Ayesha W/o Ummer; Hashim S/o Ummer; Sainudeen S/o Ummer; Hajira @ Hajurumma W/o Late Yousef v. T.P. Natarajan; Pratheeshkumar @ Pratheesh Babu; United India Insurance Co. Ltd.; Abbas Ahammed; Shabu; The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** ## **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** ## **MACA NO. 937 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) NO.47/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **PALAKKAD** ## **APPELLANTS/PETITIONERS:** - **1 AYSHA W/O. UMMER, ASHY VILLA, PANDANKODE, MOOLANGODE P.O., VADAKKANCHERY, PALAKKAD.** - **2 HASHIM S/O. UMMER, ASHY VILLA, PANDANKODE, MOOLANGODE P.O., VADAKKANCHERY, PALAKKAD.** - **3 SAINUDEEN S/O. UMMER, ASHY VILLA, PANDANKODE, MOOLANGODE P.O., VADAKKANCHERY, PALAKKAD.** - **4 HAJIRA @ HAJURUMMA W/O. LATE YOUSEF, ASHY VILLA, PANDANKODE, MOOLANGODE P.O., VADAKKANCHERY, PALAKKAD. BY ADV SRI.A.R.GANGADAS** ## **RESPONDENTS/RESPONDENTS:** |**1**|**T.P.NATARAJAN**| |---|---| ||**S/O. PALANIAPPA, 12/850 THENARY, ELAPPULLY, PALAKKAD-678622.**| |**2**|**PRATHEESHKUMAR @PRATHEESH BABU**| ||**S/O. K.T.APPU, MADAMPARA, KUNISSERY P.O., PALAKKAD-678681.**| |**3**|**THE UNITED INDIA INSURANCE CO. LTD.**| ||**DIVISIONAL OFFICE, SURYA COMPLEX, 2ND FLOOR B1 WING, PALAKKAD-678001**| |**4**|**ABBAS AHAMMED**| ||**11/374 KANNARA STREET, PALAKKAD-678001.**| |**5**|**SHABU**| ||**S/O. PUSPARAJAN, NADAKKAVU HOUSE, PALLANCHATHANUR, PALAKKAD-678001**| |**6**|**THE NEW INDIA ASSURANCE CO.LTD.**| ||**MA LANE, T.B.ROAD, PALAKKAD DIST.-678001.**| ||**BY ADV P.MURALEEDHARAN**| ||**ADV. LAL K. JOSEPH**| ## **OTHER PRESENT:** **SRI. P. MURALEEDHARAN-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.937/2012 2 ## **JUDGMENT** Appellants are claimants in O.P.(M.V.)No.47/2005 on the file of the Motor Accidents Claims Tribunal, Palakkad (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.6,50,000/-, out of the death of Ummer, husband of the 1st appellant, father of appellants 2 & 3 and the son of the 4th appellant, in a motor accident occurred on 18.06.2004. The above claim petition was tried along with O.P.(M.V.)No.48/2005 and a Common Award was passed. 2. It is alleged that on 18.06.2004 while the deceased Ummer was travelling in a Tata Sumo bearing Reg.No. KL-9D/4334 driven by the first respondent, from Mysore to Moolangode and reached at Pudussery junction, a lorry bearing Reg.No.KRK-6516 driven by the second respondent, 3 MACA No.937/2012 hit the Tata sumo, resulting in fatal injuries to him. Immediately he was taken to Fort Hospital, Palakkad but succumbed to the injuries on the same day. 3. It is alleged that the accident happened due to the rash and negligent driving of the lorry by the second respondent. Third respondent is the insurer of the lorry. Fourth respondent is the owner of the Tata Sumo in which the deceased was travelling. Sixth respondent is the insurer of Tata Sumo. 4. Before the Tribunal third respondent filed written statement contending that the accident happened due to the rash and negligent driving of Tata Sumo by its driver. It is also contended that the claim made is excessive. But the policy coverage with respect to the offending vehicle is admitted. 5. Respondent Nos.4 and 5 filed written statement denying the negligence on the part of the driver of Tata Sumo. It is also contended that the fourth respondent has sold the vehicle to 5th respondent. Fifth respondent sold the vehicle to one Ramesh Kumar and they are unnecessary parties to the MACA No.937/2012 4 proceedings. 6. Before the Tribunal, PW1 examined and Exts.A1 to A14 were marked from the side of the appellants/claimants. Exts.B1 and B2 were marked from the side of the third respondent. 7. The Tribunal on evaluating the pleadings and materials on record, awarded compensation of Rs.3,43,000/ with interest at the rate of 7.5% from the date of petition till realization. 2nd respondent was held responsible for the accident and 3rd respondent was directed to pay the amount. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/claimants are before this Court in this appeal. 8. Adv. Sri. P.Muraleedharan appeared on behalf of respondent No.3. Adv. Sri. Lal K. Joseph appeared on behalf of the 6th respondent. Since the third respondent has admitted the insurance policy, service of notice on respondents 1, 2, 4 and 5 dispensed with at the risk of the appellants. 9. Heard the learned counsel for the appellants as well MACA No.937/2012 5 as the learned counsel for the 3rd respondent. Lower court records were called for and perused. 10. According to the learned counsel for the appellants/claimants (hereinafter be referred as the claimants), the deceased was a Supervisor in a construction company and a monthly income of Rs.4,200/- was claimed. But the Tribunal arbitrarily taken the monthly income as Rs.2,500/-, which, according to him, is very low. He would also contend that though there are four claimants, the Tribunal deducted 1/3rd out of the income for calculating the loss of dependency, which is wrong. He would also contend that only a nominal amount has been awarded under the conventional heads and hence he seeks for enhancement of compensation on all heads. 11. To prove the income, claimants produced Ext.A8 showing the salary as Rs.4,200/- per month. But the employer was not examined and it was not proved. 12. In Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] , the MACA No.937/2012 6 Hon'ble Apex Court notionally fixed the monthly income of a coolie in an accident occurred in the year 2004 at Rs.4,500/-. Following the principles in Ramchandrappa's case, in Syed Sadiq v. United India Insurance Co. Ltd. [(2014) 2 SCC 735] , the Apex Court while dealing with an appeal, which arose out of an accident occurred in the year 2008, in the case of a vegetable vendor, aged 24 years, fixed the monthly income notionally as Rs.6,500/-. 13. Following the above principles, the amount of Rs.4,200/- claimed as the monthly income of the deceased can very well be accepted since the accident was occurred in the year 2004 and the deceased was claimed to be a Supervisor in a construction company. 14. In Sarla Verma v. Delhi Transport Corporation [(2010 (2) KLT 802 (SC)] the Apex Court laid down the principles to be followed in determining the quantum of compensation in a case of death out of Motor Vehicle accident. It is held that just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make MACA No.937/2012 7 good the loss sustained by the victim of accident as far as money can do. 15. In National Insurance Company Limited v. Pranay Sethi and Ors [2017 (4) KLT 662 (SC)] Constitution Bench of Apex Court held that Section 168 of the Act deals with the concept of “just compensation” and that has to be determined on the foundation of fairness, reasonableness and equitable on acceptable legal standard because such determination can never be with arithmetical 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. 16. In Sarla Verma the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was below 40 years and the said addition was reduced by 30% if the age of the deceased was 40 – 50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons having permanent job. 17. But in Pranay Sethi the Apex Court though accepted 8 the findings in Sarla Verma in fixing the multiplier made some variance with regard to the grant of future prospects in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust and the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. It is also laid down in Pranay Sethi that with respect to selfemployed or persons with fixed salary when the deceased was below 40 years an addition of 40% can be granted and in the case of between 40 – 50, an addition of 25% and with respect to persons between 50 – 60 years, the addition has been fixed as 10%. The established income also provided as the income MACA No.937/2012 9 minus tax component. 18. So, in the present case, the claim of the counsel for 40% enhancement towards future prospects of the deceased is in compliance of the law laid down in Pranay Sethi. So the monthly income of the deceased can be computed as Rs.5,880/- [4,200+1,680/- (40% of Rs.4,200/-)]. The multiplier as per Sarla Verma's case is '15'. That is followed in Pranay Sethi's case also. 19. On the question of deduction towards personal and living expenses, in Sarla Verma, the Apex Court held that personal and living 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] . MACA No.937/2012 10 20. In Reshma Kumari, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependents. 21. In the present case, the deduction towards personal and living expenses of the deceased would be ¼ since the number of total dependents are four. Then the amount would be Rs.4,410/- [5,880 – 1,470 (¼ of 5,880)]. 22. So the compensation towards dependency would be Rs.7,93,800/- [4,410x12x15]. From that the amount already awarded by the Tribunal to be deducted. Then the balance will be Rs.4,73,800/ - [7,93,800-3,20,000]. 23. The next contention of the learned counsel is with MACA No.937/2012 11 regard to the enhancement of compensation under the conventional heads as per the directions in Pranay Sethi. The Tribunal awarded Rs.3,000/- towards other eligible counts, on the head love and affection Rs.10,000/- and for consortium Rs.10,000/-. 24. In Pranay Sethi , 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. 25. The learned counsel would contend that the Apex Court in Pranay Sethi 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 was on 31.10.2017. So three years have elapsed. So the claimants are entitled for 10% enhancement on the said amounts. 26. In Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram and Ors. [(2018) 18 SCC 130] , an expansion 12 MACA No.937/2012 of consortium as 'spousal consortium', ‘parental consortium’, and ‘filial consortium’ has been made. 27. In Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] the Apex Court awarded 10% increase to conventional heads taking into account the directions in Pranay Sethi for 10% enhancement after every three years. In New India Assurance Co. Ltd. v. Somwati & Ors. [(2020) 9 SCC 644] it has been hled that once compensation is awarded for consortium, claimants are not entitled to get any amount towards loss of love and affection. 28. In the present case, claimants are wife, children and mother. All of them are entitled for consortium by giving 10% escalation to Rs.40,000/- as prescribed in Pranay Sethi. 29. So also Rs.10,000/- awarded by the Tribunal on account of love and affection has to be deducted. Rs.10,000/awarded by the Tribunal towards loss of consortium has to be given credit to. Rs.3,000/- also has been awarded under other eligible heads. That can be taken on the head of funeral MACA No.937/2012 13 expenses. So giving credit to Rs.3,000/- awarded by the Tribunal towards other eligible heads under the head of funeral expenses, the balance amount, the claimants are entitled to get under the head of funeral expenses is - Rs.13,500/ [16,500-3,000]. Towards consortium, claimants are entitled to get Rs.1,76,000/- [44,000x4]. From that Rs.20,000/has to be deducted. So the balance would be Rs.1,56,000/[1,76,000-20,000]. Claimants are also entitled to get Rs.16,500/- towards loss of estate. So, in total, under conventional heads, the claimants are entitled to get Rs.1,86,000/- [13,500+1,56,000+16,500]. 30. So the compensation awarded is in excess of the claim which is permissible under law [See: Rajesh v. Rajbir Singh [(2013) 9 SCC 54]. 31. In the result, the appellants 1 to 4 are allowed to realise enhanced compensation of Rs.6,59,800/[4,73,800+1,86,000] (Rupees six lakhs fifty nine thousand eight hundred only), which will carry interest at the rate of 6% per annum from the date of petition (excluding 355 days delay 14 MACA No.937/2012 in filing the appeal) till realisation. 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, after deducting the liability of the appellants/claimants towards balance Court Fee, if any. 32. The disbursement of enhanced compensation to appellants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank 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. 33. The enhanced compensation granted in this appeal shall be apportioned among the appellants 1 to 4 in the ratio 15 MACA No.937/2012 of 40:20:20:20. In the result appeal stands allowed. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** **JUDGE** **shg/**