K.K. Pareed and Fathima Pareed v. A.N. Gangadharan and A.K. Achuthan and The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943** ## **MACA NO. 1440 OF 2010** **AGAINST THE COMMON AWARD DATED 25.09.2009 IN OPMV 1866/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANS/PETITIONERS:** 1 K.K.PAREED, AGED 50 YEARS S/O.LATE KHADER,RESIDING AT KARUKUNNATH HOUSE,, PERINGALA P.O., KUNNATHUNADU VILLAGE,, KUNNATHUNADU TALUK, ERNAKUALAM DISTRICT. 2 FATHIMA PAREED, AGED 49 YEARS W/O.K.K.PAREED,,RESIDING AT KARUKUNNATH HOUSE,, PERINGALA P.O.,KUNNATHUNADU VILLAGE,, KUNNATHUNADU TALUK, ERNAKUALAM DISTRICT. BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.BEENA DEVASSY SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. ## **RESPONDENTS/RESPONDENTS:** 1 A.N.GANGADHARAN S/O.NARAYANAN, EDATHAIKARA HOUSE,, KUMMANODE,PATTIMATTOM P.O., ERNAKULAM DISTRICT, PIN-683562. 2 A.K.ACHUTHAN, S/O.KRISHNA KURUP ANIKKATTUPARAMBIL HOUSE,, SOUTH OF N S S OFFICE, VALAMBUR P.O.,, MAZHUVANNUR VILLAGE, PIN-679 325. ## **MACA NO. 1440 OF 2010 2** 3 THE NEW INDIA ASSURANCE COMPANY LIMITED REGIONAL OFFICE, ERNAKULAM, COCHIN 682011. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1440 OF 2010 3** Dated this the 30[th] day of September,2021 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV) No.1866/2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 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 Muhammed Niyas(deceased), the 20 year old son of the appellants. It was their case that, on 11.05.2005, while the deceased was riding pillion on a motorcycle bearing registration No. KL 17A 6298 driven by one Pradeesh along the Peringala Karumugal road, a tipper lorry bearing registration KL 11 H 3353(lorry), driven by the 2[nd] respondent in a rash and negligent manner, hit the motorcycle. The deceased instantaneously succumbed to the injuries. The deceased **MACA NO. 1440 OF 2010 4** was a student. The 1[st] respondent was the owner of the lorry and the 3[rd] respondent was the insurer of the lorry. The appellants claimed an amount of Rs.9,53,000/- as compensation from the respondents, which was limited to Rs.9,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4.The third respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the rider of the motorcycle. The 3[rd] respondent also disputed the age, income and occupation of the deceased. 5. The owner of the motorcycle also filed O.P.(M.V) No.1708/2005 before the same Tribunal, seeking compensation for the damage caused to the motorcycle. 6. The Tribunal consolidated and jointly tried the claim petitions. ## **MACA NO. 1440 OF 2010 5** 7. The 1[st] appellant and a witness were examined as PWs1 and 2 and Exhibits A1 to A12 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analyzing the pleadings and materials on record, allowed the captioned claim petition in part, by permitting the 2[nd] appellant to realise from the 3 respondent an amount of Rs.2,20,000/-with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. 9. The Tribunal permitted the owner of the motorcycle to realise an amount of Rs.50,000/- from the 3[rd] respondent, as property damage. 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 11. Heard; Sri.Anil S. Raj the learned counsel appearing for the appellants/petitioners and Sri. P. Jacob Mathew the learned counsel appearing for the third ## **MACA NO. 1440 OF 2010 6** respondent/insurer. 12. 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** 13. Exhibit A4 charge sheet filed by the Kochi City Traffic police in Crime No.1748/2005 substantiates 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 lorry. The 3[rd] respondent has admitted that the lorry had a valid insurance coverage and had not contended 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. ## **Income** 14. The appellants has claimed that the deceased was a student. The Tribunal taking into account the fact that **MACA NO. 1440 OF 2010 7** the deceased was a student, fixed his notional income at Rs.3000/- per month. 15. In **Rajendra Singh V. National Insurance Company Ltd** [2020 (4) KLT 6(SC)], the Honourable Supreme Court has fixed the notional income of a 12 year old student at Rs.3000/- per month. Similarly, in **Kishan Gopal and another v. Lala and others** [2014(1) SCC 244], the Honourable Supreme Court has fixed the annual notional income of a ten year old student at Rs.30,000/-. 16. Following the yardstick in the afore-cited decisions and considering that the deceased was 20 year old student, I find that the notional monthly income fixed by the Tribunal at Rs.3000/- per month is reasonable and just, which I do confirm. ## **Multiplier** 17. The deceased was admittedly aged 20 years at the time of accident/death. In the light of law laid down in **Sarla Verma and Others v. Delhi Transport** ## **MACA NO. 1440 OF 2010 8** **Corporation and another** [2009 (6) SCC 121], the relevant multiplier to be adopted is ‘18’, instead of ‘10’ adopted by the Tribunal. Therefore, I refix the multipier at ‘18’. ## **Dependence to the deceased** 18. It is on record that the appellants were the parents of the deceased. However, the deceased was a bachelor. In view of the law laid down in **Sarla Verma (supra) and National Insurance Co. Ltd. v. Pranay** **Sethi** [2017 (16) SCC 680], one half of the compensation for loss of dependencey has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 19. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 20 years at the time of his death, the appellants are entitled for future prospects at 40% on the compensation for due to dependency. **MACA NO. 1440 OF 2010 9** ## **Loss due to dependency** 20. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.3000/-, multiplier at ‘18’, future prospects at 40% and deducting one half of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for loss due to dependency at Rs.4,53,600/-, instead of 1,80,000/- fixed by the Tribunal. ## **Coventional Heads of compensation** 21. In clause (viii) of paragraph 61 of **Pranay Sethi (supra)** , the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation 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.5,000/- towards 'funeral expenses', and Rs.5,000/- for 'loss of estate'. ## **MACA NO. 1440 OF 2010 10** 23. In such circumstances, I enhance the compensation under the above said heads by a further amount of Rs.10,000/- each i.e., 15,000/- each. 24. It is seen that the Tribunal has not awarded any amount under the head loss of consortium. As the appellants were the parents of the deceased, both of them are entitled for compensation for loss of consortium at Rs.40,000/- each, totalling to Rs.80,000/-. ## **Pain and suffering and love and affection.** 25. The Tribunal has awarded an amount of Rs.10,000/- under the head pain and sufferings and Rs.20000/- under the head loss of love and affection. 26. In **Sarla Verma** (supra), the Honourable Supreme Court has observed that no compensation shall be awarded under the head pain and sufferings to the dependants of the deceased in the case of instantious death. Similary, in **New India Assurance Company Ltd.** - **v. Somwati and others** [(2020) 9 SCC 644] the **MACA NO. 1440 OF 2010 11** Honourable Supreme Court has held that once compensation for loss of consortium is awarded, no amount shall be awarded under the head loss of love and affection, as it amount to duplication of compensation. Therefore, I set aside the amount of Rs.10,000/- and 20,000/-, respectively, awarded under the above said heads. 27. With respect to compensation awarded towards transportation expenses, I find that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. ## **MACA NO. 1440 OF 2010 12** |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Transport<br>expenses|5000|5000| |2|Funeral expenses|0|15000| |3|Pain<br>and<br>sufferings|10000|0| |4|Loss and affection|20000|0| |5|Loss of estate|5000|15000| |6|Loss<br>of<br>consortium|0|80000| ||Loss<br>of<br>dependency|180000|453600| ||**Total**|**2,20,000**|**5,68,600**| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.3,48,600/- with interest at the rate of 7.5 % per annum **MACA NO. 1440 OF 2010 13** from the date of petition till the date of realisation and a cost of Rs.3000/-. 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 this judgment. The Tribunal shall disburse the entire enhanced compensation to the 2[nd] appellant in accordance with law. Sd/- **C.S.DIAS,JUDGE** rmm/30.09.2021