Arifa Beevi and Others v. Reghu s/o Madhavan (Deleted); Sudeesh Kumar Veliyil Veedu; The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** ## **MACA NO. 609 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 638/2006 ON THE FILE OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,ALAPPUZHA.** ## **APPELLANTS/PETITIONERS:** - **1 ARIFA BEEVI W/O. ABDUL RASHEED, MILAD MANZIL, WARD IV, MANNANCHERRRY P.O., ALAPPUZHA DISTRICT.** - **2 SAFEENA D/O. ABDUL RASHEED, RESIDING DO** - **3 NAJEEMA D/O. ABDUL RASHEED, RESIDING DO** - **4 MAJITHA D/O. ABDUL RASHEED, RESIDING DO** - **5 SAIDUDEN S/O. ABDUL RASHEED, RESIDING DO** - **6 DIJANATH D/O. ABDUL RASHEED, RESIDING DO** - **7 THASKEENA D/O. ABDUL RASHEED, RESIDING DO** - **8 NOUFAL S/O. ABDUL RASHEED, RESIDING DO** - **9 JUBAR S/O. ABDUL JABBAR, RESIDINGDO.(9TH APPELLANT IS REP. BY HIS GRAND MOTHER 1ST APPELLANT IS ARIFA BEEVI 1ST PETITIONER) BY ADV SRI.T.G.RAJENDRAN** ## **RESPONDENT2/RESPONDENTS:** - **1 REGHU S/O. MADHAVAN, VELIYIL VEEDU, WARD XIII, MARARIKULAM, SOUTH PANCHAYATH.(DELETED) THE FIRST RESPONDENT IS DELETED FROM THEPARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 25/11/2021IN I A NO.1/2021.** - **2 SUDEESH KUMAR VELIYIL VEEDU, CHETTIKKADU, PATHIRAPPALLY.** - **3 THE NATIONAL INSURANCE CO. LTD. REP. BY ITS BRANCH MANAGER, NELLAI COMPLEX, NORTH OF IRON BRIDGE, ALAPPUZHA, PIN 688011. BY ADV SRI.T.V.AJAYAKUMAR** ## **SRI. T.V AJAYAKUMAR-R3** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** ## **10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.609 of 2013 2 ## **JUDGMENT** The appellants are the claimants in OP(MV) No.638/2006 on the file of the Motor Accidents Claims Tribunal, Alappuzha. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act), on account of the death of husband of the 1[st] appellant and father of appellants 2 to 8 and grandfather of 9[th] appellant. 2. It is alleged that the deceased Abdul Rasheed, was working as business proprietor, Taj bakery, Karivoor market. On 11.03.2006 at about 7 a.m. the deceased was travelling on motor cycle bearing Reg. No.KL-04/T-752 and when reached at Kompady National Highway Junction in Alapuzha Ernakulam NH 47, the autorickshaw bearing Reg. No.KL-04/T-5626 came from opposite direction and hit the motor cycle ridden by the deceased resulting in fatal injuries to him. He was taken to Medical College Hospital, Alappuzha and for treatment he was referred to Lakeshore Hospital, Kochi. There he succumbed to injuries on 14.03.2006. The appellants claimed total compensation of Rs.6,42,000/-. 3. Before the Tribunal, respondent Nos.1 and 2 the driver and owner of the offending vehicle respectively remained ex-parte. MACA No.609 of 2013 3 4. The 3[rd] respondent insurer filed written statement, admitting the policy coverage of the offending vehicle and denying negligence on the part of the first respondent and also contended that the incident happened due to the negligence of the deceased. The age, income and occupation of the appellant was also disputed. It is also contended that the compensation claimed under various heads are highly excessive and exorbitant. 5. First claimant was examined as PW1 and Exts.A1 to A13 series were marked from the side of the appellants. Ext.B1 is the copy of the insurance policy marked from the side of the third respondent. Tribunal on evaluating the evidence adduced from both sides allowed the claim petition in part and awarded compensation of Rs.3,08,624/-. 6. Dissatisfied with the award passed by the Tribunal, the appellants/claimants (herein after be referred as claimants) came up before this Court in appeal under various grounds stated in the Memorandum of appeal. 7. Notice was issued to the respondents. Adv.T.V. Ajayakumar, takes notice on behalf of the third respondent. First respondent is deleted from the party array and there is no appearance for the second respondent. 8. Heard learned Counsel for the appellants as well as the MACA No.609 of 2013 4 ## Standing Counsel for the 3[rd] respondent. 9. In this case, the compensation awarded by the tribunal under various heads are as follows: |ious heads are as follows:|| |---|---| |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |Transportation charges<br>(including ambulance<br>charge)|1,816-00| |Funeral expenses|5,000-00| |Medical expenses|24,408-00| |By-stander expenses|400-00| |Compensation for pain and<br>sufferings|5,000-00| |Loss of love and affection|70,000-00| |Compensation for loss of<br>dependency|1,92,000-00| |Loss of consortium|10,000-00| |Total|3,08,624-00| 10. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation MACA No.609 of 2013 5 in case of death in motor accident following the principles in U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors. [1995 (2) KLT 218 (SC) : (1996) 4 SCC 362] as well as the principles laid down in the General Manger, Kerala State Road Transports Corporation v. Susamma Thomas [(1994 (1) KLT 67 (SC) : (1994) 2 SCC 176]. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 11. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical MACA No.609 of 2013 6 exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 12. In Sarla Verma's case the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years. 13. In Pranay Sethi's case, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 14. On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that personal and living MACA No.609 of 2013 7 expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants and where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65). 15. According to the learned counsel for the claimants the deceased was a business proprietor at Taj bakery. There was evidence to substantiate the occupation and monthly income. But, the Tribunal fixed the income notionally as Rs.3000/-. That according to the learned counsel is very low. 16. In **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if the claim made is so MACA No.609 of 2013 8 exorbitant or if the claim made is contrary to ground realities the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 17. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-08-2008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in Ramchandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 18. In the absence of any convincing evidence to prove the income in view of the above settled position, the income of the deceased can notionally be fixed Rs.5,500/- per month. 19. In this case, the deceased was 60 years old. His notional income has been fixed as Rs.5,500/-. The 1[st] claimant is MACA No.609 of 2013 9 the wife of the deceased. Claimants 2 to 7 are the daughters and sons of the deceased and all are grown up and the Tribunal deducted 1/3 towards personal and living expensed. That is not further challenged here. As discussed above, the claimants are also entitled for enhancement towards future prospects at 10% since the deceased was found to be 60 years old. Hence, claimants are entitled for an additional amount of Rs.550/- towards future prospects (10% of 5,500). The total monthly income would be Rs.6,050/- from that 1/3 to be deducted, towards personal and living expenses of the deceased ie. Rs.2,016.6 (Rs.6,050x1/3). (Rs.6,050-2016.6). So monthly contribution to family would be Rs.4,033.4/-. The multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '9', since, the deceased was 60 years at the time of accident. So the total amount **towards dependency** would be Rs.4,033.4x12x9=Rs.4,35,607/-. Deducting the amount already awarded by the Tribunal ie. Rs.4,35,607Rs.1,92,000= **Rs.2,43,607/-.** 20. The next contention of the learned counsel is with regard MACA No.609 of 2013 10 to the enhancement of the conventional heads as per the directions in **Pranay Sethi's** case followed by **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. [2018 (18) SCC 130].** In that decision, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 21. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in Pranay Sethi's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 22. In this context, **Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024]** is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In MACA No.609 of 2013 11 that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 23. Next is with regard to the consortium to be awarded. The law laid down by the Apex Court in Magma General Insurance Co.'s case is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5[th] ed. 1979). Parental consortium is granted to the child upon the premature death of a MACA No.609 of 2013 12 parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 24. So, in the present case the wife of the deceased alone is entitled for consortium with 10% enhancement after 3 years as directed in Pranay Sethi. So the amount towards loss of consortium would be RS.44,000/- to the 1[st] appellant/1st claimant and others are grown up children of the deceased and grand children and no amount need be awarded on account of consortium to any of them. The Tribunal already awarded Rs.10,000/- towards **loss of consortium** that has to be deducted. So the enhanced compensation under the head of consortium would be **Rs.34,000** /- MACA No.609 of 2013 13 (44,000-10,000). 25. In **United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur & Ors. [AIR 2020 SC 3076 : I.L.R. 2020 (3) Ker. 334 : 2020 (3) KHC 760 (SC)]** it has been held that loss of love and affection is comprehended in loss of consortium and once compensation is awarded under the head of loss of consortium the compensation need not be awarded under the separate head loss of love and affection. Hence, an amount of Rs.70,000/- awarded by the Tribunal under the head of loss of love and affection has to be deducted. The claimants are further entitled to get Rs.16,500 (15,000+10% increase) as directed in Prany Sethi towards funeral expenses. Deducting Rs.5,000/- already awarded towards **funeral expenses** , it will come to Rs.11,500/- (16,5005,000). Claimants are also entitled to get **Rs.16,500/-** towards loss of estate since, no amount has been awarded by the Tribunal under that head. Towards by-stander expense an amount of Rs.400/- has been awarded. The records would show that he died on the 4[th] day of the incident and hence the Tribunal awarded bystander expense for 4 days. Since the incident was in the year 2006 an amount of Rs.200/- per day can be taken towards daily wages towards by by-stander. So towards the **by-stander expense** the claimants are entitled for a total amount of Rs.800/-. Deducting the MACA No.609 of 2013 14 amount already awarded the balance would be **Rs.400/-** (800400). No interference is called for under any of the other heads, since reasonable compensation has been awarded by the Tribunal. 26. Under the conventional heads the claimants are entitled to get the total amount of Rs.77,000/- (16,500+16,500+44,000). But the amount already awarded under the loss of consortium, funeral expenses and loss of love and affection to be deducted ie. Rs.70,000 + Rs.10,000 + Rs.5,000 = Rs.85,000/-. So the total enhanced compensation is Rs.2,36,007 (2,43,607+77,000 + 40085,000). In the result, appeal allowed and appellants/claimants are allowed to realise enhanced compensation of **Rs.2,36,007/-** in this appeal, which will carry interest at the rate of 7.5 **%** per annum from the date of petition till realisation i.e. 21.6.2006 excluding 479 days, the period of delay caused in filing the appeal. 50% of the enhanced compensation shall be allotted to the 1[st] appellant the wife and the balance shall be distributed equally among the other claimants. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank MACA No.609 of 2013 15 Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. ## **Sd/-** **M.R.ANITHA JUDGE** SMF