Johnson George, Annamma Johnson and LinU G. Johnson v. Gireeshan, ShyLaja Sugathan and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943** **MACA NO. 845 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 2012/2007 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/S:** - 1 JOHNSON GEROGE,S/O. MATHEW GEORGE, ALINITE, PADEETATHIL HOUSE, PALLARIMANGALAM.P.O, MAVELIKKARA, NOW RESIDING AT EDAPALLIMANNIL HOUSE, CHANGANASSERY.P.O, VAZHAPPALLY EAST VILLAGE, KOTTAYAM. - 2 ANNAMMA JOHN,,W/O. JOHNSON GEORGE, ALINITE, PADEETATHIL HOUSE, PALLARIMANGALAM.P.O, MAVELIKKARA, NOW RESIDING AT EDAPALLIMANNIL HOUSE, CHANGANASSERY.P.O, VAZHAPPALLY EAST VILLAGE, KOTTAYAM. - 3 LINU G. JOHNSON,D/O. JOHNSON GEORGE, ALINITE, PADEETATHIL HOUSE, PALLARIMANGALAM.P.O, MAVELIKKARA, NOW RESIDING AT EDAPALLIMANNIL HOUSE, CHANGANASSERY.P.O, VAZHAPPALLY EAST VILLAGE, KOTTAYAM. (REPRESENTED BY HER FATHER AND NEXT FRIEND AND GUARDIAN, JOHNSON GEORGE, ALINITE, PADEETATHIL HOUSE, PALLARIMANGALAM.P.O, MAVELIKKARA, NOW RESIDING AT EDAPALLIMANNIL HOUSE, CHANGANASSERY.P.O, VAZHAPPALLY EAST VILLAGE, KOTTAYAM. BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE ## **RESPONDENT/S:** - 1 GIREESHAN,S/O. LAKSHMANAN, KUNNUKATTU PUTHUPARAMBU HOUSE, POTTASSERY BHAGOM, THRIKKODITHANAM.P.O, THRIKODITHANAM VILLAGE, CHANGANASSERY- 686 105. - 2 SHYLAJA SUGATHAN,W/O. SUGHATHAN, PATTATHIL HOUSE, FATHIMAPURAM.P.O, CHANGANASSERY 686 101. - 3 NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, KOTTAYAM - 686 001. BY ADV SMT.SARAH SALVY -R3 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.845 of 2012 ## **C.S.DIAS, J.** ## **====================== MACA No.845 of 2012** ## **====================== Dated this the 21[st] day of February, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.2012/2007 on the file of the Motor Accidents Claims Tribunal, Kottayam. 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 Sri.Leejo G.Johnson (deceased) - the son of the appellants 1 and 2 and the brother of the third appellant. It was their case that, on 22.8.2007, while the deceased was riding his motorcycle bearing registration No.KL-29/1399 along the Kaviyoor-Changanassery road, a lorry bearing registration 3 MACA No.845 of 2012 No.KL-06/4365, driven by the first respondent in a rash and negligent manner, hit the motorcycle of the deceased. The deceased fell down and sustained fatal injures. He lost his life on the same day at the Pushpagiri Medical College Hospital, Thiruvalla. The lorry was owned by the second respondent and insured with the third respondent. The deceased was a part-time Accountant in the Gulf Bank, UAE and was earning a monthly income of Rs.10,000/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.42,73,000/from the respondents, which claim was limited to Rs.15,00,000/-. 3 The respondents 1 and 2 had filed a joint writtenstatement contending that the accident occurred due to the negligence of the deceased. They denied the allegation that there was negligence on the part of the first 4 MACA No.845 of 2012 respondent. The respondents 1 and 2 also disputed the age, income and occupation of the deceased. However, they contended that as the lorry was validly insured, it was the third respondent who was to indemnify the liability of the second respondent arising out of the accident. 4. The third respondent/insurer had filed a written statement reiterating the very same assertions as of the respondents 1 and 2. The third respondent also disputed the age, income and occupation of the deceased. 5. The appellants had produced and marked Exts A1 to A17 in evidence. The third respondent produced inquest report of the deceased, which was marked as Ext B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to realise from the third 5 ## MACA No.845 of 2012 respondent an amount of Rs.3,74,500/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri.Philip T.Varghese, the learned counsel appearing for the appellants/petitioners and Smt.Sarah Salvy, the learned counsel appearing for the third respondent/insurer . 9. 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** 10. Ext A8 charge-sheet laid by the Changanassery Police in crime No.507/2007 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and 6 MACA No.845 of 2012 the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Ext A8 charge-sheet. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Notional Income** 11. The appellants had averred in the claim petition that the deceased was a part-time Accountant in the Gulf Bank, UAE and was drawing a monthly income of Rs.10,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.4,000/-. 12. On a re-appreciation of the materials on record, I do not find any evidence to hold that the appellant was 7 MACA No.845 of 2012 employed abroad other than for Ext A12 call letter. On an appreciation of Ext A12, it is seen that it is only a call letter that was issued to the deceased to join DHL Express with effect from 5.7.2006. However, there is nothing to show that he had joined the above said Company till 22.8.2007, the date of accident. Thus, the monthly income of the deceased is only to be treated as per the Indian standards. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2007, I refix the notional monthly income of the 8 MACA No.845 of 2012 deceased at Rs.6,000/-. ## **Multiplier** 15. Admittedly, the deceased was aged 20 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '18'. ## **Personal living expenses of the deceased** 16. Admittedly, the deceased was a bachelor. In the light of the law laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , one - half of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 17. In the light of the law laid down in **Sarla Verma** 9 MACA No.845 of 2012 and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 20 years at the time of his death, I hold that the appellants are entitled to future prospects @ 40%. ## **Loss of dependency** 18. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.6,000/-, the multiplier at 18, future prospects at 40% and after deducting one-half of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency of the appellants at Rs.9,07,200/-, instead of Rs.3,36,000/- awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 19. In paragraph 59.8 of **Pranay Sethi (supra)** it is held that the dependents of the deceased are entitled for 10 MACA No.845 of 2012 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. 20. 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** 11 ## MACA No.845 of 2012 (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'. 21. In the instant case, the Tribunal has awarded an amount of Rs.6,000/- under the head ‘funeral expenses’. Thus, I award the appellants a further amount of Rs.10,500/- under the head 'funeral expenses'. Likewise, I award the appellants an amount of Rs.16,500/- under the head 'loss of estate' and an amount of Rs.44,000/- each to the appellants 1 and 2 under the head ‘loss of consortium’.,i.e., a total amount of Rs.88,000/-. ## **Loss of love and affection** 22. The Tribunal has awarded an amount of 12 MACA No.845 of 2012 Rs.20,000/- under the head 'loss of love and affection'. 23. 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. Therefore, I set aside the amount of Rs.20,000/- awarded under the head 'loss of love and affection'. ## **Pain and sufferings** 24. The Tribunal has awarded an amount of Rs.10,000/- under the head ‘pain and sufferings’ to the appellants. 25. 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 13 MACA No.845 of 2012 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.10,000/- awarded under the head 'pain and sufferings' as the deceased had died instantaneously. ## **Other heads of claim** 26. With respect to the other heads of claim, namely, transport to hospital and damage to clothing, I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants /petitioners are entitled for enhancement of compensation 14 MACA No.845 of 2012 as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|2,000/-|2,000/-| |2|Damage to clothing|500/-|500/-| |3|Pain and sufferings|10,000/-|Nil| |4|Loss of consortium|Nil|88,000/-| |5|Loss of love and<br>affection|20,000/-|Nil| |6|Funeral expenses|6,000/-|16,500/-| |7|Loss of estate|Nil|16,500/-| |8|Loss of dependency|3,36,000/-|9,07,200/-| ||Total|3,74,500/-|10,30,700/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.6,56,200/-** with interest at the rate of 6% per annum from the date of petition till the date of realisation and 15 MACA No.845 of 2012 proportionate cost. The third respondent/insurer is ordered to deposit the enhanced compensation 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 Tribunal shall disburse the deposited amount to the appellants in the ratio of 40:40:20, and in accordance with law. ## Sd/- sks/21.2.2022 **C.S.DIAS, JUDGE**