Amina and others v. Pooleri Kunhiraman Nambiar, V.V. Balakrishnan and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** **MACA NO. 2055 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1642/2003 OF ADDITIONAL** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY** ## **APPELLANT/S:** 1 AMINA , D/O.ABOOBACKER PARAMBIL HOUSE, VELIMANAM P.O., 2 FAIZAL, S/O.MOIDEEN, AGED 26 YEARS PARAMBIL HOUSE, VELIMANAM P.O., 3 FAZEELA, D/O. MOIDEEN , AGED 25 YEARS, PARAMBIL HOUSE, VELIMANAM P.O. BY ADV SRI.C.P.PEETHAMBARAN ## **RESPONDENT/S:** 1 POOLERI KUNHIRAMAN NAMBIAR S/O. CHATHU NAMBIAR, AGED 49 YEARS,, PADAYOOR P.O., IRITTY. 2 V.V. BALAKRISHNAN, S/O. K.V. KUNHAMBU VALIYAVALAPPIL HOUSE, P.O. PADIYOOR,, IRITTY. 3 THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, MANNA SHOPPING CENTRE,, TALIPARAMBA. BY ADVS. SRI.P.JACOB MATHEW - R3 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2055 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.2055 of 2009** ## **====================== Dated this the 3[rd] day of March, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.1642/2003 on the file of the Additional Motor Accident Claims Tribunal, Thalasserry. 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, claiming compensation on account of the death of Moideen (deceased) - the husband of the first appellant and the father of the appellants 2 and 3. It was their case that, on 4.8.2003, while the deceased was riding his motorcycle bearing registration No.KL-13/F 6379, a lorry bearing registration No.KED 4734, driven by the first respondent in a rash and negligent 3 MACA No.2055 of 2009 manner, hit the motorcycle of the deceased. The deceased sustained fatal injures and lost his life instantaneously. The lorry was owned by the second respondent and insured with the third respondent. The deceased was a fish merchant and was earning a monthly income of Rs.4,500/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.4,00,000/- from the respondents. 3 The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a writtenstatement admitting that the lorry had a valid insurance coverage. However, the third respondent disputed the age, income and occupation of the deceased and contended that the compensation claimed was excessive. 5. The appellants had produced and marked Exts A1 to A8 in evidence. The respondents did not let 4 MACA No.2055 of 2009 in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to realise from the third respondent an amount of Rs.2,62,000/- with interest and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri.C.P.Peethambaran, the learned counsel appearing for the appellants/petitioners and Sri.P.Jacob Mathew, the learned counsel appearing for the third respondent/insurer . 9. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exts A1 FIR and A2 scene mahazar prepared by the Iritty Police in crime No.357/2003 and the 5 ## MACA No.2055 of 2009 uncontroverted pleading in the claim petition prove that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit the Police records as well as the pleading in the claim petition. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 11. The appellants had averred in the claim petition that the deceased was a fish merchant and was earning a monthly income of Rs.4,500/-. For the want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.2,000/-. 12. The Hon'ble Supreme Court in 6 MACA No.2055 of 2009 ## **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13** **SCC 236]** 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 aforecited decision and considering the fact that the accident occurred in the year 2003, I refix the notional monthly income of the deceased at Rs.4,000/-. ## **Multiplier** 14. Admittedly, the deceased was aged 43 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '14'. ## **Personal living expenses of the deceased** 15. The appellants are the wife and children of the deceased. Following the principles laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v** 7 MACA No.2055 of 2009 **Pranay Sethi [(2017) 16 SCC 680]** , one -third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 16. In view of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 43 years at the time of his death, I hold that the appellants are entitled to future prospects @ 25%. ## **Loss of dependency** 17. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.4,000/-, the multiplier at 14, future prospects at 25% and after deducting one-third of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency of the appellants at Rs.5,60,000/-, instead of Rs.2,40,000/awarded by the Tribunal. 8 MACA No.2055 of 2009 ## **Conventional/Traditional heads of compensation** 18. In paragraph 59.8 of **Pranay Sethi (supra)** it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 19. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be 9 MACA No.2055 of 2009 construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur three after every years 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 20. In the instant case, the Tribunal has awarded only an amount of Rs.10,000/- under the head ‘loss of consortium’. Therefore, I award the appellants an amount of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate' and award them an amount of Rs.44,000/- each under the head ‘loss of consortium’., i.e., a total amount of Rs.1,32,000/-. 10 MACA No.2055 of 2009 ## **Loss of love and affection** 21. The Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection'. 22. In **New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644]** the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.10,000/- awarded under the head 'loss of love and affection'. ## **Other heads of claim** 23. With respect to the compensation awarded towards transport to hospital, I find that the Tribunal has awarded reasonable and just compensation. 24. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to 11 MACA No.2055 of 2009 in the afore-cited precedents, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport<br>to<br>hospital(other eligible<br>counts)|2,000/-|2,000/-| |4|Loss of consortium|10,000/-|1,32,000/-| |5|Loss of love and<br>affection|10,000/-|Nil| |6|Funeral expenses|Nil|16,500/-| |7|Loss of estate|Nil|16,500/-| |8|Loss of dependency|2,40,000/-|5,60,000/-| ||Total|2,62,000/-|7,27,000/-| ## 25. Even though the appellants had claimed only an amount of Rs.4,00,000/- as compensation, I have awarded them more compensation than what is claimed in the claim petition, by awarding them future prospects as well as compensation under the 12 MACA No.2055 of 2009 conventional heads, following the principles laid down in **Sarla Varma** and **Pranay Sethi** (supra). The said course is permissible in view of the law laid down in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC)** and **Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)].** In the result, the appeal is allowed, by enhancing the compensation by an amount of **Rs.4,65,000/-** (Rupees Four Lakh Sixty Five Thousand only) with interest at the rate of 6% per annum from the date of petition till the date of realisation, after deducting interest for a period of 184 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 28.10.2021 in C.M Appln No.1/2009 and proportionate cost. The third 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 13 MACA No.2055 of 2009 of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants, after deducting their liability towards court-fee, if any, in the ratio of 40:30:30 and in accordance with law. Sd/- sks/3.3.2022 **C.S.DIAS, JUDGE**