Bindu, Sindhu and Shyni v. Nideesh (deleted) and The HDFC ERGO General Insurance Co. Ltd

MACA NO. 822 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943** ## **MACA NO. 822 OF 2011** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 83/2010 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** 1 BINDU,W/O.KRISHNAN,AGED 36 YEARS, RESIDING AT KIZHAKKU VEETTIL HOUSE, P.O.GOVINDAPURAM, VALAYANAD, KOZHIKODE. 2 SINDHU WO. BABURAJAN, AGED 33 YEARS, RESIDING AT KIZHAKKU VEETTIL HOUSE, P.O.GOVINDAPURAM, VALAYANAD, KOZHIKODE. 3 SHYNI WO. SINJITH, AGED 30 YEARS, RESIDING AT KIZHAKKU VEETTIL HOUSE, P.O.GOVINDAPURAM, VALAYANAD, KOZHIKODE. BY ADV SMT.K.V.RESHMI ## **RESPONDENT/S:** 1 NIDEESH,S/O.GANESHAN,AGE NOT KNOWN CHERIKKUZHIPARAMBIL HOUSE, PO ELATHUR,, PUTHIYAPPA, KOZHIKODE PIN 643 303. * (DELETED) 2 THE HDFC ERGO GENERAL INSURANCE CO.LTD 6TH FLOOR, LEELA BUSINESS PARK, ANDHERI KURLA ROAD, ANDHERI (E) MUMBAI PIN 400 069 * RESPONDENT NO.1 IS DELETED THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 20/10/2021 IN I.A 2/15 ( I.A 3912/15) IN MACA 822/2011. BY ADV LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 822 OF 2011 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.83/2010 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents 1 and 3 before the Tribunal. At the instance of the appellants, the 1[st] respondent has been deleted from the party array pursuant to the order dated 20.10.2021 in IA. No.2/2015. Therefore, the parties are, for the sake of convenience, referred to as per the status before the Tribunal. 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 Gauthaman (deceased), father of the petitioners. It was their case that, on 25.01.2009, while the deceased was walking along the Malprambu – Ramanattukara road, a lorry bearing Registration No.KL-11-AC-2587, driven by the 2[nd] respondent in a rash and negligent manner, hit the deceased. The deceased lost his life instantaneously. The deceased was 70 years old and was a pensioner. The petitioners were the dependents of the deceased. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the MACA NO. 822 OF 2011 3 petitioners claimed a compensation of Rs.6,05,000/- from the respondents, which claim was limited to Rs.6,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 4. The 3[rd] respondent had filed a written statement denying the allegations in the claim petition. The 3[rd] respondent also disputed the age, income and occupation of the deceased. 5. The petitioners produced and marked Exts.A1 to A4 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the 3[rd] respondent an amount of Rs.91,000/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Smt. Rashmi K.V., the learned counsel appearing for the appellants/petitioners and Smt. Latha Susan Cherian, the learned counsel appearing for the respondent/3[rd] MACA NO. 822 OF 2011 4 respondent/ insurer. 9. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext.A3 charge sheet laid by the City Traffic Police, Kozhikode in Crime No.376/2009 proves that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Ext.A3 charge sheet. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The petitioners had contended that the deceased was 70 years old and was a retired Assistant Engineer from the Irrigation Department. He had a monthly income of Rs.8,667/-. MACA NO. 822 OF 2011 5 For want of materials, the Tribunal has fixed the monthly income of the deceased on notional basis at Rs.2,000/-. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2009, I refix the notional monthly income of the deceased at Rs.7,000/-. ## **Multiplier** 14. The deceased was aged 70 years at the time of the accident. 15. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘5’. ## **Personal living expenses of the deceased** 16. The petitioners were the daughters of the deceased. They are three in number. In the light of the law laid down in MACA NO. 822 OF 2011 6 **Sarla Verma** (supra) and **National Insurance Company Ltd.** **v. Pranay Sethi** [(2017) 16 SCC 680], one third of the compensation amount has to be deducted towards the personal living expenses of the deceased. ## **Loss due to dependency** 17. The petitioners had specifically averred in the claim petition that they had lost their beloved father in the accident. The loss sustained to them could never be estimated in terms of money. Therefore, the petitioners are to be treated as the dependents of the deceased following the principles laid down by this Court in **United India Insurance Company Ltd vs. Shalumol** [(2021) SCC Online Kerala 3209]. 18. In view of the law laid down in the above cited decision and taking into account the 'monthly income' of the deceased at 'Rs.7,000/-', the 'multiplier' at '5' and after deducting one third of the compensation towards the personal living expenses of the deceased, I award the petitioners an amount of Rs.2,80,000/- towards ‘loss of dependency’ instead of Rs.80,000/- awarded by the Tribunal. MACA NO. 822 OF 2011 7 ## **Conventional heads of compensation** 19. In paragraph 59.8 of **Pranay Sethi** (supra) it is 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/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 20. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another** [2021 SCC Online SC 1193], the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the MACA NO. 822 OF 2011 8 deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 21. In the instant case, the Tribunal has awarded an amount of Rs.3,000/- towards ‘funeral expenses’. Therefore, I award the petitioners a further amount of Rs.13,500/- under the head ‘funeral expenses’. Likewise, I award the petitioners an amount of Rs.16,500/- towards ‘loss of estate’ and an amount of Rs.44,000/- each towards ‘loss of consortium’, totaling to an amount of Rs.1,32,000/-. ## **Loss of love and affection** 22. The Tribunal has awarded an amount of Rs.5,000/under the head 'loss of love and affection'. 23. In **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.5,000/- awarded under the head 'loss of love and MACA NO. 822 OF 2011 9 affection'. ## **Pain and sufferings** 24. The Tribunal has awarded an amount of Rs.1,000/under the head ‘pain and sufferings’ to the petitioners. 25. In paragraph 19 of **Sarla Varma** (supra), the Honourable Supreme Court has held that no amount shall be awarded to the dependents of the deceased under the head 'pain and sufferings' in the case of instantaneous death. The said view has been reiterated in **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others-\** [ ((2020) SCC Online 410]. Hence, I set aside the amount of Rs.1,000/- awarded under the head 'pain and sufferings' as Gauthaman had died immediately after the accident. 26. With respect to the compensation awarded under the heads 'transportation expenses' and 'damage to clothing', I find the same to be reasonable and just. 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy MACA NO. 822 OF 2011 10 ## reference: **==> picture [452 x 454] intentionally omitted <==** **----- Start of picture text -----**<br> Amounts<br>Amount<br>modified<br>Sl. awarded by and<br>Head of claim the recalculated<br>No Tribunal(in by this<br>Court(in<br>rupees)<br>rupees)<br>1 Transport to hospital 1500 1500<br>2 Damage to clothing 500 500<br>3 Pain and suffering 1,000 0<br>4 Loss of love and affection 5,000 0<br>5 Funeral expenses 3,000 16,500<br>6 Loss of estate 0 16,500<br>7 Loss of consortium 0 1,32,000<br>8 Loss of dependency 80,000 2,80,000<br>Total 91,000 4,47,000<br>**----- End of picture text -----**<br> In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.3,56,000/- with interest on the enhanced compensation at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 290 days i.e. the period of MACA NO. 822 OF 2011 11 delay in filing the appeal and as ordered by this Court in C.M.Appln. No.1/2011 on 20.10.2021, and proportionate cost. The respondent/3[rd] respondent - insurer is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall be disbursed to the appellants/petitioners in the ratio of 1:1:1 and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/09.02.22