Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 17TH DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 OPMV 110/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR APPELLANT/S:
1 K.S.PRABHA W/O. LATE MOHANAN PILLAI, KIZHAKKE CHARUVILA VEEDU, AKAMON, AYOOR.P.O., KOLLAM DISTRICT. 2 MANU MOHAN S/O. LATE MOHANAN PILLAI, KIZHAKKE CHARUVILA VEEDU, AKAMON, AYOOR.P.O., KOLLAM DISTRICT. 3 ANU MOHAN S/O. LATE MOHANAN PILLAI,KIZHAKKE CHARUVILA VEEDU, AKAMON, AYOOR.P.O., KOLLAM DISTRICT. 4 DEVAKI AMMA W/O. NEELAKANDA PILLAI, REMA MANDIRAM, EDAMULAKKAL.P.O., KOLLAM DISTRICT. BY ADV SRI.ANCHAL C.VIJAYAN
RESPONDENT/S: 1 G.SHIVAKUMAR NO. 996, 3A CROSS, H. MAIN, 1ST BLOCK, R.B.R. LAYOUT, KALYAN NAGAR, BANGALORE, KARNATAKA-560002. 2 THE MANAGER RELIANCE GENERAL INSURANCE COMPANY LIMITED, MANANDI PLAZA, NO.3, ST. MARKS ROAD, BANGALORE, KARNATAKA-560002. -2- OTHER PRESENT: SMT. LATHA SUSAN CHERIAN -R THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3-
JUDGMENT
(Dated this the 17th day of October 2022) Petitioner Nos.1 to 4 in O.P.(M.V.) No.110 of 2010 on the files of the MACT, Punalur, are the appellants herein. They are the legal heirs of one Mohanan Pillai, who died in a road accident.
2. On 12.4.2007, the deceased was travelling with his
friends on their way to Ayoor in a car bearing registration No.KA-53/2062 from Bangalore. When the car reached Kovai, it hit against a lorry bearing registration No.TN 37AT/7818, which was proceeding in the opposite direction. As a result of the accident, deceased Mohanan sustained serious injuries and though he was taken to General Hospital, he succumbed to the injuries while
-4- undergoing treatment. The compensation is claimed on the ground that the accident happened due to the negligent driving of the lorry driver and deceased Biju Thomas, who was the driver of the car. An amount of Rs.9,00,000/- was claimed as compensation.
3. The 2nd respondent entered appearance and filed a
written statement contending that the accident occurred due to the absolute negligence on the part of the driver of the lorry. The driver of the car was driving the car with ample care and caution. The age, occupation and income of the deceased were also disputed. The compensation claimed is highly exorbitant. Hence, prayed for dismissal of the petition.
4. The Tribunal relying on the oral evidence of PW1 -5-
and Exts.A1 to A10, awarded a compensation of Rs.8,51,000/- with 9% per annum from the date of petition. Aggrieved by the compensation awarded on various heads, this appeal is filed.
5. Heard.
6. The main contention raised by the counsel for the
appellant is that the deceased was an electrician in Southern Electrical Manufacturers, Bangalore and was earning an income of Rs.7,500/- per month. The Tribunal fixed the monthly income at Rs.5,000/- even though Ext.A10 salary certificate was produced and the person who issued the same was examined as PW1. He also contends that the Tribunal ought not have deducted 1/3 rd of the income as personal and living expenses, since at the -6- time of accident the dependents were 4 in number. The Tribunal went wrong in assuming that petitioner Nos.2 and 3 were aged 22 and 21 years respectively and major sons. The compensation granted under various heads were also not just and reasonable and prayed for enhancement of compensation.
7. The counsel for the 2nd respondent/Insurance
company submits that the Tribunal was justified in fixing the income at Rs.5,000/- since there was no positive evidence to prove the exact income of the deceased other than Ext.A10. She also submits that 30% was taken as future prospects. But going by the decision reported in National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], only 25% can be awarded towards future
-7- prospects. The Tribunal also went wrong in awarding Rs.25,000/- towards funeral expenses and Rs.40,000/- towards loss of love and affection.
8. According to the appellants the deceased was an
electrician working in Bangalore and Ext.A10 was produced and PW1 was examined to prove the same. As Ext.A10 is properly proved, the Tribunal is not justified in stating that in the absence of any positive evidence to prove the salary of the deceased, Ext.A10 cannot be taken for calculating the loss of dependency. Hence, I am taking the
monthly salary of the deceased for calculating loss of dependency as Rs.7,500/- based on Ext.A10 as PW1 was examined to prove it. 25% of the salary has to be added towards future prospects instead of 30%. So the monthly -8- income would come to Rs.7,500 + 25% = Rs.9,375/-. Though appellant Nos.2 and 3 are aged 22 and 21 it cannot be said that they are not the dependents of the deceased. Since they have no other source of income, I am inclined to take total dependents as 4 and thus, 1/4 th of the income has to be deducted towards personal expenses. Thus the compensation for loss of dependency can be worked out as Rs.9,375x12x13x3/4 = Rs.10,96,875/-.
9. Towards loss of estate only Rs.5,000/- was
awarded. Going by the decision reported in Relying on the decision mentioned in Pranay Sethi (supra), the minimum amount of compensation for loss of estate that could be awarded is Rs.15,000 + 10% escalation for three years which comes to Rs.16,500/-. -9-
10. The counsel for the respondent relied on the
decision reported in R Valli and others v. Tamil Nadu State Transport Corporation Limited [(2022) 5 SCC 107], and contended that the said addition of 10% shall not be considered while calculating funeral expenses, loss of estate and loss of consortium as the addition can be considered only for accidents which happened after the decision in Pranay Sethi (supra).
11. The counsel for the appellants relied on the
decision reported in N Jayasree & others v. Cholamandalam MS General Insurance Company Ltd. [2021 (6) KHC 163], wherein the apex court in paragraph 32 held as follows:
32. In Pranay Sethi, this Court has awarded a total sum of Rs.70,000/- (Rupees seventy thousand only) -10-
under conventional heads, namely, loss of estate, loss of consortium and funeral expenses. It was held that the said sum should be enhanced at the rate of 10% in every three years. It was held thus: 59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
12. Moreover, this court had occasion to consider this
argument in the decisions reported in Meera P.O. And another v. Ananda P Naik and others [2022(1) KHC 591] and Jyothis. S v. Somasekharan Pillai [2022(5) KLT 866]. The counsel for the appellants submitted that 10% increase has to be given irrespective of the fact that whether the accident happened before 2017 or after 2017. Hence I concur with the decision of the Apex Court in N Jayasree (supra) mentioned above. Hence, loss of estate can be reworked as Rs.15,000 + 10% = 16,500/-.
13. As far as loss of consortium is concerned, the Tribunal has awarded only an amount of Rs.1,00,000/-. -11-
Relying on the decision reported in Magma General Insurance Co.Ltd. v. Nanu Ram Allias Chuhru Ram & Others [(2018) 18 SCC 130] the loss of consortium to be paid is Rs.40,000/-. They are also entitled to 10% increase every three years as per the decision reported in Pranay Sethi (supra) and thus, the 10% increase would come to Rs.44,000 x 4, i.e., Rs.1,76,000/-.
14. The Tribunal has awarded a sum of Rs.40,000/-
towards loss of love and affection. When loss of consortium is awarded, the claimants are not entitled to loss of love and affection and hence the award of Rs.40,000/- fixed by the Tribunal under loss of love and affection, is set aside.
15. The maximum amount that can be awarded under
the head funeral expenses is Rs.15,000+10% escalation for three years which come to Rs.16,500/-, as per the decision reported in Pranay Sethi (supra), the Tribunal awarded Rs.25,000/- which has to be brought down to Rs.16,500/-. -12- Accordingly, the following enhancements/deductions are made to the Award passed by the Tribunal:
Sl. Head of Claim Amt. Awarded by Amt. Enhanced in No. Tribunal (Rs.) appeal (Rs.) 1 Loss of dependency 6,76,000 10,96,875 2 Loss of estate 5,000 16,500 3 Loss of consortium 1,00,000 1,76,000 6 Loss of love and affection 40,000 0 7 Funeral expenses 25,000 16,500
8,46,000 13,05,875 Amount enhanced = 13,05,875-846000=Rs.4,59,875/- In the result, the appeal is allowed and the appellants are entitled to an amount of Rs.4,59,875/- (Rupees four lakh fifty nine thousand eight hundred and seventy five only). All other finding entered by the Tribunal stand confirmed. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in -13- the impugned award and for the enhanced amounts at the rate of 8% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month
from the date of receipt of a certified copy of this judgment
and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of petition.
sd BASANT BALAJI, JUDGE dl/