Anitha and others v. Sajeev Joseph and Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943** ## **MACA NO. 2185 OF 2011** **AGAINST THE AWARD DATED 23.03.2011 IN OPMV 769/2010 OF** ## **PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE APPELLANTS/CLAIMANTS:** - 1 ANITHA,AGED 40, W/O LATE BABU @ BABURAJ, PURAYIL HOUSE, UNNIKULAM AMSOM DESOM, EKAROOL POST, KOZHIKODE -673574 - 2 NEETHU, AGED 20, D/O LATE BABU @ BABURAJ, PURAYIL HOUSE, UNNIKULAM AMSOM DESOM, EKAROOL POST, KOZHIKODE -673574 - 3 ANJALI, AGED 14, D/O BABU @ BABURAJ, PURAYIL HOUSE, UNNIKULAM AMSOM DESOM, EKAROOL POST, KOZHIKODE -673574 - 4 KUTTY RADHA, W/O RAMANKUTTY, AGED 66, PURAYIL HOUSE, UNNIKULAM AMSOM DESOM, EKAROOL POST, KOZHIKODE -673574 BY ADV SMT.K.V.RESHMI ## **RESPONDENTS/RESPONDENTS:** - 1 SAJEEV JOSEPH, PURAYIDATHIL HOUSE, TIRUVAMBADY POST, KOZHIKODE -673603 - 2 ABOOTTY P, S/O MUHAMMED POYELIL, NO.68, CANAL BANK ROAD, ADYAR, CHENNAI. - 3 THE NATIONAL INSURANCE CO. LTD., 2ND FLOOR, NOOR **MACA NO. 2185-2011 2** COMPLEX, MAVOOR ROAD, KOZHIKODE DISTRICT -673661 BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2185-2011 3** ## **JUDGMENT** **Dated this the 13[th] day of December, 2021** The appellants were the petitioners in O.P (MV) No.769/2010 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 Babu (deceased) – the husband of the first appellant, the father of appellants 2 and 3 and son of the fourth appellant. It was their case that, on 09.11.2009, while the deceased was riding his motorcycle bearing registration No.KL -08 N 6662 from Unnikulam - Kunnamangalam Public Road, a car bearing registration No. KL-11-J 9450 (car), driven by the second respondent ## **MACA NO. 2185-2011 4** in a rash and negligent manner, hit the motorcycle of the deceased. The deceased sustained serious injuries and was treated as an inpatient at the Medical College Hospital, Kozhikode. Unfortunately, he succumbed to his injuries on 22.11.2009. The car was owned by the first respondent and insured with the third respondent. The deceased was a coolie worker by profession and earning a monthly income of Rs.8500/-. The appellants were the dependents of the deceased. Hence, the appellants claimed a total compensation of Rs.6,55,000/from the respondents, which claim was limited to Rs.6,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set exparte. 4. The third respondent had filed a written statement admitting that the car had a valid insurance policy. However, the third respondent disputed the age, income and occupation of the deceased. 5. The appellants had produced and marked Exhibits A1 to A4 in evidence. The case records were ## **MACA NO. 2185-2011 5** marked as Exhibit X1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the third respondent an amount of Rs.4,20,300/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and cost of Rs.2000/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Smt. Rashmi K.V, the learned counsel appearing for the appellants/petitioners and Smt.Deepa George, the learned counsel appearing for the third respondent /insurer. 9. The question that arise for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exhibits A1 FIR and A4 Scene Mahazar substantiate the fact that the accident occurred due to the negligence of the second respondent. Admittedly, ## **MACA NO. 2185-2011 6** the first respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any contra evidence to discredit Exhibits A1 and A4 documents and controvert the assertions in the claim petition. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income of the deceased** 11. The appellants had claimed that the deceased was a coolie worker by profession and earning a monthly income of Rs.8500/-. For the want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.3000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. ## **MACA NO. 2185-2011 7** 13. Following the yardsticks in the afore-cited decision and considering the fact that the accident occurred in the year 2009, I re-fix the notional monthly income of the deceased at Rs.7000/- per month. ## **Multiplier** 14. It is undisputed that the deceased was aged 44 years at the time of accident. In the light of the law laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier to be adopted is ‘14’. ## **Personal living expenses of the deceased** 15. It is proved by Exhibit A3 Family membership certificate that the appellants were the wife, children and mother of the deceased. They are four in number. In the light of the law laid down in **Sarala Verma** (Supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** one fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **MACA NO. 2185-2011 8** ## **Future prospects.** 16. Following the ratio in **Sarala Verma** (Supra) and **Pranay Sethi** (supra) **,** and considering the fact that deceased was aged 44 years at the time of the accident/death, the appellants are entitled to future prospects at 25%. ## **Loss due to dependency** 17. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at 7000/-, the multiplier at ‘14’, future prospects at 25% and deducting one fourth of the compensation towards personal living expense of the deceased, I award the appellants an amount of Rs.11,02,500 towards 'loss of dependency' instead of Rs.3,78,000/- 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, ## **MACA NO. 2185-2011 9** 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 said amount has to be enhanced by 10% in every three years. 19. In **N. Jayasree and others v. Cholamandalam M/s General Insurance Company Ltd.** [LL 2021 SC 588] and **Rashmitha Biswal and others v. Divisional Manager National Insurance Company Ltd and another** [LL 2021 SC 717], the Honourable 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 accident. Thus, it is only to be interpreted and inferred that the escalation of 10% is awarded after three years from the pronouncement of Pranay sethi, 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 to compensation under the conventional heads at Rs.16,500/-, 16,500/-, and 44,000/-. Accordingly, I award the appellants an amount of ## **MACA NO. 2185-2011 10** Rs.11,500/- each under the heads ‘funeral expenses’ and ‘loss of estate’ and Rs.44,000/- each under the head ‘loss of consortium’ totalling to an amount of Rs.1,76,000/-. Consequently, the appellants are entitled to a further amount of Rs.1,66,000/- under the said head. ## **Loss of love and affection** 20. The Tribunal has awarded an amount of Rs.10,000/- under the head ‘loss of love and affection’. In **New India Assurance Co. Ltd. v. Somwati and others** [(2020) 9 SCC 644], the Hon'ble Supreme Court has held that once the 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 awarded under the head ‘loss of love and affection.’ ## **Pain and sufferings** 21. The Tribunal has awarded an amount of Rs.10000/- under the head ‘pain and sufferings’. As the deceased lost his life after 13 days, I hold that the ## **MACA NO. 2185-2011 11** amount awarded under the said head to be reasonable and just. Similarly, I confirm the award of Rs.1000/towards ‘transportation expenses’ and Rs.1300/- towards ‘by-stander expenses’. 22. 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|1000|1000| |2|By-stander<br>expenses|1300|1300| |3|Funeral expenses|5000|16500| |4|Loss of estate|5000|16500| |5|Pain and<br>sufferings|10000|10000| ## **MACA NO. 2185-2011 12** |6|Loss of love and<br>affection|10000|---| |---|---|---|---| |7|Loss of<br>consortium|10000|1,76,000| |8|Loss of<br>dependency|378000|1102500| ||Total|**420300**|**13,23,800**| 23. Even though the appellants had claimed only an amount of Rs.6,00,000/- as compensation, following ratio in **Sarla Verma** and **Pranay Sethi** (supra), I have awarded the appellants future prospects as well as compensation under the conventional heads. Thus, the compensation awarded has exceeded the amount 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 a further amount of **Rs.9,03,500/-** with interest at the rate of 7% per annum from the date ## **MACA NO. 2185-2011 13** of petition till the date of realisation and proportionate cost. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the 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 deposited amount to the appellants in the ratio of 40:25:25:10 and in accordance with law, after deducting their liability, if any, towards court fee. Sd/- **C.S.DIAS JUDGE** rmm/13/12/2021