C.O. Savitha v. Pradeep Kumar and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** ## **MACA NO. 2207 OF 2010** ## **AGAINST THE AWARD DATED 27.07.2010 IN OPMV 781/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANTS/PETITIONERS:** - 1 C.O.SAVITHA, W/O LATE PRASAD 31 YEARS, SREEVALSAM, P.O. KOTTAYAMPOIL. - 2 PRANOY.S.P. S/O.LATE PRASAD 5 YEARS, (MINOR) REPRESENTED BY MOTHER, SAVITHA C.O., DO. - 3 PRAFUL.S.P., S/O.LATE PRASAD 3 YEARS (MINOR), REPRESENTED BY MOTHER, SATITHA.C.O. DO. - 4 R.REVATHIAMMA W/O.K.P.KUNHIRAMAN NAMBIAR, 60 YEARS, MOTTALA HOUSE, P.O.KOTTAYAMPOIL, KUTHUPARAMBA. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ## **RESPONDENTS/RESPONDENTS:** - 1 PRADEEP KUMAR, S/O KUNHIRAMAN NAMBIAR MOTTALA HOUSE, P.O.KOTTAYAMPOIL, KUTHUPARAMBA - PIN 670691 - 2 THE NEW INDIA ASSURANCE COMPANY LTD. KANNUR. 3 KADEEJA UMMA W/O.LATE ISMAIL NEW HOUSE, P.O.KINYA, VIA. UCHILA,, MANGALORE TALUK. - 4 K.I.MUHAMMED, S/O.LATE ISMAIL DO **MACA NO. 2207 OF 2010 2** - 5 RAFEEQUE.K.I. S/O.LATE ISMAIL DO. DO. 6 IQBAL.K.I. S/O.LATE ISMAIL DO. 7 NASEER.K.I. S/O.LATE ISMAIL DO. 8 RIYAS K.I. S/O.LATE ISMAIL DO. 9 RISWAN.K.I. S/O.LATE ISMAIL DO. - 10 HALEEMA.K.I. D/O.LATE ISMAIL DO. 11 SAHEERA.K.I. D/O.LATE ISMAIL DO. BY ADV SRI.PMM.NAJEEB KHAN **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA NO. 2207 OF 2010 3** ## **Dated this the 2[nd] day of March, 2022. JUDGMENT** The appellants were the petitioners in OP(MV) No.781/2004 on the file of the Motor Accidents Claims Tribunal, Thalasserry. The respondents in the appeal were the respondents 2 to 12 before the Tribunal. The first respondent before the Tribunal had died before the passing of the award. Hence, he is not impleaded as a party in the appeal. The parties are, for the sake of convenience, referred to as per their 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 Prasad (deceased) – husband of the first appellant, father of appellants 2 and 3 and the son of the fourth appellant. It ## **MACA NO. 2207 OF 2010 4** was their case that, on 17.04.2001, while the deceased was travelling in a Tata Sumo bearing registration No. K.A.19/N-698 along with his relatives to Guruvayoor, the vehicle hit against a tree and the deceased suffered fatal injuries and succumbed to the injuries instantaneously. The accident occurred due to the negligence of the second respondent – driver of the Tata Sumo. The deceased was employed as an Third grade Overseer in the Pazhassi Irrigation (PWD) and was drawing a salary of Rs.5024/-. The petitioners were the dependents of the deceased. The Tata Sumo was owned by the first respondent and insured with the third respondent. Hence, they claimed a compensation of Rs.10,00,000/- from the respondents. 3. The other injured in the same accident had also filed O.P.(M.V) Nos.778/04, 779/04, 780/04, 786/04, 782/04, 783/04, 784/04 and 785/04 before the same Tribunal, seeking compensation from the respondents. ## **MACA NO. 2207 OF 2010 5** 4. Pending the claim petitions, the first respondent died and his legal representatives were impleaded as supplemental respondents 4 to 12. Only the third respondent contested all the claim petitions. 5. The third respondent had filed separate written statements in all the claim petitions, inter alia, contending that as the first respondent had transferred the vehicle to the second respondent, without intimating the same to the third respondent, the third respondent may be exonerated of its liability. However, the third respondent admitted that the Tata Sumo had a valid insurance coverage. The third respondent also stated that the compensation claimed in all the claim petitions were excessive. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The petitioners in all the claim petitions produced and marked Exhibits A1 to A37 in evidence. ## **MACA NO. 2207 OF 2010 6** The third respondent produced the insurance policy, which was marked as Exhibit B1. Exhibits X1 to X6 were summoned and marked in evidence 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the petitioners to recover from the third respondent an amount of Rs.6,01,000/- with interest and a cost of Rs.2000/-. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.Mathew John, the learned counsel appearing for the appellant/petitioner and Sri.PMM Najeeb Khan the learned counsel appearing for the second respondent/insurer. 11. The point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **MACA NO. 2207 OF 2010 7** ## **Negligence and liability** 12. Exhibit A16 FIR registered by the Koyilandy Police in Crime No.152/2001 proves that the accident occurred due to the negligence of the second respondent. The respondents have not let in any evidence to the contrary to discredit Exhibit A16 or to controvert the pleadings and materials on record. Thus, it is proved that the second respondent was negligent in causing the accident. Indisputably, the first respondent was the owner and third respondent was the insurer of the Tata Sumo. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 13. The petitioners had contended that the deceased was employed as an Third Grade Overseer in the ## **MACA NO. 2207 OF 2010 8** Irrigation Department and was drawing a salary of Rs.5024/-. To substantiate their contentions, they had produced Exhibit A34 salary certificate issued by the authorized officer, wherein it was certified that the deceased was earning a salary of Rs.5024/-. However, the Tribunal on the finding that there was nothing to show the deductions, fixed the salary of the deceased at Rs.4500/-. I find the procedure adopted to be erroneous and wrong. 14. As per Exhibit A34, the employer of deceased had certified that the deceased was drawing a salary of Rs.5024/-. I do not find any reason to discredit Exhibit A34 and reduce the monthly salary of the deceased. Hence, I accept Exhibit A34 and fix the monthly salary of the deceased at Rs.5024/-. ## 15. **Multiplier** As per Exhibit A35 service book, the deceased was aged 36 years at the time of accident. In the light of the **MACA NO. 2207 OF 2010 9** law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC** **121],** the relevant multiplier is ‘15’. ## **Future prospects.** 16. In the light of the law laid down in **Sarala Verma** (supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]and considering the fact that the deceased was aged 36 years at the time of his death and was permanently employed, I hold that the appellants/petitioners are entitled to future prospects @ 50%. ## **Personal living expenses of the deceased** 17. As the petitioners were the wife, children and mother of the deceased, who are four in number, one fourth of the compensation has to be deducted towards the personal living expenses of the deceased following the principles laid down in **Sarala Verma** and **Pranay Sethi** (Supra). ## **MACA NO. 2207 OF 2010 10** ## **Loss of dependency** 18. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.5024/-, the multiplier at ‘15’, future prospects at 50% and after deducting one fourth of the compensation towards personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.10,17,360/instead of Rs.5,76,000/- awarded by the Tribunal. ## **Conventional/Traditional 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** **MACA NO. 2207 OF 2010 11** **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 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.9,000/- under the head 'funeral expenses'. ## **MACA NO. 2207 OF 2010 12** 22.Following the principles in the afore-cited decisions, I enhance the compensation by a further amount of Rs.7500/-, under the head ‘funeral expenses’ and also award the petitioners an amount of Rs.16,500/under the head ‘loss of estate’ and an amount of Rs.1,76,000/- under the head ‘loss of consortium’, i.e. Rs.44,000/- each to the petitioners. ## **Loss of love and affection** 23. The Tribunal has awarded an amount of Rs.15000/- under the head ‘loss of love and affection’. 24. 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.15,000/- awarded under the head 'loss of love and affection'. ## **MACA NO. 2207 OF 2010 13** 25. With respect to the compensation awarded under the head ‘transportation expenses’, I find the same to be reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, 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. |Sl No.|Head of Claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transport|1000|1000| |2|Funeral expenses|9000|16500| |3|Love and<br>affection|15000|0| |4|Loss of estate|0|16500| |5|Loss of<br>consortium|0|176000| ## **MACA NO. 2207 OF 2010 14** |6|Loss of<br>dependency|576000|1017360| |---|---|---|---| ||Total|601000|1227360| Even though the petitioners had claimed only an amount of Rs.10,00,000/- as compensation, I have awarded more compensation than what is claimed in the claim petition, following the principles in **Sarla Verma** and **Pranay Sethi** (supra), by awarding them future prospects @ 50% as well as compensation under the conventional heads. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** , In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.6,26,360/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, and proportionate cost. The third respondent/insurer is ordered to deposit the **MACA NO. 2207 OF 2010 15** enhanced compensation with interest and proportionate cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants/petitioners, after deducting their liability towards court fee, in the ratio of 20:35:35:10 and in accordance with law. SD/- **C.S.DIAS, JUDGE** rmm/02/03/2022