Jikky and others v. Ragam (V. Raman) and Ramesh S/O Raman (Ragam) and The Oriental Insurance Co. Ltd.

MACA NO. 2445 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 8[TH] DAY OF FEBRUARY 2022 / 19TH MAGHA, 1943** **MACA NO. 2445 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 580/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** 1 JIKKY , W/O LATE SURESHKUMAR THAYVALLIYIL HOUSE, KOOLIMUTTOM PO,, THRISSUR DIST. 2 SACHIN, (MINOR) S/O.LATE SURESH KUMAR (REP.BY GUARDIAN MOTHER RESIDING AT -DO-) 3 YASODA WO.LATE SANKARAN THAYVALLIYIL HOUSE, KOOLIMUTTAM, THRISSUR. BY ADV SRI.T.C.SURESH MENON ## **RESPONDENT/S:** 1 V.RAMAN,'RAGAM'31-MAITHRI NAGAR, VADUTHALA, COCHIN-, 682 023. 2 RAMESH SO.V.RAMAN 'RAGAM'31-MAITHRI NAGAR, VADUTHALA,, COCHIN-682 023. 3 THE ORIENTAL INSURANCE CO.LTD D.ABRANCH NORTH FORT GATE,, THRIPPUNITHURA 682 301. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.A.P.SUBHASH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2445 OF 2009 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.580/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. 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 Sureshkumar (deceased) - husband of the 1[st] appellant, father of the 2[nd] appellant and son of the 3[rd] appellant. It was their case that, on 09.09.2003, while the deceased, the 1[st] appellant and their children were standing on the Kodungallur – Chettuva National Highway, a car bearing registration No.KL.7/C 4035, driven by the 2[nd] respondent in a negligent manner, hit against the electric post which jammed the deceased. Even though the deceased was rushed to the Modern Hospital, Kodungallur, he succumbed to the injuries. One of the children of the couple named Sourav also died instantaneously. The deceased was a Civil Engineer and he was doing finance and real estate business. He was earning a MACA NO. 2445 OF 2009 3 monthly income of Rs.6,000/-. The car was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.7,52,500/- from the respondents, which claim was limited to Rs.7,50,000/-. 3. The appellants had also filed OP(MV) No.578/2004 before the same Tribunal, against the respondents, seeking compensation on account of the death of the child Sourav. 4. The respondents 1 and 2 did not contest both the claim petitions and were set ex-parte. 5. The 3[rd] respondent had filed separate written statements in both the claim petitions admitting that the car had a valid insurance coverage. Nevertheless, the 3[rd] respondent denied negligence on the part of the 2[nd] respondent. The 3[rd] respondent prayed that the claim petitions be dismissed. 6. The Tribunal consolidated and jointly tried the two claim petitions. The 1[st] appellant and a witness were examined as PWs 1 and 2 and Exts.A1 to A15 were marked through them in MACA NO. 2445 OF 2009 4 evidence. The respondents did not let in any evidence. 7. The Tribunal by its common award, allowed the captioned claim petition in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.4,08,000/- with interest and cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri.T.C. Suresh Menon, the learned counsel appearing for the appellants/petitioners, and Sri.P. Jacob Mathew, the learned counsel appearing for the 3[rd] respondent/insurer. 10. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 11. Ext.A2 charge sheet filed by the Mathilakam Police in Crime No.352/2003 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 car. The respondents have not let in any evidence MACA NO. 2445 OF 2009 5 to discredit Ext.A2 charge sheet. 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** 12. The appellants had claimed that the deceased was a Civil Engineer and was doing finance and real estate business, and that he was earning a monthly income of Rs.6,000/- . For want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.3,500/-. 13. In **Chameli Devi vs. Jivrail Mian** [2019 KHC 5351], the Honourable Supreme Court has fixed the notional income of a skilled labourer, namely, carpenter in the year 2001, at Rs.5,000/-. Likewise in **Shivakumar M.vs. Managing** ## **Director, Bangalore Metropolitan Transport Corporation** [(2017) 5 SCC 79], the Honourable Supreme Court has held that in the absence of any serious disputes on the part of the respondents on the avocation and income of the deceased/injured, the averments in the claim petition can be accepted. MACA NO. 2445 OF 2009 6 14. Following the yardstick and principles laid down in the afore-cited decisions, I fix the monthly income of the deceased on notional basis at Rs.5,000/-. ## **Multiplier** 15. The deceased was aged 46 years on the date of accident/death. 16. 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 '13'. ## **Personal living expenses of the deceased** 17. The appellants were the wife, son and mother of the deceased. They are three in number. Following the principles in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 18. In the light of the law laid down in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the MACA NO. 2445 OF 2009 7 deceased was 46 years of age at the time of accident, I hold that the appellants are entitled to future prospects at 25%. ## **Loss due to Dependency** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.5,000/-, the multiplier at 13, future prospects at 25% and after deducting one third of the compensation towards the personal living expenses of the deceased, I refix the compensation for 'loss due to dependency' at Rs.6,50,000/-, instead of Rs.3,64,000/- awarded by the Tribunal. ## **Conventional/Traditional Heads of Compensation** 20. 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. MACA NO. 2445 OF 2009 8 21. 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 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'. 22. In the instant case, the Tribunal has awarded MACA NO. 2445 OF 2009 9 an amount of Rs.4,000/- under the head 'funeral expenses' and Rs.20,000/- under the head 'loss of consortium'. 23. Therefore, I award the appellants a further amount of Rs.12,500/- under the head ‘funeral expenses’ and a further amount of Rs.1,12,000/- under the head ‘loss of consortium’ i.e. Rs.44,000/- each to the appellants. Likewise I award the appellants an amount of Rs.16,500/- under the head ‘loss of estate’. ## **Loss of love and affection** 24. The Tribunal has awarded an amount of Rs.15,000/- under the head 'loss of love and affection'. In **New India Assurance Co. v. 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. - 25. Therefore, I set aside the amount of Rs.15,000/ MACA NO. 2445 OF 2009 10 awarded under the head 'loss of love and affection'. **Pain and sufferings** 26. The Tribunal has awarded an amount of Rs.5,000/- under the head ‘pain and sufferings’ to the appellants. 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 head 'pain and sufferings' in the case of instantaneous death. The said view has been reiterated in **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others** [((2020) SCC Online 410]. Hence, I set aside the amount of Rs.5,000/awarded under the head 'pain and sufferings' as Sureshkumar had died immediately after the accident. 28. 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 MACA NO. 2445 OF 2009 11 appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [460 x 392] intentionally omitted <==** **----- Start of picture text -----**<br> Amounts<br>Amount<br>modified<br>awarded<br>Sl. and<br>Head of claim by the recalculat<br>No Tribunal(in ed by this<br>Court (in<br>rupees)<br>rupees)<br>1 Funeral expenses 4,000 16,500<br>2 Loss of estate 0 16,500<br>3 Pain and sufferings 5,000 0<br>4 Loss of love and 15,000 0<br>affection<br>5 Loss of consortium 20,000 1,32,000<br>6 Loss of dependency 3,64,000 6,50,000<br>Total 4,08,000 8,15,000<br>**----- End of picture text -----**<br> 29. Even though the appellants had claimed only an amount of Rs.7,50,000/- in the claim petition, I have awarded them more compensation than what is claimed in the claim petition following the principles laid down MACA NO. 2445 OF 2009 12 in **Sarla Verma** and **Pranay Sethi** (supra) by awarding the appellant compensation for future prospects and also compensation under the conventional heads. Therefore, 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 in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing [2013 (3) KLT 89 (SC)].** In the result, the appeal is allowed by enhancing the compenation by an amount of Rs.4,07,000/- 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 290 days i.e., the period of delay in filing the appeal and as ordered by this Court in C.M.Appln. No.1/2009 on 28.10.2021, and proportionate cost. The 3rd respondent - insurer is ordered to deposit the enhanced compensation amount 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. Immediately on the compensation amount being MACA NO. 2445 OF 2009 13 deposited, the Tribunal shall disburse the enhanced compensation amount to the appellants/petitioners in the ratio of 50:40:10 and in accordance with law, after deducting their liability towards court fee. Sd/- **C.S.DIAS, JUDGE** rkc/08.02.22