Fousy w/o Late Nabi and others v. C.B. Manzoor and others

MACA NO. 175 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943** **MACA NO. 175 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1665/2005 OF THE MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/S:** 1 FOUSY,W/O.LATE NABI, AGED 41 YEARS RESIDING AT KUNNAMMEKKUDIYIL HOUSE,, VELLOORKUNNAM VILLAGE, KVAVUMKARA KARA,, MUVATUPUZHA. 2 NIHALA (MINOR) AGED 17 YEARS (DOB 13.3.1992) D/O.LATE NABI, RESIDING AT KUNNAMMEKKUDIYIL HOUSE,, VELLOORKUNNAM VILLAGE, KVAVUMKARA KARA,, MUVATUPUZHA REPRESENTED BY MOTHER FOUSY,, W/O.LATE NABI,DO. 3 NIHAL (MINOR) AGED 15 YEARS (DOB 27-6-1994), S/O.LATE NABI, RESIDING AT KUNNAMMEKKUDIYIL HOUSE,, VELLOORKUNNAM VILLAGE, KVAVUMKARA KARA,, MUVATUPUZHA REPRESENTED BY MOTHER FOUSY,, W/O.LATE NABI,DO. BY ADVS. SRI.A.K.SRINIVASAN SRI.A.S.BENOY SRI.JIMMY GEORGE ## **RESPONDENT/S:** 1 C.B.MANZOOR, S/O. BASHURUDEEN, CHUNKASSERIL HOUSE,PADA NORTH,KARUNAGAPPILLY,, KOLLAM. 2 SANJAYANATH SO.RAMAKRISHNA PILLAI ASHA BHAVAN, EDAKKULANGARA,KARUNAGAPPALLY. 3 THE ORIENTAL INSURANCE CO.LTD. MULLACKAL, ALLEPPEY. MACA NO. 175 OF 2010 2 - 4 HYDER (DIED) S/O.EBRAHIM, KUNNAMMEKKUDIYIL HOUSE,, VELLOORKUNNAM VILLAGE,KAVUMKARA KARA,, MUVATTUPUZHA. - 5 ALEEMA WO.LATE HYDER KUNNAMMEKUDIYIL HOUSE,VELOORKUNNAM VILLAGE,, KAVUMKARA KARA, MUVATTUPUZHA. - 6 EBRAHIM KAREEM SO.LATE HYDER KUNNAMMEKUDIYIL HOUSE,VELOORKUNNAM VILLAGE,, KAVUMKARA KARA, MUVATTUPUZHA. - 7 SUHARA HYDER DO.LATE HYDER KUNNAMMEKUDIYIL HOUSE,VELOORKUNNAM VILLAGE,, KAVUMKARA KARA, MUVATTUPUZHA. BY ADV TITUS MANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 175 OF 2010 3 ## **JUDGMENT** The appellants were the petitioners 1 to 3 in OP(MV) No.1665/2005 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The respondents 1 to 3 in the appeal were the respondents 1 to 3 before the Tribunal and the respondents 4 to 7 were the petitioners 4 to 7 before the Tribunal. The parties are, for the sake of convenience, referred to as per the 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 Nabi (deceased), husband of the 1[st] petitioner, father of the petitioners 2 and 3 and the son of the petitioners 4 and 5. During the pendency of the claim petition the 4[th] respondent died and his legal representatives were impleaded as the additional petitioners 6 and 7. It was the case of the petitioners that, on 17.07.2005, while the deceased was driving his car bearing registration No.KL-17A-5297 from Ernakulam to Alappuzha, a bus bearing registration MACA NO. 175 OF 2010 4 No.KL-2F-6399 (bus), driven by the 2[nd] respondent in a rash and negligent manner hit the car of the deceased. The deceased sustained fatal injuries and lost his life instantaneously. The deceased was a businessman by profession and was earning a monthly income of Rs.7,500/-. The bus was owned by the 1[st] respondent and insured with the 3[rd] respondent. The petitioners were the dependents of the deceased. Hence, the petitioners claimed a compensation of Rs.8,80,000/- from the respondents, which claim was limited to Rs.8,00,000/-. 3. The wife of the deceased i.e., the 1[st] petitionerhad filed OP(MV) No.1668/2005, the sister of the 1[st] petitioner had filed OP(MV) No.1666/2005 and the child of the petitioner in OP(MV) No.1666/2005 had filed OP(MV) No.1654/2006 before the same Tribunal, seeking compensation from the respondents, on account of the injuries sustained in the same accident. 4. The respondents 1 and 2 did not contest the above proceedings. MACA NO. 175 OF 2010 5 5. The 3[rd] respondent had filed a written statement contending that the accident occurred due to the negligence of the deceased. The 3[rd] respondent also disputed the age, income and occupation of the deceased as well as the other petitioners. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The petitioners in all the claim petitions produced and marked Exts.A1 to A20 in evidence. The hospital records were summoned and marked as Exts.X1 and X2. 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 petitioners to recover from the 3[rd] respondent an amount of Rs.5,34,000/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in MACA NO. 175 OF 2010 6 appeal. 10. Heard; Sri. A.S. Benoy, the learned counsel appearing for the appellants/petitioners 1 to 3 and Sri. Titus Mani, the learned counsel appearing for the 3[rd] respondent/insurer. 11. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 12. Ext.A5 final report filed by the Mararikulam Police in Crime No.220/2005 substantiates the fact that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Ext.A5 final report. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. MACA NO. 175 OF 2010 7 ## **Income** 13. The petitioners had claimed that the deceased was a businessman and was earning a monthly income of Rs.7,500/-. Even though the petitioners had produced Ext.A11 income tax acknowledgment to prove that the deceased had an income of Rs.58,000/for the assessment year 2003-04, since the said document was not corroborated, the Tribunal fixed the notional monthly income of the deceased at Rs.4,500/-. The course adopted by the Tribunal is correct and justifiable. 14. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional monthly income of a coolie worker in the year 2004 at Rs.4,500/-. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I refix the notional monthly income of the deceased at Rs.5,000/-, which is higher MACA NO. 175 OF 2010 8 than the amount reflected in Ext.A11. ## **Multiplier** 16. The deceased was aged 48 years at the time of the accident/death. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '13'. ## **Personal living expenses** 17. It is proved and established as per Ext.A9 legal heirship certificate that the petitioners 1 to 3 and 5 are the wife, children and mother of the deceased. They are four in number and considered to be the dependents of the deceased. Therefore, as per law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one fourth of the compensation has to be deducted towards the 'personal living expenses' of the deceased. ## **Future Prospects** 18. Following the ratio in **Sarla Varma** and MACA NO. 175 OF 2010 9 **Pranay Sethi** (supra) and considering the fact that the deceased was aged 48 years at the time of the accident/death, the petitioners 1 to 3 and 5 are entitled to 'future prospects' at 25%. ## **Loss due to Dependency** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.5,000/-, the multiplier at 13, future prospects at 25% and after deducting one fourth of the compensation towards the personal living expenses of the deceased, I refix the compensation for ‘loss of dependency’ at Rs.7,31,250/-, instead of Rs.4,68,000/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 20. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **Pranay Sethi** (supra) has 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/ respectively. It is also observed that the conventional MACA NO. 175 OF 2010 10 heads of compensation have to be enhanced every three years by 10%. 21. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 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 has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accident. Thus, it is to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, I hold that the petitioners 1 to 3 and 5 are entitled to an amount of Rs.16,500/towards ‘funeral expenses’, Rs.16,500/- towards ‘loss of estate’ and Rs.44,000/- towards ‘loss of consortium’. Accordingly, I award the appellants MACA NO. 175 OF 2010 11 and the 5[th] respondent/petitioners 1 to 3 and 5 – the dependents of the deceased a further amount of Rs.11,500/- towards ‘funeral expenses’, a further amount of Rs.14,000/- towards ‘loss of estate’ and a further amount of Rs.1,61,000/- towards ‘loss of consortium’ viz. Rs.44,000/- each to the petitioners 1 to 3 and 5. ## **Love and affection** 22. The Tribunal has awarded an amount of Rs.15,000/- towards loss of love and affection to the petitioners 2 and 3 and an amount of Rs.6,000/- to the 5[th] petitioner. 23. In **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644], the Hon'ble 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 awarded under the head 'loss of love and affection'. MACA NO. 175 OF 2010 12 ## **Other heads of compensation** 24. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 25. 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 petitioners 1 to 3 and 5/appellants and the 5[th] respondent are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. **==> picture [452 x 303] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>awarded by modified<br>No the and<br>Tribunal(in recalculated<br>rupees) by this<br>Court(in<br>rupees)<br>1. Transportation 2,000 2,000<br>expenses<br>2. Damage to 500 500<br>clothing<br>3. Funeral 5,000 16,500<br>expenses<br>4. Pain and 5000 5,000<br>suffering<br>5. Loss of love and 21,000 0<br>affection<br>**----- End of picture text -----**<br> MACA NO. 175 OF 2010 13 **==> picture [452 x 156] intentionally omitted <==** **----- Start of picture text -----**<br> 6. Loss of estate 2,500 16,500<br>7. Loss of 15,000 1,76,000<br>consortium<br>8. Loss of 4,68,000 7,31,250<br>dependency<br>Total 5,34,000 9,47,750<br>**----- End of picture text -----**<br> 26. Even though the petitioners had claimed only an amount of Rs.8,00,000/- as compensation, in view of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), I have awarded the appellants and the 5[th] respondent future prospects and compensation under the conventional heads. Therefore, the compensation awarded has exceeded the claim in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)] . In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.4,13,750/- with interest on the enhanced MACA NO. 175 OF 2010 14 compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 261 days, i.e the period of delay in filing the appeal and as ordered by this Court on 22.10.2021 in C.M.Appln. No.1/2010, and proportionate cost. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall, after deducting the liability of the petitioners 1 to 3 and 5/appellants and the 5[th] respondent, if any, towards the balance court fee, disburse the compensation amount to the appellants and the 5[th] respondent in the ratio of 30:30:30:10 and in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc