Alice (1st petitioner) and Jose (2nd petitioner) v. K.P. Jayasankar; The National Insurance Co. Ltd.; Varghese

**MACA NO. 2235 OF 2012** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** ## **MACA NO. 2235 OF 2012 AGAINST THE AWARD IN OP(MV) 23/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/PETITIONERS 1 &2 IN O.P (MV) 23/2010:** 1 ALICE AGED 60 YEARS, W/O LATE MATHAI, MARIA BHAVAN, KOCHUPALLY, NADAKAVU, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. 2 JOSE AGED 29 YEARS S/O LATE MATHAI, MARIA BHAVAN, KOCHUPALLY, NADAKAVU, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. BY ADV SRI.V.A.OMANAKUTTAN ## **RESPONDENTS/RESPNDENTS 1 &2 AND 3RD PETITIONER IN O.P (MV) 23/2010:** 1 K.P.JAYASANKAR S/O PUSHKARAN, KOCHUPURACKAL HOUSE, NEAR MADAM STOP, NADAKKAVU P.O, UDAYAMPEROOR 682307 2 THE NATIONAL INSURANCE CO LTD TRIPUNITHURA 682301 - 3 VARGHESE,AGED 29 YEARS S/O LATE MATHAI, MARAI BHAVAN, KOCHUPALLY, NADAKAVU P.O, UDAYAMPEROOR, MANAKUNNAMA VILLAGE, KANAYANNUR TALUK 682307 BY ADVS. SRI.R.AJITH KUMAR (128/84) AMBILY LIONA LAZAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2235 OF 2012** **2** ## **J U D G M E N T** The appellants were the petitioners 1 and 2 in O.P.(MV) No.23/2010 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents 1 and 2 were the respondents before the Tribunal. The 3[rd] respondent in the appeal was the 3[rd] petitioner before the Tribunal. Therefore, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of 'Mathai'(deceased) - the husband of the 1[st] petitioner and the father of the petitioners 2 and 3. It was their case that, on 30.12.2008, while the deceased was walking along the Poothotta – Tripunithura road, a motorcycle bearing registration No.KL07/AA- 6801, ridden by the 1st respondent in a negligent **MACA NO. 2235 OF 2012** **3** manner, hit the deceased. The deceased sustained fatal injuries and lost his life on 31.12.2008. The motorcycle was owned by the 1[st] respondent and insured with the 2[nd] respondent. The deceased was a Pharmacist by profession and was earning a monthly income of Rs.6,000/-. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.6,00,000/- from the respondents. 3. The 1[st] respondent did not contest the proceeding and was set ex parte. 4. The 2[nd] respondent had filed a written statement denying the pleadings in the claim petition. It was contended that the 1[st] respondent did not hold a valid driving licence to ride the motorcycle. Therefore, the 1[st] respondent had violated the insurance policy conditions. The 2[nd] respondent also contended that the petitioners were not the dependents of the deceased. They disputed the age, occupation and income of the deceased. Hence, they **MACA NO. 2235 OF 2012** **4** prayed for dismissal of the claim petition. 5. The petitioners had examined a witness as PW1 and marked Exts.A1 to A12 in evidence. The 2[nd] respondent had produced and marked Exts.B1 to B4 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award, allowed the claim petition, in part, by permitting the petitioners to recover from the 2[nd] respondent an amount of Rs.1,18,000/with interest at the rate of 8% per annum from the date of petition till the date of realistion and proportionate cost. However, the Tribunal permitted the 2[nd] respondent to pay the compensation amount and recover it from the 1[st] respondent, in view of the violation of the insurance policy conditions. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 1 and 2 are in **MACA NO. 2235 OF 2012** **5** appeal. During the pendency of the appeal, the 1[st] appellant died on 21.5.2018 and the 2[nd] appellant and the 3[rd] respondent are stated to be her legal representatives. 8. Heard; Sri.V.A.Omanakuttan, the learned counsel appearing for the appellants/petitioners 1 and 2, Sri.Ajith Kumar Varma, the learned counsel appearing for the 2[nd] respondent/insurer and Smt.Ambily Liona Lazar, the learned counsel appearing for the 3rd respondent/3rd petitioner. 9. The sole point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Ext.A2 charge-sheet filed by the Kochi City Traffic Police in Crime No.9764/2008, proves that the accident occurred due to the negligence of the 1[st] respondent. Even though the 2nd respondent had issued a valid insurance policy, it is proved through Ext.A2 final report that the 1[st] **MACA NO. 2235 OF 2012** **6** respondent did not hold a valid driving licence. He was charge-sheeted for an offence punishable under Section 3(1) r/w S.181 of the Motor Vehicles Act, in addition to the offences under the Indian Penal Code. Despite Ext.A2, the 1[st] respondent did not produce his driving licence. Thus, I confirm the finding of the Tribunal that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is directed to pay the compensation amount and permitted to recover the compensation amount from the 1[st] respondent. ## **Income** 11. The petitioners had claimed that the deceased was a Pharmacist by profession and was earning a monthly income of Rs.6,000/-. Nevertheless, the respondents did not produce any material to substantiate the income of the deceased. Thus, the Tribunal fixed the notional monthly income of the deceased at Rs.3,000/- . 12. In **Ramachandrappa v. Manager, Royal** **MACA NO. 2235 OF 2012** **7** ## **Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] the Hon’ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2008, I re-fix the notional monthly income of the deceased at Rs.6,000/-, as claimed in the claim petition. ## **Multiplier** 14. Undisputedly, the deceased was aged 62 years at the time of accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121] , the relevant multiplier to be adopted is ‘7’. ## **Personal living expenses of the deceased** 15. The petitioners were the wife and children of the **MACA NO. 2235 OF 2012** **8** deceased. They are three in number. Following the principles laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], 1/3rd of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 16. The deceased was aged 62 years at the time of the accident. Therefore, the petitioners are not entitled to future prospects in view of the ratio decidendi laid down in **Pranay Sethi** (supra). ## **Loss due to dependency** 17. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.6,000/-, the multiplier at '7', and after deducting 1/3rd of the compensation towards personal living expenses of the deceased, I hold that the petitioners are entitled to an amount of Rs.3,36,000/- towards of loss of dependency, instead of Rs.90,000/- awarded by the Tribunal. **MACA NO. 2235 OF 2012** **9** ## **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. It is also observed that the dependents of the deceased are also entitled for 10% escalation under the said heads after a period of three years. 19. In **N.Jayasree & Others v. Cholamandalam MS General Insurance Co. Ltd** (Live Law 2021 SC 588) and in **Rasmita Biswal and Others v. Divisional Manager, National Insurance Co. Ltd & Another** (Live Law 2021 SC 717], the Hon'ble Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accidents. Thus, it is to be interpreted and **MACA NO. 2235 OF 2012** **10** inferred that the escalation of 10% is to be awarded after three years from the pronouncement of **Pranay Sethi** (supra),which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, I hold that the appellants are entitled for compensation under the conventional heads at Rs.16,500/- towards funeral expenses, Rs.16,500/- towards loss of estate and Rs.44,000/towards loss of consortium. 20. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- under the head 'funeral expenses', Rs.5,000/- under the head 'loss of estate' and Rs.5,000/under the head 'loss of consortium'. 21. Following the principles laid down in the aforecited decisions, I hold that the petitioners are entitled to a further amount of Rs.11,500/- each under the heads 'funeral expenses' and 'loss of estate' and a further amount of Rs.88,000/- under the head 'loss of consortium' i.e. Rs.44,000/- each to the petitioners 2 and 3 under the head **MACA NO. 2235 OF 2012** **11** 'loss of consortium', since it is brought to the notice of this Court that the 1[st] appellant/1st petitioner had died during the pendency of the appeal. Therefore, I decline to award any amount under the said head. ## **Loss of love and affection** 22. The Tribunal has awarded an amount of Rs.5,000/under the head ‘loss of love and affection'.. 23 **.** In **New Insurance Assurance Co. Ltd v. Somwati & Others** [(2020) (9) SCC 644], the Hon'ble Supreme Court has held that once the compensation for loss of consortium is awarded, no amount shall be awarded under the head 'loss of love and affection', as it would it will amount to duplication of compensation. 24. Therefore, I set aside the amount of Rs.5,000/awarded under the head 'loss of love and affection'. ## **Others heads of compensation** **MACA NO. 2235 OF 2012** **12** 25. With respect to the compensation awarded by the Tribunal with regard to transportation expenses, clothing and pain and sufferings, I find that the Tribunal has awarded reasonable and just compensation. 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 2[nd] appellant and 3[rd] respondent/ petitioners 2 and 3 are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [463 x 109] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by the Amounts modified<br>Tribunal (in rupees) and recalculated<br>.No by this Court<br>1 Transport Expenses 1,000 1,000<br>2. Clothing 1,000 1,000<br>**----- End of picture text -----**<br> **MACA NO. 2235 OF 2012** **13** **==> picture [463 x 270] intentionally omitted <==** **----- Start of picture text -----**<br> 3. Funeral expenses 5,000 16,500<br>4. Pain and suffering 5,000 5,000<br>5. Loss of love and affection 5,000 --<br>6. Loss of estate 5,000 16,500<br>7. Loss of consortium 5,000 88,000<br>8. Loss of dependency 90,000 3,36,000<br>Total 1,18,000 4,64,000<br>======= =======<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.3,46,000/- with interest at the rate of 6% per annum from the date of petition till the date of deposit and proportionate cost. The 2nd respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The 2[nd] respondent is also permitted to recover the enhanced compensation amount ordered above from the 1[st] **MACA NO. 2235 OF 2012** **14** respondent, in view of the violation of the insurance policy conditions. Immediately on the compensation amount being deposited, the same shall be disbursed to the 2[nd] appellant and 3[rd ] respondent/petitioners 2 and 3 in the ratio of 50:50 respectively and in accordance with law. ma/29.3.2022 Sd/- **C.S.DIAS, JUDGE**