Kerala High Court

Valsala K. vs Pradeep K.V. on 18 March, 2021

             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, DISTRICT-
             PIN- 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 18th 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

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

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

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 Sarla Verma V. Delhi Transport Corporation (2009

(6) SCC 121). Therefore, the dependency compensation is re- MACA.No.1840 OF 2011

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

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

of 8% from the date of petition till realisation. The third

respondent is directed to pay the enhanced compensation with