K J Joseph and others v. Dhanapal K and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 MACA NO. 1379 OF 2013** **AGAINST THE JUDGMENT IN OPMV 922/2009 DATED 28/02/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANTS/PETITIONERS:** 1 K J JOSEPH, S/O.JOSEPH, KOOTTARAPALLIL HOUSE, KOOVAPALLY P.O, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. 2 LUCY JOSEPH, W/O.K.J.JOSEPH, -- DO -- 3 ANJU JOSEPH, D/O.K.J.JOSEPH, -- DO -- BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** 1 DHANAPAL K, S/O.KAILIAPPAN, 45/1 THILLAIPURAM MAIN ROAD, NAMAKKAL, TAMILNADU – 637 001. 2 M.S.ANTONY SAMY, S/O.MICHAEL, THARMATHURANI, NADUVAKURICHI P.O., SANKARANKOIL, T.K.NELLAI DISTRICT, TAMIL NADU – 628 663 3 ICICI LOMBARD GENERAL INSURANCE CO. LTD., ZENITH HOUSE, KESHAV RAO, KHADEMARG, MAHALAKSHMI, MUMBAI – 400 034. BY ADVS. LATHEESH SEBASTIAN SRI.R.AJITH KUMAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1379/2013 2 **M.R.ANITHA, J** ****************** M.A.C.A.No.1379 of 2013 ---------------------------------------------------Dated this the 18[th] day of May, 2022 ## **JUDGMENT** The appeal has been filed against the award passed in O.P.M.V No.922/2009 on the file of Motor Accidents Claims Tribunal, Pala (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in short 'the Act') out of the death of Abhilash, the son of appellants 1 and 2 and the brother of third appellant in a motor accident occurred on 14.06.2009 at about 11.15 p.m near wooden bridge junction, Madhukkarai, Coimbatore while travelling in bus with Registration No.KLR-5727 due to hit by Tanker lorry with No.TN-28/AA-2337 driven by the second respondent. It is alleged that the accident happened due to the rash and negligent driving of the second respondent. 1[st] respondent is the registered owner of the tanker lorry and the third respondent is the insurer. Immediately after 3 M.A.C.A.No.1379/2013 the accident, Abhilash was taken to Abhirami Hospital, Coimbatore and then shifted to C.M.C.Hospital, Coimbatore where he succumbed to the injuries on 15.06.2009. 2. Before the Tribunal, 3[rd] respondent alone contested the matter by filing written statement. The policy coverage with respect to the offending vehicle is admitted. But, it is contended that the driver had no valid driving licence and the insured knowing that fact, permitted the 1[st] respondent to drive the vehicle without any authority and hence there is violation of policy conditions. It is further contended that there is no valid permit to the offending vehicle. The compensation claimed under various heads is also disputed. 3. Ext.A1 to A8 and Ext.A10 were marked and Ext.A9 was marked subject to admissibility. 4. The Tribunal, on evaluating the pleadings as well as the documents came to the conclusion that accident happened due to the rash and negligent driving of the tanker lorry by the second respondent and the third respondent is held liable to indemnify the first respondent. A total compensation of M.A.C.A.No.1379/2013 4 Rs.4,36,000/- has been awarded. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants approached this Court in appeal on various grounds stated in the memorandum of appeal. 6. Notice was served to respondents 1 and 2. There was no appearance. Third respondent appeared though Adv.Ajithkumar. 7. Heard. learned counsel for the appellants as well as the third respondent. Lower court records were called for and perused. 8. Accident, death as well as the liability of the third respondent is not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. According to the learned counsel for the appellants, the deceased was a Nurse and Exts.A4 to A7 were produced to prove his qualification and the income but Tribunal taken Rs.6,000/- as the monthly income. Ext.A4 is the copy of the certificate of Nursing Diploma and it is submitted by the learned counsel for the appellant that the deceased obtained a job and during the travel with the M.A.C.A.No.1379/2013 5 documents to join the new job the accident occurred and hence his original certificate was lost in transit. So, the Nursing Diploma Certificate in original could not be produced. Ext.A5 is the registration certificate dated 29.05.2007 in original issued by the Karnataka State Nursing Council in favour of the deceased as life member. Ext.A6 dated 08.08.2008 is issued by Hospital Administrator, Surya Children's Hospital, & Neonatal Intensive Care Unit, Mumbai certifying that the deceased had been employed in the organization since 13.08.2007 till date as staff nurse and he is also certified to be hard working, conscientious and is adequately conversant with handing of all emergencies in the wards. Ext.A7 is the experience certificate dated 15.01.2007 issued by the Managing Director of Mercy Nursing Home (Pvt) Ltd. Kurukachal certifying that the deceased had been working as a staff nurse in their hospital from 1[st] September, 2006 to 15[th] January 2007. The employment certificate and experience certificate would prove the averments in the claim petition that he has been working as a Nurse. But Exts.A6 and A7 are silent about the salary details of the deceased. Monthly income claimed M.A.C.A.No.1379/2013 6 in the petition is Rs.7,500/- per month. Hence I find it reasonable to accept the income claimed in the claim petition. Hence monthly income is taken as Rs.7,500/-. 8. The deceased was a 24 year old Nurse earning Rs.7,500/- per month. The appellants are parents and minor sister of the deceased. In **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802)** the Apex Court laid down the principles to be followed in determining the quantum of compensation in a case of death out of Motor vehicle accident. It is held that just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make good the loss sustained by the victim of accident as far as money can do. 9. In **National Insurance Company Limited v. Pranay Sethi and Ors (2017(4) KLT 66)** Constitution Bench of Apex Court held that Section 168 of the Act deals with the concept of “just compensation” and that has to be determined on the foundation of fairness, reasonableness and equitable on acceptable legal standard because such determination can never M.A.C.A.No.1379/2013 7 be with arithmetical exactitude. The aid is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. 10. In **Sarla Verma** 's case the Apex Court adopted addition of amount towards future prospects in case of death with respect to salaried persons having permanent job. But, in **Pranay Sethi** , the Apex Court though adopted the principles in **Sarla Verma** , made some variance with regard to grant of future prospects in restricting the same to apply to persons having actual salary and having permanent job and it was found that there is no rationale not to apply the said principles to the self employed or person who is on a fixed salary. With respect to self employed or persons having fixed salary when the deceased was below 40 years an addition of 40% was fixed towards future prospects. In the present case, the deceased being 24 years, 40% is to be added to the monthly income towards future prospects. Hence the monthly income in the present case would be Rs.10,500/- [Rs.7500 + Rs.3,000 (Rs.7,500 x 40%)]. M.A.C.A.No.1379/2013 8 11. On the question of deduction towards personal and living expenses, the principles laid down in **Sarla Verma** 's case has been approved by the Apex Court in **Pranay Sethi** whereby in cases where the deceased is a bachelor, the deduction towards personal and living expenses is one half since he would tend to spend more on himself. In the present case, since the deceased was a bachelor, half of the income has to be deducted towards personal and living expenses. So, the monthly income would be Rs.5,250/- [Rs.10,500 x ½). Since the deceased was 24 years at the time of death, the multiplier as per **Sarla Verma** approved by **Pranay Sethi** would be 18 instead of 11 adopted by the Tribunal. So, towards loss of dependency, claimants are entitled to get Rs.5,250 x 12 x 18 = Rs.11,34,000/-, out of which Rs.3,96,000/- already awarded by the Tribunal is to be deducted. Then the balance amount would be Rs.7,38,000/-. 12. Next aspect is with regard to conventional heads. In **Pranay Sethi** , Apex Court fixed Rs.15,000/- each under the head of loss of estate and funeral expenses and Rs.40,000/towards consortium. The Apex Court also made it specific that M.A.C.A.No.1379/2013 9 the above amount should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The judgment in **Pranay Sethi** was on 31.10.2017. Since three years have elapsed, the appellants are entitled for 10% enhancement on the said amount. Hence under conventional heads, the claimants are entitled to get Rs.16,500/each towards loss of estate and funeral expenses. Amounts of Rs.5,000/- each already awarded by the Tribunal under the heads of loss of estate and funeral expenses has to be deducted. Thus, the claimants are entitled to get Rs.11,500/- each under those heads. 13. In **Magma General Insurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors. : 2018 (18) SCC 130** , the Apex Court while dealing with consortium has classified it into spousal consortium, parental consortium and filial consortium. In this case, appellants 1 and 2 are parents and hence both of them are entitled for consortium at the rate of Rs.44,000/- each. Hence under the head of consortium, appellants are entitled to get Rs.44,000 x 2 = Rs.88,000/-. Once compensation is awarded M.A.C.A.No.1379/2013 10 under the head of consortium, claimants are further not entitled to get any compensation towards love and affection (See **The New India Assurance Company Limited v. Somwati (2020 (9) SCC 644** )). Hence Rs.15,000/- awarded by the Tribunal towards love and affection has to be deducted. So, under the head of consortium, claimants are entitled to get Rs.73,000/[Rs.88,000 – Rs.15,000]. In total, claimants are entitled to get Rs.7,38,000 + Rs.11,500 + Rs.11,500 + Rs.73,000 = Rs.8,34,000/- 14. In the result appeal allowed. The claimants are allowed to realise enhanced compensation of Rs.8,34,000/(Rupees eight lakhs thirty four thousand only) with interest at 6% from the date of petition till realisation. Enhanced compensation shall be apportioned among the appellants in the ratio of 25 : 50 : 25. The 3rd respondent, Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment. M.A.C.A.No.1379/2013 11 The disbursement of additional compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 6.9.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 7.11.2019. The appellant/claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge