Doney and Soney v. John Jacob and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 MACA NO. 1850 OF 2010** **AGAINST THE COMMON AWARD DATED 31.12.2009 IN O.P.(MV) NO.1026/2003 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM. APPELLANTS/PETITIONERS:** **1 DONEY, AGED 28 YEARS, S/O. OF LATE MICHEAL** **2 SONEY, AGED 30 YEARS, D/O.LATE MICHEAL** **BOTH APPELLANTS ARE RESIDING AT PALLIPARAMBIL HOUSE, MARADU P.O., MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT,PIN 682 304.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI** ## **RESPONDENTS/RESPONDENTS:** **1 JOHN JACOB, KALLARAKKAL HOUSE,** **S.PARUR,ERNAKULAM DISTRICT, PIN-682 320.** **2 THE NATIONAL INSURANCE COMPANY LIMITED, D.O.ERNAKULAM,COCHIN-682 016.** - **3 THE MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION(TNSTC) LIMITED, BYPASS ROAD, DINDIGUL, TAMIL NADU.** **MACA NO. 1850 OF 2010** -2- **4 P.VELUSAMI, S/O.PERUMAL SAMI, MELA STREET, KANDAMANNUR P.O., ANDIPATTI TALUK, THENI DISTRICT, TAMILNADU.** **BY ADVS. SRI.ASOK M.CHERIAN SRI.T.R.RENJITH SMT.S.RAKHEE SMT.SARAH SALVY SRI.VARGHESE PREM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1850 OF 2010** -3- ## **JUDGMENT** The appellants were the petitioners in O.P (MV) No.1026/2003 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 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 Jojo (deceased) – who was the brother and sister of the petitioners 1 and 2. The petitioners had averred in the claim petition that, on 09.03.2003, while the deceased was travelling with other passengers in a tempo traveller vehicle bearing registration No.KL-07/H-608 driven by one Riju Antony along the TrichyDindigul Road, when the vehicle reached TN Paraipatti Parivu, it hit against a Tamil Nadu State Transport Corporation Bus which was coming from the opposite side **MACA NO. 1850 OF 2010** -4- and driven by the 4[th] respondent. The deceased sustained fatal injuries and lost his life. The accident occurred due to the negligence on the part of the driver of the tempo traveller. The tempo traveller was owned by the 1[st] respondent and insured with the 2[nd] respondent. The bus was owned by the 3[rd] respondent and driven by the 4[th] respondent. The petitioners claimed a total compensation of Rs.5,50,000/- from the respondents. 3. The 2[nd] respondent filed a written statement, inter alia, contending that the tempo traveller did not hold a valid fitness certificate and as per the permit, the vehicle was only licenced to carry 14 passengers, but there were 19 passengers in the vehicle. Hence, the 1[st] respondent has violated the policy conditions and, therefore, the 2[nd] respondent is to be exonerated of its liability. It was also stated that the petitioners 1 and 2 – the brother and the sister of the deceased – were not dependent on him. Thus, ## **MACA NO. 1850 OF 2010** -5- their claim for loss of dependency was unsustainable in law. The 2[nd] respondent prayed that the claim petition be dismissed. 4. The other injured as well as the legal representatives of the deceased passengers who were travelling in the tempo traveller also filed claim petition before the Tribunal. 5. The Tribunal consolidated and jointly tried all the claim petitions. 6. The petitioners in all the cases produced and marked Exts.A1 to A32 in evidence. The respondents produced and marked Exts.B1 to B6. 7. The Tribunal by its common award allowed the claim petition filed by the petitioners in the captioned case, by permitting the petitioners to realise an amount of Rs.96,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 2[nd] ## **MACA NO. 1850 OF 2010** -6- respondent was directed to pay and recover the compensation following the decision in **National Insurance Co. Ltd. v. Anjana Shyam** [2007 (3) KLT 993 (SC)]. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard Smt.Rajani K.N., the learned counsel appearing for the appellants/petitioners, Sri.Rajan P. Kaliyath, the learned counsel appearing for the 2[nd] respondent and Sri.T.R.Renjith, the learned counsel appearing for the 1[st] respondent. 10. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. Ext.A4 charge sheet filed by Vadamadurai Police in Crime No.47 of 2003 clearly substantiates that the accident was caused on account of the negligence of the **MACA NO. 1850 OF 2010** -7- deceased driver of the tempo traveller. The tempo traveller was owned by the 1[st] respondent and insured with the 2[nd] respondent. Therefore, the 2[nd] respondent is liable to indemnify the liability of the 1[st] respondent subject to the policy conditions. 12. The petitioners had claimed that the deceased was a mason by profession earning a monthly income of Rs.3,900/- per month. The Tribunal fixed the notional income of the deceased at Rs.1,800/- per month. 13. 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. ## **Notional Income** 14. In view of the ratio in the afore cited decision and taking into account the fact that the accident occurred in **MACA NO. 1850 OF 2010** -8- the year 2003, I re-fix the notional income of the deceased at Rs.4,000/- per month. ## **Multiplier** 15. The deceased was aged 18 years as on the date of accident. In light of the law laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier is '18'. ## **Personal living expenses of the deceased** 16. Undisputedly, the deceased was a bachelor. As held in **Sarala Verma** and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** 1/2[th] of the total compensation awarded for loss of dependency has to be deducted towards personal living expenses of the deceased, as he was a bachelor, which I do. ## **Future prospects** 17. In **Sarla Verma** and **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the ## **MACA NO. 1850 OF 2010** -9- deceased are entitled for future prospects at 40%, if the multiplier is '18'. In such circumstances, I hold that the dependents of the deceased are entitled to future prospects at 40%. ## **Loss of dependency** 18. As the appellants were only aged 21 and 23 years at the time of death of the deceased, who was their brother and a mason by profession, as found by the Tribunal, I hold that the appellants were dependents on their working brother. Taking into account the above factors, i.e, the monthly income of the deceased fixed at Rs.4,000, the multiplier at 18, future prospects at 40% and deducting 50% of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.4,53,600/- instead of Rs.72,000/awarded by the Tribunal. ## **Conventional heads of compensation** 19. In clause (viii) of paragraph 61 of **Pranay Sethi** **MACA NO. 1850 OF 2010** -10- (supra), the Hon'ble Supreme Court has held that the dependents 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. 20. In the instant case, the Tribunal has awarded only an amount of Rs.5,000/- under the head 'funeral expenses'. Therefore, I enhance the compensation under the said head by a further amount of Rs.15,000/-. 21. It is seen that the Tribunal has not awarded any amount under the head 'loss of estate'. Hence, I award an amount of Rs.15,000/- under the head 'loss of estate'. As the petitioners were the brother and sister of the deceased, I hold that they are not entitled for any amount under the head 'loss of consortium'. ## **Loss of love and affection and pain and suffering** 22. The Hon'ble Supreme Court in **United India** **MACA NO. 1850 OF 2010** -11- **Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur and others** [2020(3) KHC 760] has held that the dependents of the deceased are not entitled for any compensation under the head 'pain and suffering'. Hence, I set aside the amount of Rs.5,000/- awarded under the said head. 23. In **New India Assurance Co. Ltd. v. Somwati and others** [(2020) 9 SCC 644], the Hon'ble Supreme Court has held that once the compensation is awarded under the head 'loss of consortium', no amount of compensation can be awarded under the head 'loss of love and affection', as it would amount to overlapping or duplication of compensation. In such circumstances, 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 laid down in **MACA NO. 1850 OF 2010** -12- the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |**SL.**<br>**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|Transportation expenses|4,000|4,000| |2.|Funeral expenses|5,000|15,000| |3.|Pain and suffering|5,000|---| |4.|Loss of love and affection|10,000|---| |5.|Loss of estate|---|15,000| |7|Loss of dependency|72,000|4,53,600| ||**Total**|**96,000**|**4,87,600**| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.3,91,600/(Rupees three lakh ninety one thousand six hundred** **only)** with interest at the rate of 6% per annum on **MACA NO. 1850 OF 2010** -13- enhanced compensation from the date of petition till the date of deposit. The 2[nd] respondent is ordered to deposit the enhanced compensation with interest before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation with interest to the appellants in equal shares. The 2[nd] respondent is at liberty to recover the amount from the respondents in accordance with law and subject to the directions already passed by this Court in the connected appeals and the subsequent orders passed by the Tribunal. Sd/- **C.S.DIAS JUDGE** bpr