Francis S/o Ouseph and Martha W/o Francis and Alphonsa D/o Francis v. V.V. Kuriyakose Vakkanampadathil House; Bino V.K.; Oriental Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 MACA NO. 2286 OF 2012** **AGAINST THE AWARD DATED 22.05.2012 IN OPMV 129/2005 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANTS/PETITIONERS:** 1 FRANCIS S/O.OUSEPH, CHIRIYANKANDATH HOUSE, P.O.MULLURKKARA, THRISSUR. 2 MARTHA W/O.FRANCIS, CHIRIYANKANDATH HOUSE, P.O.MULLURKKARA, THRISSUR. 3 ALPHONSA D/O.FRANCIS, CHIRIYANKANDATH HOUSE, P.O.MULLURKKARA, THRISSUR. BY ADVS. SRI.V.BINOY RAM SMT.SAJITHA P.SOMAN ## **RESPONDENTS/RESPONDENTS:** - 1 V.V. KURIAKOSE VAKKANAMPADATHIL HOUSE, MAROTTICHAL, THRISSUR, PIN-680014. - 2 BINO V.K. S/O.KURIAKOSE, VAKKANAMPADATHIL HOUSE, MAROTTICHAL, THRISSUR, PIN-680014. - 3 THE ORIENTAL INSURANCE COMPANY LTD. BRANCH OFFICE, CITY HEIGHTS BUILDING, SOUTH JUNCTION, CHALAKUDY, PIN-680307. ## **MACA NO. 2286 of 2012 2** BY ADVS. SRI.A.R.GEORGE SRI.JEN.V.KURIAKOSE SRI.M.P.RAMNATH SRI.P.RAJESH KOTTAKKAL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2286 of 2012 3** ## **JUDGMENT** **Dated this the 28[th] day of February, 2022** The appellants were the petitioners in O.P (MV) No.129/2005 on the file of the Motor Accidents Claims Tribunal, Thrissur. 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 Ouseph (deceased) – the son of appellants 1 and 2 and the brother of the third appellant. It was their case that, on 23.09.2004, while the deceased was riding his scooter bearing registration No. KL 8/J 2259 through the Wadakkanchery-Shornur public road, a van bearing registration No. KL-8/C 3918, driven by the second respondent in a negligent manner, hit the scooter of the ## **MACA NO. 2286 of 2012 4** deceased. The deceased sustained fatal injuries and lost his life on 27.09.2004 at the Aswini Hospital, Thrissur. The van was owned by the first respondent and insured with the third respondent. The deceased was a Civil Engineer by profession and earning a monthly income of Rs.6000/-. The appellants were the dependents of the deceased. Hence, the appellants claimed a total compensation of Rs.10,26,000/- from the respondents, which claim was limited to Rs.8,00,000/-. 3. The first respondent did not contest the proceeding and was set exparte. 4. The respondents 2 and 3 had filed separate written statements, inter aila, denying the allegations in the claim petitions. The third respondent had contended that the accident occurred due to the negligence of the deceased. The third respondent also disputed the age, income and occupation of the deceased. 5. The appellants had produced and marked Exhibits A1 to A14 in evidence. The third respondent had produced the insurance policy of the van, which was ## **MACA NO. 2286 of 2012 5** marked as Exhibit B1. 6. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the third respondent an amount of Rs.3,25,500/- with interest. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. Binoy Ram V., the learned counsel appearing for the appellants/petitioners and Sri. A.R. George, the learned counsel appearing for the third respondent /insurer. 9. The point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exhibit A1 FIR, A6 FI Statement read with Exhibit A4 scene mahazer and A5(a) AMVI report prove that the accident was caused due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer ## **MACA NO. 2286 of 2012 6** of the van. The respondents have not let in any evidence to discredit the above police records. The respondents have also not controverted the pleadings of the appellants. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. Exhibit A13 and Exhibit A14 certificates prove that the deceased was a Engineer by profession. Exhibit A9 is the income tax assessment report. However, the Tribunal, fixed the notional monthly income of the deceased at Rs.4500/-. 12. In **Chameli Devi and others v. Jivrail Mian and others** [2019 KHC 5352], the Honourable Supreme Court has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5000/-. Likewise, in **National Insurance Company Ltd. v. Fathimath Zuhara** [2016 (3) KLT 459], this Court has fixed the notional monthly income of a Engineering student in year 2005 at Rs.12000/- . ## **MACA NO. 2286 of 2012 7** 13. Following the yardsticks in the afore-cited decisions and considering the fact that the accident occurred in the year 2004, I re-fix the notional monthly income of the deceased at Rs.6000/-, as claimed in the claim petition. ## **Multiplier** 14. The deceased was aged 33 years at the time of accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier is ‘16’. ## **Personal living expenses of the deceased** 15. It is proved and established that the deceased was a bachelor at the time of his death. In the light of the law laid down in **Sarala Verma** (Supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], one half of the compensation has to be deducted towards the personal living expenses of the deceased. ## **MACA NO. 2286 of 2012 8** ## **Future prospects.** 16. Following the principles in **Sarala Verma** and **Pranay Sethi** (Supra) and considering the fact that the deceased was aged 33 years at the time of his death, I hold that the appellants are entitled to future prospects @ 40%. ## **Loss due to dependency** 17. Taking into account the above mentioned factors, namely, the monthly income of the deceased at 6000/-, the multiplier at ‘16’, future prospects at 40% and after deducting one half of the compensation towards personal living expenses of the deceased, I award the appellants an amount of Rs.8,06,400/- towards 'loss of dependency', instead of Rs.2,43,000/- awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 18. In paragraph 59.8 of **Pranay Sethi (supra)** it is 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/- per dependent, ## **MACA NO. 2286 of 2012 9** respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 19. 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, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. ## **MACA NO. 2286 of 2012 10** 20. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- each under the heads 'funeral expenses' and ’loss of estate’. 21.Following the parameters laid down in the aforecited decisions, I award the appellants a further amount of Rs.11,500/- each to the above said heads. Likewise, I award the appellants 1 and 2 – the parents of the deceased an amount of Rs.44,000/- each towards ‘loss of consortium’, totalling to an amount of Rs.88,000/-. ## **Loss of love and affection** 22. The Tribunal has awarded an amount of Rs.15000/- under the head ‘loss of love and affection’. 23. In **New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644]** the Honourable 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 of Rs.15,000/- awarded under the head 'loss of love and affection'. **MACA NO. 2286 of 2012 11** ## **Pain and sufferings** 24. The Tribunal has awarded an amount of Rs.27,000/- under the head ’pain and sufferings’. 25. In paragraph 19 of **Sarla Varma** (supra), the Honourable Supreme Court has held that no amount shall be awarded to the dependents of the deceased under the head 'pain and sufferings' in the case of instantaneous death. In the present case, as the deceased had lost his life only after four days after the accident, I award the appellants an amount of Rs.10,000/- under the head. 26. With respect to the compensation awarded under the heads ‘transportation expenses’, ‘medical expenses’ and ‘by-stander expenses’, I find that the Tribunal has awarded reasonable and just compensation. 27. 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 appellants /petitioners are entitled for enhancement of ## **MACA NO. 2286 of 2012 12** compensation as modified and recalculated above, and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation|500|500| |2|Medical<br>expenses|29244|29244| |3|By-stander<br>expenses|750|750| |4|Funeral expenses|5000|16500| |5|Pain and<br>sufferings|27000|10000| |6|Loss of love and<br>affection|15000|0| |7|Loss of estate|5000|16500| |8|Loss of<br>consortium|15000|88000| |9|Loss of<br>dependency|243000|806400| ||Total|325494<br>rounded off to<br>Rs.325500|967894| ## **MACA NO. 2286 of 2012 13** 28. Even though the appellants had claimed only an amount of Rs.8,00,000/- as compensation, I have awarded more compensation than what is claimed in the claim petition, following the principles in **Sarla Verma** and **Pranay Sethi** (supra), by awarding them future prospects as well as compensation under the conventional heads. The said 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.6,42,394/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 52 days i.e. the period of delay in filing the appeal and as ordered by this Court on 10.11.2021in C.M.Application 1/2012, and proportionate cost. The third respondent is ordered to deposit the enhanced compensation with interest and proportionate cost before the Tribunal within sixty days from the date **MACA NO. 2286 of 2012 14** of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants, after deducting their liability towards court fee, in the ratio of 40:40;20, and in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/28/02/2022