Beevi and others v. Sundara Raj Saw Mill & Industries and The National Insurance Co. Ltd., MACA Nos. 1073 & 2183 of 2009

**MACA.Nos.1073 & 2183 OF 2009** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **MACA.No.1073 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 643/2005 DATED 09-09-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANTS/CLAIMANTS:** **1 BEEVI,AGED 37, W/O.KUNHI MOIDY, UNNICHIRAKANDY HOUSE, NOCHAD AMSOM, CHENOLI DESOM,, POST CHENOLI, KOYILANDY - 673525. 2 THAJUNNISA, AGED 19DO.KUNHI MOIDY UNNICHIRAKANDY HOUSE,NOCHAD AMSOM,, CHENOLI DESOM, POST CHENOLI, KOYILANDY-673525. 3 THASNEEM,AGED 15 YEARS, S/O.KUNHIMOIDY DATE OF BIRTH 24/101993,REP.BY MOTHER/ NEXT FRIEND BEEVI, W/O. KUNHI MOIDY, UNNICHIRAKANDY, HOUSE, NOCHAD AMSOM, CHENOLI DESOM, POST, CHENOLI, KOYILANDY-673525. 4 KUNHOKKAR, AGED 84 YEARS,S/O. AMMED UNNICHIRAKANDY HOUSE, NOCHAD AMSOM, CHENOLI DESOM,, POST CHENOLI, KOYILANDY-67352. 5 AMINAAGED, 69 YEARS, W/O. KUNHOKKAR UNNICHIRAKANDY HOUSE, NOCHAD AMSOM, CHENOLI DESOM,, POST CHENOLI, KOYILANDY - 673525.** **BY ADVS. SRI.U.P.BALAKRISHNAN SRI.K.R.AVINASH (KUNNATH)** **MACA.Nos.1073 & 2183 OF 2009** 2 ## **RESPONDENTS/RESPONDENTS:** - **1 V.SUNDAR RAJ, MANAGING PARTNER, SUNDARA RAJ SAW MILL & INDUSTRIES, NETHAJI ROAD,, THRISSUR DISTRICT (OWNER OF THE KL 8/E 4887, NO.LORRY)** - **2 SENTHIL KUMAR, AGED 32 YEARS S/O.RAMASWAMY, HOUSE NO.V/6,MGR NAGAR,, CHETTIPPALAYAM, COIMBATORE, D.L.NO.463/TN 37/00, (DRIVER OF THE KL 8/E 4887 NO.LORRY)** - **3 THE NATIONAL INSURANCE CO.LTD. REGD. OFFICE III,MIDDLETEN STREET, P.B.NO.9229,, KOLKATTA,WEST BENGAL, POLICY NO.650201/31/04/, 6703682, VALID FROM 11.10.2004 TO 10.10.2005, (INSURER OF THE KL 8/E 4887 NO LORRY)** **R1 BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2021, ALONG WITH MACA.2183/2009, THE COURT ON 18-032021 DELIVERED THE FOLLOWING:** **MACA.Nos.1073 & 2183 OF 2009** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** ## **MACA.No.2183 OF 2009** **AGAINST THE AWARD IN OP(MV) NO. 643/2005 DATED 09-09-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE CO. LTD. KOLKATTA, REP.BY THE MANAGER,, REGIONAL OFFICE, M.G.ROAD, COCHIN-35. BY ADV. SRI.E.M.JOSEPH** ## **RESPONDENTS:** |**1**|**BEEVI, AGED 37 YEARS, W/O.KUNHI MOIDY,**| |---|---| ||**UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,,**| ||**CHENOLI DESOM, POST CHENOLI,,**| ||**KOYILANDY TALUK, PIN-673525.**| |**2**|**THAJUNNISA, AGED 19 YEARS**| ||**D/O.KUNHI MOIDY, UNNICHIRAKANDY HOUSE,,**| ||**NOCHAD AMSOM, CHENOLI DESOM,**| ||**POST CHENOLI,, KOYILANDY TALUK, PIN-673525.**| |**3**|**THASNEEM, AGED 14 YEARS**| ||**S/O.KUNHI MOIDY, REP.BY MOTHER BEEVI,,**| ||**UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,,**| ||**CHENOLI DESOM, POST CHENOLI,,**| ||**KOYILANDY TALUK, PIN-673525.**| |**4**|**KUNHOKKAR AGED 83 S/O.AMMED**| ||**UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,,**| ||**CHENOLI DESOM, POST CHENOLI,,**| ||**KOYILANDY TALUK, PIN-673525.**| |**5**|**AMINA, AGED 68 YEARS, W/O.KUNHOKKAR**| **MACA.Nos.1073 & 2183 OF 2009** 4 **UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,, CHENOLI DESOM, POST CHENOLI,, KOYILANDY TALUK, PIN-673525.** **6 V.SUNDAR RAJ MANAGING PARTNER SUNDARA RAJ SAW MILL & INDUSTRIES,, NETHAJI ROAD, THRISSUR-1. 7 SENTHIL KUMAR, AGED 28, S/O.RAMASWAMY, HOUSE NO.V/6,, M.G.R.NAGAR, CHETTIPPALAYAM,, COIMBATORE. R1-5 BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.U.P.BALAKRISHNAN R6 BY ADV. SRI.MILLU DANDAPANI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2021, ALONG WITH MACA.1073/2009, THE COURT ON 18-032021 DELIVERED THE FOLLOWING:** **MACA.Nos.1073 & 2183 OF 2009** 5 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA Nos.1073 & 2183 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of March, 2021 ## **COMMON JUDGMENT** As these appeals arise out of the common award between the same parties in OP(MV)No.643 of 2005 on the file of the Motor Accident Claims Tribunal, Vatakara, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The case of the petitioners in brief in the claim petition is that : on 15.02.2005 when one Kunhimoidy (deceased), the husband of the 1[st] petitioner and the father of the petitioners 2 and 3 and son of petitioners 4 and 5, was riding a motorcycle bearing registration No. KL 18 A 5773, a Lorry bearing registration No.KL/08 E 4887 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner, hit the motorcycle driven **MACA.Nos.1073 & 2183 OF 2009** 6 by the deceased. The deceased was taken to Deeja Hospital, Perambra and later to the Malabar Institute of Medical Science, Kozhikode, but he succumbed to the injuries. The accident occurred solely due to the negligence on the part of the 2[nd] respondent. The 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the offending vehicle. The deceased was working as a Pharmacist in Saudi Arabia. After he returned to India, he started his own pharmaceutical shop at Perambra named 'Thaj Medical' and he was getting a monthly income of Rs. 25,000/-. The petitioners, who are the dependants of the deceased are entitled to a compensation of Rs.10,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-party. 4. The 3[rd] respondent – insurance company – filed a written statement, _inter alia_ , contending that the offending vehicle was insured by the 3[rd] respondent. **MACA.Nos.1073 & 2183 OF 2009** 7 However, the 2[nd] respondent did not have the vehicular documents or a valid driving license. The accident occurred solely due to the negligence of the decease. The amount claimed in the claim petition was exorbitant and excessive. The claim petition be dismissed. 5. The 1[st] petitioner was examined as PW1 and Exts.A1 to A18 were marked through her. The 3[rd] respondent marked Ext.D1 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by holding that the petitioners were entitled to get a total compensation of Rs.6,32,000/- with interest at the rate of 6% per annum from the date of petition till the date of realisation and Rs.16,000/- as costs. The 3[rd] respondent was directed to pay the compensation amount. 7. Dissatisfied with the quantum of compensation **MACA.Nos.1073 & 2183 OF 2009** 8 awarded by the Tribunal the petitioners have filed MACA No.1073 of 2009 and aggrieved by the impugned award, the 3[rd] respondent has filed MACA No.2183 of 2009. 8. Heard the learned counsel appearing for the appellants/claimants and the learned counsel appearing for the 3[rd] respondent – insurance company. 9. The question that emerges for consideration in these appeals is whether the quantum of compensation awarded by the Tribunal reasonable and just? 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Ltd. v. Company Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to **MACA.Nos.1073 & 2183 OF 2009** 9 be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. Ext.A2 charge-sheet substantiates that the accident occurred due to the rash and negligent driving of the offending vehicle by the 2[nd] respondent. Ext.P3 postmortem report proves that the deceased died in the accident on 15.02.2005. 12. The principal area of dispute in these appeals is whether the notional income fixed by the Tribunal at Rs.5,000/- is correct or not? 13. The petitioners had claimed that the deceased was a Pharmacist by profession. To prove this aspect they produced Ext.A6 Pharmacy Diploma Course Certificate, Ext.A7 identity card issued by the Kerala State Pharmacy Council and Ext.A9 license issued by the Perambra Grama Panchayath. Eventhough, they produced Ext.A11 salary certificate, the same was not accepted by the Tribunal as it was an unsigned **MACA.Nos.1073 & 2183 OF 2009** 10 document. The petitioners also produced documents to prove that the deceased was a subscriber of chitties. The fact remains that eventhough the petitioners claimed that the deceased had an income of Rs.25,000/per month, it is undisputed that the deceased was not an income tax assessee. More over, they did not produce the audited balance sheet or accounts to prove that the deceased was getting an income of Rs,25,000/as alleged in the claim petition. Therefore, we would have to proceed with the case on the basis of the notional income of the deceased. 14. The Hon'ble Supreme Court in **Minu Rout and Others v. Satya Pradyumna Mohapatra and Others.** (2013 ACJ 2544) has fixed the notional income of a driver for an accident that took place in the year 2004 at the rate of Rs.6,000/- per month. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13_ **MACA.Nos.1073 & 2183 OF 2009** 11 _SCC 236_ ] and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month and that of a vegetable vendor in the year 2008, at Rs.6,500/- per month. ## **Notional Income** 15. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decisions and taking into consideration that the deceased was a Pharmacist by profession, and that the accident was occurred in the year 2005, I am of the considered opinion that the petitioner's notional income can safely be fixed at Rs.7,000/- per month. Hence, I fix the deceased's notional income at Rs.7,500/- per month. ## **Multiplier** 16. In view of the re-fixation of the notional income of the petitioners, the consequential **MACA.Nos.1073 & 2183 OF 2009** 12 compensation to be awarded has to necessarily be enhanced. In **Sarala Verma v Delhi Transport Corporation** reported in 2010(2) KLT 802 (SC) and **Pranav Sethi** (supra) the Hon'ble Supreme Court has held that the future prospects has also to be awarded to the dependants of the deceased under the head 'loss of dependency'. As the deceased was aged 41 at the time of accident, the relevant multiplier is '14' and, therefore, 25% has to be taken as future prospects. In the light of the fact that the deceased had five dependants, 1/4[th] of the total compensation payable under the head 'loss of dependency' and 'future prospects' has to be deducted towards the personal living expenses of the deceased. In the said circumstances, I re-fix the compensation for loss of dependency with the future prospects at Rs.11,02,0500/- instead of Rs.6,00,000/- 17. In **Pranav Sethi** (supra), the Hon'ble Supreme **MACA.Nos.1073 & 2183 OF 2009** 13 Court has held that in Clause No.8 of paragraph 61 that the dependants of the deceased are entitled for compensation under the conventional heads namely loss of estate, loss consortium and funeral expenses at Rs.15,000/-, 40,000/- and 15,000/- respectively. Thus, I hold that the petitioners are entitled to compensation under the heads loss of estate at Rs.15,000/-, funeral expenses at Rs.15,000/-, loss of consortium at Rs.40,000/- each i.e, Rs.40,000/- towards the spousal consortium of the 1[st] petitioner, Rs.80,000/- toward the parental consortium to the petitioners 2 and 3 and Rs.80,000/- towards filial consortium to the petitioners 4 and 5. 18. With respect to the amount of compensation awarded by the Tribunal under the head transport, I find the same to be reasonable and just. 19. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the **MACA.Nos.1073 & 2183 OF 2009** 14 Hon'ble Supreme Court in the afore-cited decisions, I am of the firm opinion that the petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts modified<br>and recalculated<br>by this Court| |---|---|---|---| |1|Transport|1,000/-|1,000/-| |2|Funeral expenses|2,000/-|15,000/-| |3|Pain and suffering|nil|10,000/-| |4|Loss of estate|0|15,000/-| |5|Loss of consortium|5,000/-|2,00,000/-| |6|Loss of dependency|6,00,000/-|11,02,500/-| |7|Love and affection|25,000/-|nil| |||6,33,000|13,43,500/-| In the result, MACA No.1073 of 2009 and MACA No.2183 of 2009 are disposed of by enhancing the compensation compensation by a further amount of Rs.7,10,500/- (Rupees seven lakh ten thousand and five hundred only) with interest at the rate of 6% per annum from the date of petition till the date of realisation with **MACA.Nos.1073 & 2183 OF 2009** 15 proportionate costs. The third respondent/insurance company shall deposit the additional compensation before the Tribunal with proportionate interest and costs within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability of the appellants towards balance court-fee, if any. The disbursement of the additional compensation to the petitioners shall be done in the proportion and as per the conditions laid down in the impugned award and in accordance with law. **Sd/-** **C.S.DIAS,JUDGE** dlK 19.03.2021