Biji @ Treesa and Neena Moleaged v. S.A. Janaki and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943** **MACA NO. 851 OF 2009** **AGAINST THE AWARD DATED 27.10.2006 IN OP(MV) NO.136/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY, KANNUR** ## **APPELLANTS/ PETITIONERS:** - **1 BIJI @ TREESA, S/O. LATE TOMY@JOHN, D/O.JOSEPH,RESIDING AT THURUTHIKKATTU-, PADINHARAKKARA HOUSE,P.O.SREEKANDAPURAM, KANNUR DISTRICT.** - **2 NEENA MOLEAGED , 13 YEARS MINOR, D/O.LATE TOMY @ JOHN, REP.BY HER MOTHER IST APPELLANT, RESIDING AT THURUTHIKKATTU-, PADINHARAKKARA HOUSE,P.O.SREEKANDAPURAM, KANNUR DISTRICT.** **BY ADVS.GRASHIOUS KURIAKOSE (SR.) CELINE JOSEPH** ## **RESPONDENTS/RESPONDENT NOS.1 TO 5:** - **1 S.A.JANAKI, W/O. S.P. ANAND, KALUR VILLAGE,MADIKKERI TALUK, KODAGU DISTRICT.** - **2 M.C.CHENNAKESAVA, S/O.CHANNAIAH, MUNAGANAHALLI VILLAGE, P.O.KANAGAL PERIYAPATTANA TALUK, MYSORE DISTRICT,KARNATAKA STATE.** - **3 THE NEW INDIA ASSURANCE CO.LTD., MADIKKERI BRANCH, COFFEE KRIPA, BUILDING, M.C.ROAD,P.O.MARAKARA.** M.A.C.A.No.851/2009 -:2:- - **4 PHILIP THUNDATHIL, S/O.UTHUP, THUNDATHIL HOUSE, KUNNIAMPUZHA P.O., VIA.CHEMPERI,KANNUR DISTRICT.** - **5 ANNAMMA THUNDATHIL, W/O.PHILIP THUNDATHIL -DO- -DO- -DO-** **BY ADVS.SRI.A.C.DEVY SRI.C.P.PEETHAMBARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.851/2009 -:3:- Dated this the 5[th] day of August, 2021 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV) No.136/2000 on the file of the Motor Accidents Claims Tribunal,Thalassery. The respondents in the appeal were respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 'Tomy Alias John'(deceased)-the husband of the first appellant, the father of the second appellant and the son of respondent Nos.4 and 5. The appellants had averred in the claim petition that on 04.11.1999, while the deceased was travelling pillion on motorcycle M.A.C.A.No.851/2009 -:4:- bearing registration No.KL-13A-3985 to Mercara, when the vehicle reached 11[th] mile at Madikeri, a car bearing registration No.KL-12/3258 driven by the second respondent in a rash and negligent manner, hit the motorcycle. The deceased sustained serious injuries and succumbed to the same at the Madikeri Government Hospital. The deceased was 29 years of age on the date of his death. He was a timber dealer and doing furniture business and earning a monthly net income of Rs.6,000/-. The car was owned by the first respondent and insured with the third respondent. Hence, the appellants claimed a total compensation of Rs.10,00,000/- from respondent Nos.1 to 3. 3. During the course of the proceedings, the parents of the deceased got themselves impleaded as supplemental respondent Nos.4 and 5. Thereafter, as per the order in I.A.No.2821/2005 the owner and insurer of the motorcycle were also impleaded as supplemental respondent Nos.6 and 7 in the claim M.A.C.A.No.851/2009 -:5:- petition. 4. Respondent Nos.1 and 2 had filed a written statement admitting that the accident occurred on 04.11.1999 due to the collision between the motorcycle and the car. However, it was contended that the accident occurred on account of the negligence of the rider of the motorcycle. 5. The third respondent-the insurer of the car filed a written statement contending that, as the accident occurred due to the collision between the two vehicles, there was contributory negligence on the part of the rider of the motorcycle. 6. Respondent Nos.4 and 5-the parents of the deceased - filed a written statement contending that they were the dependants of the deceased. The first appellant deliberately, with an intention to grab the compensation by herself, did not implead them as the claimants in the claim petition. They contended that they suffered much due to the sudden demise of their M.A.C.A.No.851/2009 -:6:- son. It is further stated that the first appellant was living separately from the deceased since 1995 onwards, and that she had filed O.P.No.72/1997 before the District Court, Thalassery, seeking a decree of divorce. Therefore, the first appellant was not entitled for any amount as compensation, as she was not a dependant of the deceased. 7. The sixth respondent did not contest the proceeding and was set ex parte. 8. The seventh respondent had filed a written statement admitting that it was the insurer of the motorcycle. Nevertheless, it was contended that the accident occurred on account of the negligence of the second respondent-the driver of the car. Therefore, the seventh respondent was not liable to pay any amount as compensation. 9. The first appellant and a witness were examined as PWs1 and 2 and Exts.A1 to A9 were marked through them in evidence. Respondent Nos. 4 M.A.C.A.No.851/2009 -:7:- and 5 produced Exts.B1 and B2 and marked the same in evidence. 10. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants as well as the respondent Nos.4 and 5 to realise an amount of Rs.2,77,000/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and proportionate costs from the third respondent. 11. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 12. Heard; Adv. Smt. Celine Joseph, the learned counsel appearing for the appellants/petitioners and Adv. Sri. A.C. Devy, the learned counsel appearing for the third respondent/insurer. 13. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. M.A.C.A.No.851/2009 -:8:- 14. Ext.A4 charge-sheet filed by the police clearly proves that the accident occurred on account of the negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the car. Therefore, the third respondent is to indemnify the liability of the first respondent caused on account of the accident. 15. The appellants had claimed that the deceased was a timber dealer and manufacturer of furniture and he was earning a monthly net income of Rs.6,000/-. However, they did not produce any document to substantiate their assertion. Other than for the oral testimony of PW1, there is no material on record to prove the income of the deceased. Accordingly, the Tribunal fixed the notional income of the deceased at Rs.2,000/- per month. Taking into account the fact that the accident occurred in the year 1999 and there is no material on record to prove the income of the deceased, I do not find any error or illegality in the M.A.C.A.No.851/2009 -:9:- notional income fixed by the Tribunal at Rs.2,000/- per month, which I do hereby confirm. ## **Multiplier** 16. The deceased was aged 29 years on the date of his death, as evidenced by Ext.B1 passport, which reflects that he was born on 20.01.1970. Hence, the relevant multiplier is '17', in the light of the law laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)]. ## **Personal living expenses of the deceased** 17. It is proved by the evidence of PWs1 and 2 and the averments in the claim petition as well as the written statement filed by respondent Nos.4 and 5 that the deceased was maintaining the appellants as well as respondent Nos.4 and 5. Therefore, the appellants as well as respondent Nos.4 and 5 are considered to be the dependants of the deceased for the purpose of deducting the personal living expenses as held in M.A.C.A.No.851/2009 -:10:- **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. Accordingly, I deduct ¼[th] of the compensation for 'loss of dependency' towards the personal living expenses of the deceased. ## **Future prospects:** 18. In **Sarla Verma** and **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are also entitled for 'future prospects'. Since the deceased was aged 29 years as on the date of his death and relevant multiplier being '17', I hold that the appellants and respondent Nos.4 and 5 are entitled for 'future prospects' of 40% on the compensation for 'loss of dependency'. ## **Loss due to dependency:** 19. Taking into account the above mentioned factors, namely; the notional income of the deceased at Rs.2,000/- per month, the multiplier at '17', future M.A.C.A.No.851/2009 -:11:- prospects at 40% and after deducting ¼[th] of the personal living expenses of the deceased, I re-fix the compensation under the head 'loss of dependency' at Rs.4,28,400/- instead of Rs.2,40,000/- awarded by the Tribunal. ## **Conventional heads of compensation:** 20. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, 'funeral expenses', 'loss of estate' and 'loss of consortium' at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 21. In such circumstances, I enhance the compensation under the head 'loss of estate' by a further amount of Rs.10,000/- and the compensation under the head 'funeral expenses' by a further amount of Rs.13,000/-. 22. It is seen that the Tribunal has not awarded M.A.C.A.No.851/2009 -:12:- any amount under the head 'loss of consortium'. 23. Taking into account the fact that the appellants were the wife and daughter and respondent Nos.4 and 5 were the parents of the deceased, I hold that each of them are entitled to compensation under the head 'loss of consortium' at Rs.40,000/- each, totalling to an amount of Rs.1,60,000/- ## **Compensation for pain and sufferings and loss of love and affection:** 24. The Tribunal has awarded an amount of Rs.10,000/- under the head 'pain and sufferings' and Rs.15,000/- under the head 'loss of love and affection'. 25. In **United India Insurance Company Ltd.** **v. Satinder Kaur @ Satwinder Kaur and Others** [2020(3)KHC 760], the Hon'ble Supreme Court has held that the dependants of the deceased are not entitled for compensation under the head 'pain and sufferings'. Accordingly, I set aside the amount of Rs.10,000/- awarded under the said head. M.A.C.A.No.851/2009 -:13:- 26. In **New India Assurance Company Ltd. v. Somwati & 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 amount to duplication of compensation. In the said circumstances, I set aside the amount of Rs.15,000/- awarded under the said head. 27. With respect to the amount of Rs.5,000/awarded under the head 'transport expenses', I find the same to be reasonable and just. 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellants and respondent Nos.4 and 5 are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. M.A.C.A.No.851/2009 -:14:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Transport<br>expenses|5,000|5,000| |2|Funeral expenses|2,000|15,000| |3|Pain and sufferings|10,000|Nil| |4|Love and affection|15,000|Nil| |5|Loss of estate|5,000|15,000| |6|Loss of consortium|Nil|1,60,000| |7|Loss<br>of<br>dependency|2,40,000|4,28,400| ||**Total**|**2,77,000**|**6,23,400**| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.3,46,400/-** with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of deposit, after excluding the period of 685 days, i.e, the period of delay in preferring this appeal and as ordered by this Court on 22.03.2021 in C.M.Appln.No.1/2009, and proportionate costs. The third respondent/insurer is ordered to M.A.C.A.No.851/2009 -:15:- 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 this judgment. The Tribunal shall disburse the enhanced compensation in accordance with law and in the proportion of 10% to the first appellant, 55% to the second appellant and 17.5% each to respondent Nos. 4 and 5. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge