Hamsath and others v. P. Moorthy and B. Ponperumal and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** ## **MACA NO. 972 OF 2013** **(OPMV 59/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA,** **DATED 10.10.12)** ## **APPELLANTS/PETITIONERS:** 1 HAMSATH, W/O.HAMSAKUTTY, PALLIPPURAYIDAM, SEA VIEW WARD, ALAPPUZHA. 2 JUBAIRETH D/O.HAMSAKUTTY, OF --DO--, --DO-3 SAJITHA D/O.HAMSAKUTTY, OF --DO--, --DO-4 NAZAR S/O.HAMSAKUTTY, OF --DO--, --DO-5 SHEEJA, D/O.HAMSAKUTTY, KUNNAYYATH, ERUVA.P.O., KAYAMKULAM. 6 SHAHNA MINOR REP. BY GUARDIAN THE IST PETITIONER. BY ADVS. SRI.RASHEED C.NOORANAD SMT.ANITHA M.N. EKM ## **RESPONDENTS/RESPONDENTS:** 1 P.MOORTHY S/O.PANDARAMVILLAI, THREE TOWER, CHENNIL STORE, ANJUGRAMAM JUNCTION, ALAKAPURAM VILLAGE, AGASTHESWARAM TALUK, KANYAKUMARI DISTRICT. 2 B.PONPERUMAL S/O.BHAGAVATHY, NO.91 C, SWAMINATHAPURAM NORTH, AGASTHESWARAM TALUK, KANYAKUMARI DISTRICT. 3 THE MANAGER UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, NAGARCOIL. BY ADV JOHN JOSEPH VETTIKAD SRI.JOHN JOSEPH VETTIKAD-R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.972 of 2013 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P.(MV) No.59/2004 on the file of the Principal Motor Accidents Claims Tribunal, Mavelikkara. 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 Ansar. 1st appellant is the mother of the deceased. Appellants 2 to 5 are the siblings of the deceased and 6th appellant is the minor daughter of the 2nd appellant. 2. It is alleged that the accident occurred on 31.12.2003, while the deceased was walking through Kodimatha bridge, Nattakam, Kottayam, a bus bearing Reg. No.TN-74/F-4739 driven by the 1[st] respondent in a rash and negligent manner, knocked him down resulting in fatal injuries to him and later he succumbed to the injuries. 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. The appellants claimed a total compensation of Rs.12,00,000/-. 3. 3[rd] respondent insurer filed written statement, admitting the policy coverage with respect to the offending vehicle. It is MACA.No.972 of 2013 3 contended that there is violation of policy conditions, since the 1[st] respondent did not have driving license and badge. The claimants are put to stick proof regarding the averments in the claim petition. 4. The mother of the deceased was examined as PW1 and Exts.A1 to A10 series were marked from the side of the appellants/claimants. Tribunal on evaluating the evidence as well as the facts and circumstances found that the accident happened due to the rash and negligent driving of the bus by the 1[st] respondent. 2[nd] respondent owner of the offending vehicle was held liable vicariously and the 3[rd] respondent insurer was directed to make good the loss sustained by the 2[nd] respondent. Tribunal awarded compensation of Rs.2,48,000/-. 5. Dissatisfied with the award passed by the Tribunal, the appellants/claimants (herein after be referred as claimants) came up before this Court in appeal under various grounds stated in the Memorandum of appeal. 6. Notice to 1[st] and 2[nd] respondent is dispensed with at the risk of the appellant. The 3[rd] respondent appeared through Standing Counsel Adv.John Joseph Vettikkad. Heard the learned Counsel for the appellants as well as the learned Standing Counsel for the 3[rd] MACA.No.972 of 2013 4 respondent. Lower court records were called for and perused. 7. According to the learned counsel for the claimants, the accident and the liability of the 3[rd] respondent is not in dispute. The only dispute is with regard to the quantum of compensation awarded by the Tribunal under various heads. 8. The compensation awarded by the Tribunal under various heads are as follows: **==> picture [320 x 390] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>Loss of earnings<br>Loss of earnings (partial)<br>Post mortem and other<br>medical<br>Compensation of loss of<br>support<br>Transportation charges 1,000-00<br>Damage to clothing, etc. Not allowed<br>Pain and sufferings 10,000-00<br>Loss of love and affection 35,000-00<br>Funeral expenses 5,000-00<br>**----- End of picture text -----**<br> MACA.No.972 of 2013 5 **==> picture [320 x 251] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>Loss of dependency income 1,92,000-00<br>Loss of mental agony<br>Any other heads (review<br>statement)<br>Total 2,48,000-00<br>**----- End of picture text -----**<br> 9. According to the learned counsel the deceased was working at Kottayam Iron Traders and he was also doing sale of damaged vehicles and was having monthly income of Rs.4,500/and out of it he used contribute Rs.4,000/- per month to the family. He was the only breadwinner of the family. Tribunal in the absence of convincing evidence to prove the income of the deceased notionally fixed it as Rs.3,000/- per month. It is true that though PW1 gave oral evidence regarding the income and occupation of the deceased, there is no convincing materials produced to prove the actual income of the deceased. ## 10. In **Ramachandrapa v. manager, Royal Sundaram** MACA.No.972 of 2013 6 ## **Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if the claim made is so exorbitant or if the claim made is contrary to ground realities the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 11. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arose out of an accident occurred on 14-08-2008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arose about his monthly income. Following the principles in Ramchandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income MACA.No.972 of 2013 7 of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 12. In the present case, the accident occurred in the year 2003. The deceased was 27 years old bachelor at the time of accident. In view of the above settled principles his monthly income can very well be notionally fixed as Rs.4,000/-. 13. In **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802),** the Apex Court laid down the principles to be followed in determining the quantum of compensation in a case of death out of Motor Vehicle accident. It is held that just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make good the loss sustained by the victim of accident as far as money can do. 14. In **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** constitution Bench of the Apex Court held that Section 168 of the Act deals with the concept of “just compensation” and that has to be determined on the foundation of fairness, reasonableness and equitable on acceptable legal standard because such determination can never be with MACA.No.972 of 2013 8 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. 15. In Sarla Verma's case the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years. 17. In Pranay Sethi's case, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 16. In the present case, the deceased was 27 years old at the time of death. Monthly income of the deceased has already been taken as Rs.4,000/-. Hence, 40% enhancement to be given towards future prospects. Hence, the monthly income would be MACA.No.972 of 2013 9 ## Rs.4,000+1,600 (40% of 4000)=Rs.5,600/-. 17. On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65). 18. Deceased in this case is a bachelor. It has come out from the evidence of PW1 that he was the only breadwinner of the family. The 2nd appellant is a widow, she is living in her parental home. According to PW1 deceased is meeting the treatment expenses of one of his sister's daughter. So, deduction of 1/3 made towards personal and living expenses by the Tribunal is seems to be just and proper and can very well be accepted. So the annual MACA.No.972 of 2013 10 income would be Rs.5,600x12=Rs.67,200/-. From that 1/3 to be deducted towards personal and living expenses ie. Rs.67,00022,333 (1/3 of 67,000). So the annual contribution to the family would be Rs.67,000-22,333=Rs.44,667/-. Since, he was 27 years old at the time of death, the multiplier would be applied '17' as held in **Sarala Varma** approved in **Pranay Sethi.** So the amount towards loss of dependency would be Rs.44,667x17=Rs.7,59,339/-. From that the amount already awarded by the Tribunal to be deducted. Then the balance amount would be Rs.7,59,3391,92,000=Rs.5,67,339/-. 19. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in **Pranay Sethi's** case followed by **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. [2018 (18) SCC 130].** In that decision, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 20. The learned counsel would contend that the Apex Court has also held that the above amounts should be revised on percentage basis in every three years and enhancement should be MACA.No.972 of 2013 11 at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in **Pranay Sethi's** case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 21. In this context, **Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024]** is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In **Pranay Sethi's** case, while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered MACA.No.972 of 2013 12 view that claimants are entitled for 10% increase on conventional heads. 22. Next is with regard to the consortium to be awarded. The law laid down by the Apex Court in **Magma General Insurance Co.'s** case is relevant to be taken note of. In that decision, the Apex Court ,while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5th ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lost their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made MACA.No.972 of 2013 13 therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 23. In the present case, 1st claimant is the mother and claimants 2 to 5 are the siblings and 6th appellant is the minor son of the 2nd claimant. So only the 1st claimant the mother is entitled for compensation under the head consortium @ Rs.44,000/-. Towards loss of estate and funeral expenses the claimants are entitled to get Rs.33,000/- (Rs.16,500+16,500). So, under the conventional heads the claimants are entitled to get Rs.77,000/(Rs.44,000+33,000). Deducting the amount already awarded by the Tribunal the balance would be Rs.30,000/- (Rs.77,000-47,000 (37,000+5000+5000). So the claimants are entitled to get Rs.5,67,339+30,000=Rs.5,97,339/- rounded to Rs.5,97,350/-. In the result, appeal allowed and appellants/claimants are allowed to realise enhanced compensation of **Rs.5,97,350/-** in this appeal, which will carry interest at the rate of 7.5 **%** per annum from the date of petition ie. 16-1.2004 till the date of realisation excluding 56 days, the period of delay caused in filing the appeal. MACA.No.972 of 2013 14 50% of the enhanced compensation shall be allotted to the 1[st] appellant, the mother and the balance shall be distributed equally among the other claimants 2 to 5. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 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 certified copy of this judgment. Parties shall bear their respective costs. Sd/- ## **M.R.ANITHA JUDGE** SMF