C.P. Mohanan and Suma Mohanan v T.O. Raju, P.Y. Mathai and The National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **MACA NO. 689 OF 2011** **AGAINST THE AWARD DATED 30.04.2010 IN OP(MV)NO.1475/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM.** ## **APPELLANTS/ PETITIONERS:** - **1 C.P.MOHANAN, SON OF LATER SRI. PADMANABHAN.** **2 SUMA MOHANAN, W/O.C.P.MOHANAN, BOTH R/A.CHONAIKKODATH HOUSE, PONOTH ROAD, KALOOR P.O.,ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SRI.G.ARUN GOPAN SMT.K.N.RAJANI** ## **RESPONDENTS/PETITIONERS:** **1 T.O.RAJU, S/O. T.K. ONACHAN, THEVARMADOM HOUSE, VADAYAMPADY P.O., ERNAKULAM DISTRICT-682309** **2 P.Y.MATHAI, S/O.ULAHANNAN, PULICHUVATTIL HOUSE, KARIMUKAL ROAD, PANNIKUZHI BHAGOM,PUTHENCRUZ P.O., PUTHENCRUZ VILLAGE,PIN-682308** - **3 THE NATIONAL INSURANCE COMPANY LTD, DIVISIONAL OFFICE, ERNAKULAM, COCHIN-682016** **BY ADV SRI.P.K.MANOJ KUMAR,SC,NATIONAL INSURANCE CO. LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.689/2011 -:2:- _Dated this the 29[th] day of October, 2021_ ## **J U D G M E N T** The appellants were the petitioners in O.P.(MV) No.1475/2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 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 Sri. C.M. Dhaneesh(deceased), the son of the appellants. It was their case that, on 13.03.2005, while the deceased was riding his motorcycle with one Ramanan as the pillion rider along the Aroor-Vyttila Bypass road, when they reached the Kundannur Junction, a tanker lorry bearing registration No.KL-7/W-5255(lorry), driven by the second respondent in a negligent manner, hit the motorcycle of the deceased. The deceased sustained serious injuries and lost his life instantaneously. The lorry was owned by the first respondent and insured M.A.C.A.No.689/2011 -:3:- with the third respondent. The deceased was a printer by profession and working in a private concern at Alappuzha. He was earning a monthly income of Rs.6,000/-. The appellants were the dependants of the deceased. Hence, they claimed an amount of Rs.9,03,000/- as compensation from the respondents, which was limited to Rs.8,50,000/-. 3. The pillion rider also filed O.P. (MV)No.1472/2005 before the same Tribunal, against the respondents, seeking compensation on account of the injuries sustained to him in the accident. 4. The respondent Nos.1 and 2 did not contest the proceedings and were set _ex parte_ . 5. The third respondent-insurer had filed written statements in both the claim petitions admitting that the lorry had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the deceased. The third respondent also contended that M.A.C.A.No.689/2011 -:4:- the claim petitions were bad for non-joinder of necessary parties and disputed the age, occupation and income of the deceased. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions examined PWs1 to 3 and marked Exts.A1 to A13 in evidence. Ext.X1 disability certificate was marked on the side of the petitioner in O.P.(MV)No.1472/2005. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petition in part, by permitting the appellants to realise from the third respondent an amount of Rs.2,56,000/with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and proportionate cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners M.A.C.A.No.689/2011 -:5:- are in appeal. 10. Heard; Sri. Anil S. Raj, the learned counsel appearing for the appellants/petitioners and Sri. P.K. Manojkumar, the learned counsel appearing for the third respondent-insurer. 11. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 12. Ext.A4 chargesheet filed by the Kochi Traffic Police in Crime No.984/2005 proves that the accident occurred due to the negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the lorry. The third respondent had admitted that the lorry had a valid insurance coverage and had not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to M.A.C.A.No.689/2011 -:6:- indemnify the liability of the second respondent arising out of the accident. ## **Notional Income of the deceased:** 13. The appellants had averred that the deceased was a printer by profession and working in a private colour lab in Alappuzha. They claimed that he was earning a monthly income of Rs.6,000/-. However, the Tribunal fixed the notional monthly income of the deceased at Rs.3,000/-(Rs.36,000/-per annum). 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 afore-cited decision and keeping in mind the fact that the accident occurred in the year 2005, I re-fix the notional income of the deceased at Rs.5,000/- per month. M.A.C.A.No.689/2011 -:7:- ## **Multiplier** 16. It is proved that the deceased was aged 25 years at the time of the accident/death. In the light of the law laid down in _**Sarla Verma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)],the relevant multiplier is '18'. ## **Dependants of the deceased:** 17. Admittedly, the deceased was a bachelor. Following the ratio in _**Sarla Verma**_ (supra) and _**National Insurance Company Ltd. v. Pranay Sethi**_ [(2017) 16 SCC 680], one-half of the compensation towards 'loss of dependency' has to be deducted towards the 'personal living expenses' of the deceased. ## **Future prospects:** 18. As laid down in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra), and considering that the deceased was aged 25 years at the time of the accident, the appellants are entitled for 'future prospects' at the rate of 40% on the compensation for 'loss due to M.A.C.A.No.689/2011 -:8:- dependency'. ## **Loss due to dependency:** 19. Taking into account the above-mentioned factors, i.e, the notional income of the deceased at Rs.5,000/- per month, the multiplier at '18', future prospects at 40% and after deducting one-half of the compensation towards the 'personal living expenses' of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.7,56,000/-, instead of Rs.2,16,000/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/-, respectively. 21. In the instant case, the Tribunal has awarded M.A.C.A.No.689/2011 -:9:- an amount of Rs.10,000/- towards 'funeral expenses' and Rs.5,000/- towards 'loss of estate'. Therefore, I enhance the compensation under the above two heads by a further amount of Rs.5,000/- and Rs.10,000/-, respectively. 22. The Tribunal has not awarded any amount under the head 'loss of consortium'. In view of the law in _**Pranay Sethi**_ (supra), I award the appellants – the parents of the deceased – Rs.40,000/- each towards 'loss of consortium'. ## **Loss of love and affection and pain and sufferings** 23. The Tribunal has awarded an amount of Rs.10,000/- towards compensation for 'pain and sufferings' and Rs.20,000/- towards 'loss of love and affection'. 24. In paragraph No.19 of _**Sarla Verma**_ (supra), the Hon'ble Supreme Court has categorically held that in the case of instantaneous death, no amount shall be awarded under the head 'pain and sufferings' to the M.A.C.A.No.689/2011 -:10:- dependants of the deceased. 25. 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 'loss of consortium', no compensation shall not be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. 26. In the light of the above declaration of law, I set aside the amounts of Rs.10,000/- awarded under the heads 'pain and sufferings' and Rs.20,000/awarded under the head 'loss of love and affection'. ## **Other heads of compensation:** 27. I award an amount of Rs.1,000/- towards 'transportation expenses' and Rs.500/- towards 'damage to clothing'. 28. On a comprehensive re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I hold that the M.A.C.A.No.689/2011 -:11:- appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated 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<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Transport|Nil|1,000| |2|Damage<br>to<br>clothing|Nil|500| |3|Funeral expenses|5,000|15,000| |4|Pain and sufferings|10,000|Nil| |5|Loss of love and<br>affection|20,000|Nil| |6|Loss of estate|5,000|15,000| |7|Loss<br>due<br>to<br>dependancy|2,16,000|7,56,000| |8|Loss of consortium|Nil|80,000| ||**Total**|**2,56,000**|**8,67,500**| 29. Even though the appellants had claimed only an amount of Rs.8,50,000/- as compensation, following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra), wherein the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for 'future M.A.C.A.No.689/2011 -:12:- prospects', I have awarded more compensation than what is claimed in the claim petition, as it is just and reasonable compensation that is to be payable. The above 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.6,11,500/-** with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of realisation, after deducting interest for a period of 172 days i.e., the period of delay in preferring this appeal and as directed by this Court on 17.12.2019 in C.M.Appln.No.1122/2011, and proportionate cost. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date M.A.C.A.No.689/2011 -:13:- of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation with interest and cost to the appellants in equal shares, after deducting their liability, if any, towards court fee and in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** DST/29.10.2021 //True copy/ P.A.To Judge