Bhaskaran and Omana v. K.V. Padmanabhan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943** ## **MACA NO. 1818 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 158/2002 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, ALAPPUZHA** ## **APPELLANT/S:** 1 BHASKARAN , S/O.PARAMESWARAN, KUMBALATHU NIKARTHIL HOUSE, UZHUVA,, PATTANAKKAD P.O., CHERTHALA,, ALAPPUZHA DISTIRCT-688 531. 2 OMANA,W/O.BHASKARAN, KUMBALATHU NIKARTHIL HOUSE, UZHUVA,, PATTANAKKAD P.O., CHERTHALA,, ALAPPUZHA DISTIRCT-688 531. BY ADVS. SRI.ANIL S.RAJ SRI.G.ARUN GOPAN SMT.K.N.RAJANI SRI.J.VIVEK GEORGE ## **RESPONDENT/S:** 1 K.V.PADMANABHAN, S/O.VELAYUDHAN, KAKKUZHIYIL HOUSE, RAYAMANGALAM VILLAGE,, PAYIKKARA KARA, PIN-683 545. 2 MANAGING DIRECTOR, KSRTC THIRUVANANTPAURAM-695 014. 3 NATIONAL INSURANCE COMPANY LTD REPRESENTED BY ITS BRANCH MANAGER,, VAZHUTHAKKAD BRANCH, THIRUVANANTHAPURAM,, PIN 695 014. 4 UNITED INDIA INSURANCE COMPANY LTD REPRESENTED BY ITS BRANCH MANAGER,, CHERTHALA BRANCH, CHERTHALA P.O.,, PIN-688 524. 5 BEENA, W/O.RAJU, VADAKKE VEETTIL HOUSE ANDHAKARANAZHI P.O., CHERTHALA TALUK,, ALAPPUZHA DISTRICT-688 531. BY ADVS. SRI.P.C.CHACKO(PARATHANAM) SRI.A.R.GEORGE SMT.SARAH SALVY **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1818 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.1818 of 2011** ## **====================== Dated this the 2[nd] day of September, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.158/2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Binu (deceased), the son of the petitioners. 3. The concise case of the petitioners in the claim petition was that; on 20.10.2001, while the deceased was travelling pillion on a motor cycle bearing registration 3 MACA No.1818 of 2011 No.KL-04/G 6321 ridden by his friend Shiju, when they reached a place named Pattanakkad, his friend had stopped the motor cycle. At that time, a KSRTC Bus bearing registration No.KL-15/4643 (Bus) driven by the first respondent in a rash and negligent manner hit the deceased and his friend. Both of them were taken to the Vaikom Government Hospital and administered first aid. They were referred to the Indo-American Hospital, Chemmanakari, but the deceased was succumbed to the injuries on 23.10.2001. The deceased was aged 22 years at the time of his death. He was a Coir Factory worker and earning a monthly income of Rs.4,000/-. He was the only son of the petitioners. The fifth respondent was his married sister. The petitioners were the dependents of the deceased. The Bus was owned by the second respondent and insured with the third respondent. The fourth respondent was the insurer of the motor cycle. 4 MACA No.1818 of 2011 Hence, the petitioners claimed a total compensation of Rs.16,12,000/- from the respondents, which was limited to Rs.7,00,000/-. 4. The respondents 1, 2 and 5 did not contest the proceeding and were set ex parte. 5. The respondents 3 and 4 filed separate writtenstatements. The third respondent admitted that the Bus had a valid insurance coverage. But, it was contended that the accident occurred due to the negligence of the rider of the motor cycle. The fourth respondent admitted that the motor cycle had a valid insurance coverage, but contended that the accident occurred due to the negligence of the first respondent. 6. The petitioners produced and marked Exts A1 to A22 in evidence. The third respondent produced Ext B1 copy of a judgment in evidence. 7. The Tribunal, after considering the pleadings 5 MACA No.1818 of 2011 and materials on record, allowed the claim petition, in part, by permitting the petitioners to realise from the third respondent an amount of Rs.2,13,080/- with interest @ 7.5% per annum from the date of claim petition till the date of realisaton, and costs of 2,100/-. 8. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 9. Heard; Smt.Rajani, K.N, the learned counsel appearing for the appellants/petitioners and Smt.Sarah Salvy, the learned counsel appearing for the third respondent/insurer. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A7 charge-sheet filed by the Vaikom Police in Crime No.464/2001 before the Judicial First Class 6 MACA No.1818 of 2011 Magistrate Court, Vaikom clearly proves the fact that the accident occurred due to the negligence of the first respondent. Undisputedly, the second respondent was the owner and the third respondent was the insurer of the Bus. Therefore, it is the third respondent who is liable to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 12. The petitioners had claimed that the deceased was a Coir Factory worker and earning a monthly income of Rs.4,000/- . For want of materials, the Tribunal fixed the notional income of the deceased at Rs.2,000/- per month. 13. The Hon'ble Supreme Court in ## **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in 7 MACA No.1818 of 2011 the year 2004 at Rs.4,500/- per month. 14. Following the ratio in the aforecited decision and keeping in mind the fact that the accident occurred in the year 2001, I refix the notional income of the deceased at Rs.3,000/- per month. ## **Multiplier** 15. Admittedly, the deceased was aged 22 years on the date of the accident/his death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier is '18'. ## **Dependents of the deceased** 16. Admittedly, the petitioners are the parents of the deceased. Even though the fifth respondent was impleaded stating to be the sister of the deceased, there is no evidence to show that she was the dependent of the deceased. It is on record that the deceased was a 8 MACA No.1818 of 2011 bachelor. Therefore, in view of the principles laid down in **Sarla Verma (supra)** and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , one-half of the compensation towards loss of dependency has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 17. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 22 years on the date of his death and the multiplier being 18, the petitioners are entitled for future prospects at 40% on the compensation for loss of dependency. ## **Loss of dependency** 18. Taking into account the above mentioned factors, that is, the notional income of the deceased at Rs.3,000/-, the multiplier at 18, the future prospects at 40%, and 9 MACA No.1818 of 2011 deducting one-half of the compensation for loss of dependency towards personal living expenses of the deceased, I refix the compensation for loss of dependency of the petitioners at Rs.4,53,600/- instead of Rs.1,44,000/awarded by the Tribunal. ## **Conventional Heads of Compensation** 19. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **Pranay Sethi** (supra) has held that the dependents of the deceased are entitled for compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 20. In the instant case, the Tribunal has awarded only Rs.2,500/- towards funeral expenses and Rs.5,000/towards loss of estate. Therefore, I enhance the compensation under the head funeral expenses by a further amount of Rs.12,500/- and an amount of 10 MACA No.1818 of 2011 Rs.10,000/- towards loss of estate. 21. The Tribunal has not awarded any compensation under the head loss of consortium. Following the ratio in **Pranay Sethi** (supra), I award an amount of Rs.40,000/each as filial consortium to the petitioners for the loss of their son, totalling to an amount of Rs.80,000/-. ## **Loss of love and affection and pain and sufferings** 22. The Tribunal has awarded an amount of Rs.10,000/- towards loss of love and affection, Rs.10,000/towards loss of expectation of life and Rs.30,000/- towards compensation for pain and sufferings. 23. In **New India Assurance Co. Ltd v. Somavathy and Ors [(2020) 9 SCC 644]** , the Hon'ble Supreme Court has held that once compensation under the head loss of consortium is awarded, no amount can be awarded under the head loss of love and affection as it is amounted to duplication of compensation. Similarly, in **United** 11 MACA No.1818 of 2011 **India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others- [(2020(3)KHC 760],** the Hon'ble Supreme Court has held that no amount can be awarded under the head pain and sufferings. Similar is the case regarding loss of expectancy of life. 24. In the light of the law laid down in the aforecited decisions, I set aside the amounts of Rs.10,000/- awarded under the heads loss of love and affection, Rs.30,000/under the head compensation for pain and sufferings and Rs.10,000/- awarded under the head loss of expectancy of life. ## **Transportation and medical expenses** 25. With respect to the compensation awarded under the heads transportation expenses and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the 12 MACA No.1818 of 2011 pleadings, materials on record and the law referred to in the afore-cited precedents, I am of the firm opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of dependency|1,44,000/-|4,53,600/-| |2|Loss of love and<br>affection|10,000/-|nil| |3|Treatment expenses|9280/-|9,280/-| |4|Transportation charges|2,300/-|2,300/-| |5|Compensation for pain<br>and sufferings|30,000/-|nil| |6|Funeral expenses|2,500/-|15,000/-| |7|Loss of expectation of<br>life|10,000/-|nil| |8|Loss of estate|5,000/-|15,000/-| |9|Loss of consortium|Nil|80,000/-| ||Total|2,13,080/-|5,75,180/-| In the result, the appeal is allowed in part, by 13 MACA No.1818 of 2011 enhancing the compensation by a further amount of Rs.3,62,100/- (Rupees Three Lakh Sixty Two Thousand One Hundred only) with interest on the enhanced compensation at the rate of 7.5% per annum from the date of claim petition till the date of realisation, after deducting interest for a period of 225 days , i.e., the period of delay in preferring the appeal and as ordered by this Court on 24.11.2011 in C.M Appln 2725/2011, and a cost of Rs.3,500/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants in equal shares and in accordance with law. Sd/- sks/2.9.2021 **C.S.DIAS, JUDGE**