VASANTHY and DEEPU ANAND v. UMESH, ASEEF and The Oriental Insurance Co. Ltd.

MACA.No.1068/16 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 MACA NO. 1068 OF 2016_ _AGAINST THE ORDER/JUDGMENT OP 216/2008 OF ADDITIONAL DISTRICT COURT & IST ADDITIONAL MOTOR ACCIDENT CLAIMS_ ## _TRIBUNAL ,ALAPPUZHA._ _APPELLANTS/PETITIONERS:_ _1 VASANTHY, KUNNEVELIYIL, SANATHANAPURAM PO, KALACODE, ALAPPUZHA DISTRICT._ _2 DEEPU ANAND, KUNNEVELIYIL, SANATHANAPURAM PO, KALACODE, ALAPPUZHA DISTRICT._ _BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN_ ## _RESPONDENTS/RESPONDENTS:_ _1 UMESH, CHAKKANATTU, KALAVOOR PO, WEST OF A.I.R, MARARIKULAM SOUTH, ALAPPUZHA-688 549._ - _2 ASEEF, THAIPARAMBIL INSURANCE CO.LTD, ALAPPUZHA-688 001._ - _3 THE ORIENTAL INSURANCE CO.LTD._ MACA.No.1068/16 2 _REPRESENTD BY ITS BRANCH MANAGER, BRANCH OFFICE, ALAPPUZHA-688001_ _BY ADV SRI.TITUS MANI_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1068/16 3 ## **JUDGMENT** This appeal is submitted by the petitioners in O.P. (MV).No.216 of 2008 on the files of the Addl.Motor Accidents Claims Tribunal, Alappuzha. The said claim petition was submitted by them seeking compensation for the death of one Dayanandan, who died due to the injuries sustained in a motor accident that occurred on 27.12.2007. The 1[st] appellant is the wife and the 2[nd] appellant is the son of the deceased. 2. The accident occurred when the scooter on which the deceased was pillion riding was hit by a stage carriage bearing registration No.KL-4B-9849, driven by the 1[st] respondent. The 2[nd] respondent was the owner of the said stage carrige and it was insured with the 3[rd] respondent. The deceased was a ration retailer with a monthly income of Rs.7,500/-. He was aged 59 years at the time of the accident. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing written statement wherein they admitted the coverage of policy. MACA.No.1068/16 4 However, they disputed the liability on various grounds. The negligence as well as the quantum of compensation was also disputed by them. 4. The evidence in this case consists of oral testimony of PW1 and Ext.A1 to A11 from the side of the appellants. From the side of the respondents, no evidence was adduced. 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 stage carriage and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.4,65,000/- and the said amount was directed to be deposited with interest at the rate of 7.5% per annum from the date of petition till realization. This appeal is submitted by the appellants seeking enhancement of compensation in such circumstances. 5. Heard Sri.P.J.Joe Paul, learned counsel for the appellants and Sri.Titus Mani, learned counsel for the 3[rd] respondent Insurance Company. 6. The only contest is in relation to the quantum of compensation. The deformities in the award pointed out by the MACA.No.1068/16 5 learned counsel for the appellant is the lower monthly income taken and also the lack of any addition towards future prospects. Both the said contentions are to be accepted in the light of the materials placed on record and on the basis of the principles laid down by the Honourable Supreme Court in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)].** As regards the monthly income, even though Rs.7,500/- was claimed, the Tribunal took only Rs.4,000/-. This amount appears to be on lower side. As mentioned above, he was a ration retailer and to substantiate the same, an Ext.A10 licence issued by the Kerala Food Grains Dealere's Licencing Order 1967 was produced. Besides the same, Ext.A9 certificate issued by the Secretary of All Kerala Retail Ration Dealers' Association Taluk committee, Alappuzha was also produced. The person who issued the Ext.A9 certificate was examined as PW1 as well. As rightly contended by the learned counsel for the appellant, Ext.A10, which is a statutory licence, would indicate that he was a ration retailer. As regards the monthly income, Ext.A9 was produced certifying the monthly income as Rs 7,500/- and the same was proved by the person who MACA.No.1068/16 6 issued the same as well. However, even though Ext.A9 certificate cannot be given much emphasis to determine the monthly income of the deceased, the probability of the deceased earning an amount equivalent to the amount shown therein cannot be ruled out. It is to be noted in this regard that, as per the method of computation of monthly income evolved from the principles laid down by the honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735]** , the monthly income of an ordinary employee, in respect of an accident occurred in the year 2007, can be fixed as Rs.6,000/- even without any evidence. In this case, there is evidence to show that, he was a ration retailer who was issued with a statutory licence by the department of the Government concerned. Therefore, I am of the view that, higher monthly income than usually taken in respect of an ordinary employee can be taken. In that view of the matter, I find that, Rs.7,500/- claimed MACA.No.1068/16 7 by the appellants as the monthly income of the deceased appears to be reasonable. Thus, I am inclined to accept the same. 7. The next aspect is the addition to be made towards future prospects. The Tribunal did not make any such addition whereas it is categorically held in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], that, in respect of persons coming within the age group of 50 to 60, 10% of monthly income should be added towards future prospects. Therefore, such an addition has to be made in this case as well. 8. Thus, while reassessing the compensation with the revised monthly income with 10% addition towards future prospects, the amount of compensation under the head of loss of dependency would come to Rs.5,94,000/- [(7,500+10%) x 12 x 9 x 2/3]. The amount already awarded by the Tribunal is Rs.2,88,000/and thus the additional amount would come to Rs.3,06,000/-. 9. In addition to the said amount, the appellants are entitled to a further sum of Rs.15,000/- under the head of loss of estate as no amount was awarded by the Tribunal under the said head. However, from the award, certain amounts are to be deducted as well. It is seen that an amount of Rs.25,000/- was MACA.No.1068/16 8 granted by the Tribunal towards funeral expenses, which is in excess by Rs.10,000/- in the light of the observations in **Pranay Sethi** (supra). Therefore, the said amount is to be deducted. Similarly, the Tribunal has awarded an amount of Rs.1,00,000/towards loss of consortium whereas in the light of the observations 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], the entitlement of the appellants being the wife and the son of the deceased to get compensation under this head is Rs.40,000/- each. In addition to that, the Tribunal has awarded a further sum of Rs.40,000/- under the head of loss of love and affection. It is a well settled position as per **Satinder Kaur** (supra) that, when compensation is awarded for loss of consortium, no further amounts need to be granted toward loss of love and affection. Therefore, that amount also has to be deducted and it is ordered accordingly. Thus, the compensation for loss of consortium has to be re-fixed as Rs.80,000/- instead of Rs.100,000/-. Thus the total additional compensation receivable MACA.No.1068/16 9 by the appellants are determined as Rs.2,51,000/[(3,06,000+15,000) – (10,000+40,000+20,000)]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 11.04.2014 passed by the Additional Motor Accidents Claims Tribunal, Alappuzha in O.P. (MV) NO. 216/2008 is hereby modified by granting an additional compensation of Rs.2,51,000/- (Rupees two lakhs fifty one thousand only) and the 3rd respondent is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. However, It is clarified that, as the delay of 523 days in the filing the appeal was condoned subject to the condition that the appellants shall not be entitled for interest for the said period, the 3rd respondent can exclude the said period while computing the interest for the additional compensation. Sd/- ## **ZIYAD RAHMAN A.A.** ## **JUDGE** DG/rpk/4.12.23