Appu and others v. M.K. Mini and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 1[ST] DAY OF JULY 2021 / 10TH ASHADHA, 1943** **MACA NO. 1950 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 270/2004 OF THE MOTOR** **ACCIDENT CLAIMS TRIBUNAL , PALAKKAD,** ## **APPELLANT/S:** 1 APPU, S/O.KRISHNAN 2 KALYANI, W/O.APPU. 3 SINDHU, D/O.APPU. 4 ANIL KUMAR, S/O.APPU. 5 INDHU (MINOR), D/O.APPU. (MINOR 5TH APPELLANT REPRESENTED BY HER GUARDIAN, FATHER THE IST APPELLANT HEREIN)., ALL RE RESIDING AT THEKKE MANGODE, PALLASSANA.P.O,, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.P.S.APPU SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.T.C.SURESH MENON ## **RESPONDENT/S:** 1 M.K.MINI, S/O.KANDHASWAMI RESIDING AT NO.2C, NATHAMEDU, MAVUREDDY,, PARAMATHY.P.O., P.VELLUR TALUK,, NAMAKKAL DISTRICT. 637 207. 2 SELVAKUMAR, S/O.MARAPPAN RESIDING AT UPPUPALLIPUDUR, VALLIPALAYA.P.O.,, P.VELLUR TALUK, NAMAKKAL DISTRICT. 638 182. 3 NATIONAL INSURANCE CO.LTD. NAMAKAL BRANCH OFFICE, 74-A, PARAMATTI ROAD,, NAMAKKAL. 638 182. 4 G.ARTHANARI, S/O.GUMATHAN (DELETED) RESIDING AT 11-A, KOKKARAYANPETTAI ROAD,, KUMAR ILLAM, ANIMOOR.P.O., THIRUCHANGODE-637 211. 5 A.MAHADESWARAN, S/O.ARTHANARI(DELETED) RESIDING AT VELLUR ROAD, THIRUCHANGODE-637 211. 2 MACA No.1950 of 2010 (RESPONDENTS 4 AND 5 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 19.3.2021 IN IA 1/2020 ) 6 UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, 146/N, KUMAR COMPLEX,, ANNASALAI, THIRUCHANGODE-637 211. 7 M.K.SAIDU RESIDING AT MOOSAN PARAMBIL HOUSE,, MUTTOM, THAIKKATTUKARA.683 103 8 NATIONAL INSURANCE CO.LTD. ALUVA, DIVISIONAL OFFICE, P.B.NO.89, ALUVA.683 101 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA No.1950 of 2010 ## **C.S DIAS,J.** **--------------------------MACA No.1950 of 2010** **----------------------------Dated this the 1[st] day of July, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) 270/2004 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondents in the appeal were the respondents in the claim petition. Pursuant to the orders of this Court on 19.3.2021 in IA 1/2020, the respondents 4 and 5 were deleted from the party array. 2. The appellants had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988 (in short 'the Act'), claiming compensation on account of the death of one Santhosh Kumar (deceased) – the son of appellants 1 and 2 and brother of the appellants 3 to 5. 3. The appellants contended that while the deceased was driving in a tempo van bearing registration 4 MACA No.1950 of 2010 No.KL-7/V 4525 from Aluva to Bangalore on 30.10.1999 through the Omallur Dharmapuri public road, a lorry bearing registration No.TN 28/K 2799 (offending vehicle) driven by the second respondent in a rash and negligent manner hit the tempo van of the deceased. The offending vehicle was owned by the first respondent and insured with the third respondent. It was further averred that in the accident the vehicle of the deceased also hit an other lorry bearing registration No.TN 28/Y 2284, which was driven by the fifth respondent and owned by the fourth respondent and insured with the sixth respondent. The deceased succumbed to his injuries on the spot. The deceased was a driver by profession and earning a monthly income of Rs.9,000/- and contributed an amount of Rs.5,000/- per month to his family. The respondents 7 and 8 were the owner and insurer of the tempo van, which was driven by the deceased. The appellants contended that the respondents were jointly and severally liable to 5 MACA No.1950 of 2010 pay compensation to them, which was quantified at Rs.10,00,000/-. 4. The respondents 1,2,4, 5 and 7 did not contest the proceedings and were set ex parte. 5. The respondents 3 and 8 – the National Insurance Company Ltd – the insurer of both the lorries filed a written statement, inter alia, contending that there was no negligence on the part of the drivers of the lorries, but the drivers of the lorries did not hold valid driving licences and badges to drive the vehicle. The compensation claimed by the appellants was excessive and the claim petition was liable to be dismissed. The sixth respondent filed a written statement contending that the accident occurred solely due to the negligence on the part of the deceased. 6. The appellants produced and marked Exts A1 to A9 in evidence. 7. The Tribunal, after analysing the pleadings and 6 MACA No.1950 of 2010 materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellants to realise an amount of Rs.2,74,500/- from the third respondent along with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.1,000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents 3 and 8 – the National Insurance Company Ltd 10. Ext A1 FIR substantiates the fact that the accident occurred due to the rashness and negligence on the part of the second respondent who drove the offending vehicle in a negligent manner and caused the accident. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the offending vehicle. 7 MACA No.1950 of 2010 Therefore, it is the third respondent who is liable to indemnify the first respondent of his liability to pay the compensation to the appellants. 11. Ext A8 relationship certificate proves that the appellants were the parents and siblings of the deceased. The appellants had claimed that the deceased was a driver by profession earning a monthly income of Rs.9,000/-. The Tribunal accepted the version of the appellants, but fixed the notional income of the deceased at Rs.2,000/- per month. 12. Ext A7 driving licence of the deceased proves that the deceased was having a valid driving licence from 2.6.1995. Subsequently, on 3.7.1997 he was issued with a paper badge authorizing him to drive a transport vehicle. Therefore, it is proved through Ext A7 that the deceased was a professional driver. 13. The Hon'ble Supreme Court in **Pushkar Mehra vs. Brij Mohan Kushwala and others** [(2015) 12 SCC 8 MACA No.1950 of 2010 688] has fixed the notional income of a skilled labourer in the year 2010 at Rs.7,020/- per month. Similarly, in **Ramachandrappa v. Manager, Royal 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. It was held that a daily wage labourer could earn Rs.150/- per day. 14. The learned counsel appearing for the respondents 3 and 8 drew the attention of this Court to Employee's Compensation Act,1923 and contended that as on 8.12.2000, the minimum wage of a manual labourer was Rs.4,000/-. 15. Following the parameters in **Pushkar Mehra** (supra), **Ramachandrappa** (supra) and also in Employee's Compensation Act and taking note of the fact that the accident took place on 30.10.1999, I am of the definite opinion that the deceased's notional income can 9 MACA No.1950 of 2010 safely be fixed at Rs.4,000/-. Hence, I fix the notional income of the deceased at Rs.4,000/- per month. ## **Future prospects** 16. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** and a host of subsequent decisions, the Hon'ble Supreme Court has categorically held that the dependents of the deceased are entitled to future prospects @ 40% of the total compensation to be awarded under the head loss of dependency. 17. In the case on hand, as the deceased was a self employed person, the appellants are entitled for future prospects at 40%. 18. Admittedly, the deceased was a bachelor. Therefore, going by the law laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , one-half of the income of the deceased has to be deducted towards his 10 MACA No.1950 of 2010 personal living expenses. 19. The deceased was aged 22 years at the time of his death. Hence, the relevant multiplier is 18. 20. Adopting the notional income of the deceased at Rs.4,000/- , future prospects at 40%, multiplier at 18 and after deducting one-half of the income towards his personal living expenses, I refix the compensation under the head 'loss of dependency' at Rs.6,04,800/-. ## **Conventional Heads of Compensation** 21. In **United India Insurance Co. Ltd v. Satinder** **Kaur @ Satwinder Kaur and others- [(2020 (3) KHC 760]** , the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads of funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/and Rs.40,000/-. Therefore, I award compensation under the heads funeral expenses and loss of estate at Rs.15,000/- each. 11 MACA No.1950 of 2010 22. As the appellants 1 and 2 are the parents of the deceased, they alone are entitled for filial consortium at Rs.40,000/- each totalling to an amount of Rs.80,000/-. 23. It is seen that even though the appellants had claimed transportation expenses of Rs.5,000/-, no amount was awarded under the said head. I hold that an amount of Rs.2,500/- has to be awarded towards transportation expenses for having brought the body of the deceased from Tamil Nadu to Kerala. Similarly, I award an amount of Rs.500/- under the head 'damage to clothing'. 24. The Tribunal had awarded an amount of Rs.15,000/- under the head loss of love and affection. In light of the law laid down in **Kunjandy. L & Ors v. Rajendran & Ors [2020 (2) KLT 315],** that once compensation is awarded under the head loss of consortium, no amount shall be awarded under the head loss of love and affection, I set aside the amount of Rs.15,000/- awarded by the Tribunal. 12 MACA No.1950 of 2010 25. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the aforecited precedents, I am of the firm opinion that the appellants 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 awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to Hospital|Nil|2,500/-| |2|Damage to clothing|Nil|500/-| |3|Funeral expenses|5,000/-|15,000/-| |4|Loss of love and affection|15,000/-|Nil| |5|Loss of estate|2,500/-|15,000/-| |6|Loss of consortium|Nil|80,000/-| |7|Loss of dependency|2,52,000/-|6,04,800/-| ||Total|2,74,500/-|7,17,800/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.4,43,300/(Rupees Four Lakh Forty Three Thousand Three Hundred only) with interest on the enhanced compensation at the rate of 7.5% per annum from the date of claim petition 13 MACA No.1950 of 2010 till the date of realisation, after deducting the period of 411 days, i.e., the period of delay in preferring the appeal and as ordered by this Court on 19.3.2021 in C.M Appln 2500/2010, and proportionate costs. The third respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The compensation shall be equally disbursed to the appellants 1 and 2, in accordance with law. sd/- Sks/1.7.2021 **C.S.DIAS, JUDGE**