A. Prema and others v. P.A. Martin and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943** ## **MACA NO. 1365 OF 2009** **AGAINST THE AWARD DATED 12.05.2008 IN OPMV 175/2004 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANTS/PETITIONERS:** - 1 A.PREMA, W/O LATE KURAMAR, AGED 47 YEARS RESIDING AT PUTHIYEDATH HOUSE, P.O.PADANILAM VIA, KUNNAMANGALAM, KOZHIKODE. - 2 PRAMESH.M. S/O. LATE KUMARAN, AGED 23 RESIDING AT PUTHIYEDAHTH HOUSE, P.O.PADANILAM, VIA KUNNAMANGALAM, KOZHIKODE. - 3 PRABEESHKUMAR AGED 21 YEARS DOB 14.8.1997, RESIDING AT PUTHIYEDATH HOUSE,, P.O.PADANILAM(VIA)KUNNAMANGALAM, KOZHIKODE. - 4 RAMAN S/O. UPPARAN, AGED 92 YEARS RESIDING AT PUTHIYEDATH HOUSE, P.O.PADANILAM(VIA), KUNNAMANGALAM, KOZHIKODE. BY ADV SMT.LATHA PRABHAKARAN ## **RESPONDENTS/RESPONDENTS:** - 1 P.A.MARTIN, S/O ANTONY, AGED 41 YEARS, PEREMOOTTIL HOUSE, NEAR TELEPHONE EXCHANGE, ALUVA. - 2 THE ORIENTAL INSURANCE CO. LTD. P.B.NO.49,PATTAMANA BUILDING, R.S.ROAD,, PUMP JUNCTION, ALUVA. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1365 -2009 2** ## **JUDGMENT** ## **Dated this the 30[th] day of November, 2021** The appellants were the petitioners in O.P (MV) No.175/2004 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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(in short ‘Act’) claiming compensation on account of the death of Kumaran (deceased) – the husband of the first appellant, the father of appellants 2 and 3 and the son of the fourth appellant. It was their case that, on 29.10.2003, while the deceased was walking along the Aluva -Ernakulam National Highway, when he reached Thiakkavu mosque, a Maruti Omni Car bearing registration No. KER 3978(car), driven and owned by the first respondent, hit the deceased. The deceased sustained fatal injuries and lost his life instantaneously. The car was insured with ## **MACA NO. 1365 -2009 3** the second respondent. The deceased was a driver by profession and earning a monthly income of Rs.6000/-. The appellants were the dependents on the deceased. Hence, the appellants claimed a total compensation of Rs.4,00,000/- from the respondents. 3. The first respondent did not contest the proceedings. 4. The second respondent had filed a written statement admitting that the car had a valid insurance policy. However, it was contended that the accident occurred due to the negligent crossing of the road by the deceased. Hence the second respondent prayed for exoneration of its liability. 5. The first appellant was examined as PW1 and Exhibits A1 to A4 were marked in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, by permitting that the appellants to realise from the second respondent an amount of Rs.1,84,000/- with ## **MACA NO. 1365 -2009 4** interest at the rate of 7% per annum from the date of petition till the date of realisation. Even though the Tribunal found that the appellant was also guilty for contributory negligence, the Tribunal did not deduct any amount on the said account. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Smt. Latha Prabhakan, the learned counsel appearing for the appellants/petitioners and Sri.P. Jacob Mathew, the learned counsel appearing for the second respondent /insurer. 9. The sole question that arises for consideration in this appeal is whether quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exhibit A1 FIR registered by the Aluva Police proves that the accident occurred due to hitting of the car on the deceased. Admittedly, the first respondent was the owner and the second respondent was the insurer of the car. Although the contention was taken ## **MACA NO. 1365 -2009 5** that there was negligence on the part of the deceased, the respondents have not let in any evidence to disprove the assertions in the claim petition. Therefore, I hold that the accident was caused due to the negligence of the first respondent. Since the second respondent has not proved that the first respondent had violated the insurance policy conditions, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellants had claimed that the deceased was a driver by profession and earning a monthly income of Rs.6000/-. For the want of material, the Tribunal fixed the notional yearly income of the deceased at Rs.22,250/-. 12. In **Chameli Devi and others v. Jivrail Mian and others** [2019 KHC 5352], the Honourable Supreme Court has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5000/-. 13. Following the yardstick in the afore-cited ## **MACA NO. 1365 -2009 6** decision and considering the fact that the deceased was a driver by profession, and that the accident occurred in the year 2003, I fix the notional monthly income of the deceased at Rs.5000/-. ## **Multiplier** 14. As the deceased was aged 54 years at the time of accident, following the ratio in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier to be adopted is ‘11’. ## **Future prospects** 15. As the deceased was 54 years at the time of the accident, following the ratio in **Sarala Verma** (Supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** the dependents of the deceased are entitled to future prospects at 10%. ## **Personal living expenses of the deceased** 16. In the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the appellants were the dependents of the deceased, ¼ of the compensation has to be deducted towards ## **MACA NO. 1365 -2009 7** personal living expenses of the deceased. ## **Loss of dependency** 17. Taking into account the above mentioned factors, namely, the monthly income of the deceased at 5000/-, the multiplier at ‘11’, future prospects at 10% and deducting 1/4 of the compensation towards personal living expense of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.5,44,500/- instead of Rs.1,65,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 18. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble 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.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 19.. In the instant case, the Tribunal has awarded an amount of Rs.2,500/- towards 'funeral expenses' and Rs.10,000/- towards loss of consortium. 20. Going by the law in **Pranay Sethi** (supra), I ## **MACA NO. 1365 -2009 8** enhance the compensation under the head funeral expenses by a further amount of Rs.12,500/- and an amount of Rs. 15,000/- towards loss of estate. 21. Even though the Tribunal has awarded an amount of Rs.10,000/- to all the appellants towards loss of consortium, as the appellants 1 to 3 are the wife and children of the deceased, I hold each of them are entitled to Rs.40,000/- towards ‘loss of consortium’, totalling to an amount of Rs.1,20,000/-. I decline to award any amount to the fourth appellant - father of the deceased, since he was leading an independent life. ## **Pain and sufferings and loss of love and affection** 22. The Tribunal has awarded an amount of Rs.5000/- under the head ‘pain and sufferings’ . 23. In paragraph 19 of the **Sarla Verma,** the Hon'ble Supreme Court has held that in a case of instantaneous death, no amount of compensation shall be awarded under the head ‘pain and sufferings’ to the dependents of the deceased. Therefore, I set aside the amount of Rs.5000/- awarded under the said head. ## **MACA NO. 1365 -2009 9** 24. With respect to the amount awarded under the head transportation expenses, I find the same to be reasonable and just. 25. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation<br>expenses|1500|1500| |2|Pain and<br>sufferings|5000|0| |2|Loss of estate|0|15000| ||Funeral expenses|2500|15000| |3|Loss of<br>consortium|10000|120000| ||Loss due to|165000|544500| **MACA NO. 1365 -2009 10** ||disability||| |---|---|---|---| ||Total|**184000**|**696000**| 26. Even though the appellants had claimed only an amount of Rs.4,00,000/- as compensation, in the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), that the dependents of the deceased are entitled to future prospects as well as compensation under the conventional heads, I have awarded more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** , In the result, the appeal is allowed by enhancing the compensation by an amount of **Rs.5,12,000/- (** Rupees five lakh twelve thousand only) with interest on the said amount at the rate of 7% per annum from the date of petition till the date of deposit and proportionate cost. The second respondent is ordered to deposit the enhanced compensation with interest and cost before the **MACA NO. 1365 -2009 11** Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellants 1 to 3 in the ratio of 50:25;25 and in accordance with law. SD/- **C.S.DIAS JUDGE** rmm/01/12/2021