BY AD vs ANU S NAIR

BY ADVS. ANU S NAIR SRI.SAIGI JACOB PALATTY RESPONDENTS/RESPONDENTS: 1 2 MUHAMMED SHAREEF S/O PAREED, 10/520A, PULLOLIL HOUSE, PEZHAKKAPPILLY MUVATTUPUZHA, ERNAKULAM,PIN -686 673. THE ORIENTAL INSURANCE CO. LTD., T H TOWER, STADIUM ROAD, MARKET P.O.MUVATTUPUZHA, PIN: 686 673. M.A.C.A. No. 2925/2019 : 2 : 3 4 5 BALAKRISHNA TARU, S/O DATTA TRAY ALIAS DATTA TARU, PANCHWATI BANGLAW S NO 33/27, KATRAJ KONDUWA ROAD, KATRAJ, PUNE, PIN 411 046. RAJU PAIKRA, S/O RAM, 33/27,PANCHWATI, SHIV SAMBHO NAGAR, KATRAJ KONDUWA ROAD, KATRAJ, PUNE, MAHARASHTRA, PIN-411 046. UNITED INDIA INSURANCE CO LTD., LEELA CHAMBERS, PUNE SATARA ROAD, ARANYESHWAR CORNER, PUNE, MAHARASHTRA, PIN-411037 BY ADV PANICKER V.P.K. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

03.04.2025, THE COURT ON 07.04.2025, DELIVERED THE FOLLOWING: M.A.C.A. No. 2925/2019 : 3 : JOHNSON JOHN, J. --------------------------------------------------------- M.A.C.A No. 2925 of 2019 -------------------------------------------------------- Dated this the 7th day of April, 2025. JUDGMENT The petitioners in O.P.(MV) No. 146 of 2017 on the file of the Motor Accident Claims Tribunal, Muvattupuzha filed this appeal seeking enhancement of compensation.

2. The petitioners are the legal representatives of the deceased Geo, who died in a motor vehicle accident. According to the petitioners, on 28.10.2016, while the deceased was riding a motorcycle, auto rickshaw driven by the 1st respondent was parked on the eastern side of the road and when the 1st respondent suddenly opened the right side door of the autorickshaw, it caused to hit the motorcycle and thereby, the deceased was thrown to the road and then, lorry driven by the 4th respondent caused to run over the body of the deceased and as a result of the serious injuries sustained, he died on the same day.

3. The 2nd respondent is the insurer of the auto rickshaw and the 5th respondent is the insurer of the lorry. The 3rd respondent is the owner M.A.C.A. No. 2925/2019 : 4 : of the lorry. The petitioners alleged negligence against respondents 1 and 4.

4. Before the Tribunal, PW1 examined and Exhibits A1 to A14 were marked from the side of the petitioners and no evidence adduced from the side of the respondents.

5. The Tribunal recorded a finding that the accident occurred only because of the negligence on the part of the 1st respondent and that respondents 1 and 2 are liable to pay compensation to the petitioners. The Tribunal awarded a total compensation of Rs.36,58,000/- to the petitioners. The Tribunal exonerated respondents 3 to 5 from liability. The findings of the Tribunal regarding negligence and liability are not under challenge.

6. Heard the learned counsel for the appellants and the learned counsel for the respondent insurance company.

7. The learned counsel for the appellants argued that the deceased was a businessman earning Rs.30,000/- per month and the Tribunal fixed only a notional income of Rs.20,000/- for the reason that M.A.C.A. No. 2925/2019 : 5 : the petitioners failed to adduce any evidence to prove the income of the deceased.

8. The learned counsel for the appellants argued that the deceased was running a business concern by name ‘Trinity Sales Corporation’ and that Exhibit A11 statement of account of Trinity Sales Corporation in State Bank of Travancore bearing account No. 67329083625 is produced and the financial transactions reflected in the account will indicate the income of the deceased.

9. The learned counsel for the respondent insurance company argued that Exhibit A11 account is in the name of ‘Trinity Sales Corporation’ and it is not forthcoming as to whether the deceased was authorized to make transactions in the account. The appellants have not produced the bank passbook relating to Exhibit A11, statement of account. There is also no material to indicate as to whether the business concern by name ‘Trinity Sales Corporation’ is a proprietary concern or partnership.

10. Exhibits A12, A13 and A14 are the licences issued by the panchayat in the name of the deceased for stocking and conducting sale of sanitary items. The claim petitioners have not produced the copies of M.A.C.A. No. 2925/2019 : 6 : the income tax return or the copies of the relevant registers in the business concern, Trinity Sales Corporation, to prove the income of the deceased and therefore, I find no reason to interfere with the finding of the Tribunal that in the absence of any satisfactory evidence regarding the actual income, only a notional income can be fixed for the purpose of calculating the compensation.

11. The Tribunal fixed a notional income of Rs.20,000/-. Considering the facts and circumstances and the standard of living of the deceased, I find that the monthly notional income fixed by the Tribunal is reasonable and requires no interference.

12. The Tribunal applied the multiplier of ‘16’ and deducted one- third of the income towards personal and living expenses of the deceased by following the decision of the Honourable Supreme Court in Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] and the said findings of the Tribunal are not under challenge.

13. The learned counsel for the appellants argued that the Tribunal has not granted any compensation towards pain and sufferings M.A.C.A. No. 2925/2019 : 7 : of the deceased. Section 2 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 shows that the right to sue for compensation for pain and suffering would survive upon the legal heirs, if the injured died at a later point of time.

14. In Jyni and Others v. Raphel P. T. and Others [2016 (2) KHC 870], a Division Bench of this Court held as follows:

36. Death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases. In the instant case, the deceased succumbed to injuries on the date of accident itself. In such circumstances, Rs.10,000/- awarded by the Tribunal under the head pain and suffering represents just and reasonable compensation, which requires no enhancement in this appeal.” In this case, the deceased died on the same day and therefore, considering the facts and circumstances, I find that Rs.5,000/- can be allowed as compensation towards ‘pain and sufferings’ of the deceased. M.A.C.A. No. 2925/2019 : 8 : 15. The decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680] would show that the reasonable amount payable 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 and that the aforesaid amount should be enhanced by 10% in every three years. The Hon'ble Supreme Court in Rojalini Nayak & Ors v. Ajit Sahoo (2024 KHC Online 8300) by adopting the above metric awarded a compensation of Rs.48,400/- towards loss of consortium and Rs.18,150/- each towards funeral expenses and loss of estate. Therefore, the amount awarded by the Tribunal towards funeral expenses and loss of estate will be modified to Rs.18,150/- each.

16. In Sunita v. Vinod Singh [2025 KHC Online 6249], the Hon’ble Supreme Court held thus: “...With regard to the loss of love and affection, Pranay Sethi (supra) grants Rs.40,000/- (Rupees Forty Thousand) per head with escalation of 10% every three years for loss of consortium which has been interpreted in Magma General Insurance Co. Ltd. v Nanu Ram, (2018) 18 SCC 130 to include spousal, parental, and filial consortium. M.A.C.A. No. 2925/2019 : 9 : Thus, there being five claimants the amount shall be (Rs.48,000/- x 5) which comes to Rs.2,40,000/- (Rupees Two Lakhs and Forty Thousand) payable under the head of loss of love and affection.” The claimants are the wife, son and mother of the deceased. Thus, there being 3 claimants, the amount of consortium shall be (48,400 x 3), which comes to Rs.1,45,200/-.

17. In conclusion, the enhanced amount of compensation, as modified as a result of the above discussion is encapsulated, in a tabular format herein below: Sl. No 1 2 3 4 5 6 7 Particulars Loss of dependency Loss of estate Funeral expenses Loss of consortium Pain and sufferings Transportation to hospital Damage to cloth and articles Total amount Payable Compensation awarded by the Tribunal (Rs.) 35,84,000/- 15,000/- 15,000/- 40,000/- NIL 3,000/- 1,000/- 36,58,000/- Final Amount Payable 35,84,000/- 18,150/- 18,150/- 1,45,200/- 5,000/- 3,000/- 1,000/- 37,74,500/-

18. Accordingly, the total amount of compensation payable to the petitioners is determined as Rs.37,74,500/-. In the result, this appeal is allowed, and the appellants/petitioners are allowed to recover the compensation amount of Rs.37,74,500/- M.A.C.A. No. 2925/2019 : 10 : (Rupees Thirty Seven Lakhs Seventy Four Thousand Five Hundred only) with interest at the rate of 7% per annum from the date of the claim petition till the date of realization (excluding the period of delay of 103 days in filing the appeal) with proportionate costs from the respondents. The 2nd respondent insurance company shall deposit the said amount together with interest and costs before the Tribunal within a period of three months from the date of receipt of a certified copy of this judgment. Rv JOHNSON JOHN, JUDGE. sd/-

BY ADVS. ANU S NAIR SRI.SAIGI JACOB PALATTY RESPONDENTS/RESPONDENTS: 1 2 MUHAMMED SHAREEF S/O PAREED, 10/520A, PULLOLIL HOUSE, PEZHAKKAPPILLY MUVATTUPUZHA, ERNAKULAM,PIN -686 673. THE ORIENTAL INSURANCE CO. LTD., T H TOWER, STADIUM ROAD, MARKET P.O.MUVATTUPUZHA, PIN: 686 673. M.A.C.A. No. 2925/2019 : 2 : 3 4 5 BALAKRISHNA TARU, S/O DATTA TRAY ALIAS DATTA TARU, PANCHWATI BANGLAW S NO 33/27, KATRAJ KONDUWA ROAD, KATRAJ, PUNE, PIN 411 046. RAJU PAIKRA, S/O RAM, 33/27,PANCHWATI, SHIV SAMBHO NAGAR, KATRAJ KONDUWA ROAD, KATRAJ, PUNE, MAHARASHTRA, PIN-411 046. UNITED INDIA INSURANCE CO LTD., LEELA CHAMBERS, PUNE SATARA ROAD, ARANYESHWAR CORNER, PUNE, MAHARASHTRA, PIN-411037 BY ADV PANICKER V.P.K. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

03.04.2025, THE COURT ON 07.04.2025, DELIVERED THE FOLLOWING: M.A.C.A. No. 2925/2019 : 3 : JOHNSON JOHN, J. --------------------------------------------------------- M.A.C.A No. 2925 of 2019 -------------------------------------------------------- Dated this the 7th day of April, 2025. JUDGMENT The petitioners in O.P.(MV) No. 146 of 2017 on the file of the Motor Accident Claims Tribunal, Muvattupuzha filed this appeal seeking enhancement of compensation.

2. The petitioners are the legal representatives of the deceased Geo, who died in a motor vehicle accident. According to the petitioners, on 28.10.2016, while the deceased was riding a motorcycle, auto rickshaw driven by the 1st respondent was parked on the eastern side of the road and when the 1st respondent suddenly opened the right side door of the autorickshaw, it caused to hit the motorcycle and thereby, the deceased was thrown to the road and then, lorry driven by the 4th respondent caused to run over the body of the deceased and as a result of the serious injuries sustained, he died on the same day.

3. The 2nd respondent is the insurer of the auto rickshaw and the 5th respondent is the insurer of the lorry. The 3rd respondent is the owner M.A.C.A. No. 2925/2019 : 4 : of the lorry. The petitioners alleged negligence against respondents 1 and 4.

4. Before the Tribunal, PW1 examined and Exhibits A1 to A14 were marked from the side of the petitioners and no evidence adduced from the side of the respondents.

5. The Tribunal recorded a finding that the accident occurred only because of the negligence on the part of the 1st respondent and that respondents 1 and 2 are liable to pay compensation to the petitioners. The Tribunal awarded a total compensation of Rs.36,58,000/- to the petitioners. The Tribunal exonerated respondents 3 to 5 from liability. The findings of the Tribunal regarding negligence and liability are not under challenge.

6. Heard the learned counsel for the appellants and the learned counsel for the respondent insurance company.

7. The learned counsel for the appellants argued that the deceased was a businessman earning Rs.30,000/- per month and the Tribunal fixed only a notional income of Rs.20,000/- for the reason that M.A.C.A. No. 2925/2019 : 5 : the petitioners failed to adduce any evidence to prove the income of the deceased.

8. The learned counsel for the appellants argued that the deceased was running a business concern by name ‘Trinity Sales Corporation’ and that Exhibit A11 statement of account of Trinity Sales Corporation in State Bank of Travancore bearing account No. 67329083625 is produced and the financial transactions reflected in the account will indicate the income of the deceased.

9. The learned counsel for the respondent insurance company argued that Exhibit A11 account is in the name of ‘Trinity Sales Corporation’ and it is not forthcoming as to whether the deceased was authorized to make transactions in the account. The appellants have not produced the bank passbook relating to Exhibit A11, statement of account. There is also no material to indicate as to whether the business concern by name ‘Trinity Sales Corporation’ is a proprietary concern or partnership.

10. Exhibits A12, A13 and A14 are the licences issued by the panchayat in the name of the deceased for stocking and conducting sale of sanitary items. The claim petitioners have not produced the copies of M.A.C.A. No. 2925/2019 : 6 : the income tax return or the copies of the relevant registers in the business concern, Trinity Sales Corporation, to prove the income of the deceased and therefore, I find no reason to interfere with the finding of the Tribunal that in the absence of any satisfactory evidence regarding the actual income, only a notional income can be fixed for the purpose of calculating the compensation.

11. The Tribunal fixed a notional income of Rs.20,000/-. Considering the facts and circumstances and the standard of living of the deceased, I find that the monthly notional income fixed by the Tribunal is reasonable and requires no interference.

12. The Tribunal applied the multiplier of ‘16’ and deducted one- third of the income towards personal and living expenses of the deceased by following the decision of the Honourable Supreme Court in Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] and the said findings of the Tribunal are not under challenge.

13. The learned counsel for the appellants argued that the Tribunal has not granted any compensation towards pain and sufferings M.A.C.A. No. 2925/2019 : 7 : of the deceased. Section 2 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 shows that the right to sue for compensation for pain and suffering would survive upon the legal heirs, if the injured died at a later point of time.

14. In Jyni and Others v. Raphel P. T. and Others [2016 (2) KHC 870], a Division Bench of this Court held as follows:

36. Death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases. In the instant case, the deceased succumbed to injuries on the date of accident itself. In such circumstances, Rs.10,000/- awarded by the Tribunal under the head pain and suffering represents just and reasonable compensation, which requires no enhancement in this appeal.” In this case, the deceased died on the same day and therefore, considering the facts and circumstances, I find that Rs.5,000/- can be allowed as compensation towards ‘pain and sufferings’ of the deceased. M.A.C.A. No. 2925/2019 : 8 : 15. The decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680] would show that the reasonable amount payable 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 and that the aforesaid amount should be enhanced by 10% in every three years. The Hon'ble Supreme Court in Rojalini Nayak & Ors v. Ajit Sahoo (2024 KHC Online 8300) by adopting the above metric awarded a compensation of Rs.48,400/- towards loss of consortium and Rs.18,150/- each towards funeral expenses and loss of estate. Therefore, the amount awarded by the Tribunal towards funeral expenses and loss of estate will be modified to Rs.18,150/- each.

16. In Sunita v. Vinod Singh [2025 KHC Online 6249], the Hon’ble Supreme Court held thus: “...With regard to the loss of love and affection, Pranay Sethi (supra) grants Rs.40,000/- (Rupees Forty Thousand) per head with escalation of 10% every three years for loss of consortium which has been interpreted in Magma General Insurance Co. Ltd. v Nanu Ram, (2018) 18 SCC 130 to include spousal, parental, and filial consortium. M.A.C.A. No. 2925/2019 : 9 : Thus, there being five claimants the amount shall be (Rs.48,000/- x 5) which comes to Rs.2,40,000/- (Rupees Two Lakhs and Forty Thousand) payable under the head of loss of love and affection.” The claimants are the wife, son and mother of the deceased. Thus, there being 3 claimants, the amount of consortium shall be (48,400 x 3), which comes to Rs.1,45,200/-.

17. In conclusion, the enhanced amount of compensation, as modified as a result of the above discussion is encapsulated, in a tabular format herein below: Sl. No 1 2 3 4 5 6 7 Particulars Loss of dependency Loss of estate Funeral expenses Loss of consortium Pain and sufferings Transportation to hospital Damage to cloth and articles Total amount Payable Compensation awarded by the Tribunal (Rs.) 35,84,000/- 15,000/- 15,000/- 40,000/- NIL 3,000/- 1,000/- 36,58,000/- Final Amount Payable 35,84,000/- 18,150/- 18,150/- 1,45,200/- 5,000/- 3,000/- 1,000/- 37,74,500/-

18. Accordingly, the total amount of compensation payable to the petitioners is determined as Rs.37,74,500/-. In the result, this appeal is allowed, and the appellants/petitioners are allowed to recover the compensation amount of Rs.37,74,500/- M.A.C.A. No. 2925/2019 : 10 : (Rupees Thirty Seven Lakhs Seventy Four Thousand Five Hundred only) with interest at the rate of 7% per annum from the date of the claim petition till the date of realization (excluding the period of delay of 103 days in filing the appeal) with proportionate costs from the respondents. The 2nd respondent insurance company shall deposit the said amount together with interest and costs before the Tribunal within a period of three months from the date of receipt of a certified copy of this judgment. Rv JOHNSON JOHN, JUDGE. sd/-