Hyrunissa w/o late Afsal and others v. K.T. Musthafa, Shamsudeen and ICICI Lombard General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943** ## **MACA NO. 990 OF 2011** **AGAINST THE AWARD DATED 02.1.2010 IN OPMV No.386/2009 ON THE FILE OF THE** **PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS:** 1 HYRUNNISA, W/O LATE AFSAL, AGED 30 YEARS, 2 AYISHA AFNA (MINOR) AGED 10 YEARS D/B.18.04.1999. 3 FATHIMA AMANIA (MINOR) AGED 7 YEARS D/B.16.8.02. 4 MUHALIF (MINOR) AGED 3 YEARS D/B.27.12.05. 5 PRASEELA BANU MINOR AGED 3 YEARS D/B.27.12.05., MINORS ARE REPRESENTED BY THEIR MOTHER AND, LEGAL GUARDIAN HYRUNNISSA. 6 SHAKKEENA WO.ABDUL HAMEED AGED 55 YEARS. (ALL ARE RESIDING AT MULLATH (H),, VAZHIPOKKU PARAMBA, PANNIYANKARA, P.O.KALLAI,, KOZHIKODE). BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN KUM.D.MINI RAJAN ## **RESPONDENTS/RESPONDENTS:** 1 K.T. MUSTHAFA, S/O AHAMMEDKUTTY HAJI AGE NOT KNOWN, KANGUZHI THAROLE (H),, P.O.ERAVANNOOR, NARIKUNI, KOZHIKODE. 2 SHAMSUDHEEN, S/O.KHADER, KUNIYIL (H), P.O.PAVANDOOR, KAKKUR,, KOZHIKODE, PIN 673 016 (DELETED) (2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY, AT THE RISK OF THE APPELLANT, VIDE ORDER DTD. 11/11/16 I.A. NO.3934/16 IN MACA 990/11). 3 ICICI LOMBARD GENERAL INSURANCE CO.LTD. 6/255/C, 2ND FLOOR, CITY PLAZA BUILDING, MARKET, JUNCTION, YMCA CROSS ROAD, HEAD POST OFFICE KOZHIKODE-673001. BY ADVS. SRI.JOSE KURIAKOSE (VILANGATTIL) SRI.R.AJITH KUMAR 12884 SRI.K.B.RAMANAND K.B RAMANAND ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.990 of 2011 2 ## **JUDGMENT** This appeal is filed against the award in O.P.(MV) No. 386/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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 M.Afsal, husband of the 1st appellant, father of minor appellants 2 to 5 and the son of the 6 th appellant. 2. It is alleged that the deceased died out of motor vehicle accident on 26.8.2008 at about 19.45 p.m. while he was riding the motor cycle bearing Reg. No.KL-11-Z-724 and reached in front of West Hill petrol pumb, was hit by the Lorry bearing Reg. No.KL-11S-1359, due to the rash and negligent driving of the lorry by the 2nd respondent. 1St respondent is the owner of the offending vehicle and 3rd respondent is the insurer. The deceased was a welder and he was earning an amount of Rs.6500/- per month. Hence, compensation of Rs.6,00,000/- has been claimed. 3. Before the Tribunal, the 3rd respondent filed written statement admitting the policy coverage of the offending vehicle involved in the accident; however, denied negligence alleged MACA.No.990 of 2011 3 against the driver of the vehicle. It is contended that the accident occurred due to the negligence of the deceased. The age, occupation, monthly income, etc. stated in the claim petition is disputed and it is also contended that the compensation claimed is highly excessive. 4. Before the Tribunal, 2nd respondent was deleted from party array. 1st respondent not seen filed any written statement. Exts.A1 to A4 were marked from the side of the appellants/claimants. There was no oral evidence from either side. 5. The Tribunal on evaluating the pleadings and materials on record, awarded a compensation of Rs.4,29,000/-. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/claimants are before this Court in this appeal. 6. Before this Court also 2nd respondent was deleted from party array as per order in IA. 3934/2016 at the risk of the appellant. Vakalath filed on behalf of the 1st and 3rd respondents. 7. Heard the counsel for the appellant as well as the 3 rd respondent. Lower court records were called and perused. 8. In this case, the compensation awarded by the tribunal under various heads are as follows: MACA.No.990 of 2011 4 |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |---|---| |Transport to hospital|1,500-00| |Damage to clothing|500-00| |Pain and suffering|10,000-00| |Funeral Expenses|3,000-00| |Loss of love and affection|10,000-00| |Loss of estate|10,000-00| |Loss of consortium|10,000-00| |Loss of dependency|3,84,000-00| |Total|4,29,000-00| 9. According to the learned counsel for the appellants, the amount awarded under the head of loss of dependency, conventional heads as well as other heads are very low. The monthly income notionally fixed as Rs.3,000/- is very low, deceased being a welder. 10. The learned Standing Counsel for the insurer/3rd respondent would contend that a just and reasonable compensation has already been awarded by the Tribunal under various heads and no MACA.No.990 of 2011 5 interference whatsoever is called for by this Court in this appeal in the absence of any materials produced from the side of the claimants for the enhancement of the compensation. 11. 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. 12. In **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** constitution Bench of 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 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. 13. In the present case, the deceased was 35 years old, though alleged to be 33 years old at the time of accident, the Tribunal has found the age as 35 years and there is no further 6 MACA.No.990 of 2011 dispute in that regard to the claimants. Hence, the age of the deceased is taken as 35 years. The 1[st] claimant is the wife of the deceased and the claimants 2 to 5 are the minor children and 6[th] claimant is the mother of the deceased. 14. The first contention of the learned counsel for the appellants is with regard to the monthly income fixed by the Tribunal @ Rs.3,000/- per month. The deceased was aged 35 years on the date of accident. Though it is alleged that he was Welder and he was earning monthly income of Rs.6,500/- per month no evidence has been adduced. 15. In **Ramachandrapa v. manager, Royal Sundaram 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 MACA.No.990 of 2011 7 include the ground realities prevailing at the relevant point of time. 16. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse 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 arouse 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 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. 17. In the present case the incident was on 26.08.2008. Deceased also alleged to be a welder. Hence, the monthly income of a welder can very well be notionally fixed as Rs.6,500/-. I here by do the same. 18. The learned counsel for the appellants further claims for 40% enhancement towards future prospects as has been held in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation MACA.No.990 of 2011 8 & Anr. [(2009) 6 SCC 121] the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was below 40 years and the said addition was reduced by 30% if the age of the deceased was 40 – 50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons having permanent job. 19. But in Pranay Sethi's case the Apex Court though accepted the findings in Sarla Verma's case in fixing the multiplier made some variance with regard to the grant of future prospects in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust and the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. It is also laid down in Pranay Sethi's case that with respect to self-employed or persons with fixed salary when the MACA.No.990 of 2011 9 deceased was below 40 years an addition of 40% can be granted and in the case of between 40 – 50, an addition of 25% and with respect to persons between 50 – 60 years, the addition has been fixed as 10%. The established income also provided as the income minus tax component. 20. So, in the present case, the claim of the counsel for 40% enhancement towards future prospects of the deceased is in compliance of the law laid down in Pranay Sethy. So the monthly income of the deceased can be computed as Rs.6500+2600 (40% of Rs.6500/-) = Rs.9,100/-. The multiplier as per Sarla Verma's case is '16'. That is followed in Pranay Sethi's case also. 21. 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 and 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) as made out in the facts and circumstances of the case. MACA.No.990 of 2011 10 22. In Reshma Kumari's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependents. 23. So the deduction towards personal and living expenses of the deceased would be ¼ in the present case since the number of total dependents are six. 24. The next contention of the learned counsel is with regard to the enhancement of compensation under the conventional heads as per the directions in Pranay Sethi's case. The Tribunal awarded Rs.10,000/- towards loss of estate, Rs.10,000/- towards loss of consortium to the first claimant and Rs.3,000/- towards funeral expenses. In Pranay Sethi's case, 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. 25. The learned counsel would contend that the Apex Court MACA.No.990 of 2011 11 in Pranay Sethi has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be 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/- x 4 towards loss of consortium is Rs.1,76,000/-. 26. The learned counsel for the third respondent in this context would contend that the incident occurred in the year 1997 and the Tribunal passed the Award on 28.12.2004. So the appellants are not entitled for any enhancement of 10% as laid down in Pranay Sethi's case. But Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] 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 12 MACA.No.990 of 2011 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 view that claimants are entitled for 10% increase on conventional heads. 27. In Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram and Ors. [(2018) 18 SCC 130]. The Apex court dealt with the term consortium in legal parlance and 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 (5[th] 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 lose their child during their life MACA.No.990 of 2011 13 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 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. 28. In this case, the 1[st] claimant wife, is entitled for spousal consortium and the claimants 2 to 5 minor children of the deceased are entitled for parental consortium. But the 6[th] claimant is the mother of the deceased. Since the deceased was a married son living with wife and children as per the principles laid down in Magma the mother is not entitled for filial consortium. 29. It has already been found that the monthly income of the deceased is already fixed as Rs.6,500/- by giving 40% enhancement towards future prospects the amount will come to Rs.9,100/-. Since the number of dependents are six, ¼ out of it has to be deducted towards personal and living expenses Rs.9,1002275 (¼[th] of 9,100) = Rs.6,825/-. So the annual dependency would be Rs.6,825x12=81,900/-. The multiplier to be applied is 16. So the compensation towards **loss of dependency** would be MACA.No.990 of 2011 14 Rs.81,900x16=Rs.13,10,400/-. From that the amount already awarded by the Tribunal to be deducted 13,10,4003,84,300= **9,26,100/-.** 30. Towards the consortium the claimants one to four are entitled to get 44,000 each ie. Rs.44,000x4=Rs.1,76,000/-. From that deducting the amount already awarded by the Tribunal the balance is Rs.1,66,000/- (176000-10000). 31. In **United India Insurance Co.Ltd. v. Satinder Kaur** **@ Satwinder Kaur and Ors. [AIR 2020 SC 3076 : ILR 2020 (3) Kerala 334 : 2020 (3) KHC 760 SC],** it has been laid down that once claimants are awarded towards the conventional heads, no amount can be awarded towards love and affection. In this case Tribunal awarded Rs.10,000 towards love and affection that has to be deducted. So the balance towards the **loss of consortium** would be Rs.166000-10000= **Rs.156000/-.** 32. Further claimants are entitled to get Rs.16500/- each towards funeral expenses and loss of estate. Deducting the amount already awarded towards **funeral expenses** the balance would be Rs.16500-3000= **Rs.13500/-.** Towards loss of estate Tribunal already awarded Rs.10000. Deducting the same, balance amount would be Rs.6,500/- (16500-10000). 33. So the total enhanced compensation which the claimants MACA.No.990 of 2011 15 are entitled to get is Rs.9,26,100 + 156000 + 13500 + 6500 = Rs. **11,02,100/- (Rupees eleven lakhs two thousand and one hundred only).** 34. So the compensation awarded is in excess of the claim which is permissible under law **(See Rajesh & Others v. Rajbir Singh and others 2013 (3) KHC 212; 2013 (9) SCC 54 2013 (3) SCC Crl. 817).** 35. In the result, the appellants 1 to 6 are allowed to realise enhanced compensation of **Rs.11,02,100/-** (Rupees eleven lakhs two thousand one hundred only) which will carry interest at the rate of 7.5% per annum from the date of petition ie. **27.3.2009** (excluding 436 days) till realisation. The third 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 a certified copy of this judgment, after deducting the liability of the appellants/claimants towards Balance Court Fee. 36. 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. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant MACA.No.990 of 2011 16 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. Parties shall bear their respective costs. The enhanced compensation granted in this appeal, excluding that granted to the 1[st] appellant as spousal consortium, that granted to appellants 2 to 5 under the head parental consortium shall be apportioned among the appellants 1 to 5 in the ratio of 30:15:15:15:15:10. In the result appeal stands allowed. Parties shall bear their respective costs. Sd/- **M.R.ANITHA JUDGE** SMF