Kamala Soman, Sudeesh and Sreekumar Sundaran v. Rajender Kumar, Girish Chand Tewari and United India Insurance Co. Ltd. (MACA No. 137 of 2009)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 23[RD] DAY OF JUNE 2021 / 2ND ASHADHA, 1943 ## MACA NO. 137 OF 2009 AGAINST THE JUDGMENT IN OPMV 1290/2003 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR, THRISSUR ## APPELLANTS: - 1 KAMALA SOMAN W/O.SOMA SUNDRAN,, C/O.NARAYANAN NAIR, PATTATHIL HOUSE,, MANAKODY PO., MANAKODY VILLAGE, THRISSUR. - 2 SUDEESH, SO.SOMA SUNDRAN CO.NARAYANAN NAIR, PATTATHIL HOUSE, MANAKODY PO., MANAKODY, VILLAGE, THRISSUR. - 3 SREEKUMAR SO.SOMA SUNDARAN C/O.NARAYANAN NAIR, PATTATHIL HOUSE, MANAKODY PO., MANAKODY VILLAGE,, THRISSUR. BY ADV SRI.DILIP J. AKKARA ## RESPONDENTS: - 1 RAJENDER KUMAR, S/O.KARAN CHAND, C/O.M.K.CARGO MOVERS, IM2-1/2, 2ND FLOOR,, LALITHA PARK, LAKSHMI NAGAR, DELHI-92. - 2 GIRISH CHAND TEWARI SO.SATRHYANARAYAN TEWARI,R/O.VILLAGE, DHANONA-1, PO.BAREIPURAI, JHORPUR, U.P. - 3 UNITED INDIA INSURANCE CO.LTD. AKASHDEEP-26, BARATHAMBA ROAD, NEW DELHI. BY ADV SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 137 of 2009 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 137 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of June, 2021 ## **JUDGMENT** The petitioners in O.P(MV)No.1290 of 2003 on the file of the Motor Accidents Claims Tribunal, Thrissur are the appellants. The respondents in the claim petition are the respondents in the appeal. The appellants had filed the claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation on account of death of Late Sri Soma Sundaran, the husband of the first appellant and father of appellants 2 and 3. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 27.03.2003, while the appellants were travelling in an autorickshaw and when they reached MB Road S.A.Marg, T point, S.A.Marg, New Delhi, a MACA No. 137 of 2009 3 Trailer bearing registration No.HR 38D 8038 (offending vehicle)driven by the second respondent, in a rash and negligent manner, hit the autorikshaw. The deceased succumbed to the injuries on the spot. The offending vehicle was owned by first respondent and insured with the 3[rd] respondent. The deceased was employed as a commercial manager in a private firm and was drawing a monthly salary of Rs.15,000/-. The appellants were dependants of the deceased and were entitled for compensation, which the respondents are jointly and severally liable to pay. The appellants quantified the compensation at Rs.21,00,655/-, which was limited to Rs.20,00,000/-. 3. The respondents 1 and 2 did not contest and the proceedings were set ex-parte. Third respondent filed a written statement admitting that the offending vehicle had a valid Insurance policy. However, the third respondent disputed the age, income and occupation of the deceased. It was also contended that the amount of compensation claimed under MACA No. 137 of 2009 4 the various heads was excessive. 4. The appellants produced and marked Exts.A1 to A14 in evidence. Third respondent produced Ext.B1, copy of the insurance policy. 5. The Tribunal, after analysing the pleadings and materials on record, by the impugned award, allowed the claim petition in part, directing the 3[rd] respondent to pay an amount of Rs.6,12,600/- with interest at the rate of 7% per annum from 31.05.2003 and proportionate cost within 30 days from the date of the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners/appellants are in appeal. 7. Heard the learned counsel for the appellants and the learned counsel appearing for the 3[rd] respondent – Insurance Company. 8. The sole question that emanates for consideration in this appeal is whether the compensation awarded by the MACA No. 137 of 2009 5 Tribunal is reasonable and just. 9. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. Exts.A1 to A5 First Information Reports and charge sheets filed by the police, substantiate that the accident occurred solely on account of negligence on the part of 2[nd] respondent. 11. Undisputedly, the 1[st] respondent was the owner of the offending vehicle and 3[rd] respondent was the insurer of the vehicle. Therefore, 3[rd] respondent is liable to indemnify the 1[st] MACA No. 137 of 2009 6 respondent for the liability caused due to the accident. 12. The appellants had claimed that the deceased was working as a commercial manager in a private company. They produced Ext.A6 salary certificate issued by Fair Deal Industries, New Delhi, where the deceased was employed. In Ext.A6, it is seen that the decesased was drawing salary and other benefits to the tune of Rs.15,000/- per month. However, the salary of the deceased was fixed at Rs.10,000/- per month. Nevertheless, the Tribunal, in the impugned award, has fixed the notional income of the deceased at Rs.6,000/- per month for the reason that the document was not proved through the author. 13. Although the 3[rd] respondent had raised a contention regarding the income of the deceased, no contra evidence was let in to discredit Ext.A6 salary certificate. From Ext.A6, it is seen that the deceased was drawing a monthly salary of Rs.10,000/- and getting other emoluments of Rs.5,000/- per month. In view of the certification made by the employer of MACA No. 137 of 2009 7 the deceased and taking into consideration the fact that proceedings before the Tribunal are summary in nature, I am of the considered opinion that salary of the deceased could be fixed at Rs.10,000/- per month, as reflected in Ext.A6. Hence, I fix the income of the deceased at Rs.10,000/- per month. ## **Future Prospects** 14. In **Sarla Verma V. Delhi Transport Corporation** (2009(6) SCC 121), and a whole line of subsequent decisions, the Honourable Supreme Court has categorically held that dependants of the deceased are entitled for future prospects. In view of the fact that the deceased was aged 51 years and the multiplier being 11, the appellants are entitled for future prospects at 10% of the compensation for the loss of dependency. 15. In view of the re-fixation of the income of the deceased at the rate of Rs.10,000/- and that they are entitled to future prospects at 10%, appellants are entitled for compensation for loss of dependancy at **Rs.9,68,000/-,** MACA No. 137 of 2009 8 ## instead of **Rs.5,28,000/-** awarded by the Tribunal. ## **Transport Expenses** 16. Appellants had claimed an amount of Rs.59,600/-, ie Rs.14,900 for four persons towards transportation expenses,i.e, their air fare from New Delhi to Kochi. The appellants had also sought for embalming and other incidental expenses to the tune of Rs.19,055/-, but the Tribunal awarded only Rs.3,600/- towards transporting expenses. 17. Considering the fact that the dead body had to be transported from New Delhi to Kochi by Air, I am of the opinion that one of the appellants are entitled to air ticket charges along with the charges for transporting the body from New Delhi to Kochi. On going through Ext.A8 Air ticket and Ext.A9 invoice, it is seen that the body of deceased was transported from New Delhi to Kochi by paying an amount of Rs.3,555/-. Similarly, air ticket charges was Rs.14,900/- per head. Therefore, I hold that the appellants are entitled for an amount of Rs.18,455/-,i.e, Rs.14,900/- + Rs.3,555/-. MACA No. 137 of 2009 9 ## **Conventional Heads of compensation** 18. In Pranay Sethi(supra), the Hon'ble Supreme Court has, in clause (viii) of paragraph 61 held that, the dependents of the deceased are entitled to compensation under the conventional heads viz, Loss of Estate, Loss of Consortium and funeral expenses at Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. 19. The Tribunal has awarded only an amount of Rs.5,000/- towards funeral expenses. In the light of the law laid down supra, I enhance the compensation under the said head to **Rs.15,000/-** . Similarly, the Tribunal had awarded an amount of Rs.25,000/- towards loss of Estate. In view of the above law, I scale down the amount from **Rs.25,000/- to Rs.15,000/-** . It is also seen that the Tribunal has awarded only an amount of Rs.15,000/- towards loss of consortium. As the first appellant is the wife of the deceased and appellants 2 and 3 are their children, they are entitled for spousal consortium and filial consortium at Rs.40,000/- each, MACA No. 137 of 2009 10 totalling to an amount of Rs.1,20,000/-. 20. The Tribunal had awarded an amount of Rs.15,000/towards pain and sufferings. In **United India Insurance Company Ltd V. Satinder Kaur @ Satwinder Kaur and others** (2020(3) KHC 760), the Hon'ble Supreme Court has held that the dependants are not entitled to any compensation towards pain and sufferings. Hence I set aside the amount of compensation paid under that head. Similarly, the Tribunal has also awarded Rs.20,000/- towards loss of love and affection. In Kunjandy V. Rajendran (2020(2) KLT 315), this court has held that dependants are not entitled for compensation under the head loss of love and affection, if they are paid compensation for loss of consortium. Hence I set aside the compensation awarded under the head loss of love and affection. 21. With respect to compensation under the head clothing, I find that the Tribunal has awarded reasonable amount of compensation. MACA No. 137 of 2009 11 22. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I am of the firm opinion that the appellants are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Expense for transportation|**3,600/-**|18,455/-| |2|Damages to clothing|1,000/-|1,000/-| |3|Expenses for Funeral|**5,000/-**|**15,000/-**| |4|Compensation for pain and<br>sufferings|15,000/-|Nil| |5|Compensation for loss of love<br>and affection|20,000/-|Nil| |6|Compensation for loss of<br>dependency|**5,28,000/-**|**9,68,000/-**| |7|Compensation for loss of estate|25,000/-|15,000/-| |8|Compensation for loss of<br>consortium|**15,000/-**|**1,20,000/-**| ||||| ||Total|**6,12,600/-**|**11,37,455/-**| 23. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.5,24,855/-(Rupees Five lakhs twenty four thousand eight hundred and fifty five MACA No. 137 of 2009 12 only) with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of realisation along with proportionate cost. The 3[rd] respondent shall deposit the additional compensation awarded in this appeal before the Tribunal, along with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The appellants would be at liberty to move the Tribunal for withdrawal of the deposited amount, which shall be disbursed to them as per the proportion and conditions fixed in the impugned award. Sd/- **C.S.DIAS,JUDGE** **lgk/25.06.2021**