Ishu, W/o Late Mamutty, and Minor Mohammed Khaleel (represented by next friend V.M. Mohammed Ali) v Globe Transport Corporation, Sambath, and The New India Assurance Co. Ltd

MACA NO. 549 of 2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943** ## **MACA NO. 549 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1871/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR** ## **APPELLANT/S:** 1 ISHU, W/O.LATE MAMUTTY, VALAPPILAKAYIL HOUSE, P.O.VELIYAMKODE, MALAPPURAM DIST 2 MINOR MOHAMMED KHALEEL, AGED 2 YEARS S/O.KHALID, -DO-, REP.BY HIS NEXT FRIEND V.M.MOHAMMEDALI, S/O.LATE MAMMUTTY -DOBY ADV P.V.CHANDRA MOHAN ## **RESPONDENT/S:** 1 M/S. GLOBE TRANSPORT CORPORATION,(REGD.NO.) AE-6, BLOCK 7TH STREET, 10TH MAIN ROAD, ANNA NAGAR, CHENNAI-40, TAMIL NADU, 2 SAMBATH, S/O.VELLEKKANNU, HOUSE NO 2, (DASIPURAM ROAD),M.G.R.NAGAR, VADARKKAD, ARKKAD, VELLOOR DISTRICT , TAMILNADU-600001 3 THE NEW INDIA ASSURANCE CO-LTD REGIN MANSION IST FLOOR, 46 MORE STREET, CHENNAI-600001 BY ADV A.C.DEVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 549 of 2012 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1871/2002 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 Abdul Khalid (deceased) - son of the 1[st] appellant and father of the 2[nd] appellant. It was their case that, on 29.12.2001, while the deceased was driving his car bearing registration No.KL8/Q-5988 along the Palakkad – Thrissur National Highway, a tanker lorry bearing Registration No.TN 02/P-4599, driven by the 2[nd] respondent in a negligent manner, hit the car. The deceased sustained fatal injuries and lost his life instantaneously. The other passengers in the car also succumbed to the injuries. The deceased was employed as a MACA NO. 549 of 2012 3 heavy vehicle driver in Salala and was drawing a salary equivalent to Rs.25,000/- per month. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The 4[th] respondent was the owner and the 5[th] respondent was the insurer of the car. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.30,77,000/- from the respondents. 3. The legal representatives of other passengers, who lost their lives as well as the injured in the same accident had also filed OP(MV) No.1872/2002, 1873/2002, 1874/2002, 1875/2002, 1876/2002, 1877/2002 and 1878/2002 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1, 2 and 4 did not contest any of the claim petitions. 5. The 3[rd] respondent-insurer had filed separate written statements and additional written statements denying the allegations in all the claim petitions. The 3[rd] MACA NO. 549 of 2012 4 respondent disputed negligence on the part of the 2[nd] respondent. However, the 3[rd] respondent admitted that the tanker lorry had a valid insurance coverage. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The petitioners in all the claim petitions examined PWs 1 to 4 and marked Exts.A1 to A38 in evidence. The 3[rd] respondent had produced and marked Exts.B1 and B2 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petition in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.4,14,500/- with interest and proportionate cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 10. Heard; Sri. P.V. Chandramohan, the learned MACA NO. 549 of 2012 5 counsel appearing for the appellants/petitioners and Sri.A.C.Devy, the learned counsel appearing for the 3[rd] respondent/insurer. 11. The point 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.A37 final report filed by the Police proves 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 lorry. The respondents have not let in any evidence to discredit Ext.A37 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. ## **Income** 13. The appellants had claimed that the deceased was MACA NO. 549 of 2012 6 a heavy vehicle driver, employed with Mohd. Hafees Avavh Al-Rawas Trading Contracting Company, Salala and was drawing a monthly salary equivalent to Rs.25,000/-. To substantiate their contention, they had produced Ext.A11 copy of the driving license of the deceased. The Tribunal, for want of materials fixed the notional monthly income of the deceased at Rs.3,000/-. 14. The Honourable Supreme Court in **United India Insurance Company Ltd. Vs. Satinder Kaur @ Satwinder Kaur and others** (2020 (3) KHC 760) has categorically held to prove the income of a person employed abroad, the salary certificate has to be attested by the Indian Mission in the country where the deceased/victim was employed. 15. In the instant case, the appellants have not produced any documents to prove the monthly income of the deceased. Ext.A11 only shows that the deceased was a driver. Therefore, I am constrained to fix the income of the deceased as per the Indian standards following the law laid MACA NO. 549 of 2012 7 down by this Court in **Valsamma vs. Binu :** [2014 (1) KLT 10]. 16. As the deceased was a driver by profession and the accident occurred in the year 2001, following the yardstick in **Chameli Devi vs. Jivrail Mian** [2019 KHC 5351], I fix the notional monthly income of the deceased at Rs.5,000/-. ## **Multiplier** 17. The deceased was aged 34 years at the time of the accident. 18. 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 ‘16’. ## **Future Prospects** 19. Following the ratio decidendi in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], I hold that the appellants are entitled to future prospects at 40%, as the deceased was aged 34 years at the time of the accident. MACA NO. 549 of 2012 8 ## **Personal living expenses of the deceased** 20. As the appellants were the mother and son of the deceased, who are two in number, I hold that one-third of the compensation has to be deducted towards the personal living expenses of the deceased, again following the principles laid down in **Sarla Verma** and **Pranay Sethi** (supra). ## **Loss due to dependency** 21. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.5,000/-, the multiplier at 16, future prospects at 40% and after deducting one - third of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.8,96,000/-, instead of Rs.3,84,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 22. In paragraph 59.8 of **Pranay Sethi** (supra) it is held that the dependents of the deceased are entitled for MACA NO. 549 of 2012 9 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, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 23. 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 MACA NO. 549 of 2012 10 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'. 24. In the instant case, the Tribunal has awarded an amount of Rs.3,000/- towards ‘funeral expenses’. Thus I enhance the compensation under the said head by a further amount of Rs.13,500/-. 25. The Tribunal has not awarded any amount under the heads 'loss of estate' and 'loss of consortium'. Therefore, I award the appellants an amount of Rs.16,500/- under the head 'loss of estate' and Rs.44,000/- each under the head 'loss of consortium' totaling to an amount of Rs.88,000/-. **Pain and sufferings and loss of love and affection** 26. The Tribunal has awarded an amount of Rs.5,000/under the head ‘pain and sufferings’ and Rs.20,000/- under the head 'loss of love and affection'. 27. 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 MACA NO. 549 of 2012 11 head 'pain and sufferings' in the case of instantaneous death. Hence, I set aside the amount of Rs.5,000/- awarded under the head 'pain and sufferings'. 28. **New India Assurance Co. v.** Similarly, in **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.20,000/- awarded under the head 'loss of love and affection'. 29. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: MACA NO. 549 of 2012 12 **==> picture [460 x 475] intentionally omitted <==** **----- Start of picture text -----**<br> Amount<br>Amount<br>Sl. modified and<br>awarded by the<br>Head of claim recalculated<br>Tribunal (in<br>No. by this Court<br>rupees)<br>(in rupees)<br>Transportation<br>2,000 2,000<br>expenses<br>Funeral expenses 3,000 16,500<br>Pain and sufferings 5,000 0<br>Damage to<br>500 500<br>clothing<br>Loss of love and<br>20,000 0<br>affection<br>Loss of estate 0 16,500<br>Loss of consortium 0 88,000<br>Loss of<br>3,84,000 8,96,000<br>dependency<br>Total 4,14,500 10,19,500<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by an amount of **Rs.6,05,000/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit and MACA NO. 549 of 2012 **==> picture [13 x 9] intentionally omitted <==** 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. As the 2[nd] appellant has now attained majority, I direct the Tribunal to disburse the enhanced compensation to the appellants, immediately on the compensation amount being deposited, in the ratio of 30:70 and in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** rkc/16.03.22