K. Gopalakrishnan Pillai and Others v. Joseph and Others and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943** ## **MACA NO. 1957 OF 2009** **AGAINST THE JUDGMENT IN OP(MV) 544/2003 OF Ist ADDL. MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANTS/PETITIONERS IN THE O.P (MV):** 1 K.GOPALAKRISHNAN PILLAI, S/O.KESAVA PILLAI METHANTAZHIKATHU VEEDU, MEENADU VILLAGE, NEDUMGOLAM PO, KOLLAM. 2 THANKAMONY AMMA METHANTAZHIKATHU VEEDU, MEENADU VILLAGE, NEDUMGOLAM PO, KOLLAM 3 T.G.SANDHYA METHANTAZHIKATHU VEEDU, MEENADU VILLAGE,, NEDUMGOLAM PO, KOLLAM 4 T.G.SARITHA METHANTAZHIKATHU VEEDU, MEENADU VILLAGE,, NEDUMGOLAM PO, KOLLAM BY ADV SRI.B.MOHANLAL ## **RESPONDENT/RESPONDENTS IN THE O.P:** 1 JOSEPH,S/O.PAVIYAN, SEBI NAS, WARD NO.111/107, SAKTHIKULANGARA,KOLLAM 2 C.CLEETUS S/O.SIMON VIPIN BHAVAN, PADAPPAKKARA, MULAVANA, KUNDARA, KOLLAM. 3 THE UNITED INDIA INSURANCE COMPANY LTD DIVISIONAL OFFICE, KOLLAM. BY ADVS. SMT.T.J.MARIA GORETTI SMT.S.JAYASREE **2** ## **MACA NO. 1957 OF 2009** SRI.P.SANKARANKUTTY NAIR SRI.ARUN ALEX THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1957 OF 2009** **3** ## **J U D G M E N T** The appellants were the petitioners in O.P. (MV) No.544/2003 on the file of the Ist Addl. Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were the respondents 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 'Santhosh Kumar'. '(deceased), the son of the petitioners 1 and 2, and the brother of the petitioners 3 and 4 . 3. The petitioners had averred in the claim petition that: on 10.3.2003, while the deceased was riding his motorcycle bearing registration No.KL-2M/7490 along with his friend on the Kollam-Thiruvananthapuram National Highway, when they reached a place named 'Mylakkad' **MACA NO. 1957 OF 2009** **4** junction, a mini lorry bearing Reg.No. KL2C/6912 (lorry) driven by the 2[nd] respondent in a rash and negligent manner hit against the motorcycle. The deceased was thrown on the road and he sustained serious injuries. He was taken to the Holy Cross Hospital, Kottiyam and thereafter to the Medical College Hospital, Thiruvananthapuram. However, he lost his life on the same day. The deceased was a Mechanic by profession and earning a monthly income of Rs.7500/-. The lorry was owned by the first respondent and insured with the 3[rd] respondent. The petitioners were the dependants of the deceased. Hence, they claimed a total compensation of Rs.6,00,000/- from the respondents. 4. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent filed a written statement refuting the allegations in the claim petition. It was ## **MACA NO. 1957 OF 2009** **5** contended that the accident occurred due to the negligence on the part of the deceased. It was also contended that the 1[st] respondent had violated the terms and conditions of the insurance policy. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. 6. The petitioners examined PW1 and PW2 and marked Exts.A1 to A12 in evidence. The respondents did not let in any evidence. 7. The Tribunal after analying the pleadings and materials on record allowed the claim petition by permitting the petitioners to realise from the 3[rd] respondent an amount of Rs.2,81,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realistion. 8. Dissatisfied with the quantum of compensation, the petitioners are in appeal. **MACA NO. 1957 OF 2009** **6** 9. Heard; Sri.B.Mohan Lal, the learned counsel appearing for the appellants/petitioners and Smt.S.Jayasree, the learned counsel appearing for the 3[rd] respondent /insurer. 10. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 11. Ext.A10 final report filed by the Kottiyam Police proves that the accident occurred due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. Therefore, the 3[rd] respondent is liable to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Notional income** 12. The appellants had claimed that the deceased **MACA NO. 1957 OF 2009** **7** was a Mechanic by profession and earning a monthly income of Rs.7,500/-. However, the Tribunal fixed the notional income of the deceased at Rs.2,250/- 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 keeping in mind the fact that the accident occurred in the year 2003, I am of the opinion that the notional income of the deceased can safely fixed at Rs.4,000/- per month. Hence, I re-fix the notional income of the deceased at Rs.4,000/- per month. ## **Multiplier** 15. The deceased was aged 27 years at the time of accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) **MACA NO. 1957 OF 2009** **8** 6 SCC 121] , the relevant multiplier is ‘17’. ## **Personal living expenses of the deceased** 16. Undisputedly, the deceased was a bachelor. Therefore, in light of the law laid down in **Sarla Verma (supra) and National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], ½[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 Sethi** (supra) and considering the fact that the deceased was aged 27 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.4,000, **MACA NO. 1957 OF 2009** **9** the multiplier at '17', the future prospects at 40% and after deducting 1/2[th] of the total compensation towards personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.5,71,200/instead of Rs.2,34,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 19 **.** In clause (viii) of paragraph 61 of **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 consortium at Rs.15,000/-. Rs.15,000/- and Rs.40,000/- respectively. 20. In the instant case, the Tribunal has awarded only an amount of Rs.5,000/- towards funeral expenses. Following the ratio in **Pranay Sethi** (supra), I enhance the compensation under the said head by a further amount of Rs.10,000/-. Similarly, the Tribunal has awarded an amount of Rs.20,000/- under the head ‘loss of estate’. In **MACA NO. 1957 OF 2009** ## **10** the light of the aforesaid decision, I scale down the compensation under the head ‘loss of estate’ by an amount of Rs.5,000/-. The Tribunal has not awarded any amount under the head ‘loss of consortium’. Taking into account the fact that the appellants 1 and 2 being the parents of the deceased, I hold that they are only entitled for compensation for ‘loss of consortium’ at Rs.40,000/- each, amounting to Rs.80,000/-. ## **Loss of love and affection** 21. It is seen that the Tribunal has awarded an amount of Rs.20,000/- under the head ‘loss of love and affection. 22. 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', as it would it will amount to duplication of compensation. **MACA NO. 1957 OF 2009** **11** Therefore, I set aside the amount of Rs.20,000/- awarded under the said head. 23. With respect to the compensation awarded under the head ‘transport expenses, I find that the Tribunal has awarded reasonable and just compensation. 24. 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 recalculated above and given in the table below for easy reference. **MACA NO. 1957 OF 2009** **12** **==> 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 Transport Expenses 2,000 2,000<br>2. Funeral Expenses 5,000 15,000<br>3. Love and affection 20,000 ---<br>4. Loss of estate 20,000 15,000<br>5. Loss of consortium --- 80,000<br>Loss due to dependency 2,34,000 5,71,200<br>Total 2,81,000 6,83,200<br>======= =======<br>**----- End of picture text -----**<br> 25. Even though the appellants had claimed only an amount of Rs.6,00,000/- as compensation, following the ratio in **Sarla Verma** and **Pranay Sethi (supra),** and awarding the appellants future prospects at 40%, the compensation is above the amount that has been claimed in the claim petition, which course is permissible in view of the law laid down by the Hon’ble Supreme Court in **MACA NO. 1957 OF 2009** **13** **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.4,02,200/with interest at the rate of 7.5% per annum from the date of petition till the date of realisation, after deducting interest for a period of 496 days , i.e. the period of delay in filing the appeal and as as ordered by this Court on 27.7.2021 in C.M.Appli. No.2/2009, and a cost of Rs.3,000/-. The 3[rd] respondent is ordered to 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/petitioners in the ratio of 30:30:20:20 respectively and in accordance with law, after deducting the liability of the appellants, if any, towards payment of court fee . **MACA NO. 1957 OF 2009** **14** All pending interlocutory applications will stand closed. ma/6.09.2021 Sd/- **C.S.DIAS, JUDGE** /True copy/ P.S to Judge