C.C. Wilson & Valsala Wilson v. K.V. James, P.S. Sunil Kumar, The New India Assurance Co. Ltd., Nivia Rebin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** ## **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **MACA.No.986 OF 2012** **AGAINST THE AWARD IN OPMV 1201/2004 DATED 31-03-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONERS 1 AND 2:** - **1 C.C.WILSON S/O.C.C.CHERU, H.NO.46/906-A, CHEERAN HOUSE, RAJEEV LANE, MARKET ROAD, VADUTHALA P.O.** - **2 VALSALA WILSON W/O.C.C.WILSON H.NO.46/906-A, CHEERAN HOUSE, RAJEEV LANE, MARKET ROAD, VADUTHALA P.O.** - **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS/3RD PETITIONER:** - **1 K.V.JAMES KACHAPPILLI HOUSE, PALARIVATTOMP.O., KOCHI-68025.** - **2 P.S.SUNIL KUMAR S/O.SURENDRAN, MANATH THUNDIPARAMBIL HOUSE, NEAR MORARJI DESAI GROUND, VAZHAKKALA, KOCHI-682025.** - **3 THE NEW INDIA ASSURANCE CO.LTD. VALLAMALLOM ESTATE, RAVIPURAM, M.G.ROAD, KOCHI682015.** - **4 NIVIA REBIN THANDASSERY HOUSE, SAMATHI ROAD, SRA-127, COCHIN-682023.** - **R3 BY ADV. SRI.GEORGE CHERIAN (SR.) R3 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.LATHA SUSAN CHERIAN R3 BY ADV. SRI.A.A.ZIYAD RAHMAN R3 BY ADV. SRI.LAL K.JOSEPH R3 BY ADV. SRI.V.S.SHIRAZ BAVA** **SMT. K S SANTHI –SC R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-11-2020, THE COURT ON 01-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.986 OF 2012** **2** ## **JUDGMENT** **Dated this the 1st day of March 2021** The petitioners 1 and 2 in O.P.(MV) No.1201/2004 on the file of the Motor Accident Claims Tribunal, Ernakulam are the appellants. The respondents 1 to 3 and the 3[rd] petitioner in the claim petition are the respondents in the appeal. 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 ( in short “Act”) claiming compensation on account of the death of Nevil .C.Wilson (deceased), the son the petitioners 1 and 2 and the brother of the 3[rd] petitioner. 3. The concise case of the petitioners in the claim petition is that on 19.1.2004 while the deceased was driving his motorcycle bearing Reg.No.KL-7AP-4645 along the KakkanadPalarivattom road, a bus bearing Reg. No.KL7/J 2673 **MACA.No.986 OF 2012** **3** (offending vehicle) driven by the 2[nd] respondent, in a rash and negligent manner, hit the motor cycle ridden by the deceased, who succumbed to the injuries. The offending vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The petitioners 1 and 2 – the parents of the deceased – and the 3[rd] petitioner – the minor sister of the deceased – are the dependents of the deceased. The deceased was doing business in sale of waste paper and he was getting an income of Rs.4,000/- per month. The accident occurred solely due to the rash and negligent driving by the 2[nd] respondent. Hence, the petitioners are entitled for a compensation of Rs.6,15,000/-. 4. The respondents 1 and 2 were set ex parte. 5. The 3[rd] respondent – Insurance Company – filed a written statement, inter alia, refuting the allegations in the claim petition. The 3[rd] respondent denied that there was any negligence on the part of the 2[nd] respondent. The 3[rd] respondent also alleged **MACA.No.986 OF 2012** **4** that there was violation of the insurance policy condition. The 3[rd] respondent prayed that the claim petition be dismissed. 6. The petitioners produced and marked Exts.A1 to A19 in evidence. Neither party adduced any oral evidence. 7. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 3[rd] respondent to pay the petitioners compensation at the rate of Rs.3,22,430/- with interest at the rate of 7.5% per annum. The compensation was directed to be apportioned at the rate of 40:40:20 among the petitioners. 8. The comparative table showing the compensation that was claimed by the petitioners and that was awarded by the Tribunal is as follows:- **MACA.No.986 OF 2012** **5** |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Funeral expenses|5000|5000| |2|Transportation expenses||| |3|Damages to clothing||| |4|Love and affection|25,000|10,000| |5|Medical expenses|25,000|19,430| |6|Shock pain and sufferings|10,000|10,000| |7|Compensation<br>for<br>continuing and permanent<br>disability|5,00,000|2,73,000| |8|Loss of estate|50,000|5,000| ||Total|6,15,000<br>=======|3,22,430<br>========| 9. Dissatisfied with the quantum of compensation awarded by the Tribunal under the various heads mentioned above, the petitioners 1 and 2 are in appeal. 10. Heard the learned counsel appearing for the appellants/petitioners 1 and 2 and the learned counsel appearing for the 3[rd] respondent/Insurance Company. 11. The point that emerges for consideration in this appeal is whether the amount of compensation **MACA.No.986 OF 2012** **6** awarded by the Tribunal is just and reasonable? 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. By Ext.A4 charge-sheet filed by the Police, it is found that it was the 2[nd] respondent who caused the accident. The 2[nd] respondent was chargesheeted for offences punishable under Sections 279 and 304A of the Indian Penal Code. Undisputedly, the deceased was 24 years at the time of the accident. The petitioners had claimed that the deceased had a monthly income of Rs.4,000/- per month from his business in waste paper. **MACA.No.986 OF 2012** **7** 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in year 2004 at the rate of Rs.4500/- per month. In view of the said ratio, the income of the deceased can safely be fixed at Rs.4,000/- as claimed in the petition. 15. In **Magma General Insurance Company Ltd v. Nanu Ram @ Chuhru Ram & Others** [2018 KHC 6697] and a catena of subsequent decisions, the Hon'ble Supreme Court has laid down the law that in the case of death of a son, the parents are entitled to filial consortium at the rate of Rs.40,000/- each. 16. In the case on hand, the Tribunal has awarded only an amount of Rs.10,000/- under the head 'love affection'. In light of the law laid down in **Magma General Insurance Company Ltd** (supra), the petitioners 1 and 2 are jointly **MACA.No.986 OF 2012** **8** entitled for a compensation of Rs.80,000/- under the head 'filial consortium' i.e. an enhancement by Rs.70,000/- under the said head of claim. 17. It is also laid down in **Pranay Sethi** (supra) and a plethora of subsequent judgments that the dependants of the deceased are entitled for funeral expenses @ Rs.15,000/-. In the case on hand, only an amount of Rs.5,000/- has been awrded under the said head of claim. Hence, I enhance the compensation under the said head of claim by a further amount of Rs.10,000/-. 18. Under the head 'loss of estate also, the Tribunal has awarded only an amount of Rs.5,000/-. Again going by the ratio in **Pranay Sethi,** the petitioners are entitled for compensation under the head 'loss of estate' at Rs.15,000/- i.e., an enhancement by a further amount of Rs.10,000/-. 19. In light of the recent decision of the **MACA.No.986 OF 2012** **9** Hon'ble Supreme Court in **Pappu Deo Yadav v. Naresh Kumar and others** [AIR 2020 SC 4424] **,** which has followed the earlier line of decisions, it has been held that the dependents are also entitled for future prospects. 20. In the case on hand, the deceased was only 24 years of age at the time of accident and the relevant multiplier to be adopted is 18. Hence, the petitioners are entitled for future prospects at the rate of 40%. As the deceased was a bachelor, half of the amount has to be deducted towards his personal expenses . In the said circumstances, the petitioners are entitled for loss of dependency at the rate of Rs.6,04,800/- in stead of Rs.2,73,000/-. 21. With respect to the other heads of claim namely medical expenses and pain and sufferings, the Tribunal has awarded reasonable and just compensation. **MACA.No.986 OF 2012** **10** 22. On an overall re-appreciation of the pleadings and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the considered opinion that the petitioners and the 4[th] respondent 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>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|Funeral expenses|5000|5000|15,000| |2|Transportation<br>expenses|||| |3|Damages to clothing|||| |4|Love and affection<br>(Filial consortium)|25,000|10,000|80,000| |5|Medical expenses|25,000|19,430|19,430| |6|Shock<br>pain<br>and<br>sufferings|10,000|10,000|10,000| |7|Compensation<br>for<br>loss of dependency<br>with future prospects|5,00,000|2,73,000|6,04,800| |8|Loss of estate|50,000|5,000|15,000| ||Total|6,15,000<br>=======|3,22,430<br>========|7,44,230<br>=======| 23. The petitioners had claimed an amount of Rs.6,15,000/- towards compensation. After reappreciating the pleadings and materials on record, I have re-fixed the compensation at Rs.7,44,230/-. **MACA.No.986 OF 2012** **11** The above course is permitted in view of the law laid down by the Hon'ble Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)], wherein it has been held that there is no restriction in the Tribunal awarding more compensation than what is claimed in the petition. In the result, the appeal is allowed by directing the 3[rd] respondent to pay the appellants/petitioners and the 4[th] respondent enhanced compensation of Rs.4,21,800/- with interest at the rate of 7.5% per annum on the enhanced compensation and proportionate costs. The 3[rd] respondent shall deposit the additional compensation with interest and proportionte costs granted in this appeal before the Tribunal within two months from the date of receipt of a certified copy of this judgment after deducting the liability, if any, of the petitioners and the 4[th] respondent towards the balance court fee and legal benefit fund. The disbursement of compensation to the appellants/petitioners and **MACA.No.986 OF 2012** **12** the 4[th] respondent shall be done in the ratio fixed by the Tribunal at 40:40: 20,in accordance with law. It is made clear that the compensation under the head 'filial consortium' @ Rs.80,000/- shall only be paid to the appellants/petitioners and the said amount shall not be taken into account while apportioning the compensation payable to the 4[th] respondent. Sd/- **C.S.DIAS, JUDGE** /True copy/ Ma/1.3.2021