Appukuttan and Others v. I.B. Rajeev and The National Insurance Co. Ltd.

1 MACA No.1390 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 MACA NO. 1390 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1323/2004 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.** **APPELLANT/S:** 1 APPUKUTTAN, S/O.LATE VELU, AGED 69 YEARS. 2 THANKA, W/O.APPUKUTTAN, AGED 54 YEARS. 3 VIJESH N., S/O.APPUKUTTAN, AGED 26 YEARS., (ALL RESIDING AT NECHIYIL DHAIVATHUMKANDY HOUSE, CHELEMBRA POST, IDIMOOZHIKKAL,, MALAPPURAM). BY ADVS. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN ## **RESPONDENT/S:** 1 I.B.RAJEEV, IYEHATH HOUSE, SOUTH EROOR, THRIPPOONITHURA, ERNAKULAM. (DELETED) 2 RAMAKRISHNAN P., S/O.PONNAN, CHETHONI HOUSE, FEROKE POST, KOZHIKODE.(DELETED) 3 THE NATIONAL INSURANCE CO.LTD., S7 THIRUVIKA INDUSTRIAL ESTATE, GUINDY. (RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 4.8.2021 IN IA 1/2021). BY ADVS. SMT.DEEPA GEORGE FOR R3. **THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1390 of 2009 ## **C.S.DIAS, J. ====================== MACA No.1390 of 2009** ## **====================== Dated this the 3rd day of September, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.1323/2004 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondent in the appeal was the third respondent before the Tribunal. Even though the appellants had impleaded the respondents 1 and 2 before the Tribunal as respondents 1 and 2 in the appeal, at the instance of the appellants, the respondents 1 and 2 were deleted from the party array as per order dated 4.8.2021 in IA 1/2021. Hence, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming 3 MACA No.1390 of 2009 compensation on account of the death of Gireesh (deceased), the son of the petitioners 1 and 2 and the brother of the third petitioner. 3. The concise case of the petitioners in the claim petition was that; On 23.3.2004, while the deceased was travelling in a Jeep bearing registration No.KL-10/A 6426 (Jeep) from Idimuzhikkal to Kodungalloor, the Jeep hit on a tanker lorry bearing registration No.KL-7/U-7745 (lorry). The deceased sustained serious injuries and was taken to the Taluk Government Hospital, Tirur, where he lost his life. The accident occurred due to the negligent driving of the lorry by the second respondent. The lorry 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.6,000/-. The petitioners were the dependents of the deceased. Hence, they claimed a total compensation of Rs.3,00,000/- 4 MACA No.1390 of 2009 from the respondents. 4. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 5. The third respondent filed a written-statement admitting that the lorry had a valid insurance coverage. However, the third respondent disputed the other contentions in the claim petition. 6. The petitioners produced and marked Exts A1 to A3 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners to realise from the third respondent an amount of Rs.1,66,200/- with interest @ 7% per annum from the date of claim petition till the date of realisaton, and costs of 1,500/-. 8. Dissatisfied with the quantum of compensation, 5 MACA No.1390 of 2009 the petitioners are in appeal. 9. Heard; Sri.Jamaludheen K.M, the learned counsel appearing for the appellants/petitioners and Smt.Deepa George, the learned counsel appearing for the third respondent/insurer. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A1 FIR lodged before the Kuttipuram Police proves the fact that the accident occurred due to the negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the Lorry Therefore, it is the third respondent who is to indemnify the liability of the first respondent arising out of the accident. 6 MACA No.1390 of 2009 ## **Notional Income** 12. The petitioners had claimed that the deceased was a coolie worker and earning a monthly income of Rs.6,000/-. Nevertheless, the Tribunal fixed the notional income of the deceased at Rs.20,000/- per year. 13. The Hon'ble Supreme Court in ## **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. 14. Following the ratio in the aforecited decision and taking into account the fact that the accident occurred in the year 2004, I hold that the deceased's notional income can safely be fixed at Rs.4,500/- per month. ## **Multiplier** 15. Undisputedly, the deceased was aged 26 years on the date of his death. In the light of the law laid down 7 MACA No.1390 of 2009 in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier is '17'. ## **Personal living expenses** 16. It is admitted that the deceased was a bachelor at the time of his death. As held in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , one-half of the compensation has to be deducted towards the personal living expenses of the deceased, as he was a bachelor. ## **Future prospects** 17. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra), and considering that the relevant multiplier at '17', the petitioners are entitled for future prospects at 40% on the compensation for loss of dependency. ## **Loss of dependency** 18. Taking into account the above mentioned factors, that is, the notional income of the deceased at Rs.4,500/-, the 8 ## MACA No.1390 of 2009 multiplier at 17, the future prospects at 40%, and after deducting one-half of the compensation for loss of dependency towards the personal living expenses of the deceased, I refix the compensation for loss of dependency for the petitioners at Rs.6,42,600/- instead of Rs.1,46,666/awarded by the Tribunal. ## **Conventional Heads of Compensation** 19. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **Pranay Sethi** (supra) has 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/- respectively. 20. In the instant case, the Tribunal has awarded only an amount of Rs.2,500/- towards funeral expenses. Following **Pranay Sethi** (supra), I enhance the compensation under the said head by a further amount of 9 MACA No.1390 of 2009 Rs.12,500/-. 21. The Tribunal has not awarded any amount under the head loss of estate and loss of consortium. Hence, I award an amount of Rs.15,000/- towards loss of estate. Taking into account the fact that the petitioners 1 and 2 are the parents of the deceased, I hold that they are entitled for loss of consortium at Rs.40,000/- each, totalling to an amount of Rs.80,000/-. ## **Loss of love and affection and pain and sufferings** 22. It is seen that the Tribunal has awarded an amount of Rs.10,000/- under the head loss of love and affection and Rs.5,000/- under the head compensation for pain and sufferings. 23. In **New India Assurance Co. Ltd v. Somavathy and Ors [(2020) 9 SCC 644]** , the Hon'ble Supreme Court has held that once compensation under the head loss of consortium is awarded, no amount can be awarded 10 MACA No.1390 of 2009 under the head loss of love and affection as it would be amounted to duplication of compensation. Similarly, 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 in a case of death, no amount can be awarded under the head pain and sufferings. 24. Thus, I set aside Rs.10,000/- and Rs.5,000/awarded under the heads 'loss of love and affection' and 'pain and sufferings'. ## **Transportation and medical expenses** 25. With respect to the compensation awarded under the head transportation expenses and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in 11 MACA No.1390 of 2009 the afore-cited 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<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Dependency|1,46,666/-|6,42,600/-| |2|Pain and sufferings|5,000/-|nil| |3|Love and affection|10,000/-|nil| |4|Transportation|1,500/-|1,500/-| |5|Funeral expenses|2,500/-|15,000/-| |6|Medical treatment|1,500/-|1,500/-| |7|Loss of consortium|Nil|80,000/-| |8|Loss of estate|Nil|15,000/-| ||Total|1,66,166/-|7,55,600/-| 27. Even though the petitioners had claimed only an amount of Rs.3,00,000/- as compensation, in view of the ratio in **Sarla Verma** and **Pranay Sethi** (supra) that the dependents of the deceased are entitled for future 12 MACA No.1390 of 2009 prospects and compensation based on multiplier, the amount of compensation has been enhanced, which is more than the amount claimed. 28. In **Nagappa vs. Gurudayal Singh [2003 (1) KLT 115(SC)]** and **Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)],** the Hon'ble Supreme Court has held that there is no restriction in awarding more compensation than what is claimed in the claim petition. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.5,89,434/- (Rupees Five Lakh Eighty Nine Thousand Four Hundred and Thirty Four only) with interest on the enhanced compensation at the rate of 7% per annum from the date of claim petition till the date of realisation, after deducting the interest for the period of 101 days, i.e., the period of delay in preferring the appeal and as ordered by this Court on 4.8.2021 in C.M Appln 1590/2009, and 13 MACA No.1390 of 2009 costs of Rs.4,000/-. The third respondent/insurer shall deposit the enhanced compensation awarded in this appeal before the Tribunal together with interest and costs within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants/ petitioners in the ratio of 40: 40: 20 and in accordance with law, after deducting their liability if any, towards payment of court-fee. All pending interlocutory applications will stand closed. Sd/- sks/3.9.2021 **C.S.DIAS, JUDGE**