Suma Kunnumpuram and others v Ravikumar Madathil Parambil and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944 MACA NO. 2508 OF 2008** **AGAINST THE ORDER/JUDGMENT DATED 29.02.2008 IN OP(MV) 180/1999 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,** ## **MAVELIKKARA** ## **APPELLANTS/PETITIONERS:** 1 SUMA KUNNUMPURAM,PULLIKKANAKKU.P.O. 2 CHELLAMMA, KUNNUMPURAM,PULLIKKANAKKU.P.O. 3 VIPIN, AGED 15 YEARS (MINOR,REPRESENTED BY HIS MOTHER SUMA AS GUARDIAN AND NEXT FRIEND OF -DO- -DO-) BY ADVS. SRI.S.MOHANAN SRI.R.REJI SRI.M.V.THAMBAN ## **RESPONDENTS/RESPONDENTS:** 1 RAVIKUMAR MADATHIL PARAMBIL,MANJADITHARA MURI, PALLICKAL.P.O. 2 SHEELA VARGHESE, KANNAMPALLIL HOUSE, PERINGALA.P.O, KAYAMKULAM. 3 NATIONAL INSURANCE CO.LTD, REP.BY ITS DIVISIONAL MANAGER, KOLLAM. BY ADV SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 2508/2008 2 C.JAYACHANDRAN, J. -----------------------------------M.A.C.A No.2508 of 2008 ------------------------------------Dated this the 21[st] day of July, 2022 ## J U D G M E N T 1. The legal heirs of Sri.Viswambharan, who met with an accident on 13.12.1998 and who succumbed to the injuries, are the appellants before this Court. They preferred O.P(M.V) No.180/1999 before the Additional Motor Accidents Claims Tribunal, Mavelikkara. Seeking enhancement of compensation granted under various heads, the instant appeal is filed. 2. Heard Sri.R.Raji, learned counsel for the appellants and Smt.Sara Salvy, learned counsel for the third respondent/insurance company. 3. Learned counsel for the appellants first submitted that his annual income was Rs.45,450/- as he was conducting a tailoring shop at the time of the accident. His income has been certified by the Village Officer vide Annexure-A9 certificate. However, the MACA 2508/2008 3 Tribunal took only Rs.30,000 as the notional income. This Court takes note of the fact that the deceased was doing a skilled job of tailoring at the time of the accident. Prima facie proof is available by virtue of Ext.A9 certificate, although the same cannot be taken as conclusive. In such facts and circumstances, this Court is inclined to fix the annual income at Rs.40,000/-, of which 1/3[rd ] has to be deducted towards personal expenses. 4. The second contention is with respect to compensation on account of future prospects, which was not taken at all by the Tribunal. According to the learned counsel for the appellants, future prospects is to be reckoned at 40%, as per the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] . This was opposed by the learned counsel for the Insurance Company pointing out that for a person, who does not have permanent income, future prospects can be reckoned only at 25%. 5. To resolve the above controversy, this Court will MACA 2508/2008 4 straight away refer to conclusion nos.(iii) and (iv) in Pranay Sethi (supra), which are extracted herein below: “(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” A perusal of the above would indicate that clause (iii) deals with persons having salaried job, whereas clause (iv) deals with persons, who are either self employed or on a fixed salary. In the case of clause MACA 2508/2008 5 (iv), reckoning a definite percentage of the established income for the purpose of future prospects, is completely dependent upon the age and the same should be 40% of the established income, in cases where the deceased was below the age of 40 years. In the instant case, there is no controversy that the deceased was 35 years at the time of his death as found in paragraph no.7 of the impugned award. That being so, the contention of the learned counsel for the Insurance Company that only 25% of the income is liable to be reckoned for future prospects is only to be repelled. 40% of the income is to be reckoned for the purpose of future prospects. 6. The third contention is with respect to compensation on account of loss of consortium and love and affection. The Tribunal has granted only Rs.10,000/-towards loss on account of consortium and Rs.15,000/- towards loss of love and affection. Going by the judgment in Pranay Sethi (supra), loss of consortium is to be granted at the rate of Rs.40,000/per head for each of the legal heirs. This contention is only to be recognised and the appellants are MACA 2508/2008 6 entitled to a sum of Rs.1,20,000/- towards consortium, since the deceased is survived by three dependent legal heirs. Simultaneous with that, the amount of Rs.25,000/- granted by the Tribunal towards compensation on account of consortium and love and affection has to be excluded. 7. Similarly, the amount of Rs.15,000/- granted under the head pain and suffering is also liable to be deleted, going by the judgment in Pranay Sethi (supra). Rs.3,000/- alone was reckoned for funeral expenses, under which head, the appellants are entitled to Rs.15,000/- as per the judgment in Pranay Sethi (supra). It was pointed out by the learned counsel for the Insurance Company that the Tribunal had adopted a wrong multiplier of 17, instead of the correct multiplier of 15, the age of the deceased being 35 at the time of the accident. As per the judgment of the Hon’ble Supreme Court in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] , this contention is also liable to be accepted. MACA 2508/2008 7 8. In the result, this appeal is allowed and the amount of compensation payable to the appellants is reworked as indicated in the tabular statement shown hereinbelow: |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(Rs.)|Total amount<br>after<br>enhancement<br>in appeal<br>(Rs.)| |---|---|---|---| |1|Loss of dependency and<br>estate|340000|560000| |2|Transportation to<br>hospital|2500|2500| |3|Damage to clothing|500|500| |4|Funeral expenses|3000|15000| |5|Pain and suffering|15000|-| |6|Loss of consortium|10000|120000| |7|Los of love and<br>affection|15000|-| |||3,86,000|6,98,000| ||Amount enhanced =Rs.3,12,000/-(6,98,000 - 3,86,000)||| *[40000x(140/100)x15x(2/3)] 9. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 5% from the date of petition. If any amounts have already been paid, the same shall be granted set off. Since there was a delay of 33 days in filing the appeal, the interest for the enhanced MACA 2508/2008 8 quantum shall not run for the said period as directed in order dated 28.10.2021 in C.M.Appl.No.1/2008. The claimant/s shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. ## 10. The appeal is allowed as indicated above. Sd/C.JAYACHANDRAN JUDGE jg