Smitha, Lisandra, N.A. Kurian and Pushpan T.L. v. Mary M. Xavier, ABY C.B. and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 MACA NO. 1959 OF 2013** **AGAINST THE ORDER/JUDGMENT DATED 18.12.2012 IN OPMV NO.1173 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,** ## **IRINJALAKUDA** ## **APPELLANT/S:** - **1 SMITHA, W/O. LATE DR.RAJU N.KURIAN, NELLISSERY HOUSE, PERINGOTTUKARA, THRISSUR DISTRICT.** - **2 LISANDRA, AGED 11 YEARS, D/O. LATE DR.RAJU N.KURIAN, NELLISSERY HOUSE, PERINGOTTUKARA, THRISSUR DISTRICT, REPRESENTED BY MOTHER AND NEXT FRIEND SMITHA, W/O. LATE DR.RAJU N.KURIAN, NELLISSERY HOUSE, PERINGOTTUKARA, THRISSUR DISTRICT.** - **3 N.A.KURIAN, S/O. ANTONY, NELLISSERY HOUSE, PERINGOTTUKARA, THRISSUR DISTRICT.** - **4 PUSHPAN T.L., W/O. N.A.KURIAN, NELLISSERY HOUSE, PERINGOTTUKARA, THRISSUR DISTRICT. BY ADVS.** - **SRI.M.R.DHANIL** - **SRI.M.H.HANIL KUMAR** ## **RESPONDENT/S:** - **1 MARY M.XAVIER, W/O. XAVIER, 29/1601, VELLIKKAKATH VEEDU, THAIKKOODAM P.O., VYTTILA, KOCHI.** - **2 ABY C.B., S/O. GEORGE, EDAPPANAYATH HOUSE, MANNAR, AINAPURAM VILLAGE, ERNAKULAM DISTRICT.** - **3 THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD., DOI, COCHIN, JEWEL ARCADE, LAYAM ROAD, P.B.NO.1010, ERNAKULAM.** **BY ADVS. SRI.K.S.ARUN KUMAR SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1959/2013 : 2 : ## **JUDGMENT** The petitioners are the appellants in OP(MV) No.1173/2003 on the files of the Motor Accident Claims Tribunal, Irinjalakuda. 2. The said claim petition was submitted by them seeking compensation death of one Dr Raju N.Kurien, due to the injuries sustained to him in a motor accident that occurred on 27.05.2007. According to the appellants, the accident occurred when the car driven by the deceased was hit by another car driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner of the said car and it was insured with the 3[rd] respondent. The deceased was a Dentist by profession, aged 33 years and the monthly earnings claimed to be Rs.30,000/-. He was the husband of the 1[st] appellant, father of the 2[nd] appellant and the son of the appellants 3 and 4. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent filed a written statement admitting the insurance policy for the said vehicle. However, they denied the negligence on the part of the 2[nd] respondent and the quantum of compensation was also disputed by them. M.A.C.A. No.1959/2013 : 3 : 4. To substantiate the contentions, the appellants examined PWs 1 and 2 and Exts.A1 to A22 were marked. As court exhibits, Ext.X1 to X3 were marked. After the trial, the tribunal found that the accident occurred due to the negligence of the 2[nd] respondent in driving the car insured with the 3[rd] respondent and since the coverage of the policy was admitted, the liability to pay the compensation was imposed upon the 3[rd] respondent. The quantum of compensation was fixed as Rs.23,21,667/- and the 3[rd] respondent was directed to deposit the said amount with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri. M.R.Dhanil, the learned counsel appearing for the appellant, Sri. K.S.Arun Kumar, the learned counsel appearing for the 2[nd] respondent and Sri. V.P.K. Panicker, the learned counsel appearing for the 3[rd] respondent. 6. The learned counsel for the appellants contends that the amounts awarded by the tribunal under various heads are extremely on the lower side. Even though, the counsel for the 2[nd] and 3[rd] respondents opposes the said contention, I find force in the M.A.C.A. No.1959/2013 : 4 : submission made by the learned counsel for the appellants. 7. The first aspect to be considered is the compensation for loss of dependency. The learned counsel for the appellant points out that, even though a monthly income of Rs.30,000/- was claimed, the tribunal fixed the monthly income as Rs.16,791/which was grossly inadequate. However, on going through the records, it is seen that the tribunal fixed the monthly income of the deceased as Rs.16,791/- based on Ext.A8 income tax return submitted by the deceased during the year 2006-07. However, the contention put forward by the learned counsel for the appellants is to the effect that, in addition to the income declared in Ext.A8, he was getting a further sum of Rs.6,000/- per month as evidenced by Ext.X3. However, I am of the view that, the said aspect cannot be accepted in view of the fact that, the income tax return based on which the assessment made, was for the assessment year 2006- 07. If the deceased was getting any additional income under normal circumstances, the same also should have been reflected therein. The income tax return, being a document based on the declarations of assessee himself, has some acceptance and credibility as far as the amount mentioned therein is concerned. M.A.C.A. No.1959/2013 : 5 : All the income of the assessee was supposed to be included in the income tax return. In such circumstances, I am of the view that, the monthly income was fixed by the tribunal, on the basis of a reliable document submitted on behalf of the deceased himself and hence I do not find any scope for interference as far as the fixation of monthly income is concerned. 8. However, the tribunal did not take into account the future prospects, while assessing the compensation, which was a mandatory requirement in the light of the observations made by the Hon’ble Supreme Court in **Sarla Varma v. Delhi Transport Corporation** [2010(2)KLT 802 (SC)] and **National Insurance Company Ltd. v. Pranay Sethi [** 2017(4) KLT 662]. As the deceased was aged 33 years, at the time of the accident, an addition of 40% needs to be made under this head. The learned counsel for the 3[rd] respondent in this regard points out that, the parameters adopted by the tribunal while assessing the compensation were not correct. It was pointed out that, the multiplier applied was 17 whereas the proper multiplier that should have been applied in the light of **Sarala Varma’s** case (supra) was 16. The said contention is to be accepted. M.A.C.A. No.1959/2013 : 6 : 9. The learned counsel for the appellant at this juncture points out that, the deduction made by the tribunal towards personal expenses was 1/3, whereas the proper deduction should have been 1/4 as the deceased left behind four dependents. The learned counsel for the 3[rd] respondent opposes the said contention by highlighting that the 3[rd] respondent being the father, cannot be treated as dependent for the purpose of deduction, as he was an earning member of the family. It was pointed out by the learned counsel for the 3[rd] respondent that, no evidence was also adduced to substantiate that the 3[rd] appellant in any manner was depending upon the deceased for his livelihood. In the absence of the same, he cannot be treated as a dependent and therefore, he seeks for sustaining the finding of the tribunal in adopting the deduction of 1/3. 10. After considering all relevant aspects, I am of the view that, the said submission of the learned counsel for the 3[rd] respondent cannot be accepted. As far as the compensation for loss of dependency is concerned, that is awarded for addressing the loss, the dependents are likely to incur in future, consequent to the death of the deceased. The purpose of deducting expenses M.A.C.A. No.1959/2013 : 7 : towards personal expenses is to find out the amount towards actual dependency which the dependents could have availed in furture had he been alive. While determining the personal expenses, the number of dependents are taken into account in view of the fact that he will have to make adjustments to his own life in the matter of spending for his personal expenses by taking into account the other expenses he was bound to spend for the welfare of his family or the other persons depending upon him. Therefore, since the compensation for dependency was being calculated for the loss likely to be suffered by the claimant in future, the eventualities that are likely to occur in future cannot be completely ignored. Ofcourse it is true that, the parameters that are being adopted, for determining the compensation should be based on the date of the accident, but as far as the deductions towards personal expenses of the deceased are concerned, the purpose is to address a future loss which is likely to occur. When that aspect is to be considered, the eventuality such as the father requiring assistance including the financial assistance of the son, at some point in time during his old age, cannot be ignored. Therefore, merely because, the father was not a dependent as on M.A.C.A. No.1959/2013 : 8 : the date of the accident, he cannot be treated as person not dependent upon the son for the deduction towards personal expenses. While considering the same, the necessity of a dependency of the father, likely to arise in the future, consequent to various aspects such as, the loss of capacity of the father to earn due to ill health or some other reasons, cannot be ignored. This aspect was already considered by this Court in a judgment reported in **New India Assurance Co. Ltd. v. Shymi** [2023 (6) KLT 38]. In the said decision it was observed as follows: “11. There is yet another aspect. The appellant contends that the father cannot be treated as dependent, whereas there is no objection to treating the mother as a dependent. Such a view is also not proper, as it creates unwarranted discrimination and is part of a patriarchal point of view where the women are treated as weaker, and the men are treated as always strong, i.e. someone who will always be capable of taking care of themselves without the support of anyone. Men also do crumble down and look forward to the support of others, particularly from their children, at various stages of life for various reasons such as financial exigencies and setbacks, physical and mental ailments, loss of earning capacity as the age advances, etc. Thus, not treating the father of the deceased as a dependent, at least to determine the rate of deduction to be made from the income of the deceased son towards his personal expenses, would be an injustice. Therefore, I am of the view that the father is to be treated as a person dependent upon the son for that purpose. Thus, I find that the number of dependents in this case is to be taken as four, and therefore, the deduction of 1/4[th] made by the Tribunal is not liable to be interfered with”. M.A.C.A. No.1959/2013 : 9 : 11. Thus in the light of the aforesaid observation, I do not find any scope for considering the contention raised by the learned counsel for the 3[rd] respondent in this regard and I hold that, for the limited purpose of determining the deduction to be made towards personal expenses, the father has to be treated as a dependent. Therefore, the deduction is found to be 1/4[th] . While reassessing the compensation with the above criteria, the amount of compensation comes Rs.33,85,065.6 [(16,791+40%)x12x16x3/4] which is rounded to 33,85,066/-. The amount already awarded by the tribunal is Rs.22,83,667/- and thus the total additional compensation would come to Rs.11,01,399/-. The amount awarded towards funeral expenses was only Rs.2,000/- and in the light of **National Insurance Company Ltd. v. Pranay Sethi [** 2017(4) KLT 662] a further sum of Rs.13,000/- is awarded. Similarly only Rs.5000/- was awarded towards loss of estate whereas the actual amount should have been Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is awarded. 12. The next aspect relates to the compensation for the loss of consortium. All the appellants, being the wife, daughter and parents of the deceased are entitled to compensation for loss M.A.C.A. No.1959/2013 : 10 : of consortium at the rate of Rs.40,000/- each in the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram** [(2018) 18 SCC 130], and **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [2020 (3) KHC 760]. The tribunal awarded an amount of Rs.10,000/- towards the loss of consortium and a further sum of Rs.10,000/- towards the loss of love and affection. In **Satinder Kaur,** it was held by the Hon’ble Supreme Court that when the compensation is awarded for loss of consortium, no separate amount needs to be awarded for loss of love and affection. Therefore, the amount granted by the tribunal towards loss of love and affection should be adjusted against the amount fixed by this Court towards loss of consortium. This will result in an additional compensation at Rs.1,40,000/- under the head of loss of consortium. Thus the total additional compensation is determined as Rs.12,64,399/- [1101399+13000+ 10000+140000]. In the result, this appeal is allowed. The award dated 18.12.2012 passed by the Motor Accident Claims Tribunal, Irinjalakuda in OP(MV) No.1173/2007 is hereby modified by granting an additional compensation of Rs.12,64,399/- (Rupees M.A.C.A. No.1959/2013 : 11 : twelve lakhs sixty-four thousand three hundred and ninety-nine only). The said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the tribunal and with proportionate costs within a period of three months from the date of the receipt of a copy of this judgment. However, as there was a delay of 142 days in filing the appeal the 3[rd] respondent shall be excluded from the said period while computing the interest on the additional compensation. It is further ordered that the claimants shall furnish the details of the PAN card, Aadhar card and bank details to enable the insurance company to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd