BY AD vs THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY

THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946 MACA NO. 804 OF 2018 AGAINST THE AWARD DATED 30.04.2016 IN OPMV NO.328 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL. PALA APPELLANT/1ST RESPONDENT :- NATIONAL INSURANCE COMPANY LIMITED KOTTAYAM DIVISION, C.S.I.SQUARE, BAKER HILL, KOTTAYAM-686001, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADV DEEPA GEORGE RESPONDENT S / PETITIONER S 1 AND 2 & RESPONDENTS NOS.2 AND 3 :- 1 2 3 4 LISSY JOSEPH AGED 48 YEARS, W/O.LATE JOSEPH P.C., PULICKAPRAVIL HOUSE, ELIKULAM PANCHAYAT, NJANDUPARA P.O., PAIKA, KOTTAYAM DISTRICT, PIN-686577. THOMAS JOSEPH, S/O.LATE JOSEPH P.C., PULICKAPRAVIL HOUSE, ELIKULAM PANCHAYAT, NJANDUPARA P.O., PAIKA, KOTTAYAM DISTRICT, PIN-686577. ATHIRA ARUN, W/O.ARUN THOMAS, PULICKAPRAVIL HOUSE, NJANDUPARA P.O., KOTTAYAM DISTRICT, PIN-686577. ARON THOMAS ARUN MINOR AGED 1/2 YEARS, S/O.ARUN THOMAS, REPRESENTED BY HIS MOTHER ATHIRA ARUN, W/O.ARUN THOMAS, PULICKAPRAVIL HOUSE, NJANDUPARA P.O., MACA NO. 2794 OF 2016 & 804 of 2018 4 KOTTAYAM DISTRICT, PIN-686577. BY ADVS. B.JAYABAL(K/150/2010) DEEPU.T.B.(K/80/2021) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2025, ALONG WITH MACA.2794/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2794 OF 2016 & 804 of 2018 5 COMMON JUDGMENT The petitioners in O.P.(M.V.) No.328/2013 on the file of the Motor Accident Claims Tribunal, Pala is the appellants in MACA No.2794 of 2016. The 1st respondent in the O.P is the appellant in MACA No.804 of 2018. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal)

2. The O.P. was filed under under Section 166 of the Motor Vehicles Act, 1988, by the widow and son of the deceased by name P.C.Joseph, who died in a motor vehicle accident that occurred on 08.03.2013. According to them, on

08.03.2013 at about 04.30 am, while the deceased was travelling along with his two major sons and another person in a Tata Indica Car bearing Registration No.KL-31-3686 from Bangalore to Paika, after purchasing marbles and granite for flooring of the new house under construction, the car hit behind an unidentified lorry. As a result of which, P.C.Joseph along with all the three other passengers in the car sustained serious injuries and succumbed to the injuries.

3. The 1st respondent is the insurer of the car. Respondents 2 and 3 are the legal heirs of the owner of the car. According to the petitioners, the accident occurred due to the negligence of the driver of the car. The quantum of MACA NO. 2794 OF 2016 & 804 of 2018 6 compensation claimed in the O.P. was Rs.87,02,500/-.

4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the car.

5. The evidence in the case consists of the oral testimonies of PWs 1 to 3 and documentary evidence Exts.A1 to A43 and B1.

6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.22,13,172/- and directed the insurer to pay the same.

7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners preferred MACA No.2794 of 2016 and challenging the quantum of the award passed by the Tribunal, the 1st respondent preferred MACA No.804 of 2018.

8. Now the point that arises for consideration is the following: Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

9. Heard Sri.Jai George the learned Counsel appearing for the petitioners and Smt.Deepa George, the learned Standing Counsel for the 1st respondent.

10. Originally the claim petition was filed by them along with the FIR MACA NO. 2794 OF 2016 & 804 of 2018 7 involved in the crime No.160 of 2013 of Omalur Police Station, Salem, Tamil Nadu. The Tribunal passed the impugned award on 30.04.2016. Subsequently, the insurer filed review petition before the Tribunal and, along with the same, produced the Final Report involved in the above crime. As per which, the vehicle was driven by one of the sons of Sri.P.C Joseph, namely Abin Cherian Joseph. However, the Tribunal dismissed the review petition on 30.11.2017. Thereafter, the insurer preferred MACA No.804 of 2018.

11. In this case one of the contentions raised by the learned counsel for the petitioners is that the deceased was a timber merchant getting a monthly income of Rs.1,00,000/-. In spite of that, the Tribunal has fixed his notional income at Rs,25,000/-. On the other hand, according to the learned counsel for the insurer the notional income fixed by the Tribunal is on the higher side.

12. The learned counsel for the petitioners relied upon several documents to prove the income of the deceased. From Ext.A27 subscriber ledger issued from KSFE Pala Branch, it can be seen that during the period from April 2010 to September 2012, the deceased was the subscriber of a chitty having a monthly subscription of Rs.10,000/-. From Ext.A28, subscriber ledger issued from KSFE Pala Branch, it can be seen that during the period from January 2012 to April 2015 the deceased was paying a monthly subscription of Rs.25,000/- to another chitty. Exts.A15 to A17 are the copies of RC Books of three lorries owned by the deceased, out of which one lorry was sold by him. Exts.A18 and MACA NO. 2794 OF 2016 & 804 of 2018 8 A19 are the receipts issued from Kerala Motor Transport Workers Welfare Fund Board in respect of lorries KL-B-1681 and KL-5-B-8696.

13. The learned counsel has also relied upon Exts.A10 and A11 agreements entered into by the deceased in the year 2009 with two persons in respect of purchase of rubber trees as part of his timber business. Ext.A10 agreement was in respect of purchase of rubber trees for a total sum of Rs.23,00,000/- and Ext.A9 was in respect of purchase of rubber trees for a total sum of Rs.1,82,000/-. It is true that the above agreements were of the year 2009. Exts.A23 and A24 were the two fixed deposit receipts produced by the petitioners in the name of the deceased together worth around Rs.5,50,000/-. Ext.A12 is the trade licence issued in favour of the deceased from the local panchayat in the year

2007. It is true that the petitioners have not produced the trade licence during the subsequent years.

14. The learned counsel for the insurer would argue that the deceased has not paid income tax and in the absence of any evidence to prove that the deceased paid income tax, his income is to be limited to the notional income. However, from Exts.A27 and 28 itself, it can be seen that at least for some period, the deceased used to pay subscription in two chitties, to the tune of Rs.35,000/-, in KSFE alone. From the evidence of PW1, the wife of the deceased it is revealed that at the time of the accident, the deceased was constructing a new residential building having more than 2600 sq.ft and the accident occurred while they were MACA NO. 2794 OF 2016 & 804 of 2018 9 returning from Bangalore after purchasing marble and granite for the new house. There is also evidence to prove that he had timber business and at the time of accident he had two lorries, which were used for his timber business. In the above circumstance, it can be seen that though the deceased had income above the taxable limit, at the same time, it is to be presumed that he had not paid any income tax for the same. For the mere reason that the deceased omitted to pay income tax for the taxable income, it cannot be concluded that the income proved through evidence could not be taken for the purpose of assessing the loss of dependency.

15. At the same time, the petitioners could not prove that the deceased had an income of Rs.1,00,000/- per month as claimed in the Original Petition. Considering the entire facts and in the light of evidence on record, it can be safely concluded that the deceased had a monthly income of at least Rs.40,000/-. Therefore, his annual income will come to Rs.4,80,000/- (40,000x12). During the year 2013-14 there was no income tax for the first Rs.1,80,000/- and income tax payable was 10% for the income exceeding Rs.1,80,000/- upto Rs.5,00,000/-. Therefore, the income tax payable by the deceased during the year 2013-14 was Rs.30,000/- and the professional tax payable was Rs.2,500/-. Therefore, his annual income less the income tax and professional tax payable will come to Rs.4,47,500/-. Therefore, his monthly income less the income tax and professional tax will come to Rs.37,392/-. MACA NO. 2794 OF 2016 & 804 of 2018 10

16. On the date of accident, the deceased was aged 56 years. Therefore, 10% of the monthly income is liable to be added towards future prospects, as held in the decision in National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 9, as held in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121. Since the deceased was married who left behind 3 dependents, towards personal and living expense, 1/3 of the income is liable to be deducted, as held in Sarla Verma (supra). In the above circumstances, the loss of dependency will come to Rs.29,53,526/-.

17. The Tribunal has awarded Rs.25,000/- towards loss of estate, Rs.25,000/- towards funeral expenses, Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards love and affection. In the light of the decision in Pranay Sethi (supra), the appellants are entitled to get a consolidated sum of Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral expenses, and the dependents (parents, children and spouse) are entitled to get a sum of Rs.40,000/- each towards loss of consortium, with an increase of 10% in every three years. Therefore, towards loss of estate and funeral expense they are entitled to get a sum of Rs.18,150/- each. Towards loss of consortium, petitioners together are entitled to get a sum of Rs.96,800/- (48,400 x 2).

18. Since compensation for loss of consortium was given, further compensation for love and affection cannot be granted, in view of the decision in New India Assurance Company Ltd. v. Somwati and Others, (2020)9 SCC MACA NO. 2794 OF 2016 & 804 of 2018 11

644. Therefore, the compensation awarded towards love and affection is to be deducted.

19. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable.

20. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.31,23,726/-, as modified and recalculated above and given in the table below, for easy reference: Sl. No. Head of Claim Amount awarded by Tribunal (in Rs.) Amount Awarded in Appeal (in Rs.) 1 Transport to hospital 2 Funeral expenses 3 Pain and sufferings 4 Loss of dependency 5 Loss of consortium 6 Loss of estate 12100 25000 25000 1926072 1,00,000 25,000 7 Loss of love and affection 1,00,000 12100 18150 25,000 29,53,526 96,800 18150 Nil Total 22,13,172 31,23,726 Enhanced amount Rs. 910554

21. In the result, MACA 804 of 2018 is dismissed and MACA 2794 of MACA NO. 2794 OF 2016 & 804 of 2018 12 2016 is allowed in part, and the 1st respondent is directed to deposit a total sum of Rs.31,23,726/- (Rupees Thirty One Lakh Twenty Three Thousand Seven Hundred and Twenty Six Only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal from the date of the petition till realisation/deposit, with proportionate costs, within a period of two months from today. (enhanced compensation will carry interest @8%). On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioners, in the ratio fixed by the Tribunal, excluding court fee payable, if any, without delay, as per rules. Sd/- SMA C. PRATHEEP KUMAR, JUDGE