Bhaskaran and Biju v. Haris, Ammad and Shriram General Insurance Co Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 4[TH] DAY OF APRIL 2022 / 14TH CHAITHRA, 1944** **MACA NO. 2966 OF 2014** **AGAINST THE JUDGMENT IN OPMV 238/2011 DATED 27.5.2014 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA** ## **APPELLANTS/PETITIONERS:** 1 BHASKARAN, S/O.RAMUNNINAMBIAR, AGED 57 YEARS R/A.ADIYODI, KUNNUMMAL, ERAVATTUR P O, PERMBRA, KOYILANDY TALUK, KOZHIKODE 2 BIJU, S/O.BASKARAN, AGED 32 YEARS R/A.ADIYODI, KUNNUMMAL, ERAVATTUR P O, PERMBRA, KOYILANDY TALUK, KOZHIKODE BY ADV SRI.ZUBAIR PULIKKOOL ## **RESPONDENTS/RESPONDENTS:** 1 HARIS S/O.KUNHALI, EENTHULLAHTIL HOUSE, VISHNUMANGALAM P O, KALLACHI, VATAKARA TALUK, KOZHIKODE-673506 2 AMMAD S/O.ABDULLA, KARUMBAKANDI , MEETHAL HOUSE, CHERUVANNUR P O, CHERUVANNUR AMSOM, KAKKARAMUKHU, KOZHIKODE-673524 3 SHRIRAM GENERAL INSURANCE CO LTD E/8 ERIP, RICCO INDUSTRIAL AREA, SITAPURAM, JAIPUR, RAJASTHAN STATE-302022 BY ADVS. SRI.R.PARTHASARATHY SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. P.JACOB MATHEW-RESPONDENT **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2966 of 2014 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.238/2009 on the file of Principal Motor Accidents Claims Tribunal, Wayanad (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) out of death of one Devi in a motor accident occurred at Perurkada on 06.12.2010 due to hit with a lorry bearing Registration No.KL-44-1744 driven by the 2nd respondent. It is alleged that the accident happened due to the rash and negligent driving of the 2nd respondent. 1St respondent is the owner of the offending vehicle and 3rd respondent is the insurer. A total compensation of Rs.13,14,000/- has been claimed. 2. Before the Tribunal, 1st and 2nd respondent remainedabsent and 3rd respondent filed written statement admitting the policy coverage of the offending vehicle. Rashness and negligence on the part of the 2nd respondent is denied. 3. Exts.A1 to A4 marked from the side of the appellants/claimants. There was no oral evidence from either side. 4. Tribunal on evaluating the pleadings and facts and MACA.No.2966 of 2014 3 circumstances, found that the accident happened due to rash and negligent driving of the 2nd respondent and 1st respondent is held liable for the acts of the 2nd respondent. The Tribunal awarded a total compensation of Rs.5,61,000/-. 3rd respondent is directed to indemnify the 2nd respondent. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, appellants/claimants (hereinafter be referred as claimants) are before this Court in this appeal. 6. Service is complete as against 1st and 2nd respondent. 3rd respondent appeared through Standing Counsel, Adv.Sri.P.Jacob Mathew. Heard the counsel for the claimants as well as the 3rd respondent. Lower court records were called and perused. 7. According to the learned counsel for the claimants, the deceased was a coolie aged 48 years at the time of accident and claimed a monthly income of Rs.9,000/-. But the Tribunal arbitrarily taken the income notionally at Rs.3,000/- which according to him is very low. He would also contend that the compensation awarded under other heads are also very low and seeks for enhancement of compensation on all heads. MACA.No.2966 of 2014 4 8. The learned Standing Counsel for the insurer/3rd respondent would, on the other hand, contend that a just and reasonable compensation has already been awarded by the Tribunal under various heads and no interference whatsoever is called for at the instance of this Court. 9. The deceased in this case, aged 48 years lady and was claimed to be a coolie and claimed monthly income of Rs.9,000/-. No evidence as such has been adduced to establish the actual income of the deceased. 10. 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 coolie in the year 2004 at Rs.4,500/-. 11. In the present case the incident was on 06.12.2010. Deceased is also alleged to be a coolie, hence, the monthly income of the deceased can reasonably be taken as Rs.7,500/-. 12. In **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802)** 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 MACA.No.2966 of 2014 5 compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make good the loss sustained by the victim of accident as far as money can do. 13. In **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** 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. 14. 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. 15. In **Pranay Sethi's** case, the Constitution Bench laid MACA.No.2966 of 2014 6 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. 16. According to the learned Standing Counsel, instead of applying 25% of future prospects, the Tribunal took at 30%. As per Sarala Varma followed by Pranay Sethi the future prospects to be accepted at 25%. 17. In the present case, the deceased was 48 years of old at the time of accident, 25% income can be added towards future prospects. 18. The proper 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 '13'. 19. The claimants are husband and son of the deceased. MACA.No.2966 of 2014 7 According to the learned counsel for the insurer, the son is grown up and 32 years old and he cannot be taken as dependent. However, he is a legal heir and hence 1/3rd of the income deducted towards personal and living expenses by the Tribunal is only to be approved. 20. Hence, monthly income of the deceased would be Rs.7,500+1875 (25% of 7,500) = Rs.9,375/-. Hence, compensation towards dependency would be Rs.9,375x12x13x2/3=Rs.9,75,000/-. Deducting the amount already awarded, balance would be Rs.5,69,400/- (9,75,000-4,05,600). 21. The next contention of the learned counsel is with regard to the enhancement of compensation under the conventional heads. In Pranay Sethi, Apex court has held that Rs.15,000/- to be awarded under the head of loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 22. 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 MACA.No.2966 of 2014 8 31.10.2017. So three years have elapsed. Hence, 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/- towards loss of consortium. 23. According to the learned counsel for the claimants, no amount is awarded towards loss of estate. As per the above settled principles, the claimants are entitled to get Rs.16,500/- towards loss of estate. Towards funeral expenses an amount of RS.25,000/has been awarded. Excess amount awarded under that head is Rs.8,500/- (Rs.25,000-16500). Towards consortium the 1[st] claimant, husband of the deceased is entitled for spousal consortium. 2[nd] claimant being a major son aged 32 years, is not entitled to get any amount towards parental consortium. Hence towards consortium the claimants are entitled to get Rs.44,000/-. 24. In **New India Assurance Co.Ltd. v. Somwati and others [2020 (9) SCC 644]** it has been held that once claimants are awarded compensation towards consortium no amount can be awarded towards loss of love and affection. So the amount of Rs.75,000/- awarded by the Tribunal towards loss of love and MACA.No.2966 of 2014 9 ## affection has to be further deducted. 25. Learned counsel for the insurer would also contend that in fatal accident cases, the legal representatives are not entitled to get any compensation towards pain and suffering and in this case Rs.50,000/- has been awarded by the Tribunal and that has to be deducted. The learned counsel relies on **United India Insurance Company Limited v. Satinder Kaur and Others : 2020(3) KHC 760 : ILR 2020(3) Ker. 334 : AIR 2020 SC 3076** , to content that legal heirs are not entitled to get any amount towards pain and suffering undergone by the deceased. In that decision, the Hon'ble Apex Court quoted the relevant paragraphs in **Sarla Verma** , which is extracted below: ".........................s _tep 3 (Actual calculation): The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000/- to Rs.10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of_ MACA.No.2966 of 2014 10 _the deceased."_ 26. It is relevant in this context to quote paragraph 18 in **The Oriental Insurance Company Limited v. Kahlon through his Legal Representative Narinder Kahlon Gosakan and Ors. : AIR 2021 SC 3913 : 2021 ACJ 2576** . That was a case originally filed by the injured in a motor accident seeking compensation under Section 166 of the Act. Pending the proceedings, the injured died and his legal heirs are impleaded. Paragraph 18 reads thus: _“18. The Tribunal, on technicalities rejected_ _his claim for salary, medical expenses and percentage of disability and granted a measly compensation of Rupees one lakh only by a cryptic order. We are therefore of the opinion that while the claim for personal injuries may not have survived after the death of the injured unrelated to the accident or injuries, during the pendency of the appeal, but the claims for loss of estate caused was available to and could be pursued by the legal ” representatives of the deceased in the appeal._ So, the above position would emphasize that the claim for personal injuries may not have survived after the death of the injured provided the death was unrelated to the accident or injuries. 27. In this case, it is not in dispute that the death of the deceased was due to the injuries caused out of the accident. So, MACA.No.2966 of 2014 11 the contention that claimants are not entitled for the pain and suffering undergone by the deceased is not sustainable. However, records would show that the accident was on 06.12.2010 and she died on 07.12.2010. Hence Rs.50,000/- awarded towards pain and suffering is on the higher side and it can be reduced to Rs.7,500/-. Hence a total amount of Rs.1,26,000/- (Rs.8,500 + 75,000 + 42,500) has to be deducted. So, the total amount under the head of loss of dependency and conventional heads are Rs.5,69,400 + 16,500 + 44,000=6,29,900/-. From that Rs.1,26,000/-awarded in excess has to be deducted. So the balance amount would be Rs.5,03,900/- (Rs.6,29,900-1,26,000). 28. In the result, the claimants 1 and 2 are allowed to realise enhanced compensation of **Rs.5,03,900/-** (Rupees five lakhs three thousand nine hundred only) which will carry interest at the rate of 6% per annum from the date of petition (excluding 63 days) 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 a certified copy of this judgment, after deducting the liability of the appellants/claimants towards Balance Court Fee. MACA.No.2966 of 2014 12 The disbursement of additional compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issues by this Court in Circular No.3 of 2019 dated 6.9.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 7.11.2019. 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 a certified copy of this judgment. Parties shall bear their respective costs. In the result appeal stands allowed. Parties shall bear their respective costs. Sd/- ## **M.R.ANITHA JUDGE** SMF