total sum payable under the heads loss of love and affection and filial and parental consortium will be Rs.2,70,000/- (1,50,000 +1,20,000). The Tribunal has already awarded Rs.3,10,000/under the head loss of love and affection. Thus, there will be a reduction of Rs.40,000/- (3,10,000-2,70,000) from the sum already awarded. In the re-fixation **Rs.15,53,600/- (Rupees fifteen lakh fifty three thousand six hundred only)** will be payable to the petitioners [16,73,600(12,74,000+3,99,600) - 1,20,000(60,000+10,000+10,000+40,000)]. The said amount will carry interest at the rate as directed by the Tribunal in the impugned award. The petitioners are also entitled to get proportionate costs. 7 . It was pointed out by the learned counsel for the petitioners at this juncture that in view of the order passed by this Court at the time when the delay of 227 days in filing the MACA.No. 3752 of 2016 15 appeal was condoned, that the petitioners will not be entitled for interest for that period. Therefore, the petitioners will not be entitled to get interest for the sum now arrived at as additional compensation payable, for a period of 227 days. In the result, the appeal stands allowed in part. The petitioners are entitled to get a sum of **Rs.15,53,600/- (Rupees** **fifteen lakh fifty three thousand six hundred only)** with interest at the rate of 8% interest per annum from the date of the claim petition till the date of realisation, excluding 227 days, the period of delay occurred in filing the appeal. The 3[rd] respondent, insurer shall deposit the aforesaid additional sum with interest as directed within a period of two months from the date of receipt of a copy of this judgment. The parties shall bear their respective costs. **Sd/-** ## **MARY JOSEPH** ## **JUDGE** ab