K.P. Sreeja and others v. Shareef and Manzoor and United India Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943** **MACA NO.1084 OF 2010** **AGAINST THE AWARD DATED 9.7.2009 IN OP(MV) NO.789/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS:** 1 K.P.SREEJA AGED 38 YEARS, W/O.LATE MR.UNNIKRISHNAN, KOTTAKAL HOUSE, MAKADA POST, KOZHIKODE. 2 SREEYESH AGED 20 YEARS S/O.LATE MR.UNNIKRISHNAN, KOTTAKAL HOUSE, MAKADA POST, KOZHIKODE. 3 SREESHANTH AGED 15 YEARS S/O.LATE MR.UNNIKRISHNAN, KOTTAKAL HOUSE, MAKADA POST, KOZHIKODE. BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH ## **RESPONDENTS/RESPONDENTS:** 1 SHAREEF AGED 23 YEARS, SON OF MUHAMMED POOKKATTU PURAYIL, AVILORA POST, KODUVALLY, KOZHIKODE 673572. 2 MANZOOR AGED 19 YEARS S/O.ABDUL KHADAR, MELE PARAKANDIYIL HOUSE, KIZHAKKOTHU AMSOM AND DESOM, VALIYA PARAMBA, KOZHIKODE DISTRICT. 3 THE UNITED INDIA INSURANCE CO LTD. WHITELINES BUILDING, KALLAI ROAD, KOZHIKODE. BY ADVS. SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 1084/2010 2 ## **JUDGMENT** Dated this the 23[rd] day of September, 2021 The appellants were the petitioners in O.P.(MV) No.789 of 2006 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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, claiming compensation on account of the death of Unnikrishnan (deceased), the husband of the first appellant and the father of appellants 2 and 3. It was their case that on 22.1.2005, while the deceased was waiting for a bus infront of the bus stand, a motor cycle bearing registration No.KL11/U-2187 driven by the second respondent, in a rash and negligent manner, hit the deceased. He sustained serious injuries and was rushed to the Medical College Hospital, Calicut, where he was treated as an inpatient. However, he unfortunately lost his life on 25.1.2005. The deceased was a lottery agent and earning a monthly income of Rs.9,000/-. The first respondent was the owner and the third MACA 1084/2010 3 respondent was the insurer of the motor cycle. The appellants were the dependants of the deceased. The appellants claimed a compensation of Rs.8,07,000/- from the respondents, which was limited to Rs.7,00,000/-. 3. The first respondent did not contest the proceedings. The second respondent filed written statement contending that the accident occurred due to the negligence of the deceased who ran across the road. 4. The third respondent filed a written statement contending that the first respondent had violated the policy conditions because the second respondent, who drove the motor cycle, did not have a valid driving licence. The third respondent also disputed the age, income, and occupation of the deceased. 5. The appellants produced and marked Exhibits A1 to A7 in evidence. The third respondent produced Exhibits B1 and B2 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellants to realise an amount of MACA 1084/2010 4 Rs.3,48,500/- with interest @7% per annum from the date of petition till the date of realisation and a cost of Rs.750/-. The third respondent was directed to pay the compensation amount and recover the same from the first respondent as the second respondent did not hold a valid driving licence. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard ; Sri.Jacob Abraham, the learned counsel appearing for the appellants/petitioners and Sri.P.K.Manoj Kumar, the learned counsel appearing for the third respondent - insurer. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and liability** 10. Exhibit A6 charge sheet establishes that the accident occurred due to the negligence of the second respondent, who had driven the motor cycle. Admittedly the first respondent was the owner of the motor cycle. MACA 1084/2010 5 Therefore, the first respondent is vicariously liable to pay the compensation. Even though the motor cycle was covered by a valid insurance policy, it is proved that the second respondent did not hold a valid driving licence. In such circumstances, the first respondent has violated the policy conditions. Therefore, the first respondent is not entitled to be indemnified by the third respondent. Nevertheless going by the settled law, the third respondent is to pay the compensation amount and recover the same from the first respondent. ## **Income of the deceased** 11. The appellants had claimed that the deceased was a lottery agent and drawing a monthly income of Rs.9,000/-. Even though they produced Exhibit A7 certificate, it only shows that the deceased was getting a monthly income of Rs.3,000/-. The Tribunal accepted Exhibit A7 and fixed the notional income of the deceased at Rs. 3,000/- per month. ## 12. **Ramachandrappa v. Manager, Royal** **Sundaram Alliance Insurance Co. Ltd.,** [(2011) 13 SCC MACA 1084/2010 6 236], the Hon’ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Taking into account the yardstick fixed in the above cited decision, the fact that the deceased was an agent for different lotteries and the accident happened in the year 2005, I am of the opinion that the notional income of the deceased can safely be fixed at Rs.5,000/-. Hence I fix a notional income of the deceased at Rs.5,000/- per month. ## **Multiplier** 14. The deceased was aged 47 years at the time of accident. In view of the ratio in **Sarla Verma v. Delhi Transportation Corporation** [(2010) 2 KLT 802 (SC)], the relevant multiplier is '13'. ## **Dependants of the deceased** 15. It is proved that the appellants were the wife and children of the deceased. As they three in number, 1/3[rd] of the compensation has to be deducted towards the personal living expenses of the deceased as laid down in Sarla MACA 1084/2010 7 Verma (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 4 KLT 662 (SC)]. ## **Future prospects** 16. Following the ratio in **Sarla Verma** (supra) and **Pranay Sethi** (supra), considering the fact that the deceased was aged 47 years at the time of his accident/death, the appellants are also entitled to future prospects at 25% on the compensation for loss due to dependency. ## **Loss of dependency** 17. Taking into account the above mentioned factors, the notional income of the deceased at Rs.5,000/-, the multiplier at 13, future prospects at 25% and deducting 1/3[rd] of the compensation for loss of dependency towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.6,50,000/instead of Rs.3,12,000/- fixed by the Tribunal. ## **Conventional heads of compensation** 18. In Clause (viii) of paragraph 61 of Pranay Sethi (supra), the Hon’ble Supreme Court has held that the MACA 1084/2010 8 dependents of the deceased are entitled for compensation under conventional heads, namely, funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/and Rs.40,000/- each respectively. 19. In the instant case, the Tribunal has awarded only an amount of Rs.3,000/- towards funeral expenses and Rs.12,000/- as compensation for loss of consortium. In view of the law laid down in Pranay Sethi (supra), I enhance the compensation under the head 'funeral expenses' by a further amount of Rs.12,000/-. 20. As the appellants are the wife and children of the deceased, all three of them are entitled to compensation for 'loss of consortium' at Rs.40,000/- each, that is totalling to an amount of Rs.1,20,000/-. Hence I enhance the compensation under the said head by a further amount of Rs.1,08,000/-. 21. It is seen that the Tribunal has not awarded any amount under the head 'loss of estate'. Accordingly, I award an amount of Rs.15,000/-under the said head. MACA 1084/2010 9 ## **Loss of love and affection** 22. The Tribunal has awarded an amount of Rs.12,000/- as compensation for loss of love and affection. In **New India Assurance Company Ltd. v. Somwati & Ors.** [2020(9)SCC 644], the Honourable Supreme Court has held that once compensation under the head loss of consortium is awarded, no amount of compensation shall be awarded under the head loss of love and affection, as it would amount to duplication of compensation. Hence I set aside the amount awarded under the said head. ## **Pain and sufferings** 23. It is on record that the deceased lost his life only three days after the accident. Hence the amount of Rs.6,000/- awarded under the said head is confirmed. Similarly I find that the amount of Rs.1,000/- awarded towards transportation expenses and Rs.2,500/- awarded towards medical expenses to be reasonable and just. 24. 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 considered opinion MACA 1084/2010 10 that the appellants/ petitioners are entitled for enhanced compensation as recalculated above and given under the table for easy reference. |Sl.<br>No.|Head of claim|Amount<br>awarded by the<br>Tribunal (Rs.)|Amount modified<br>and recalculated<br>by this Court<br>(Rs.)| |---|---|---|---| ||Transportation<br>to<br>hospital|1,000/-|1,000/-| ||Medical Expenses|2,500/-|2,500/-| ||Funeral expenses|3,000/-|15,000/-| ||Loss of love and<br>affection|12,000/-|-| ||Pain and suffering|6,000/-|-| ||Loss of estate|-|15,000/-| ||Loss of consortium|12,000/-|1,20,000/-| ||Loss of Dependancy|3,12,000/-|6,50,000/-| ||Total|3,48,500/-|8,03,500/-| 25. Even though the petitioners had claimed only an amount of Rs.7,00,000/- as compensation, following the ratio in **Sarla Verma** (supra) and **Pranay Sethi** (supra), wherein the Honourable Supreme Court has held that the dependents of the deceased are entitled to future prospects and compensation under conventional heads, the compensation now awarded is more than the amount that is MACA 1084/2010 11 claimed in the claim petition. Nevertheless in view of the decisions in **Nagappa v. Gurudayal Singh** [2003(1) KLT 115 (SC)] and **Rajesh v. Rajbir Singh** [2013(3) KLT 89 (SC)], the above course is permitted by the Honourable Supreme Court. In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.4,55,000/- with interest on the enhanced compensation at 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 110 days in preferring the appeal and as ordered by this Court on 4.8.2021 in C.M.Appln.No.1 of 2020, and a cost of Rs.4,000/-. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants/petitioners in the ratio of 40:30:30 and in accordance with law, after deducting their liability, if any, towards payment of court fee. All pending interlocutory applications will stand MACA 1084/2010 12 closed. It is made clear that the third respondent would be at liberty to recover the enhanced compensation amount also from the first respondent, as permitted by the Tribunal, due to the violation of the policy conditions. Sd/- **C.S.DIAS, JUDGE** csl