K. M. Hameed and others v. K. M. Navas and others

MACA NO. 2991 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 8[TH] DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943 MACA NO. 2991 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 2192/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM, ERNAKULAM APPELLANT/S:** 1 K.M.HAMEED , KARIVELIL HOUSE, KUDILIL ROAD, K.D.PLOT, SOUTH KALAMASSERY P.O. 2 K.A.RAMLA -DO- -DO3 NISHA.K.M. -DO- -DOBY ADV SRI.A.A.MOHAMMED NAZIR ## **RESPONDENT/S:** 1 K.M.NAVAS S/O.MOHAMMED, KARIPPAYIL HOUSE, THAIKKATTUKARA, ALUVA. 2 BABU S/O.JACOB PANDIPPILLI HOUSE THAIKKATTUKARA, ALUVA. 3 NATIONAL INSURANCE CO.LTD. MOTOR 3RD PARTY CLAIMS OFFICE,, AJAY VIHAR, M.G.ROAD, ERNAKULAM. BY ADV SRI.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2991 OF 2009 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.2192/2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents 1 to 3 before the Tribunal. Since the 3[rd] respondent had admitted the insurance policy, the 4[th] respondent before the Tribunal has not been made a party in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per the 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 Nishad (deceased), son of the petitioners 1 and 2 and brother of the 3[rd] petitioner. It was their case that, on 16.07.2004, while the deceased was riding his motor cycle bearing registration No.KL 7Y 9525 along the Glass Factory road, when he reached the place of occurrence near Kalamassery - Edappally old National Highway road, a bus bearing registration No. KL 7 L 7029 (bus), driven by the 2[nd] respondent in a negligent manner, hit the motor cycle. The MACA NO. 2991 OF 2009 3 deceased sustained serious injuries and was treated at the Medical Trust Hospital, Ernakulam. Unfortunately, he lost his life on 22.07.2004. The deceased was a computer hardware technician by profession and was earning a monthly income of Rs.4,000/-. The bus was owned by the 1[st] respondent and insured with the 3[rd] respondent. The 4[th] respondent was the insurer of the motor cycle of the deceased. The petitioners were the dependents of the deceased. They claimed a total compensation of Rs.8,36,000/- from the respondents 1 to 3, which was limited to Rs.8,00,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the bus had a valid insurance policy. However, it was contended that the accident occurred due to the negligence of the deceased. The 3[rd] respondent also disputed the age, income and occupation of the deceased. 5. The 4[th] respondent had filed a written statement contending that they were an unnecessary party of the MACA NO. 2991 OF 2009 4 litigation because the accident occurred due to the negligence of the 2[nd] respondent. Therefore, it is only the 3[rd] respondent, who is liable to pay the compensation amount. 6. The 1[st] petitioner and the witness were examined as PWs 1 and 2 and Exts.A1 to A17 were produced and marked in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the 3[rd] respondent an amount of Rs.2,58,550/- with interest @ 7% per annum from the date of petition till the date of award and thereafter at the rate of 9% per annum till the date of realisation and proportionate cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri. Mohammed Nazir, the learned counsel appearing for the appellants/petitioners and Sri. Joe Kalliyath, the learned counsel appearing for the 3[rd] respondent/insurer. 10. The question that arises for consideration in this MACA NO. 2991 OF 2009 5 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 Kochi City Traffic Police in Crime No.2184/2004 proves that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The 3[rd] respondent admitted that the bus had a valid insurance coverage and had 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 of the deceased** 12. The petitioners had claimed that the deceased was a computer hardware technician by profession and earning a monthly income of Rs.4,000/-. However, the Tribunal fixed the notional monthly income of the deceased at Rs.4,000/-. 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 MACA NO. 2991 OF 2009 6 SCC 236], the Honourable Supreme Court 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 afore-cited decision, considering the fact that the accident happened in the year 2004 and the petitioners had claimed that the deceased was earning a monthly income of Rs.4,000/-, I fix the monthly notional income of the appellant at Rs.4,000/-. ## **Multiplier** 15. The deceased was aged 19 years at the time of the accident. 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 '18' (multiplier). ## **Dependents of the deceased** 17. Undisputedly the deceased was a bachelor. 18. In the light of the law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one half of the compensation has MACA NO. 2991 OF 2009 7 to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 19. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 19 years at the time of the accident, I hold that the petitioners are entitled to future prospects at 40% on the compensation for loss due to dependency. ## **Loss due to Dependency** 20. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.4,000/-, multiplier at 18, future prospects at 40% and deducting one half of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.6,04,800/-, instead of Rs.2,00,000/awarded by the Tribunal. ## **Conventional Heads of Compensation** 21. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation MACA NO. 2991 OF 2009 8 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. 22. In the instant case, the Tribunal has awarded only an amount of Rs.3,000/- under the head 'funeral expenses', Rs.5,000/- under the head 'loss of estate'. Therefore, I enhance the compensation under the aforesaid heads by a further amount of Rs.12,000/- and Rs.10,000/- respectively. 23. It is proved that the petitioners were the dependents of the deceased, who were the parents and sister of the deceased. Accordingly, I hold that they are entitled to an amount of Rs.40,000/- each towards 'loss of consortium'. Thus, I award an amount of Rs.1,20,000/- under the head 'loss of consortium'. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 25. 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 appellants/petitioners are MACA NO. 2991 OF 2009 9 entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [444 x 412] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>awarded by modified and<br>No the recalculated<br>Tribunal(in by this<br>rupees) Court(in<br>rupees)<br>1. Transportation 550 550<br>expenses<br>2. Funeral expenses 3,000 15,000<br>3. Loss of estate 5,000 15,000<br>4. Loss of consortium 0 1,20,000<br>5. Pain and suffering 10,000 10,000<br>6. Medical expenses 40,000 40,000<br>7. Loss of dependency 2,00,000 6,04,800<br>Total 2,58,550 8,05,350<br>**----- End of picture text -----**<br> In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.5,46,800/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit and proportionate cost. The 3[rd] MACA NO. 2991 OF 2009 10 respondent is ordered to deposit the enhanced compensation before the Tribunal with interest and cost within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellants/petitioners in the ratio of 40:30:30 and in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc