Valsala K. and others v. Pradeep K.V., A.A. Jose and United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **MACA.No.1840 OF 2011** **AGAINST THE AWARD IN OPMV 38/2008 DATED 27-05-2011 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANTS/PETITIONERS:** - **1 VALSALA K., W/O.LATE K.GOPALAKRISHNAN, AGED 39 YEARS, THALAYADUKKAM HOUSE, KARINDALAM, VILLAGE, HOSDURG TLUK, P.O.KOLLAMPARA(VIA), NILESHWAR, KASARAGOD DISTRICT.** - **2 AMAL KRISHNAN.K.MINOR S/O. LATE K. GOPALAKRISHNAN, AGED 16 YEARS,(MINOR), DATE OF BIRTH 09-03-1995, REPRESENTED BY HIS NEXT FRIEND & GUARDIAN MOTHER VALSALA.K.(1ST PETITIONER** - **3 ASHWINI.K.MINOR D/O. LATE K.GOPALAKRISHNAN, AGED 12 YEARS, DATE OF, BIRTH-06-06-1999, (MINOR) REPRESENTED BY HER, NEXT FRIEND & GUARDIAN MOTHER VALSALA.K., (1ST PETITIONER)** - **4 MADHAVI AMMA.K. W/O. LATE. C.K.KUNHIRAMAN NAIR, AGED 76 YEARS,, THALAYADUKKAM HOUSE, KARINDALAM VILLAGE, HOSDURG, TALUK, P.O.KOLLAMPAR,(VIA) NILESHWAR,, KASARAGOD DISTRICT.** **BY ADVS. SRI.M.M.ANTO SMT.CELINE JOSEPH SRI.GEORGE MATHEWS** ## **RESPONDENTS/RESPONDENTS:** - **1 PRADEEP K.V., S/O.P.KRISHNAN NAIR, PATTENA, PEROL VILLAGE, NILESHWAR, P.O.PATTENA,, HOSDURG TLAUK, KASARAGOD DISTRICT-671314.** - **2 A.A. JOSE S/O. A.P. ABRAHAM ADUKUZHIYIL HOUSE, PADIMARUTHU,CHULLIKKARA,, P.O.PADIMARUTHU,(VIA) MANHANGAD, KASARAGOD, DISTRICTPIN- 671531.** **MACA.No.1840 OF 2011** **2** **3 THE UNITED INDIA INSURANCE COMPANY LTD. 5TH FLOOR, ROHIT CHAMBERS JANMABHOOMI MARG,, MUMBAI-400001.** **R1 BY ADV. SRI.JOHN JOSEPH VETTIKAD BO R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** ## **OTHER PRESENT:** **SR.ADV.SRI.GRASHIOUS KURIAKOSE FOR APPELLANT, SRI.P.JACOB MATHEW FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1840 OF 2011** **3** ## **P.V.KUNHIKRISHNAN, J** -------------------------------M.A.C.A.No.1840 of 2011 ------------------------------Dated this the 18[th] day of March, 2021 ## **JUDGMENT** This appeal is filed by the petitioners/claimants in O.P.(MV) No.38/2008 on the file of the Motor Accidents Claims Tribunal, Kasaragod. It is a claim petition filed under Section 166 of the Motor Vehicles Act claiming a total compensation of Rs.25,00,000/- (Rupees Twenty Five lakhs) by the legal heirs of deceased Gopalakrishnan who died due to the injuries sustained in a road accident. The appellants/petitioners are widow, children and mother of Gopalakrishnan. (Hereinafter, the parties are referred in accordance to their rank in the Tribunal). 2. The short facts are like this: On 30.1.2007, Gopalakrishnan was driving a car bearing registration No. KL14F 4844 at 12.15 p.m. When the car reached near Agricultural **MACA.No.1840 OF 2011** **4** College at Padannakkad, a tipper lorry bearing registration No. KL-14F-1025 came from behind and try to overtake the car. At that time, a bus bearing registration No. KL-14 D- 4536 came from the opposite side. Seeing the bus, the first respondent who was driving Tipper Lorry turned the Tipper Lorry and the Lorry hit on the back side of the car. The car hit against bus causing grievous head injuries to Goplakrishnan. Immediately he was taken to Care and Cure Hospital, Kanhangad and on the same he was declared dead. According to the petitioners, the accident occurred due to the rash and negligent driving of the Tipper Lorry by the first respondent. 3. To substantiate the case, Ext.A1 to A12 were marked on the side of the petitioners and the first petitioner was examined as PW1. After going through the evidence and documents, the Tribunal found that the petitioners are entitled an amount of Rs.4,99,500/- with interest at the rate of 8% p.a. from the date of petition till realisation. Aggrieved by the quantum of compensation, this appeal is filed. 4. Heard the Senior counsel Sri. Gracious Kuriakose and **MACA.No.1840 OF 2011** **5** also senior standing counsel who appeared for the third respondent. 5. The main contention raised by the senior counsel Sri. Gracious Kuriakose is that the income of the deceased is arbitrarily fixed by the Tribunal without considering the documents produced by the petitioners, which is not even disputed by the respondents. The counsel made available the copy of Ext.A9 which is the income tax return of the deceased for the assessment year 2007-08. I perused the same. A perusal of the same it can be seen that the total taxable income mentioned in the return is Rs.3,22,260/- and the deceased Gopalakrishnan paid an amount of Rs. 47,612/- as income tax. The Senior Counsel appeared for the third respondent submitted that the income tax return is produced only for assessment year 2007-08 alone and therefore, this Court may not accept the same since the tax return of the previous years were not produced. I think there is some force in the argument of the counsel for the third respondent. But I cannot ignore Ext.A9 as such. Even as per Ext.A9 there is an amount of Rs.69,436/- collected towards **MACA.No.1840 OF 2011** **6** TDS. The argument raised by the counsel for the third respondent is that Ext.A9 income tax return is submitted after the death of Gopalakrishnan and the same is produced before the court only for getting more compensation. But as I said earlier, an amount of Rs.69,436/- is already deducted from source which is evident from Ext.A9. But, considering the contention of the third respondent, I am not accepting the income in Ext.A9 in toto. If we take the income in Ext.A8, the monthly income of the deceased will be more than Rs.22,000/-. But considering the entire facts and circumstances of the case and also considering the fact that the claim of the petitioners is only Rs.15,000/-, the monthly income of the deceased can be safely fixed as Rs.15,000/-. From which 40% is to be increased towards future prospects in the light of the judgment of the Apex Court in **National Insurance Company Ltd. V. Pranay Sethi (2017 (4) KLT 662(SC)** . Therefore, the amount will be Rs.21,000/-. The multiplier used by the Tribunal is '16', but the actual multiplier is '15' in the light of the decision of the Apex Court in S **arla Verma V. Delhi Transport Corporation (2009 (6) SCC 121)** . Therefore, the dependency compensation is re- **MACA.No.1840 OF 2011** **7** assessed in the following manner: Rs.21,000/-x12x15x3/4=Rs.28,35,000/-. 6. From the above amount, the amount awarded by the Tribunal is to be deducted. Thus the appellants are entitled an enhanced compensation of Rs.23,87,000/towards compensation for dependency. (Rs.28,35,000/-- Rs.4,48,000/-= Rs.23,87,000/-). 7. Then the Senior Counsel submitted that the appellants are the widow, children and mother of the deceased and they are entitled consortium at the rate of Rs.40,000/- each in the light of the decision of the Apex Court in **Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram & Ors. (2018(18) SCC 130).** There is some force in the above argument. The appellants being the widow, two minor children and the mother, are entitled an amount of Rs.40,000/- each, and the total consortium entitled by the appellants are Rs.1,60,000/-. From the above amount Rs.25,000/- is to be deducted because the Tribunal already granted that amount towards loss of consortium and loss of love and affection. **MACA.No.1840 OF 2011** **8** Therefore, the balance amount entitled by the appellants for loss of consortium is Rs.1,35,000/-. Therefore, the enhanced compensation entitled by the appellants can be summarised like this: 1.Compensation for dependency – Rs.23,87,000/- 2.Loss of consortium - Rs.1,35,000/- **Total - Rs.25,22,000/-** 8. It is true that the total claim of the appellants in the claim petition is only Rs.25,00,000/- and the enhanced amount now granted itself is above Rs.25,00,000/-. But the Apex court in **Nagappa Vs. Guru Dayal Singh (2003 (1) KLT 115)** stated that, there is no restriction for the Tribunal to award more compensation than the amount claimed in claim petition. I think in the facts and circumstances of the case, the appellants are entitled the enhanced compensation. In the result, the appeal is allowed in part. The impugned award is modified. The appellants are entitled an enhanced compensation amount of Rs. 25,22,000/- with interest at the rate **MACA.No.1840 OF 2011** **9** of 8% from the date of petition till realisation. The third respondent is directed to pay the enhanced compensation with interest to the appellants. ## **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** Al/-