Fathimabevi and Others v. Santhi, Senthalkumar and The Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **MACA NO. 2297 OF 2013** **FROM THE AWARD DATED 01.10.2012 IN OPMV 740/2010 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANTS/PETITIONERS:** **1 FATHIMABEEVI AGED 52 YEARS W/O.LATE YAHAYA, YAHAYA VEEDU, KATTAYAM STREET, PUDUNAGARAM (P.O.), PUDUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT. 2 MUHAMMED IKBAL AGED 34 YEARS** **S/O.LATE YAHAYA, YAHAYA VEEDU, KATTAYAM STREET, PUDUNAGARAM (P.O.), PUDUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT.** **3 MUHAMMED NASEER AGED 32 YEARS S/O.LATE YAHAYA, YAHAYA VEEDU, KATTAYAM STREET, PUDUNAGARAM (P.O.), PUDUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT.** - **4 MUHAMMED SABEER AGED 29 YEARS** **S/O.LATE YAHAYA, YAHAYA VEEDU, KATTAYAM STREET, PUDUNAGARAM (P.O.), PUDUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **5 MUHAMMED SADAKKATHULLA AGED 27 YEARS** **S/O.LATE YAHAYA, YAHAYA VEEDU, KATTAYAM STREET, PUDUNAGARAM (P.O.), PUDUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** **MACA NO. 2297 OF 2013** **2** ## **RESPONDENTS/RESPONDENTS:** - **1 SANTHI** **W/O.SUNDARARAJAN, SOUTH PAVADY, KOLLENGODE, PALAKKAD-678101.** - **2 SENTHALKUMAR AGED 39 YEARS** **S/O.ARASU, ANAMARIKALAM, MUNDIYAMPARAMBU, ANAMARI, KOLLENGODE, PALAKKAD-678101.** - **3 THE ORIENTAL INSURANCE CO.LTD.** **SHOBHA TSM COMPLEX, OPP.TOWN RAILWAY STATION, PALAKKAD TOWN, PALAKKAD DISTRICT-678101.** **BY ADVS.** **SRI.GEORGE CHERIAN THIRUVALLA SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **SMT.K.S SANTHI-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2297 OF 2013** **3** ## **J U D G M E N T** Appellants are the claimants in O.P.(MV) No. 740/2010 on the file of the Principal Motor Accidents Claims Tribunal, Palakkad. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation due to the death of Yahaya. The claimants are the wife and children of deceased. 2. The case of the claimants are follows; On 03.03.2010, at about 10.15 am, the deceased Yahaya as pedestrain was proceeding through the Palakkad- Yakkara public road. When he reached near Palat Hospital, Palakkad, the bus bearing Registration No. KL-9X/8677 driven by the 2nd respondent in rash and negligent manner hit the deceased. Due to the accident, the deceased sustained serious injuries. He was taken to District Hospital, Palakkad and thereafter taken to Kovai Medical Centre, Coimbatore, but he succumbed to the injuries. It is alleged that the accident happened due to the rash and negligent driving of 2nd respondent. The 1st respondent is **MACA NO. 2297 OF 2013** **4** the owner of the vehicle. The 3rd respondent is the insurer of the vehicle. A total compensation of Rs. 4,50,000/- has been claimed. 3. Before the Tribunal, the 1st and 2nd respondents remained ex-parte. 4. The 3rd respondent filed written statement admitting the policy coverage with respect to the offending vehicle involved in the accident; however, denied negligence alleged against the driver of the vehicle. It is contended that there is violation of policy conditions, since the 2nd respondent was not having valid driving license at the time of accident, but the issuance of policy with respect to the offending vehicle is not expressly denied in the written statement also. The compensation claimed under various heads are also challenged. 5. Exts.A1 to A13 were marked from the side of the claimants, there was no oral evidence on either side. The Tribunal on evaluation of the pleadings and other materials found that the accident happened due to the rash and negligent driving of the bus by the 2nd respondent and the 3rd respondent is liable to indemnify the 1st respondent as per the contract of **MACA NO. 2297 OF 2013** **5** insurance. Total compensation of Rs.1,84,500/- has been awarded. 6. Aggrieved by the quantum of compensation awarded by the Tribunal under various heads, the claimants are before this Court in appeal. 7. Notice to 1st and 2nd respondents dispensed with at the risk of appellants. The 3rd respondent appeared through Adv. K.Santhy. 8. Heard the learned counsel for the appellants as well as the learned Standing counsel for the insurer. Lower court records were called for and perused. 9. The compensation awarded by the Tribunal under various heads are as follows: **==> picture [319 x 168] intentionally omitted <==** **----- Start of picture text -----**<br> Compensation allowed at Amount awarded<br>different heads Rs.<br>Loss of dependency 1,57,500/-<br>Loss of consortium 10,000/-<br>Loss of love and affection 10,000/-<br>Loss of estate 5,000/-<br>Funeral Expenses 2,000/-<br>Total 1,84,500/-<br>**----- End of picture text -----**<br> **MACA NO. 2297 OF 2013** **6** 10. According to the learned counsel for the appellants, the claimant was a coolie and he claimed a monthly income of Rs.6,000/- per month. But the Tribunal taken it as Rs.2,500/which according to him is very low. It is also contended the compensation awarded for loss of dependency as well under the conventional heads are very low and hence seeks for enhancement on the above heads. 11. The learned Standing Counsel for the insurer on the other hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no interference is called for at the instance of this Court in this appeal. 12. No document as such has been produced to prove the actual income of the claimant. A coolie as per **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court reckoned fixed the monthly income of a coolie who met with accident in the year 2004 at the age of 35 as Rs.4,500/-. 13. In **Syed Sadiq v. Divisional Manager, United** **MACA NO. 2297 OF 2013** **7** **India Insurance Co. Ltd. [(2014) 2 SCC 735],** Apex Court while dealing with an appeal which arose out of an accident occurred on 14-08-2008 taken the monthly income of vegetable vendor aged about 24 years as Rs.6,500/-. 14. In the present case, the accident occurred in the year 2010. The deceased was aged 58 years old the Tribunal taken the age as 65 as per the postmortem certificate. No other documents were also produced from the side of the appellants/ claimants to prove the actual age. So, the age as 65 years taken by the Tribunal is to be approved and the monthly income of the deceased claimed as Rs. 6,000/- can also be approved since the accident was in the year 2010. 15. In **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain **MACA NO. 2297 OF 2013** **8** hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 16. In **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. **MACA NO. 2297 OF 2013** **9** 17. The claimants are the wife and children of the deceased. Since the deceased was 65 years old, no addition can be given towards the future prospects. The monthly income of the deceased has already been taken as Rs.6,000/- claimants are 5 in number. Hence, as per Sarala Varma approved by Pranay Sethi 1/4th to be deducted towads personal and living expenses. 18. The multiplier as per **Sarla Verma's** case (Supra) followed by **Pranay Sethi’s** Case is ‘7’. So, the amount would be Rs.6,000x12x7=Rs.5,04,000/-. Deducting the amount towards personal and living expense of the deceased i.e Rs. 1,26,000/- (Rs. 5,04,000X1/4), the balance amount would be Rs. 3,78,000/-. The Tribunal already awarded Rs. 1,57,500/-. Deducting that amount, enhanced compensation towards loss of dependency is Rs. **2,20,500/-** . 19. Next aspect is the compensation under the conventional heads. In Pranay Sethi Constitution bench fixed the compensation under the convenional heads, as Rs.15,000/each towards loss of estate and funeral expenses and Rs.40,000/- towards loss of consortium. That has been followed **MACA NO. 2297 OF 2013** **10** in **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. [2018 (18) SCC 130]** with an expansion of consortium as 'spousal consortium', 'parental consortium' and 'filial consortium'. In Pranay Sethi, Apex Court has also directed 10% escalation of the above amount in every three years. Following that **Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024]** Apex Court awarded 10% enhancement to the conventional heads taking into account the directions in Pranay Sethi. According to the learned counsel, Rs.5,000/- alone has been awarded towards the loss of estate and Rs. 2,000/- towards the funeral expense. As per the above settled position claimants are entitled to Rs.16,500/- each under the head of loss of estate as well as the funeral expense that is in total Rs. 33,000/- From that amount already awarded by the Tribunal to be deducted Rs. 33,000-7,000 the balance would be **Rs.26,000** /-. Under the head of Consortium 1[st] claimant wife is entitled to get Rs. 44,000/-. Children are grown up and hence not entitled to get any amount under the head of consortium. Rs.10,000/- awarded by the Tribunal towards consortium to be deducted. Hence, **MACA NO. 2297 OF 2013** **11** claimants are entitled to get Rs.44,000-10,000 that **Rs.34,000** /- towards loss of consortium. Towards damage to clothing no amount has been awarded and Rs.500/- is awarded to damage to clothing. The learned counsel also contended that the accident occurred near Palat Hospital, Palakkad and the deceased was taken to District Hospital and thereafter taken to Kovai Medical Centre, Coimbatore and had to take back to the native place also. No amount seen awarded towards transportation expenses. Hence, an amount of Rs. **3,000/** - is seems to be reasonable towards transportation. So the claimants are entitled to get enhanced an amount of Rs. 2,20,500+63,500 (26,000+ 34,000+ 3000 +500) = Rs.2,84,000/-. 20. In the result, the appellants are allowed to realise enhanced compensation of **Rs.2,84,000/- (Rupees Two lakh eighty four thousand only)** which will carry interest at the rate of 7.5% per annum from the date of petition (excluding 152 days delay caused in filing the appeal) till realisation. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, **MACA NO. 2297 OF 2013** **12** within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability of the appellants/claimants towards Balance Court Fee. 21. The disbursement of enhanced compensation to appellants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. 22. The appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. In the result appeal stands allowed. Parties shall bear their respective costs. Sd/- ## **M.R.ANITHA JUDGE** LU