JHANCY @ MARIAJURIS D/O.K.T.GEORGE v Hawabee Kayikunju; Prabhakaran; The Manager, National Insurance Co. Ltd., Ernakulam

**MACA NO. 1184 OF 2010** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 MACA NO. 1184 OF 2010** **AGAINST THE AWARD IN OPMV 1260/2005 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL,ERNAKULAM** ## **APPELLANTS/PETITIONERS 2 AND 3:** 1 JHANCY @ MARIAJURIS D/O.K.T.GEORGE, KALIPARAMBIL HOUSE,, KUMBALANGI PO, ERNAKULAM. 2 K.G.JOSE, AGED 28 YEARS, S/O.K.T.GEORGE KALIPARAMBIL HOUSE,KUMBALANGI PO, ERNAKULAM. BY ADVS. SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD ## **RESPONDENT/RESPONDENTS:** 1 HAWABEE KAYIKUNJU, W/O.KAYIKUNJU MADATHUMPARAMBIL HOUSE,MALIAKAPADY, EDATHALA PO.- 683 561 2 PRABHAKARAN,S/O.THAICHIRAKAPADY HOUSE KOLLAMKUDYMUGAL,KAKKANAD P.O.-682 030. 3 THE MANAGER NATIONAL INSURANCE CO.LTD. ERNAKULAM. BY ADV DEEPA GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1184 OF 2010** **2** ## **J U D G M E N T** The appellants were the petitioners 2 and 3 in O.P. (MV) No.1260 of 2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. The 1[st] petitioner before the Tribunal had died during the pendency of the proceeding before the Tribunal. Therefore, the appellants have not impleaded the 1[st] petitioner as a party in the appeal. Thus, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of 'Mary'. (deceased) - the wife of the 1[st] petitioner and the mother of the petitioners 2 and 3. It was their case that, on 11.4.2005, while the deceased was in a travelling bus bearing registration No.KL-7 AH 9527 from Ernakulam to Kakkanad, **MACA NO. 1184 OF 2010** **3** due to the negligence of the 2[nd] respondent, the deceased was thrown out of the bus. Even though she was treated at the Ernakulam Medical Centre, she lost her life on 15.4.2005. The deceased was aged 40 years at the time of the accident. She was a coolie worker and was earning a monthly income of Rs.3,000/-. The bus was owned by the 1st respondent and insured with the 3[rd] respondent. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.4,41,000/- from the respondents, which claim was limited to Rs.3,50,000/. 3. The respondent Nos.1 and 2 did not contest the proceeding and were set ex parte. 4. The 3[rd] respondent had filed a written statement denying the allegations in the claim petition. The 3[rd] respondent had also stated that there was no negligence on the part of the 2[nd] respondent. The 3[rd] respondent disputed the age, income and occupation of the deceased. **MACA NO. 1184 OF 2010** **4** 5. The petitioners had produced and marked Exts.A1 to A9 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record allowed the claim petition, in part, by permitting the petitioners 2 and 3 to recover from the 3[rd] respondent an amount of Rs.2,71,280/- with interest and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 2 and 3 are in appeal. 8. Heard; Sri.V.E.Abdul Gafoor, the learned counsel appearing for the appellants/petitioners 2 and 3 and Smt.Deepa George, the learned counsel appearing for the 3[rd] respondent /insurer. 9. The sole point that arises for consideration in the appeal is whether the quantum of compensation awarded by **MACA NO. 1184 OF 2010** **5** the Tribunal is reasonable and just? ## **Negligence and liability** 10. Ext.A2 charge-sheet filed by the Kochi City Traffic Police in Crime No.1359/05 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 bus. The respondents have not let in any evidence to discredit Ext.A2 charge-sheet. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The petitioners had claimed that the deceased was a coolie worker by profession and was earning a monthly income of Rs.3,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.2,500/- . **MACA NO. 1184 OF 2010** **6** 12. 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. 13. Following the ratio in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the deceased at Rs.3,000/- as claimed in the claim petition. ## **Multiplier** 14. The deceased was aged 40 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 to be adopted is ‘14’. ## **Future prospects** 15. Following the principles laid down in **Sarla Varma** and **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** (supra) and considering the fact that **MACA NO. 1184 OF 2010** **7** the deceased was aged 40 years at the time of accident, I hold that the appellants/petitioners 2 and 3 are entitled to future prospects at 25%. ## **Personal living expenses of the deceased** 16. As the petitioners were the husband and children of the deceased, who are three in number and following the law laid down in **Sarla Verma (supra) and Pranay Sethi** (supra), I deduct 1/3rd of the compensation deducted towards the personal living expenses of the deceased. ## **Loss due to dependency** 17. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.3,000, the multiplier at '14', the future prospects at 25% and after deducting 1/3rd of the total compensation towards personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.4,20,000,/- instead of Rs.2,25,000/awarded by the Tribunal. **MACA NO. 1184 OF 2010** **8** ## **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, 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 **MACA NO. 1184 OF 2010** **9** 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'. In the instant case, the Tribunal has awarded only an amount of Rs.5,000/- each under the heads 'funeral expenses' and 'loss of estate'. 20. In the light of the law laid down in the afore-cited decisions, the appellants/petitioners 2 and 3 are entitled to an amount of Rs.16,500/- each under the above two heads i.e, an enhancement of Rs.11,500/- each. 21. As the appellants/petitioners 2 and 3 are the children of the deceased, I hold that each of them are entitled to an amount of Rs.44,000/- towards 'loss of consortium' , i.e., a total amount of Rs.88,000/-. 22. With respect to the compensation awarded under the head ‘pain and sufferings', I find the same to be **MACA NO. 1184 OF 2010** **10** reasonable and just because the deceased had lost her life only after five days after the accident. 23. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-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. **==> picture [463 x 336] 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 Funeral Expenses 5,000 16,500<br>2. Pain and sufferings 10,000 10,000<br>3. Medical expenses 26,280 26,280<br>4. Loss of estate 5,000 16,500<br>5. Loss of consortium --- 88,000<br>Loss due to dependency 2,25,000 4,20,000<br>Total 2,71,280 5,77,280<br>======= =======<br>**----- End of picture text -----**<br> **MACA NO. 1184 OF 2010** **11** 24. Even though the appellants had claimed only an amount of Rs.3,50,000/- as compensation, following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) **,** I have awarded future prospects as well as compensation under the conventional heads. Consequently, I have awarded more compensation than what is claimed in the claim petition. The said course is permissible in view 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]. In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.3,06,000/- 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 216 days , (i.e. the period of delay in filing the appeal and as as ordered by this Court on 16.11.2021 in C.M.Appli. No.1/2010) and proportionate cost. The 3[rd] respondentinsurer is ordered to deposit the enhanced compensation **MACA NO. 1184 OF 2010** **12** with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants/petitioners 2 and 3, after deducting their liability towards payment of court fee, in the ratio of 50:50 and in accordance with law. ma/09.03.2022 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**