Kerala High Court
Manuel T.J vs Remold A.J on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
MACA NO. 993 OF 2012
AGAINST THE AWARD DATED 27.10.2011 IN OPMV 1229/2010 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANTS/PETITIONERS:
1 MANUEL T.J.
AGED 56 YEARS
F/O.LATE DAVID, S/O.JOSHAW, 'BETH-APHREM',
PALLURUTHY.P.O.
2 AMMINI
AGED 52 YEARS
W/O.MANEL, M/O.LATE DAVID, 'BETH-APHREM',
PALLURUTHY.P.O.
3 JAMES
AGED 28 YEARS
S/O.MANUEL, B/O.LATE DAVID, 'BETH-APHREM',
PALLURUTHY.P.O.
4 JEMIMAH
AGED 20 YEARS
D/O.MANUEL, SR/O LATE DAVID, 'BETH-APHREM',
PALLURUTHY.P.O.
5 RHODA
AGED 18 YEARS
D/O.MANUEL, SR/O.LATE DAVID, 'BETH-APHREM',
PALLURUTHY.P.O.
BY ADVS.
SRI.KISHOR B.
SRI.AJAY JOHNS
SRI.TOMS MATHEW
MACA NO. 993 OF 2012 2
RESPONDENTS/RESPONDENTS:
1 REMOLD A.J.
ANCHUTHAIKAL HOUSE, CHULLICKAL, KOCHI-682005.
2 VINU
S/O.MURALEEDHARAN, PUTHANATT CHIRA, NADAKKAVU P.O.,
UDAYAMPEROOR.
3 THE NEW INDIA ASSURANCE CO.LTD.
ERNAKULAM, COCHIN-682 018.
BY ADV LAL K.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 993 OF 2012 3
Dated this the 2nd day of November, 2021.
JUDGMENT
The appellants were the petitioners in OP(MV)
1229/2010 on the file of the Motor Accidents Claims
Tribunal, Ernakulam. The respondents in the appeal were
the respondents before the Tribunal.
2. The appellants had filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the death of 'David'(deceased),
the son of the appellants 1 and 2 and the brother of the
appellants 3 to 5. It was their case that, on 07.06.2010,
while the deceased was riding his motorcycle bearing
registration No. KL 7/AL 9041 from Ernakulam to
Thoppumpady, when he reached the BOT bridge, a car
bearing registration No. KL 7/ AZ 2540 (car) driven by the
2nd respondent in a negligent manner, hit the motorcycle.
The deceased sustained serious injuries and was rushed to
the Medical Trust Hospital, Ernakulam. Even though he
was treated for a period of 12 days, he lost his life on
19.06.2010. The deceased was a bachelor. He was
employed as a supervisor with a private builder and was
earning a monthly income of Rs.11,000/-. The car was
owned by the 2nd respondent and insured with the 3 rd
respondent. The appellants were the dependents of the
deceased. The appellants claimed a compensation of
Rs.37,27,000/- from the respondents, which was limited to
Rs.20,00,000/-.
3. The 1st appellant, who was the pillion rider on the
motorcycle, also filed OP(M.V) No.1261/2010 before the
same Tribunal, seeking compensation on account of the
injuries sustained in the same accident.
4. The respondents contested the claim petitions by
filing separate written statements in both the claim
petitions. They refuted the allegations in the claim petitions
and contended that the accident occurred due to the
negligence of the deceased and that the amounts claimed in
the claim petitions were excessive.
5. The Tribunal consolidated and jointly tried the two
claim petitions.
6. A witness was examined as PW1 on the side of the
petitioners and Exhibits A1 to A24 were marked in
evidence. Exhibits X1 and X2 were summoned and marked
as court exhibits.
7. The Tribunal by its common award, allowed the
captioned claim petition, by permitting the appellants to
realise from the 3rd respondent an amount of Rs.13,17,360/-
with interest @ 8% per annum from the date of petition till
the date of realisation and proportionate costs. The
compensation amount was directed to be apportioned
among the appellants in the ratio of 35:35:10:10:10.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioners are in appeal.
9. Heard Sri.Kishore B., the learned counsel
appearing for the appellants/petitioners and Sri.Lal K.
Joseph, the learned counsel appearing for the third
respondent/insurer.
10. The question that arises for consideration in this
appeal is whether the quantum of compensation awarded by
the Tribunal is reasonable and just.
Negligence and liability
11. Exhibit A2 charge sheet filed by the Kochi City
Traffic Police clearly substantiates that the accident
occurred due to the negligence of the 2 nd respondent.
Admittedly, the 1st respondent was the owner and the 3rd
respondent was the insurer of the car. The 3 rd respondent
had admitted that the car had a valid insurance policy and
had not proved that the 1st respondent had violated the
insurance policy conditions. Therefore, the 3 rd respondent
is to indemnify the liability of the 1 st respondent arising out
of the accident.
Income of the deceased
12. The appellants had averred that the deceased was a
supervisor by profession and working with a private builder.
They claimed that he was drawing a salary of Rs.11,000/-.
They produced Exhibit A23 salary slip, Exhibit X1 and X2
pay slips and proved the same through PW1. However, the
Tribunal after deducting the tax quotient, fixed the monthly
income of the deceased at Rs.10,000/-. I do not find any
error in the fixation of the monthly income of the deceased
at Rs.10,000/- because, the Honourable Supreme Court in
Kalpanaraj and Others v. Tamil Nadu State Transport
Corporation[(2015) 2 SCC 764] has categorically held that
the income tax and professional tax have to be deducted
from the salary of the deceased/injured for fixation of the
net income. Thus, I confirm the monthly income of the
deceased at Rs.10,000/-.
Multiplier
13. The deceased was aged 26 years at the time of the
accident. In the light of the law laid down in Sarla Verma
and Others v. Delhi Transport Corporation and
another [(2009) 6 SCC 121], the relevant multiplier is '17'.
Personal living expenses of the deceased
14. Undisputedly, the deceased was a bachelor. Going
by the law in Sarala Verma (supra) and National
Insurance Co. Ltd. v. Pranay Sethi [2017 (16) SCC 680],
one half of the compensation has to be deducted towards
the personal living expenses of the deceased.
Future Prospects
15. Following the ratio in Sarla Verma and Pranay
Sethi (supra) and considering the fact that the deceased
was aged 26 years at the time of accident, I hold that the
appellants 1,2, 4 and 5 are entitled to future prospects at
40% on the compensation for loss due to dependency.
Loss due to dependency
16. Taking into account the above mentioned factors,
namely, the monthly income of the deceased at Rs.10,000/-,
the multiplier at '17', future prospects at 40% and
deducting one half of the compensation towards the
personal living expenses of the deceased, I re-fix the
compensation for loss due to dependency at Rs.14,28,000/-
instead of Rs.8,80,000/- fixed by the Tribunal.
Conventional heads of compensation
17. In clause (viii) of paragraph 61 of Pranay Sethi
(supra), the Honurable Supreme Court has held that the
dependents of the deceased are entitled for compensation
under the conventional heads namely, funeral expenses, loss
of estate, and loss of consortium at Rs.15000/-, Rs.15000/-
and Rs.40,000/- respectively.
18. In the instant case, the Tribunal has awarded an
amount of Rs.7,500/- under the head 'funeral expenses'.
Therefore, I enhance the compensation under the said head
by a further amount of Rs.7,500/-. The Tribunal has not
awarded any amount under the heads 'loss of estate' and
'loss of consortium'. Hence, I award an amount of
Rs.15,000/- under the head 'loss of estate' and award an
amount of Rs.40,000/- each to the appellants 1,2, 4 and 5,
who are the dependents of the deceased towards ' loss of
consortium' which amounts to Rs.1,60,000/-. I decline to
award 'loss of consortium' to the 3rd appellant because he
was older to the deceased and leading an independent life.
Loss of love and affection
19. The Tribunal has awarded an amount of Rs.25,000/-
under the head 'loss of love and affection'.
20. New India Assurance Company Ltd. v. Somwati
and others [(2020) 9 SCC 644], the Honourable Supreme
Court has held that once compensation under the head 'loss
of consortium' is awarded, no amount of compensation shall
be awarded under the head 'loss of love and affection', as it
amounts to duplication of the compensation. Therefore, I
set aside the amount awarded under the said head.
21. With respect to other heads of claim, namely,
transport expenses at Rs.2,500/-, medical expenses at
Rs.3,77,360/-, and compensation for 'pain and sufferings' at
Rs.25,000/-, I find the same to be reasonable and just. I
confirm the compensation for 'pain and sufferings' at
Rs.25,000/- because the deceased had lost his life only 12
days after the accident.
22. On a comprehensive re-appreciation of the
pleadings and materials on record, and the law referred to
in the afore-cited precedents, I hold that the appellants 1,2,
4 and 5 are entitled for enhancement of the compensation
as modified and re-calculated above, and given in the table
below for easy reference.
SI. Head of claim Amount Amounts
awarded (in modified
No rupees) and
recalculate
d by this
Court
1 Transportation 2500/- 2500/-
expenses
2 Funeral expenses 7500 15,000
3 Loss of estate 0 15,000
4 Medical expenses 3,77,360 3,77,360
5 Pain and suffering 25,000/- 25,000/-
6 Loss of love and 25,000/- 0
affection
7 Loss of consortium 0 1,60,000
8 Loss of dependency 8,80,000 14,28,000
Total 13,17,360 20,22,860
In the result, the appeal is allowed, by enhancing the
compensation by a further amount of Rs.7,05,500/- with
interest at the rate of 8% per annum from the date of
petition till the date of deposit and proportionate costs.
The third respondent is ordered to deposit the enhanced
compensation with interest and cost before the Tribunal
within sixty days from the date of receipt of a certified copy
of the judgment. Immediately on the compensation being
deposited, the Tribunal shall disburse the above amount to
the appellants 1,2,4 and 5 in the ratio of 30:30:20:20,
respectively and in accordance with law.
Sd/-
C.S.DIAS, JUDGE
rmm3/11/2021
