K. Sujathamma & Others v. S. D. Mohammed Shaki & Others

MACA No.2508/2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943 MACA NO. 2508 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 755/2001 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL TIRUR, MALAPPURAM** ## **APPELLANT/S:** 1 K. SUJATHAMMA & OTHERS W/O.LATE MALAKONDA REDDY,, LINGAREDDYVARA STREET, VAKADU P.O.,, NELLORE DISTRICT, ANDHRA PRADESH. 2 K.LALITHA DO.LATE MALAKONDA REDDY LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE DISTRICT,, ANDHRA PRADESH. 3 MINOR SAI MEGHANA AGED 15 YEARS, REP. BY GUARDIAN,, K.SUJATHAMMA, LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE DISTRICT, ANDHRA PRADESH. BY ADV SRI.V.BINOY RAM ## **RESPONDENT/S:** 1 S.D. MOHAMMED SHAKI & ORS S/O.MOHAMMED GOUSE, 21/44, JANDA STREET,, NELLORE P.O., ANDHRA PRADESH. 2 HARI BABU SO.VENGIDAYYA POOVADI HOUSE,BAIJI, KAVALA, NELLORE P.O.,, ANDHRA PRADESH. 3 UNITED INDIA INSURANCE CO. LTD. 16/2968, ANURAJ COMPLEX, JAWAHARLAL ROAD,, NELLORE P.O., ANDHRA PRADESH. 4 M.K.ABDUL LATHEEF MACA No.2508/2009 2 S/O.HASSINAR HAJI UMMAR SAHIB,, SAHIB MANZIL, KALLIGUNDI P.O., SAMPAGEGATE,, SULLIA, KARNATAKA. 5 RAJESH SO.KUNJAPPU KULLACHAL HOUSE, MALLOM AMSOM, P.O., KASARAGOD. 6 THE NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, 2ND FLOOR, COMPLEX,, DENTOORWELL CIRCLE, KANKANADY,, MANGLORE, KARNATAKA. BY ADVS. RAJAN P.KALIYATH SMT.DEEPA GEORGE SRI.M.A.GEORGE SMT.M.MEENA JOHN SRI.VIJU THOMAS **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2508/2009 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.755/2001 of the Motor Accidents Claims Tribunal, Tirur. 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 Malakonda Reddy (deceased), who was 50 years at the time of his death. The appellants stated that the deceased was the husband of the 1[st] appellant, father of the 2[nd] appellant and the maternal grandfather of the 3[rd] appellant. The appellants had averred in the claim petition that on 23.11.2000, while the deceased was traveling in a passenger tempo van bearing registration No.AP-26T/9225 (van) through Kuttippuram – Edappal road, when the van reached near Mallur Shiva Temple, a lorry bearing registration No.KA-21-A/9990 driven by the 5[th] respondent came from the opposite direction and there was a collision between the lorry and the van. The accident occurred due to the negligence of the 2[nd] respondent, who MACA No.2508/2009 4 drew the van in a negligent manner and hit on the lorry. As a result of the said accident that the deceased sustained serious injuries and was taken to the Aswini Hospital, Thrissur, where he lost his life on 01.12.2000. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. The appellants claimed that the deceased was a Telugu Pandit and was working in G.M.N.Z.P. High School, Chittamur and drawing a monthly salary of Rs.12,890/-. The appellants were the dependents of the deceased. They claimed a total compensation of Rs.16,90,000/- from the 3[rd] respondent, being the insurer of the van. 3. The other injured and legal heirs of the deceased, who lost their lives in the same accident, filed OP(MV) Nos.751, 752, 753 and 755 of 2001 before the same Tribunal on the very same set of pleadings. 4. The respondents 1, 2, 4 and 5 did not contest the proceedings and were set ex-parte. The 3[rd] respondent filed written statements in all the cases admitting that the van had a valid insurance coverage. Nevertheless, it was MACA No.2508/2009 5 contended that the accident occurred due to the negligence on the part of the driver of the lorry. 5. The 6[th] respondent/insurer of the lorry also filed separate written statements in all the claim petitions contending that the accident occurred due to the negligence on the part of the 2[nd] respondent/driver of the van. 6. The Tribunal consolidated and jointly tried all the claim petitions. The petitioners in all the cases produced and marked Exts.A1 to A35 in evidence. The respondents did not let in any evidence. 7. The Tribunal by its common award allowed the captioned claim petition by permitting the appellants to realise an amount of Rs.5,70,000/- with interest at the rate of 6% per annum from the date of petition till the date of realisation and a cost of Rs.5,000/- to be realised from the 3[rd] respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/petitioners are in appeal. 9. Heard; Sri.Binoy Ram V., the learned counsel MACA No.2508/2009 6 appearing for the appellants/petitioners and Smt.Deepa George, the learned counsel appearing for the 3[rd] respondent/insurer of the van and Sri.Viju Thomas, the learned counsel appearing for the 6[th] respondent/insurer of the lorry. 10. The 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.A1 FIR, Ext.A31 scene mahazer and Ext.A32 case diary of the Kuttippuram Police substantiate that the accident occurred due to the negligence on the part of the 2[nd] respondent, who drew the van in a negligent manner. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. Thus, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident by the use of the van. ## **Income of the deceased** 12. The appellants had contended that the deceased was working as a Telugu Pandit Grade II in G.M.N.Z.P. High MACA No.2508/2009 7 school, Chittamur and drawing a monthly salary of Rs.12,890/-. In order to substantiate their averment, they produced Ext.A27 salary certificate dated 21.08.2004 issued by the Principal of the said school. Nevertheless, the Tribunal took the income of the deceased at Rs.7,280/- that is after taking into account the monthly deductions of Rs.5,610/-. 13. It is well settled by the Honourable Supreme Court in **Kalpana Raj and others vs. Tamilnadu State Transport Corporation** [(2015) 2 SCC 764] that the net monthly income of the deceased/injured has to be taken after deducting the income tax from the basic salary and dearness allowance payable to the deceased/injured. 14. It is seen that the deceased had an annual income of Rs.1,42,116/- from his basic salary and dearness allowances. In view of the income tax slab prevalent in the year 2000, an amount of Rs.17,400/- has to be deducted towards income tax. Thus the net salary of the deceased was Rs.10,390/- per month. ## **Multiplier** MACA No.2508/2009 8 15. The deceased was aged 50 years, on the date of his death that is on 01.12.2000. 16. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], which was confirmed by the Constitutional Bench of the Honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] the relevant multiplier to be adopted in this case is '13'. ## **Dependents of the deceased** 17. Even though the appellants had claimed that they were dependents of the deceased, the 3[rd] appellant was the granddaughter of the deceased. 18. On a consideration of the fact that the 3[rd] appellant was the granddaughter of the deceased, who was living with her parents, I am of the opinion that the 3[rd] appellant cannot be treated as the dependent of the deceased. Hence, I hold that only the appellants 1 and 2 were the dependents of the deceased. In such circumstances, 1/3[rd] of the compensation for loss of dependency has to be deducted towards the personal living expenses of the deceased. MACA No.2508/2009 9 ## **Future Prospects** 19. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 50 years, at the time of the accident, the multiplier being '13', the appellants are also entitled for future prospects at 15% on the compensation for loss of dependency. ## **Loss due to Dependency** 20. Taking into account the above mentioned factors i.e., monthly income of the deceased at Rs.10,390/-, multiplier at 13, future prospects at 15% and deducting 1/3[rd] of the compensation for loss of dependency towards personal living expenses of the deceased, I refix the loss of dependency of the petitioners/appellant at Rs.12,42,644/instead of Rs.5,28,000/- fixed by the Tribunal. ## **Conventional Heads of Compensation** 21. In clause (viii) of paragraph 61 of **National Insurance Company Ltd. v. Pranay Sethi** (supra) the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation under the MACA No.2508/2009 10 conventional heads i.e., 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.2,500/- under the head funeral expenses. Therefore, I enhance the compensation under the said head by a further amount of Rs.12,500/. Likewise, the Tribunal has not awarded any amount under the head loss of estate. Thus, I award an amount of Rs.15,000/- under the said head. 23. Taking into account the fact that the appellants 1 and 2 are the wife and daughter of the deceased, I am of the opinion that only they are entitled to a compensation for loss of consortium at Rs.40,000/- each i.e. Rs.80,000/-. 24. With respect to the compensation awarded under the heads transportation charges and medical expenses, I find that the Tribunal has awarded a reasonable and just compensation. 25. On an overall re-appreciation of the pleadings and materials on record, and the law laid down in the above referred decisions, I am of the definite opinion that the MACA No.2508/2009 11 appellants are entitled for enhancement of compensation as recalculated above and given in the table below for easy reference: **==> picture [426 x 485] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount Amounts<br>awarded by modified<br>No<br>the Tribunal and<br>(in rupees) recalculate<br>d by this<br>Court<br>1. Transportation 12,700 12,700<br>charges<br>2. Pain and suffering 7,500 0<br>3. Funeral expenses 2,500 15,000<br>4. Loss of estate 0 15,000<br>5. Loss of consortium 0 80,000<br>6. Medical expenses 19,400 19,400<br>7. Loss of dependency 5,28,000 12,42,852<br>Total 5,70,000 13,84,952<br>**----- End of picture text -----**<br> In the result the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.8,14,852/- with MACA No.2508/2009 12 interest on enhanced compensation at the rate of 6% per annum from the date of petition till the date of realisation and a cost of Rs.3,000/-. The 3[rd] respondent/insurer is ordered to deposit the enhanced compensation 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. The Tribunal shall disburse the enhanced compensation to the appellants 1 and 2 in the ratio of 60:40 and in accordance with law. All the pending interlocutory applications will stand closed. Sd/- **C.S.DIAS JUDGE** rkc