Chanju and Others v. C. P. Rajan, G. M. Poornachandran and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** ## **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943** ## **MACA NO. 2230 OF 2010** **AGAINST THE COMMON JUDGMENT IN O.P.(MV) NO.466/2006 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI. APPELLANTS/PETITIONERS:** - **1 CHANJU, F/O.SREEDHARAN** - **2 CHEERU, W/O.CHANJU** - **3 KARAPPANKUTTY, S/O.CHANJU** - **4 SUSEELA, D/O.CHANJU** - **5 UNNIKRISHNAN, S/O.CHANJU** - **6 SOBHANA, D/O.CHANJU** - **ALL ARE RESIDING AT NELLAT HOUSE, KODUR P.O., MALAPPURAM DISTRICT.** **BY ADV SRI.P.VENUGOPAL (1086/92)** ## **RESPONDENTS/RESPONDENTS:** - **1 C.P.RAJAN,** - **S/O.APPUNNI NAIR, PUTHENVEETIL HOUSE, VETTAMBALAM,,KUMARANPUTHUR P.O., PALAKKAD DISTRICT-678 583.** - **2 G.M.POORNACHANDRAN, 15/550, GEETHAM, KUNNATHURMEDU, PALAKKAD DISTRICT.** - **3 THE ORIENTAL INSURANCE COMPANY LTD.,** **SOBHA T.S.M.COMPLEX, RAILWAY STATION ROAD, PALAKKAD REPRESENTED BY ITS MANAGER.** ## **BY ADV I.DINESH MENON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2230 OF 2010** -2- ## **JUDGMENT** The appellants were the petitioners in O.P.(MV) No.466 of 2006 on the file of the Motor Accidents Claims Tribunal, Manjeri. 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 Sreedharan (deceased), the son of the appellants 1 and 2 and the brother of the appellants 3 to 6. It was their case that, on 05.02.2006, while the deceased was travelling along with his friend on a motorcycle bearing Registration No. KL-10/W-3306(motorcycle) from Kodur, when they reached a place named Varankot, a bus bearing registration No.KL-9/Q-919(bus), driven by the first respondent in a rash and negligent manner, hit the motor cycle. The deceased sustained fatal injuries and lost his life instantaneously. The bus was owned by the second **MACA NO. 2230 OF 2010** -3- respondent and was insured with the third respondent. The deceased was a bachelor and aged 28 years at the time of his death. He was a mason by profession and was earning a monthly income of Rs.7,000/-. The appellants were the dependents of the deceased. Hence the appellants claimed a compensation of Rs.13,73,000/- from the respondents, which claim was limited to Rs.10,00,000/-. 3. The deceased's friend, who also sustained injuries in the same accident, filed O.P.(MV) No.465 of 2006 before the same Tribunal, seeking compensation from the respondents. 4. The respondents 1 and 2 did not contest the proceedings and were set as ex-parte. 5. The third respondent had filed separate written statements in the two claim petitions, _inter alia,_ contending that the accident occurred due to the negligence of the rider of the motorcycle. The legal **MACA NO. 2230 OF 2010** -4- representatives of the rider of the motorcycle had also filed O.P.(MV) No.465 of 2006 before the same Tribunal. The income claimed was exorbitant. Hence, the claim petitions may be dismissed. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions examined PWs 1 and 2 and marked Exts.A1 to A3 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analyzing the pleadings and materials on record, by its common award allowed the captioned claim petition, permitting the appellants to realise from the third respondent an amount of Rs.2,23,000/- with interest @ 9% per annum from the date of petition till the date of realisation. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. ## **MACA NO. 2230 OF 2010** -5- 10. Heard Sri. P. Venugopal, the learned counsel appearing for the appellants/petitioners and Smt. K.S.Shanthi, the learned counsel appearing for the 3[rd] respondent/insurer. 11. 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.** 12. Exhibit A1 FIR produced by the appellants substantiates the fact that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the bus. The respondents have not let in any evidence to discredit the oral testimonies of PWs 1 and 2 and the averments in the claim petition. The third respondent has also not proved that the second respondent had violated the policy **MACA NO. 2230 OF 2010** -6- conditions. Therefore, the third respondent is liable to indemnify the second respondent of his liability arising out of the accident. ## **Income of the deceased.** 13. The petitioners had claimed that the deceased was a mason by profession and was earning a monthly income of Rs.7,000/-. However, the Tribunal fixed the notional monthly income of the deceased at Rs.3,500/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 15. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2006, I fix the notional monthly income of the deceased at Rs.5,500/-. **MACA NO. 2230 OF 2010** -7- ## **Multiplier.** 16. The deceased was aged 26 years at the time of the accident. In the light of the law laid down in _**Sarla Verma and others V. Delhi Transport Corporation**_ _**[(2009) 6 SCC 121],**_ the relevant multiplier to be adopted is '17'. ## **Personal living expenses of the deceased** 17. Undisputedly, the deceased was a bachelor. In the light of the law laid down in **Sarala Verma** and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** 1/2[nd] of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects.** 18. Again, in view of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), the appellantsdependents of the deceased are entitled to future prospectus at 40%. **MACA NO. 2230 OF 2010** -8- ## **Loss due to dependency** 19. Taking into account the above mentioned factors namely, the notional monthly income of the deceased at Rs.5,500/-, the multiplier at '17', future prospectus at 40% and deducting 1/2 of the compensation towards the personal living expenses of the deceased, I fix the compensation for loss of dependency at Rs.7,85,400/-, instead of Rs.2,10,000/- 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/- each respectively. 21. In the instant case, the Tribunal has not awarded any amount as compensation for 'loss of estate' **MACA NO. 2230 OF 2010** -9- and 'funeral expenses'. In view of the law laid down in **Pranay Sethi** (supra), I award an amount of Rs.15,000/towards funeral expenses and Rs.15,000/- towards loss of estate to the appellants. Similarly, as the appellants 1 and 2 were the parents of the deceased, I award them an amount of Rs.40,000/- each, towards loss of consortium, totalling to an amount of Rs.80,000/-, I decline to award any amount towards loss of consortium to the appellants 3 to 6 and they were majors and leading independent lives. ## **Loss of love and affection.** 22. It is seen that the Tribunal has awarded an amount of Rs.10,000/- towards loss of love and affection. 23. In **New India Assurance Company Ltd. V. Somwati & Ors. [(2020) 9 SCC 644** ], the Hon'ble Supreme Court has held that once compensation is awarded under the head of 'loss of consortium', no amount shall be awarded under the head 'loss of love and ## **MACA NO. 2230 OF 2010** -10- affection', as it would amount to duplication of compensation. Hence I set aside the amount of Rs.10,000/- awarded under the head loss of love and affection. 24. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the aforecited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given under the table for easy reference. |**Sl.**<br>**No**|**Head of claim**|**Amount awarded**<br>**by**<br>**the**<br>**Tribunal(Rs.)**|**Amount modified**<br>**and recalculated**<br>**by this Court**<br>**(Rs.)**| |---|---|---|---| |1.|Funeral expenses|3,000/-|15,000/-| |2.|Loss of estate|-|15,000/-| |3.|Loss of love and affection|10,000/-|-| |4.|Loss of consortium|-|80,000/-| |5.|Loss of dependency|2,10,000/-|7,85,400/-| ||Total|**2,23,000/-**|**8,95,400/-**| **MACA NO. 2230 OF 2010** -11- In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.6,72,400/- with interest @ 8% per annum on the enhanced compensation from the date of petition till the date of deposit and proportionate cost. The 3[rd] respondent-insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal, within sixty days from the date of receipt of a certified copy of this judgment. Immediately, on the compensation amount being deposited, the entire amount shall be disbursed to the second appellant, in accordance with law. Sd/- **C.S.DIAS JUDGE** bpr