Beena Sujikumar and Rohindh S Kumar (minor) v. Murukadas S/o Late Subrahmaniyan; Divisional Manager National Insurance Co. Ltd.; K.M. Paulose; P.K. Rajappan; Leelamma Rajappan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943** ## **MACA NO. 2417 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 80/2009 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL, KOTTAYAM** ## **APPELLANTS/1ST AND 2ND PETITIONER:** - **1 BEENA SUJIKUMAR AGED 37 YEARS W/O.LATE SUJI KUMAR, PULLAPPALLIL HOUSE, VELOOR P.O., KOTTAYAM686003.** - **2 ROHINDH S KUMAR (MINOR) AGED 12 YEARS S/O.LATE SUJI KUMAR, PULLAPPALLIL HOUSE, VELOOR P.O., KOTTAYAM-686 003, REPRESENTED BY HIS MOTHER BEENA SUJIKUMAR. BY ADVS. SRI.M.P.ASHOK KUMAR SRI.NANDAGOPAL S.KURUP** ## **RESPONDENTS/RESPONDENTS/3RD AND 4TH PETITIONERS:** - **1 MURUKADAS S/O.LATE SUBRAHMANIYAN, KARUVATHURATHIL HOUSE, THRIPPUNITHURA, ERNAKULAM-682301.** - **2 DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD, ALUVA BRANCH, ERNAKULAM-683101.** - **3 K.M.PAULOSE KUREECHAL HOUSE, KEEZHMAD, ALUVA, ERNAKULAM-603105.** - **4 P.K.RAJAPPAN S/O.GOVINDAN PULLAPPALLIL HOUSE, VELOOR P.O., KOTTAYAM-686003. (4TH RESPONDENT/3RD PETITIONER DIED AND IS RECORCED AS PER ORDER IN I.A.3378/2012).** - **5 LEELAMMA RAJAPPAN W/O.RAJAPPAN, PUPPALLIL HOUSE, VELOOR P.O., KOTTAYAM-686003. BY ADV SRI.S.K.AJAY KUMAR** ## **OTHER PRESENT:** ## **SRI. S.K AJAY KUMAR-SC-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2417/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.80/2009 on the file of Motor Accidents Claims Tribunal, Kottayam (in short, Tribunal). The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming total compensation of Rs.7,56,000/which was limited to Rs.7 lakhs, out of the death of Suji Kumar. 2. Originally, the claimants were widow, son and the parents of the deceased. It is alleged that on 26.04.2007 at about 6.45 a.m while the deceased was travelling on a motorcycle bearing Reg.No.KL-5S-3921 along Nagampadam – Chembarathimoodu bhagom road and reached near Mathrubhumi press, mini lorry bearing Reg.No.KL-2A-8479 hit the motorcycle, resulting in fatal injuries to deceased and while undergoing treatment at Medical College Hospital, Kottayam, he succumbed to the injuries on the very same day. MACA No.2417/2013 3 It is alleged that the accident occurred due to the rash and negligent driving of the first respondent. Second respondent is the insurer of the offending vehicle and the third respondent is the owner. 3. Before the Tribunal, respondents 1 and 3 remained exparte. Second respondent, insurer, filed written statement disputing the accident as well as the allegations and averments regarding the age, occupation and monthly income of the deceased. The policy coverage with respect to the offending vehicle is admitted. 4. PWs 1 to 3 are examined and Exts.A1 to A17 are marked from the side of the appellants/claimants (hereinafter be referred as claimants). There was no evidence from the side of the respondents. 5. On evaluating the evidence and facts and circumstances of the case, it was found by the Tribunal that accident occurred solely due to the rash and negligent driving of the first respondent and the third respondent was held vicariously liable for the acts of the first respondent and MACA No.2417/2013 4 second respondent Insurance Company was held liable to indemnify the insured, 3[rd] respondent. The Tribunal awarded a total compensation of Rs.6,83,000/- with interest at the rate of 7.5% per annum from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimants came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. Notice to respondents 1 and 4 dispensed with. Service of notice is complete on the respondents 2, 3 and 5. There is no appearance for respondents 3 and 5. Second respondent appeared through Standing Counsel Sri.S.K. Ajay Kumar. 8. Heard the learned counsel for the claimants and also the learned Standing Counsel for the 2[nd] respondent Insurance Company. Lower court records were called for and perused. 9. According to the learned counsel for the claimants, the deceased was a Newspaper Agent as well as Mike Operator. They claimed a monthly income of Rs.10,000/-. But MACA No.2417/2013 5 the Tribunal notionally took the income as Rs.5,200/- per month, which, according to the learned counsel, is very low. 10. Exts.A10 to A14 were marked. PWs 1 to 3 were examined to prove the income of deceased. PW1, the Senior Circulation Manager, Mathrubhumi Printing and Publishing Co. Ltd. was examined to prove Ext.A10 certificate showing the monthly trade discount given to the deceased starting from the period September 2006 to April, 2007. PW2 is the Circulation Manager with respect to the Kerala Koumudi daily. He has been examined to prove Ext.A11. PW3 is the Manager of Madhyamam Kottayam unit who has been examined to prove Ext.A12. Exts.A10 would show the monthly trade discount of the deceased from September 2006 to April 2007. It varies from Rs.1,380/- to Rs.1,600/-. Ext.A11 would state that the average monthly income of the deceased was Rs.750/-. PW3 proved Ext.A12 which would show that agency commission given to the deceased from November, 2006 to April 2007 varies from Rs.1,049.04 to 908.04. Eventhough the claimants have got a specific case that the deceased was also MACA No.2417/2013 **==> picture [10 x 8] intentionally omitted <==** a Mike operator, for the reason that no evidence was adduced from the side of the claimants to prove that fact apart from Ext.A13 issued by the Manager of Ganga Sounds, which is not proved by examining the Manager, the Tribunal was not pleased to accept that also. So at any rate the evidence adduced by the claimants will not prove the monthly income of deceased as Rs.10,000/-. 11. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the Hon'ble Apex Court notionally fixed the monthly income of coolie in the year 2004 as 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 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 MACA No.2417/2013 7 income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 12. 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 Ramchandrappa'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. 13. In the present case, deceased was a young man, aged 36 years. It is alleged that he was a Newspaper Agent and Mike Operator and claimed Rs.10,000/- as his monthly income. Claimants could adduce some evidence to prove that MACA No.2417/2013 8 deceased was the Newspaper Agent. The accident in this case occurred in the year 2007. So in view of the law laid down in Ramachandrappa followed in Syed Sadiq, his monthly income can notionally be fixed as Rs.6,000/- as claimed by the claimants. So the monthly income of the deceased is re-fixed as Rs.6,000/-. 14. The learned counsel for the claimants further claims for 40% enhancement towards future prospects as has been held in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121] 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. 15. But in Pranay Sethi the Apex Court though accepted MACA No.2417/2013 9 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.2417/2013 10 minus tax component. 16. 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.8,400/-[Rs.6,000+2,400 (40% of Rs.6,000/-). 17. Suitable multiplier as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121], approved by Constitution Bench in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] is '15'. 18. On the question of deduction towards personal expenses in Sarla Verma's case, 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 MACA No.2417/2013 11 family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65) as made out in the facts and circumstances of the case. 19. In Reshma Kumari's case, 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 dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 20. In the present case, wife and son as well as the parents of the deceased are the dependants. Third claimant died during the pendency of the proceedings before the Tribunal. However in Kirti & Anr. v. Oriental Insurance Co.Ltd [(2021) 2 SCC 166] it has been held that subsequent death of the dependent of the deceased ought not be a reason for MACA No.2417/2013 12 reduction of motor accident compensation and claims and legal liabilities crystallise at the time of accident and changes post thereto ought not to ordinarily affect pending proceedings. Hence towards personal and living expenses of the deceased ¼ to be deducted and the amount would be Rs.6,300/- [8,400-2,100 (1/4[th] of Rs.8,400)]. Applying the multiplier of '15', the compensation under the head of loss of dependency would be Rs.11,34,000/- [6,300x12x15]. Deducting the amount already awarded by the Tribunal, the compensation under the head of loss of dependency will be Rs.5,25,600/- [11,34,000–6,08,400]. 21. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in Pranay Sethi's case. 22. The Tribunal awarded Rs.2,000/- towards funeral expenses, Rs.30,000/- towards loss of consortium to the first claimant and Rs.30,000/- towards love and affection to the 2[nd] claimant and Rs.10,000/- towards loss of estate. In Pranay Sethi, the Apex court has held that Rs.15,000/- to be awarded MACA No.2417/2013 13 under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 23. 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. 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 for funeral expenses. Towards consortium, wife and son as well as the mother is entitled for the same. After the death of father, his legal heirs were not impleaded and it is not in evidence whether he has got other legal heirs also. 24. Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] 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 that decision, under MACA No.2417/2013 14 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 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. So, Rs.1,32,000/[Rs.44,000x3] is awarded towards loss of consortium. Towards loss of estate and funeral expenses, claimants are entitled to get Rs.33,000/- [16500+16500]. 25. Once compensation is awarded under the head consortium, the claimants are not entitled to get compensation for love and affection. [See: New India Assurance Co. Ltd. v. Somwati & Ors. [(2020) 9 SCC 644]. So from Rs.1,32,000/-, the amount of Rs.30,000/- awarded towards loss of love and MACA No.2417/2013 15 affection and Rs.30,000/- already awarded towards consortium to first claimant to be deducted. Balance would be Rs.72,000/ -. So the amount awarded by the Tribunal under the heads funeral expenses (Rs.2,000/-), the balance would be Rs.14,500/[16,500-2,000]. Towards loss of estate (Rs.10,000/-) already awarded to be deducted. Then the balance amount would be Rs.6,500/- [16,500-10,000]. Hence under the conventional heads, the balance amount due to the claimant is Rs.93,000/- [72,000+14,500+6,500]. 26. In the result, the appellants are allowed to realise enhanced compensation of Rs.6,18,600/- [5,25,600+93,000] (Rupees six lakhs eighteen thousand six hundred only), which will carry interest at the rate of 7.5% per annum from the date of petition till realisation (excluding the period of 261 days delay caused in filing the appeal). The second respondentinsurer is directed to pay 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 towards Balance Court MACA No.2417/2013 16 Fee, if any. 27. The disbursement of enhanced compensation 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. Disbursement of the enhanced compensation among the appellants/claimants 1 and 2 and 5[th] respondent/4[th] claimant would be in the ratio 50:30:20. 28. Parties 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, 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** ## **shg/x**