Jaseena and Others v. Pramanandan, Velayudhan and The Oriental Insurance Co. Ltd.

**MACA NO. 865 OF 2011** **1** ## **THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943 MACA NO. 865 OF 2011** **AGAINST THE JUDGMENT IN OP(MV) 517/2007 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, OTTAPPALAM,** ## **APPELLANTS/PETITIONERS** 1 JASEENA AGED 28 YEARS, W/O.LATE SRI.SAIDALAVI, PARAKKAL HOUSE, AMBALAPPARA POST, OTTAPALAN TALUK. 2 ALI AGED 59 YEARS S/O.ALAVI AND FATHER OF LATE SHRI.SAIDALAVI, DO. DO. 3 NABEESA AGED 48 YEARS W/O.ALI AND MOTHER OF LATE SHRI.SAIDALAVI, DO. DO. 4 P.SHABANA AG3ED 111/2 YEARS D/O.LATE SAIDALAVI, PARAKKAL HOUSE, AMBALAPPARA POST, OTTAPALAM TALUK. 5 P.MUHAMMED SHAHIN AGED 7 YEARS, S/O.LATE SHRI.SAIDALAVI,, PARAKKAL HOUSE, AMBALAPPARA POST,, (4 AND 5 MINORS ARE REP. BY MOTHER AND GUARDIAN, JASEENA, IST APPELLANT). BY ADVS. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI ## **RESPONDENTS/RESPONDENTS:** 1 PRAMANANDAN, AGED 49 YEARS, S/O.CHOZHIKUTTY, ALINGAL VEEDU, PUNKUNNAM, THRISSUR-680002. 2 VELAYUDHAN S/O.CHOZHIKUTTY ALINGAL VEEDU, PUNKUNNAM, THRISSUR-680002. **MACA NO. 865 OF 2011** **2** 3 THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, ROUND WEST,, THRISSUR-680003. BY ADV SRI.GEORGE CHERIAN THIRUVALLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 865 OF 2011** **3** ## **JUDGMENT** The appellants were the petitioners in O.P (MV) No.517/2007 on the file of the Motor Accidents Claims Tribunal, Ottapplam. 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 Saidalavi (deceased) – the husband of the 1[st] appellant, the son of the appellants 2 and 3 and the father of the appellants 4 and 5. 3. It was the case of the appellants that: on 18.7.2006 while the deceased was travelling on a motorcycle as pillion from Palakkad to Ernakulam along with his friend, when the motorcycle reached Nadukunnu in Perambra village, a car bearing Reg. No.KL8AA-8888 (car) driven by the 1[st] respondent, in a rash and negligent manner hit the motorcycle. The deceased and the rider of **MACA NO. 865 OF 2011** **4** the motorcycle sustained serious injuries. The deceased was taken to the Aswini Hospital, Thrissur and treated as an inpatient till 2.8.2008. Unfortunately, he lost his life on the said day. The deceased was an autorickshaw driver by profession and earning a monthly income of Rs.7,500/-. The appellants were the dependents of the deceased. The car was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Hence the appellants claimed a total compensation of Rs.8,50,000/- from the respondents. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The 3[rd] respondent filed a written statement admitting that the car had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the rider of the motorcycle. The 3[rd] respondent also disputed the age, occupation and income of the deceased. 6. The appellants produced and marked Exts.A1 to A12 in evidence. The respondents did not let in any contra **MACA NO. 865 OF 2011** **5** evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.6,25,650/- with interest at the rate of 7% per annum from the date of petition till the date of realization and a cost of Rs.6,000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri.R.Sreehari, the learned counsel appearing for the appellants/petitioners and Sri.George.A.Cherian, the learned counsel appearing for the 3rd respondent- insurer. 10. 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** 11. Ext.A3 charge-sheet filed by the Chalakudy Police in Crime No.448/2006 clearly proves that the accident **MACA NO. 865 OF 2011** **6** occurred due to the negligence of the 1[st] respondent. Undisputedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the car. Therefore, the 3[rd] respondent is liable to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Notional income** 12. The appellants had claimed that the deceased was an autorickshaw driver by profession and earning a monthly income of Rs.7,500/-. Nevertheless, the appellants did not produce any material to substantiate their assertion. The Tribunal fixed the notional income of the deceased at Rs.3,500/- per month. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] the Hon’ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the ratio in the afore-cited decision and taking into account the fact that the accident occurred in **MACA NO. 865 OF 2011** **7** the year 2006, I re-fix the notional income of the deceased at Rs.5,500/- per month. ## **Multiplier** 15. As per Ext.A12 driving licence, the deceased was aged 30 years at the time of accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121] , the relevant multiplier is ‘17’. ## **Dependents of the deceased** 16. It is proved by Ext.A11 relation certificate that the appellants were the wife, parents and children of the deceased, who are five in number. Therefore, going by the law laid down in **Sarla Verma (supra) and National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], 1/4[th] of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 17. Following the ratio in **Sarla Varma** and **Pranay** **MACA NO. 865 OF 2011** **8** **Sethi** (supra) and considering the fact that the deceased was aged 30 years at the time of accident and the relevant multiplier being ‘17’, I hold that the appellants are entitled to future prospects at 40% on the compensation for loss due to dependency. ## **Loss due to dependency** 18. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.5,500, the multiplier at '17', the future prospects at 40% and after deducting 1/4[th] of the total compensation towards personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.11,78,100/instead of Rs.4,48,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 19 **.** In clause (viii) of paragraph 61 of the **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely, 'Funeral expenses', 'Loss of estate' and 'Loss of **MACA NO. 865 OF 2011** **9** consortium' at Rs.15,000/-, Rs.15,000 and Rs.40,000/respectively. 20. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- under the head ‘funeral expenses’. Therefore, I enhance the compensation under the said head by a further amount of Rs.10,000/-. The Tribunal has not awarded any amount under the head 'loss of estate'. Accordingly, I award an amount of Rs.15,000/under the head ‘loss of estate’. 21. It is on record that the 1[st] appellant is the wife and the appellants 4 and 5 are the children of the deceased. The Tribunal has awarded only an amount of Rs.10,000/towards ‘loss of consortium’. Accordingly, I hold that the appellants, 1,4 and 5 are entitled for ‘loss of consortium’ at Rs.40,000/-, each i.e. a total amount of Rs.1,20,000. I decline to award any amount as ‘loss of consortium' to the appellants 2 and 3 – the parents of the deceased – were only aged 59 and 48 at the time of death of the deceased. **MACA NO. 865 OF 2011** **10** ## **Loss of love and affection** 22. It is seen that the Tribunal has awarded an amount of Rs.10,000/- under the head ‘loss of love and affection. 23. In **New Insurance Assurance Co. Ltd v. Somwati & Others** [(2020) (9) SCC 644], the Hon'ble Supreme Court has held that once the compensation for loss of consortium is awarded, no amount can be awarded under the head 'loss of love and affection', otherwise it will amount to duplication of compensation. Therefore, I set aside the amount awarded under the said head. ## **Pain and suffering** 24. The Tribunal has awarded an amount of Rs.15,000/- towards ‘pain and suffering’. It is on record that the deceased met with the accident on 18.7.2006, but lost his life only on 2.8.2008. Thus, I confirm the finding of the Tribunal awarding an amount of Rs.15,000/- under the head ‘pain and suffering’. **MACA NO. 865 OF 2011** **11** ## **Other heads of compensation** 25. With respect to the other heads of compensation, namely, transport expenses and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [488 x 227] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts<br>the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Medical Expenses 1,35,650 1,35,650<br>2. Transport to hospital 2,000 2,000<br>3. Pain and suffering 15,000 15,000<br>4. Loss of consortium 10,000 1,20,000<br>5. Loss of love and affection 10,000<br>**----- End of picture text -----**<br> **MACA NO. 865 OF 2011** **12** **==> picture [488 x 223] intentionally omitted <==** **----- Start of picture text -----**<br> 6. Funeral expenses 5,000 15,000<br>---<br>7. Loss of estate 15,000<br>Loss due to dependency 4,48,000 11,78,100<br>Total 6,25,650 14,80,750<br>======= =======<br>**----- End of picture text -----**<br> 27. Even though the appellants had only claimed an amount of Rs.8,50,000/- as compensation, following the ratio in **Sarla Verma** and **Pranay Sethi (supra),** wherein the Hon’ble Supreme Court has held that the dependents of the deceased are entitled for future prospects at 40%, I have awarded more compensation than what is claimed in the claim petition, as it is just and reasonable compensation. The said course is permissible in the light of the law laid down by the Hon’ble Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 SC] and **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 SC]. **MACA NO. 865 OF 2011** **13** In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.8,55,100/with interest at the rate of 7% per annum from the date of petition till the date of realisation, after deducting interest for a period of 65 days , i.e. the period of delay in filing the appeal and as ordered by this Court on 1.7.2021 in C.M.Appli. No.1/2011, and a cost of Rs.6,000/-. The 3[rd] respondent shall deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants in the ratio of 30:10:10:25:25, respectively and in accordance with law. ma/2.09.2021 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**