High Court of KeralaSingle Judge2023-01-30The appeal is allowed accordingly; enhanced com...

Deivanai and P. Periyaswami v Shihabudheen C.K. and others

Case / Petition Number:MACA No.131 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas, J.
Judgment Date: 2023-01-30
Court Decision / Holding: The appeal is allowed; the Tribunal’s compensation is enhanced to Rs.4,28,944 with a lumpsum payment structure: Rs.1,00,000 to the 2nd appellant (including Rs.40,000 parental consortium) and the balance to the 1st appellant. 7% interest is directed on the entire amount from the petition date, with specified deductions and remaining components to be deposited within two months from receipt of the judgment, in line with Circular No.3 of 2019 and related orders. No order as to costs.
Final Disposition: The appeal is allowed accordingly; enhanced compensation and distribution as directed; no costs.

Parties to the Case

Appellants / Petitioners

Deivanai
P. Periyaswami

Respondents

Shihabudheen C.K.
T. Radhakrishnan
National Insurance Co. Ltd
Anandan
P. Prabu
Karunayammal

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Sheji P. Abraham

Counsels for Respondents

• Smt. Deepa George

Case Synopsis & Summary

This appeal is by the wife and son of the deceased Purushothaman from a Motor Accidents Claims Tribunal award in OP(MV) No.582/2004, Irinjalakuda. Purushothaman, a 45-year-old driver, died in a road accident on 25.08.2003 when a lorry driven rashly by the 1st respondent collided with his Tata Sumo. The Tribunal awarded Rs. 2,46,000 in compensation, after the appellants contended for higher quantum. The respondents were the driver, the vehicle owner, and the insurer; the other respondents (4–6) are his children from another marriage. The appellants argued for a higher notional income (Rs.4,000–5,000) and a 25% addition for future prospects, citing Ramchandrappa and Pranay Sethi, with 1/3 deduction for personal expenses and a multiplier of 14 rather than 13. The High Court, applying the Ramchandrappa approach, fixed Rs.4,000 as notional income and, per Pranay Sethi, allowed 25% future prospects for a self-employed driver. After accounting for deductions, the loss of dependency rose to Rs.5,59,944 and other heads were revised: loss of love and affection and consortium Rs.80,000, funeral Rs.15,000, loss of estate Rs.15,000, with Rs.12,000 enhancement for funeral and Rs.5,000 for transportation. The total enhanced compensation is Rs.4,28,944. The court directed a lumpsum payment: Rs.1,00,000 to the 2nd appellant and the remainder to the 1st appellant, with 7% interest and costs as noted. The appeal is allowed accordingly.

Legal Doctrines & Maxims

Notional income principle (Ramchandrappa)
Future prospects with 25% addition (Pranay Sethi)
Conventional heads for compensation (Pranay Sethi)
No enhanced delay-hike for compensations in older accidents (Afsana and Others v. Kundu Knit Fab Pvt. Ltd)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the deceased was a 45-year-old driver with an income of Rs.5,000 per month, and that the Tribunal’s fixation of Rs.2,000 as notional income was erroneous. Relying on Ramchandrappa, they urged a notional income of Rs.4,000 with a 25% future prospects addition per Pranay Sethi, and a 1/3 deduction for personal expenses. They contended the multiplier should be 14 (not 13). They argued for enhanced compensation across heads—loss of dependency, loss of love and affection, loss of consortium, funeral expenses, loss of estate, and transportation—following the principles in Pranay Sethi and as refined by subsequent judgments like Afsana. They requested distribution of the enhanced amount in favour of the wife and the major son, with appropriate interest and compliance with the Court’s circular directives.

Contentions of Respondents

The insurer argued that the Tribunal’s award was just and in accordance with established estimates of income and dependency; since the respondents were largely ex parte, the defense focused on maintaining the adequacy of the award and opposing any excessive enhancement beyond the evidence before the Tribunal. The respondents did not controvert the accident facts or the liability; they relied on statutory interpretations from precedent to resist disproportionate increases and to argue for careful distribution of any enhanced amount to reflect dependents and liabilities.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	AIR 2011 SC 2951	Positive	Used to justify fixing a higher notional income (Rs.4,000) for a 45-year-old driver in 2003.
National Insurance Co. Ltd. v. Pranay Sethi and Others	AIR 2017 SC 5157	Positive	Guides the addition for future prospects and other principal aspects of compensation.
Afsana and others v. Kundu Knit Fab Pvt. Ltd	2022 ACJ 754	Positive	Used to support no hike for delay for three-year intervals and reliance on conventional heads in older accidents.
Pranay Sethi’s case	—	Positive	Core framework for heads of compensation, including future prospects and conventional heads.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **MONDAY, THE 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944** ## **MACA NO.131 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OP(MV) No.582/2004 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANTS/PETITIONERS:** - 1 DEIVANAI, 39 YEARS, W/O.PURUSHOTHAMAN(LATE),19 A ISMAIL STREET,, AVANASHI,COIMBATORE DISTRICT. - 2 P.PERIYASWAMI, 20 YEARS, S/O.PURUSHOTHAMAN(LATE),19 A ISMAIL STREET,, AVANASHI,COIMBATORE DISTRICT. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** - 1 SHIHABUDHEEN C.K., S/O.AHMEDKUTTY, C/O.T.RADHAKRISHNAN, DEVAKINIVAS,, VAYANATHUPADAMPARAMBA,THIRUVANNUR,KOZHIKODE, PIN-673001. - 2 T.RADHAKRISHNAN, DEVAKI NIVAS VAYANATHUPADAMPARAMBA,THIRUVANNUR,KOZHIKODE, PIN-673001. - 3 NATIONAL INSURANCE CO.LTD, P.B.NO.811 NEAR COMPLEX,MAVOOR ROAD,CALICUT,PIN-673003. - 4 ANANDAN, SREENIVASAPURAM, MAIN ROAD, AVANASHI,COIMBATORE-21. - 5 P.PRABU, SREENIVASAPURAM, MAIN ROAD, AVANASHI,COIMBATORE-21. - 6 KARUNAYAMMAL, 20 ISMAIL STREET, AVANASHI, PANCHAYATH CHEYUR ROAD,AVANASHI,COIMBATORE-23. BY ADV. SMT.DEEPA GEORGE FOR R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN** **FINALLY HEARD ON 20.01.2023, THE COURT ON 30.01.2023 DELIVERED THE FOLLOWING:** **MACA No.131 of 2011** **2** ## **SOPHY THOMAS, J.** ------------------------------------ ## MACA No.131 of 2011 ------------------------------------ ## Dated this the 30[th] day of January, 2023 ## **J U D G M E N T** This appeal has been preferred by the claimants in O.P (MV) No.582 of 2004 on the file of Motor Accidents Claims Tribunal, Irinjalakuda, impugning the award dated 11.05.2010, on the ground of inadequacy of compensation. 2. The appellants are the wife and son of the deceased Purushothaman. Respondents 4 and 5 are also the children of deceased Purushothaman in another wife and the 6[th] respondent is the mother of the deceased. 3. The deceased Purushothaman was a Driver by profession and on 25.08.2003, while he was driving a Tata Sumo Car, KL-11/E 4824 lorry driven by the 1[st] respondent in a rash and negligent manner, hit against his Tata Sumo, thereby he sustained fatal injuries and later succumbed to death. 4. The appellants approached the Tribunal claiming **MACA No.131 of 2011** **3** compensation of Rs.4 lakh and the Tribunal awarded compensation of Rs.2,46,000/-. Aggrieved by the quantum of compensation awarded by the Tribunal, the appellants have approached this Court. 5. The 1[st] respondent was the driver of the offending lorry, 2[nd] respondent was its owner and 3[rd] respondent was its insurer. The accident, death of Sri.Purushothaman due to the injuries suffered in the accident, and the policy of the offending vehicle are not in dispute. 6. The respondents 1, 2 and 4 to 6 remained ex parte before the Tribunal as well as before the appellate court. 7. Heard Sri.Sheji P Abraham, learned counsel appearing for the appellants and Smt.Deepa George, learned counsel appearing for the 3[rd] respondent-Insurance Company. 8. According to the appellants, deceased Purushothaman was aged only 45 at the time of death and he was a Driver by profession earning monthly income of Rs.5,000/-. But, the Tribunal fixed his notional income @ Rs.2,000/- only, and that is the main challenge posed by them in this appeal. Though there is no documentary evidence to prove the occupation or **MACA No.131 of 2011** **4** income of deceased Purushothaman, Ext.A2 charge sheet itself will show that, the accident occurred while the deceased was driving a Tata Sumo vehicle, and his age was 45 as on the date of accident. Though there is nothing to prove his income, going by the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), a notional income of Rs.4,000/- can be fixed, as the accident was in the year 2003, and the deceased was a 45 year old Driver. Going by the decision **National Insurance Company Ltd.** vs. **Pranay Sethi and Others** (AIR 2017 SC 5157), a Driver aged 45 having self employment, without any fixed salary, is eligible for 25% addition towards future prospects. So, his income could have been fixed @ Rs.5,000/-. Since he was having more than one dependent, 1/3[rd] has to be deducted towards his personal expenses. So, the balance income could have been Rs.3,333/-. The multiplier applicable could have been 14 instead of 13 applied by the Tribunal. So, the loss of dependency could have been assessed as Rs.5,59,944/(3333x12x14). Learned Tribunal already awarded **MACA No.131 of 2011** **5** Rs.2,08,000/- towards loss of dependency. So, the appellants are eligible to get the balance amount of Rs.3,51,944/- as enhanced compensation towards loss of dependency. 9. Towards loss of love and affection and loss of consortium, learned Tribunal awarded Rs.15,000/- each. Going by _Pranay Sethi's_ case cited supra, the appellants are eligible to get Rs.40,000/- towards loss of consortium; spousal as well as parental, with 10% hike for the delay of every three year. In **Afsana and others** _vs._ **Kundu Knit Fab Pvt. Ltd** (2022 ACJ 754), the Apex Court considered the issue of 10% hike for the delay of every three years, and found that, since the accident had taken place in the year 2001, no hike can be granted except the conventional heads as per the principles laid down in _Pranay Sethi's_ case cited supra. 10. In the case on hand, the accident was in the year 2003. Following _Afsana’s case_ cited supra, the appellants are eligible to get compensation under the conventional heads, as laid down in _Pranay Sethi’s case_ , without any hike for the delay of every three years, considering the fact that the accident was of the year 2003. So, the appellants are eligible **MACA No.131 of 2011** **6** to get Rs.40,000/- each towards loss of consortium amounting to Rs.80,000/- in total. Since the learned Tribunal already awarded Rs.30,000/- in total towards loss of love and affection and consortium, that amount has to be deducted and so, the balance entitled by the appellants is Rs.50,000/- under the head loss of consortium. 11. Towards funeral expenses, Rs.3,000/- was awarded by the Tribunal. Following the principles laid down in _Pranay Sethis’s case_ cited supra, the appellants are eligible to get Rs.15,000/-. So, they will get the balance Rs.12,000/- as enhancement towards funeral expenses. 12. Towards loss of estate, nothing was awarded by the Tribunal. Based on the principles laid down in _Pranay Sethi’s case_ , the appellants are eligible to get Rs.15,000/- and that amount could be awarded. 13. Learned Tribunal awarded Rs.5,000/- towards pain and suffering. Since this is a case of death, that amount is liable to be deducted. 14. Towards transportation expenses, Rs.5,000/- was claimed. But, nothing was awarded by the Tribunal. The **MACA No.131 of 2011** **7** accident occurred at Nellayi, Kozhikode, and the body of the deceased had to be taken to Coimbatore in Tamil Nadu. So, the claim of Rs.5,000/- towards transportation expenses seems to be reasonable and that amount also is awarded. |Head of claim (1)|Amount awarded by the Tribunal (2)|Amount awarded in appeal (3)|Amounts deducted in appeal (4)|Difference to be drawn as enhanced compensation (5)| |---|---|---|---|---| |Loss of dependency|Rs.2,08,000/-|Rs.5,59,944/-|-|Rs.3,51,944/-| |Loss of love and affection & loss of consortium|Rs.30,000/-|Rs.80,000/- (40000x2)|-|Rs.50,000/-| |Funeral expenses|Rs.3,000/-|Rs.15,000/-|-|Rs.12,000/-| |Loss of estate|-|Rs.15,000/-|-|Rs.15,000/-| |Pain and suffering|Rs.5,000/-|-|Rs.5,000/ -|-| |Transportation expenses|-|Rs.5,000/-|-|Rs.5,000/-| ||Total||Rs.5,000/ -|Rs.4,33,944/-| |Enhanced compensation (433944-5000)||||**Rs.4,28,944/-**| 15. In the result, the appellants are entitled to get enhanced compensation of Rs.4,28,944/-. As already stated, respondents 4 to 6 are ex parte before the Tribunal as well as before the appellate court and they have not put forward any **MACA No.131 of 2011** **8** claim of compensation on the death of Sri.Purushothaman. Regarding the 2[nd] appellant also, he is the major son of the deceased Purushothaman, and strictly speaking, he is not a dependent. So, from the award amount, a lumpsum amount of Rs.1 lakh can be given to the 2[nd] appellant including the parental consortium of Rs.40,000/- and the remaining amount with interest will go to the 1[st] appellant-the wife of the deceased. The 3[rd] respondent/insurer is directed to deposit a lumpsum amount of Rs.1 lakh in the Bank Account of the 2[nd] appellant, and the remaining amount with interest (interest for the whole amount) @ 7% per annum from the date of petition till the date of deposit (excluding the period from 25.09.2008 till 03.03.2010 during which period the O.P was lying dismissed, and also for 42 days of delay in filing the appeal), in the Bank Account of the 1[st] appellant, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 **MACA No.131 of 2011** **9** after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp