Komalavally and Others v. Prema Valsan and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943** **MACA NO. 2496 OF 2010** **AGAINST THE AWARD DATED 05.02.2010 IN OPMV 22/2009 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS:** - **1 KOMALAVALLY, AGED 46 YEARS, W/O.LATE VENUGOPALAN.** - **2 NISHA.P AGED 25 YEARS D/O.LATE VENUGOPALAN.** - **3 NIJU.PAGED 22 YEARS S/O.LATE VENUGOPALAN(IST TO 3RD PETITIONERS ARE RESIDING AT EDAKKANDIYIL HOUSE, MANASSERY POST, MUKKAMVIA,KOZHIKODE.** - **4 DEVAKI AMMA, AGED 72 YEARS W/O.NARAYANAN NAIR, PULPARAMBIL HOUSE, MAVOOR POST,MOTHER OF THE DECEASED. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SMT.C.G.PREETHA SRI.ARUN KRISHNADHAN SRI.JOSEPH GEORGE MULLAKKARIYIL** ## **RESPONDENTS/RESPONDENTS:** - **1 PREMA VALSAN, S/O CHATHUKUTTY, KADUNGOCHANKANDI HOUSE, CHATHAMANGALAM POST,, NITVIA,KOZHIKODE. PIN.673 632.** - **2 SASIDHARAN, S/O PENNUKUTTY PALAMPARAMB HOUSE,POOLAKODE AMSOM,VELLANNOOR DESOM, CHULOOR POST, NIT-VIA,KOZHIKODE.PIN.673 592.** - **3 M/S.ICICI LOMBARD MOTOR INSURANCE ZENITH HOUSE, KESHAVA RAO KHADE MARG, MAHALAKSHMI, BY ADVS. SRI.R.AJITH KUMAR SRI.K.B.RAMANAND** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2496 of 2010 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.22/2009 on the file of Motor Accidents Claims Tribunal, Kozhikode. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) out of the death of Venugopalan (herein after be referred as deceased) in a motor vehicle accident occurred on 06.05.2008 at about 3.00 p.m. Claimants are the wife, children and mother of the deceased. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent, the driver of the mini lorry bearing Registration No.KL-57-7864. The 1[st] respondent is the registered owner of the offending vehicle and 3[rd] respondent is the insurer. 2. Respondents 1 and 2 did not contest before the Tribunal. The 3[rd] respondent filed written statement admitting the policy coverage with respect to the offending vehicle. The rashness and negligence on the part of the 2[nd] respondent is denied. Leave M.A.C.A No. 2496 of 2010 **3** under Section 170 of the Act was obtained. 3. PW1, the wife of the deceased was examined. Exts.A1 to A5 were marked from the side of the claimants. Exts.B1 was marked from the side of the 3[rd] respondent. 4. On evaluating the evidence, the Tribunal found that the accident was due to the negligence of the 2[nd] respondent. The 3[rd] respondent is held liable to indemnify the 1[st] respondent insured as per the contract of insurance. The Tribunal awarded a total compensation of Rs.4,04,000/- under various heads together with interest at the rate of 7% per annum. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants/claimants are before this Court in appeal for the various grounds stated in the memorandum of appeal. 3[rd] respondent insurer appeared through the learned Standing Counsel Sri.K.B.Ramand. Since liability is not disputed, service of notice against 1[st] respondent was dispensed with at the risk of the appellant. Though service of notice against 2[nd] respondent is completed, there is no appearance on behalf of the 2[nd] respondent. M.A.C.A No. 2496 of 2010 **4** 6. Heard the learned counsel for the appellants/claimants and the learned Standing Counsel for the 3[rd] respondent. Lower court records was called for and perused. 7. According to the learned counsel for the appellant, the deceased was working in Middle East and his monthly income was Rs.15,000/-. But the Tribunal fixed his monthly income as Rs.3,500/-, it is very low. It is also contended that the amount awarded under other heads are very low. Hence he seeks for enhancement of compensation on all heads. 8. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 9. Deceased was working in Middle East and Ext.A5 copy of computerized statement of Bank account issued from Federal Bank has been produced. It would neither show that he has been working in Middle East nor his monthly income is Rs.15,000/-. Without accepting A5 statement, The Tribunal fixed monthly income of the deceased notionally as Rs.3,500/-. However, the M.A.C.A No. 2496 of 2010 **5** accident was occurred in the year 2008. 10. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. M.A.C.A No. 2496 of 2010 **6** 11. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganized sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 12. In the present case, the accident was occurred in the year 2008. Deceased was aged 49 years at the time of accident. His income as per the above settled principles, can very well be taken as Rs.6,500/- per month. 13. In Sarla Verma (Smt.) & Ors. v. Delhi Transport M.A.C.A No. 2496 of 2010 **7** Corporation & Anr. [2010 (2) KLT 802 (SC)], the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 14. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard M.A.C.A No. 2496 of 2010 **8** because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 15. In Sarla Verma's case the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years. 16. In Pranay Sethi's case, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 M.A.C.A No. 2496 of 2010 **9** - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 17. The claimant in this case was 49 years old at the time of accident. 18. So claimants are entitled for 25% enhancement towards future prospects. The monthly income of the deceased already taken as Rs.6,500/-. Total monthly earning would be 6,500+1,625(25% of 6,500)=8,125. 19. On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Where number of dependent family members is between 2 to 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 to 6 the M.A.C.A No. 2496 of 2010 **10** deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65). 20. In Reshma Kumari's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 21. Here, there are four claimants, wife and children of the deceased. So ¼ has to be deducted towards personal and living expenses ie Rs.6,094/-. (8,125-2,031(8,125x1/4)). Claimant in this case is 49 years old. So the proper multiplier to be applied as held in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** . followed by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4)** M.A.C.A No. 2496 of 2010 **11** **KLT 662)** is '13'.So the annual dependency would be 6,094x13x12=9,50,664/-. From that the amount already awarded by the Tribunal to be deducted ie 9,50,664-3,64,000=5,86,664/-. 22. The next contention of the learned counsel is with regard to the enhancement under the conventional heads as per the directions in Pranay Sethi's case followed by Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130) In that decision, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 23. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in Pranay Sethi's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should M.A.C.A No. 2496 of 2010 **12** be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 24. In this context, Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 25. Next is with regard to the consortium to be awarded, M.A.C.A No. 2496 of 2010 **13** the law laid down by the Apex Court in Magma General Insurance Co.'s case is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5[th] ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to M.A.C.A No. 2496 of 2010 **14** compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 26. In the present case, claimants are wife, 3 children and mother of the deceased. So claimants 1 to 4 are entitled to get Rs.44,000/- each towards spousal, parental and filial consortium, amounting to **Rs.1,76,000/** -(44,000x4). 27. Once compensation is awarded under consortium, claimants are further not entitled to get any compensation towards love and affection. (See **New India Assurance Co. Ltd. v. Somwati and Others** [2020 9 SCC 644]). So amount of Rs.10,000/- awarded by the Tribunal towards loss of love and affection has to be deducted. Deduction also to be made of Rs.5,000/- awarded towards the loss of consortium by the Tribunal along with Rs.10,000 towards loss of estate and Rs.3,000/towards funeral expenses. 28. So under the conventional heads, claimants are M.A.C.A No. 2496 of 2010 **15** entitled to get Rs.2,09,000/-. (1,76,000+33,000(16,500+16,500). From that, the amount already awarded by the Tribunal to be deducted i.e. 10,000+5,000+10,000+3,000=28,000, 2,09,00028,000= **Rs.1,81,000/-.** 29. So in total the claimants are entitled to get total enhanced compensation of Rs.7,67,664/- **(** 5,86,664+1,81,000) rounded to **Rs.7,67,700/-** 30. In the result, the appellants are allowed to realize enhanced compensation of **Rs.7,67,700/-** which will carry interest at the rate of 7.5% per annum from the date of petition, till realization. The enhanced compensation shall be apportioned among the appellants in the ratio of 40:20:20:20. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment. 31. The disbursement of the amount to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. M.A.C.A No. 2496 of 2010 **16** Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of certified copy of judgment. In the result appeal stands allowed. Parties shall bear their respective costs. **SD/-** rps/ **M.R.ANITHA, JUDGE**