C. C. George Champarambil House & Others v. Manamel Thomas, The Manager, National Insurance Co. Ltd., and Jacob So. Varkey Varavukalayil

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 MACA NO. 1689 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1765/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM, KOTTAYAM APPELLANT/S:** 1 C.C.GEORGE CHAMPARRAMBIL HOUSE, AMICHAKARRY PO, CHATHANKARRY, THIRUVALLA, PATHANAMTHITTA DISTRICT 2 SOJAN.G CHAM SO.C.C GEORGE AGED 34, DO..DO.. 3 JOJO G CHAM SO.C.C.GEORGE AGED 32, DO..DO..REPRESENTED BY, POWER OF ATTORNEY HOLDER SOJAN G CHAM, S/O.C.C.GEORGE, OF DO...DO.. 4 SONY G CHAM SO.C.C.GEORGE AGED 30, DO..DO..REPRESENTED BY, POWER OF ATTORNEY HOLDER SOJAN G CHAM, S/O.C.C.GEORGE, OF DO...DO.. 5 SWAPANA G ROSE WO.BIJU AGED 28, DO..DO..REPRESENTED BY, POWER OF ATTORNEY HOLDER SOJAN G CHAM, S/O.C.C.GEORGE, OF DO...DO.. BY ADV SRI.T.K.RADHAKRISHNAN ## **RESPONDENT/S:** 1 MANAMEL THOMAS S/O.SEBASTIAN, MANAMEL HOUSE, VEROOR, VALIYAKULAM, CHANGANACHERRY, 686 101 MACA NO. 1689 OF 2010 2 - 2 THE MANAGER DIVISIONAL OFFICE NATIONAL INSURANCE CO.LTD, C.S.I.SQUARE, BAKER JUNCTION, KOTTAYAM. - 3 JACOB SO.VARKEY VARAVUKALAYIL HOME, PUTHENCHANTHA, VAKATHANAM 686 538 BY ADV SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1689 OF 2010 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1765/2006 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the 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 Rosamma George (deceased), wife of the 1[st] appellant and mother of the appellant Nos. 2 to 5. It was the case in the claim petition that, on 18.01.2006, while the deceased was standing on the side of the Changanassery-Vazhoor road, a bus bearing registration No.KL-05-L-9776 (bus), driven by the 3[rd] respondent in a rash and negligent manner, hit the deceased. The deceased sustained serious injuries and was treated at St. Thomas Hospital, Chethipuzha and Pushpagiri Medical College Hospital, Thiruvalla. Unfortunately, she succumbed to the injuries on MACA NO. 1689 OF 2010 4 27.01.2006. The deceased was a house wife and also conducting a cow farm. She was earning a monthly income of Rs.5,000/-. The appellants were the dependents of the deceased. The bus was owned by the 1[st] respondent and insured with the 2[nd] respondent. Hence, they claimed a compensation of Rs. 6,89,500/- from the respondents, which was limited to Rs. 6,00,000/-. 3. The 1[st ] respondent did not contest the proceedings and was set exparte. 4. The 2[nd] respondent had filed a written statement refuting the allegations in the claim petition. The 2[nd] respondent disputed the age, income and occupation of the deceased. Nevertheless, the 2[nd] respondent has admitted that the bus has a valid insurance coverage. 5. The appellants examined PW1 and marked Exts. A1 to A8 series in evidence. The respondents did not let in any evidence. MACA NO. 1689 OF 2010 5 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the 2[nd] respondent an amount of Rs.2,53,465/- with interest @ 7% per annum from the date of petition till the date of realisation and a cost of Rs.1,500/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. T.K. Radhakrishnan, the learned counsel appearing for the appellants/petitioners and Sri.Lal George, the learned counsel appearing for the 2[nd] respondent/insurer. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 10. Ext. A2 charge sheet filed by the Changanasserry Police in Crime No. 63/2006 substantiates that the MACA NO. 1689 OF 2010 6 accident occurred due to the negligence of the 3[rd] respondent. Admittedly, the 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the bus. The respondents have not let in any contra evidence to discredit Ext. A2 charge sheet. Similarly, the 2[nd] respondent has not proved the fact that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out the accident. ## **Notional Income** 11. The appellants had claimed that the deceased was a home maker and was also conducting a cow farm. They claimed that she was earning a monthly income of Rs.5,000/-. However, the Tribunal, for the want of materials, fixed the monthly notional income of the deceased at Rs.3,000/-. 12. In **Ramachandrappa vs. Manager, Royal** **Sundaram Alliance Insruance Company Ltd** . [(2011) MACA NO. 1689 OF 2010 7 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 2006, I fix the notional monthly income of the deceased at Rs.5,000/-, as claimed in the claim petition. ## **Multiplier** 14. It is proved by the materials on record that the deceased was aged 55 years at the time of the accident/death. 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 '11'. ## **Dependents of the deceased** 16. It is proved that the appellants are the husband and children of the deceased, who are five in number. 17. Going by the law laid down in **Sarla Varma** MACA NO. 1689 OF 2010 8 (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 18. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 55 years at the time of the accident, I hold that the appellants are entitled to future prospects at 10% on the compensation for loss due to dependency. ## **Loss due to Dependency** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.5,000/-, the multiplier at 11, future prospects at 10% and after deducting one fourth of the total compensation towards the personal living expenses of the deceased, I refix the compensation for 'loss due to dependency' at Rs.5,44,500/-, instead of Rs.1,20,000/- awarded by the MACA NO. 1689 OF 2010 9 Tribunal. ## **Conventional Heads of Compensation** 20. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled to 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 the instant case, the Tribunal has awarded an amount of Rs.3,500/- under the head 'funeral expenses'. Therefore, I enhance compensation under the said head by a further amount of Rs.11,500/-. 22. It is seen that the Tribunal has not awarded any amount towards loss of estate. Hence, I award an amount of Rs.15,000/- under the said head. 23. Likewise, the Tribunal has awarded only an amount of Rs.10,000/- towards 'loss of consortium' to the 1[st] appellant. The Tribunal specifically found that, since, MACA NO. 1689 OF 2010 10 the appellant Nos. 2 to 5 are the major children of the deceased who were aged 34 to 28 respectively in the year 2010 and leading independent lives, they are not entitled for loss of consortium. I find the reasoning of the Tribunal to be justifiable. Thus, following the principles in **Pranay** **Sethi** (supra), I enhance the compensation under the head 'loss of consortium' to the 1[st] appellant by a further amount of Rs.30,000/-. ## **Loss of love and affection and pain and sufferings** 24. The Tribunal has awarded an amount of Rs.15,000/- under the head 'loss of love and affection'. 25. In **New India Assurance Company Ltd. vs. Somvathy 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 an MACA NO. 1689 OF 2010 11 amount of Rs.15,000/- awarded under the head 'loss of love and affection'. 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 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 reference: **==> picture [430 x 213] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>awarded by modified and<br>No the Tribunal recalculated<br>(in rupees) by this Court<br>(in rupees)<br>1. Transportation 1,000 1,000<br>expenses<br>2. Clothing 500 500<br>3. Bystander expenses 800 800<br>**----- End of picture text -----**<br> MACA NO. 1689 OF 2010 12 **==> picture [430 x 323] intentionally omitted <==** **----- Start of picture text -----**<br> 4. Funeral expenses 3,500 15,000<br>5. Loss of estate 0 15,000<br>6. Loss of love and 15000 0<br>affection<br>7. Pain and sufferings 15,000 15,000<br>8. Loss of consortium 10,000 40,000<br>9. Loss of dependency 1,20,000 5,44,500<br>10. Medical expenses 87,665 87,665<br>Total 2,53,465 7,19,465<br>**----- End of picture text -----**<br> 28. Even though the appellants had claimed only an amount of Rs.6,00,000/- in the claim petition, in the light of the law in **Sarla Verma** and **Pranay Sethi** (supra), that the dependents of the deceased are entitled to future prospects and compensation under the conventional heads, I have awarded more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down by the MACA NO. 1689 OF 2010 13 Honourable Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs. 4,66,000/- with interest at the rate of 7% per annum on the enhanced compensation, from the date of petition till the date of realisation and proportionate cost. The 2[nd] respondent is ordered to deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and cost 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, same shall be disbursed to the 1[st] appellant alone, in accordance with law. Sd/- **C.S.DIAS JUDGE** avs