Kamal, S/o Sulaiman; Mumthaj, W/o Kamal; Mujeena, D/o Kamal v Lucy Sebastian; Jashim S/o Moidunny; The Oriental Insurance Company Ltd

1 MACA No.2449 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943 MACA NO. 2449 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 2004/2006 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR APPELLANT/S:** 1 KAMAL,S/O.SULAIMAN 2 MUMTHAJ,W/O.KAMAL 3 MUJEENA,D/O.KAMAL, ALL ARE RESIDING AT MUJEENA MANZIL, VANDITHAVALAM, ALAYAR, PALAKKAD DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD **RESPONDENT/S:** 1 LUCY SEBASTIAN RESIDING AT PORATHUR HOUSE, THAYYUR, THRISSUR DISTRICT-680 584. 2 JASHIM S/O.MOIDUNNY, RESIDING AT INJIKKALAYIL HOUSE, CHIRAKKAL P.O., KATTAKAMPAL, THRISSUR DISTRICT-680 544. 3 THE ORIENTAL INSURANCE COMPANY LTD NO.7, UTHAMAR GANDHI SALAI, 2ND FLOOR, ROSY TOWERS, NUNGAMBAKKAM, CHENNAI-400091. BY ADVS. SMT.P.K.PRIYA SRI.VPK.PANICKER - R3 SRI.T.K.VIPINDAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.2449 of 2012 ## **C.S.DIAS, J.** ## **====================== MACA No.2449 of 2012** ## **====================== Dated this the 5[th] day of January, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.2004/2006 on the file of the Motor Accident Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Mujeeb (deceased), the son of the appellants 1 and 2 and brother of the third appellant. It was their case that, on 4.4.2006, while the deceased was travelling in a jeep bearing registration No.KLK-3653 along with his classmates through Thrissur-Kunnamkulam public road, a bus bearing registration No.KL-08-E-4040 (bus), driven by the second respondent in a rash and negligent manner, hit the jeep. 3 ## MACA No.2449 of 2012 The deceased succumbed to his injuries. The deceased was a sixth semester B.Tech student in Vidya Academy of Science and Technology, Thalakkottukara, Thrissur. The first respondent was the owner and the third respondent was the insurer of the bus. Hence, the appellants claimed a total compensation of Rs.37,37,000/- from the respondents, which claim was limited to Rs.35,00,000/-. 3. The co-passengers in the jeep – the classmates of the deceased also filed OP(MV) Nos 2003, 2006 and 2008 of 2006 before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceedings in all the four claim petitions. 5. The third respondent/insurer had filed separate written statements in all the claim petitions. The third respondent admitted that the bus had a valid insurance coverage. Nevertheless, the third respondent contended that the accident occurred due to the negligence of the driver of the jeep – the petitioner in OP(MV) 2008/2006. 4 ## MACA No.2449 of 2012 The third respondent also disputed the age, income and occupation of each of the petitioners and the deceased. 6. The Tribunal consolidated and jointly tried the four claim petitions. 7. The second appellant and a witness were examined as PWs 1 and 2 and Exts A1 to A37 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, by permitting the appellants to realise from the third respondent an amount of Rs.6,93,000/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 10. Heard; Sri.T.C Suresh Menon, the learned counsel appearing for the appellant/petitioner and Sri.V.P.K Panicker, the learned Senior Counsel appearing for the third respondent/insurer. 5 ## MACA No.2449 of 2012 11. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Ext A4 final report filed by the Police proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Ext A4 final report. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 13. The appellants had claimed that the deceased was a Sixth Semester Engineering student. They had not fixed his notional income. 6 ## MACA No.2449 of 2012 14. A Division Bench of this Court in **National Insurance Co Ltd v. Fathimath Zuhara [2016 (3) KLT** **459]** has fixed the notional income of an engineering student in the year 2005 at Rs.9,000/-. 15. Following the yardstick in the aforecited decision and considering the fact that the accident in the instant case also happened in the year 2006, I am of the firm opinion that the notional monthly income of the deceased can also be fixed at Rs.9,000/-. ## **Multiplier** 16. Admittedly, the deceased was aged 20 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '18'. ## **Future prospects** 17. Following the ratio in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680],** I hold that the appellants are entitled to future 7 ## MACA No.2449 of 2012 prospects @ 40%, as the deceased was aged 20 years at the time of the accident. ## **Personal living expenses of the deceased** 18. As the deceased was a student and a bachelor, one-half of the compensation has to be deducted towards the personal living expenses of the deceased following the ratio in **Pranay Sethi** (supra) and **Sarla Verma** (supra). ## **Loss of dependency** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.9,000/-, 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 at **Rs.13,16,800/** -, instead of Rs.6,30,000/- awarded by the Tribunal. ## **Conventional heads of claim** 20. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay** 8 ## MACA No.2449 of 2012 **Sethi [(2017) 16 SCC 680]** has held that the dependents of the deceased are entitled for 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/- respectively. 21. It is also observed in **Pranay Sethi** (supra) that the conventional heads of compensation have to be enhanced every three years by 10%. 22. 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 has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accidents. Thus, it is to be interpreted and inferred that the escalation of 10% is to be awarded after three years from 9 ## MACA No.2449 of 2012 the pronouncement of **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three years after 2017. 23. In the instant case, the Tribunal had awarded an amount of Rs.5,000/- towards funeral expenses and Rs.5,000/- towards loss of estate. Following the ratio in the aforecited decisions, I award the appellants an amount of **Rs.16,500/-** each under the aforesaid heads. Also, I award an amount of Rs.44,000/- each under the head loss of consortium totalling to an amount of Rs.1,32,000/-. ## **Pain and sufferings and loss of love and affection** 24. It is seen that the Tribunal has awarded an amount of Rs.15,000/- under the head 'pain and sufferings' and Rs.30,000/- under the head 'loss of love and affection'. 25. In paragraph 19 of **Sarla Verma** (supra) , the Hon'ble Supreme Court has held that in the case of 10 ## MACA No.2449 of 2012 instantaneous death, no amount shall be awarded under the head 'pain and sufferings. Therefore, I set aside the amount awarded under the aforesaid head. 26. Likewise, in **New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644]** , Hon'ble 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 awarded under the head 'loss of love and affection'. ## **Other heads of compensation** 27. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 28. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellants/petitioners are 11 ## MACA No.2449 of 2012 entitled for enhancement of compensation 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 and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transportation expenses|2,000/-|2,000/-| |2|Bystander expenses|450/-|450/-| |3|Medical expenses|5,335/-|5,335/-| |4|Pain and sufferings|15,000/-|Nil| |5|Loss of dependency|6,30,000/-|13,16,800/| |6|Loss of estate|5,000/-|16,500/-| |7|Loss of love and<br>affection|30,000/-|Nil| |8|Loss of consortium|Nil|1,32,000/-| |9|Funeral expenses|5,000/-|16,500/-| |||6,92,785/-<br>rounded off to<br>Rs.6,93,000/-|14,89,585/-| In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of **Rs.7,96,585/-** (Rupees Seven Lakh Ninety Six Thousand Five Hundred and Eighty Five only) with interest on the enhanced compensation at the rate of 7% per annum 12 ## MACA No.2449 of 2012 from the date of claim petition till the date of deposit and proportionate costs. The third respondent 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 35:35:30 and in accordance with law. Sd/- sks/6.1.22 **C.S.DIAS, JUDGE**