Cicily George and Others v Joy S/o Ettumanakaran Anthony and Dileepkumar S/o Chettiyampparambil Raghavan and The Manager United India Insurance Company Ltd.

MACA NO. 2067 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** **MACA NO. 2067 OF 2009** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 1213/2004 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** 1 CICILY GEORGE, W/O.LATE PEREPPADAN GEORGE, PO.KUTTIKKAD, PARIYARAM VILLAGE,, MUKUNDAPURAM TALUK. 2 CICY GEORGE D/O.LATE PEREPPADAN GEORGE, PO.KUTTIKKAD, PARIYARAM VILLAGE,., MUKUNDAPURAM TALUK. 3 RAJY GEORGE D/O.LATE PEREPPADAN GEORGE, PO,KUTTIKAD, PARIYARAM VILLAGE,, MUKUNDAPURAM TALUK. 4 LIGY GEORGE D/O.LATE PEREPPADAN GEORGE, PO,KUTTIKAD, PARIYARAM VILLAGE,, MUKUNDAPURAM TALUK. 5 JOSY GEORGE S/O LATE PEREPPADAN GEORGE PO.KUTTIKKAD, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU ## **RESPONDENT/S:** 1 JOY S/O.. ETTUMANAKARAN ANTHONY, NANDHIPULAM, PUDUKKAD. 2 DILEEPKUMAR S/O. CHETTIYAMPARAMBIL RAGHAVAN,, ELINJIPRA VILLAGE AND MACA NO. 2067 OF 2009 2 DESOM, 3 THE MANAGER UNITED INDIA INSURANCE COMPANY LTD, SREEKUMAR BUILDING SOUTH JUNCTION,, CHALAKKUDY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2067 OF 2009 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1213/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. 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 George (deceased) - husband of the 1[st] appellant and father of the appellants 2 to 5. 3. It was their case that, on 16.07.2004, while the deceased was riding his scooter bearing registration No.KL 8F 1003, a jeep bearing Registration No.KBE 9039, driven by the 2[nd] respondent in a negligent manner, hit the scooter. The deceased sustained fatal injuries and lost his life instantaneously. The jeep was owned by the 1[st] respondent and insured with the 3[rd] respondent. The deceased was doing business and he was earning a monthly income of Rs.5,000/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.3,65,000/- from the MACA NO. 2067 OF 2009 4 respondents, which claim was limited to Rs.2,50,000/-. 4. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 5. The 3[rd] respondent had filed a written statement admitting that the jeep had a valid insurance coverage. However, the 3[rd] respondent disputed the age, income and occupation of the deceased. 6. The appellants had produced and marked Exts.A1 to A9 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.1,24,000/- with interest and proportionate cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri.Nagaraj Narayanan, the learned counsel appearing for the appellants/petitioners and MACA NO. 2067 OF 2009 5 Sri.P.K.Manojkumar, the learned counsel appearing for the 3[rd] respondent/insurer. 10. The sole point that arises for consideration in the appeal is whether the quantum compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 11. Ext.A2 charge sheet filed by the Chalakkudy Police in Crime No.353/2004 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 jeep. The respondents have not let in any evidence to discredit Ext.A2 charge sheet. The 3[rd] respondent had also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 12. The appellants had claimed that the deceased was aged 60 years and was doing business. It is also claimed that the deceased was earning a monthly income of Rs.5,000/-. For MACA NO. 2067 OF 2009 6 want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.2,500/-. 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance 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. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2004, I refix the notional monthly income of the deceased at Rs.4,500/-. ## **Multiplier** 15. The deceased was aged 60 years at the time of the accident. 16. 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 ‘9’. ## **Personal living expenses of the deceased** 17. It is proved and established that the appellants were MACA NO. 2067 OF 2009 7 the wife and children of the deceased as evident from Ext.A8 family membership certificate. As they are five in number, one fourth of the compensation has to be deducted towards personal living expenses of the deceased as laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. ## **Future prospects** 18. As the deceased was aged 60 years at the time of accident/death, the appellants are not entitled to 'future prospects' as laid down in **Sarla Verma** and **Pranay Sethi.** ## **Loss due to dependency** 19. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.4,500/-, the multiplier at '9' and after deducting one fourth of the compensation towards the personal living expenses of the deceased, I hold that the appellants/petitioners are entitled to Rs.3,64,500/- for 'loss of dependency'. MACA NO. 2067 OF 2009 8 ## **Conventional heads of compensation/Traditional heads of compensation** 20. 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. 21. 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 MACA NO. 2067 OF 2009 9 on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the 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'. 22. In the instant case, the Tribunal has awarded an amount of Rs.4,000/- towards ‘funeral expenses’. 23. In the light of the law referred to above, I award the appellants a further amount of Rs.12,500/- under the head ‘funeral expenses' and an amount of Rs.16,500/- under the head 'loss of estate'. 24. The Tribunal has awarded an amount of Rs.10,000/to the 1st appellant towards 'loss of consortium'. On a consideration of the fact that the 1st appellant was the wife and the 5th appellant was only aged 21 years at the time of the accident, I award both of them an amount of Rs.44,000/- each under the head ' loss of consortium', totaling to an amount of Rs.88,000/-. I decline to award 'loss of consortium' to the appellants 2 to 4 as they were major married daughters. MACA NO. 2067 OF 2009 10 ## **Pain and sufferings and loss of love and affection** 25. It is seen that the Tribunal has awarded an amount of Rs.5,000/- each under the heads 'pain and sufferings' and 'loss of love and affection'. 26. In the light of the law laid down in **Sarla Varma** and **New India Assurance Company Ltd. vs. Somvathy and** **others :** [(2020) 9 SCC 644], the appellants are not entitled to any amount under the heads 'pain and sufferings' and 'loss of love and affection' as the deceased had lost his life instantaneously and because this Court has awarded compensation under the head 'loss of consortium'. 27. With respect to the other heads of compensation, 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 laid down in the above cited decisions, I hold that the appellants/petitioners are entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy reference: MACA NO. 2067 OF 2009 11 **==> picture [444 x 343] intentionally omitted <==** **----- Start of picture text -----**<br> Amount<br>Amount<br>Sl. modified and<br>awarded by<br>Head of claim recalculated<br>the Tribunal<br>No. by this Court<br>(in rupees)<br>(in rupees)<br>1. Funeral expenses 4,000 16,500<br>2. Pain and sufferings 5,000 0<br>Loss of love and<br>3. 5,000 0<br>affection<br>4. Loss of estate 0 16,500<br>5. Loss of consortium 10,000 88,000<br>6. Loss of dependency 1,00,000 3,64,500<br>Total 1,24,000 4,85,500<br>**----- End of picture text -----**<br> 29. Even though the appellants had claimed only an amount of Rs.2,50,000/- as compensation, in the light of the law in **Sarla Verma** and **Pranay Sethi** (supra), that the dependents of the deceased are entitled to compensation under the conventional heads, I have awarded the appellants more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down by the Honourable Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** MACA NO. 2067 OF 2009 12 ## [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.3,61,500/-** with interest at the rate of 6% per annum from the date of petition till the date of realisation, after deducting interest for a period of 127 days i.e. the period of delay in filing the appeal and as ordered by this Court on 11.11.2021 in CM.Appln.No.1/2009, and proportionate cost. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost as stated above 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, after deducting the liability of the appellants towards court fee, disburse the compensation amount to the appellants 1 and 5 in the ratio of 50:50 and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/08.03.22