Tintu Rajeev Kalalppurakkal vs M/s Auto Cars A/P Chitegaon; Syed Basheer Chand; The Oriental Insurance Co. Ltd. (MACA No. 1176 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945** **MACA NO. 1176 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 1074/2007 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/PETITIONERS:** 1 TINTU RAJEEV KALALPPURAKKAL HOUSE, PADAMUGAL, KAKKANADU.P.O, KAKKANAD VILLAGE, KANAYANNUR TALUK. 2 ATHISH MINOR, AGED 14 YEARS S/O. LATE R. RAJEEV, REP. BY NEXT FRIEND MOTHER IST CLAIMANT RAJEEV. 3 REP. BY NEXT FRIEND MOTHER, 1ST CLIAMANT TINTU RAJEEV SAROJINI AMMA M/O. LATE R. RAJEEV, DOBY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS** 1 M/S. AUTO CARS A/P CHITEGAON, T Q PAITHAN, AURANGABAD - 824 101. 2 SYED BASHEER CHAND S/O. SAYED CHAND, C/O. AUTO CARDS, A/O. CHITEGAON, T Q PAITHAN, AURANGABAD -824 101. 3 THE ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE, ERNAKULAM, KOCHI -18. BY ADV SRI.GEORGE CHERIAN THIRUVALLA ## **OTHER PRESENT:** SRI.GEORGE CHERIAN-SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A No. 1176 of 2012 ## **JUDGMENT** The appellants are the petitioners in O.P(M.V) No. 1074/2007 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The said claim petition was submitted by them seeking compensation for the death of one 'Rajeev', who died due to the injuries sustained to him in a motor accident that occurred on 25.01.2007. The accident occurred when the car driven by the deceased, along with three passengers, collided with a lorry bearing registration No.MH-20-AA-7932 driven by the 2[nd] respondent herein. The said lorry was owned by the 1[st] respondent and was insured with the 3[rd] respondent. 2. According to the appellants, the deceased was aged 27 years at the time of the accident and was working as a Sales Manager in a private firm with a monthly income of Rs.17,500/-. The 1[st] appellant is the wife, the 2nd appellant is the daughter, and the 3[rd] and 4[th] appellants are the parents of the deceased. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent/insurance company alone contested the matter by filing a written statement wherein they admitted the coverage of policy in respect of the lorry, but they 3 M.A.C.A No. 1176 of 2012 disputed the negligence as well as the quantum of compensation. 4. The said case was tried along with O.P.(M.V) Nos.1070/2007 and 1072/2007, which arose in connection with the very same accident. The evidence in this case consists of Exts.A1 to A21 from the side of the claimants. No evidence was adduced by the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the lorry and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.8,35,000/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard, Sri. A.N. Santhosh, the learned counsel appearing for the appellants and Sri. George A Cherian, the learned Senior counsel appearing for the 3[rd] respondent /insurance company. 4 M.A.C.A No. 1176 of 2012 6. The main dispute in this case relates to the quantum of compensation, particularly under the head of loss of dependency. The main contention put forward by the learned counsel for the appellants is that the Tribunal fixed the monthly income as Rs.5,000/- whereas the claim was for an amount of Rs.17,500/-. It was pointed out that, even though Ext.A20 salary certificate was produced before the Tribunal, wherein it was certified that the monthly income was Rs.17,500/- the same was not considered and a meager amount of Rs.5,000/was taken. 7. After considering the materials on record, I find some force in the said contention. This is particularly because this is a case in which the deceased in this case and two others died due to the injuries sustained in the accident which occurred while they were travelling together in a vehicle. All the said persons were employed in the very same institution, and all of them have produced the salary certificates issued by the said institution. The very fact that all three persons travelling together in a vehicle died due to the injuries and claimed to be employees of a particular firm itself shows the high probability 5 ## M.A.C.A No. 1176 of 2012 of the case advanced by the appellants as far as the nature of employment of the deceased is concerned. However, it is true that Ext. A20 certificate was not proved by examining a competent person from the establishment where the deceased was working. Therefore, the monthly income, as certified in Ext.A20, cannot be accepted as such. However, under no circumstances the monthly income of Rs.5,000/- taken by the Tribunal could be treated as a reasonable figure in the facts and circumstances of the case. As mentioned above, the nature of employment of the appellant is discernible from the records and therefore, a reasonable amount ought to have been fixed by the Tribunal towards his monthly salary. 8. I have already decided the appeal filed against the award passed in O.P.(M.V) No.1070/2007, which was tried and disposed of along with the claim petition which is the subject matter of this case. In the said case, the claim petition was in respect of the death of another employee who was travelling in the very same vehicle. In the said case, the annual income after deduction of tax, for the purpose of computation of loss of dependency, was reckoned as Rs.1,68,000/-. The assessment 6 ## M.A.C.A No. 1176 of 2012 in the said case was made based on the income tax returns submitted by the claimants therein. However, in this case, there is no such document showing that the deceased was an assessee and that he was paying any income tax. But still, the standard at which the salaries were being paid to the employees in the said company is discernible from the same. Therefore, the said aspect can be taken into consideration while fixing the monthly income of the deceased in this case as well, as he was also a person working in the same company. In such circumstances, I am of the view that an amount of Rs.9,000/can be taken as the monthly income in this case. 9. Another aspect to be noticed is that the Tribunal has not made any additions towards future prospects. Considering the principles laid down by the Honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], 40% of the monthly income is to be added towards future prospects. While calculating the compensation with the above criteria, the amount would come to Rs.19,27,800/- [(9,000+40%) x 12 x 17 x 3/4] **.** The amount 7 M.A.C.A No. 1176 of 2012 already awarded by the Tribunal is Rs. 7,65,000/- and the additional amount would come to Rs.11,62,800/-. 10. When moving on to the other heads, it can be seen that the Tribunal has awarded only Rs.5,000/- each under the head of funeral expenses and loss of estate. In the light of the observations in **Pranay Sethi** (supra), the said amounts are to be enhanced by granting a further sum of Rs. 10,000/- each. Similarly, the amounts awarded towards loss of consortium by the Tribunal was only 20,000/-. As per the observations made by the honourable Supreme Court in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others** [2018 (3) KLT Online 3095 (SC)] and **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780], all the appellants being the wife, child and parents of the deceased are entitled for compensation for loss of consortium at the rate of Rs.40,000/- each and thereby the total amount under the said head would come to Rs.1,60,000/-. At this juncture, the learned counsel for the insurance company would point out that the Tribunal has awarded an amount of Rs.25,000/- under the head of compensation for loss of love and 8 M.A.C.A No. 1176 of 2012 affection, which was not warranted in the light of the observations made by the honourable Supreme Court in **Satwinder Kaur** (supra). As per the said decision, when compensation is awarded for loss of consortium, no further amount needs to be granted for loss of love and affection. Therefore, I am of the view that the amount of Rs.25,000/granted for loss of love and affection can be adjusted against the additional amount granted towards loss of consortium. Thus, the additional amount under the said head would come to Rs.1,15,000/-. Thus, the total additional compensation receivable by the appellants is determined as Rs.12,97,800/-. (11,62,800 + 20,000 + 1,15,000) In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 14.07.2011 passed by the Motor Accidents Claims Tribunal, Ernakulam, in O.P.(M.V) No. 1074/2007 is hereby modified by granting an additional compensation of Rs.12,97,800/- (Rupees twelve lakhs ninety seven thousand and eight hundred only) and the said amount shall be deposited by the 3[rd] respondent/insurance company along with interest at the rate as ordered by the Tribunal and 9 M.A.C.A No. 1176 of 2012 proportionate cost within a period of three months from the date of receipt of a copy this judgment. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk