Kumari (Minor) (Petitioner) v. P. Nasreena, P. Ismail s/o Ussain, and New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943** **MACA NO. 2584 OF 2010** **AGAINST THE JUDGMENT AND AWARD DATED 28.06.2010 IN OPMV 491/2007** **OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **KUMARI (MINOR), D/O LATE KALYANI, GRAND D/O. LATE KUNJAYYAPPAN, PARAPPURATH HOUSE,, MANNENGHOD, PULASSERY (VIA) PATTAMBI, PALAKKAD., (MINOR (REP. BY GUARDIAN UNCLE VASU, PARAPPURATH HOUSE, MANNENGHOD,P.O. VANDUMTHARA,, PATTAMBI, PALAKKAD DISTRICT)** **BY ADV SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** |**1**|**P.NASREENA**| |---|---| ||**PANANGATTUTHODI HOUSE, VILATHUR.P.O., PALAKKAD**| ||**DISTRICT-679552. PIN-679 304.**| |**2**|**P.ISMAIL S/O USSAIN,**| ||**PADINJAKKARA HOUSE, MANNENGOD, PATTAMBI[PO], PALAKKAD**| ||**DISTRICT.PIN-679 303.**| |**3**|**NEW INDIA ASSURANCE CO. LTD.**| ||**1ST FLOOR, TARIFF BAZAR, OPP: TOWN HALL, TIRUR-676 101.**| ||**BY ADVS.**| ||**SRI.P.JAYARAM-R1,R2**| ||**SMT.T.C.SOWMIAVATHY-R3**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2584 of 2010 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.491/2007 on the file of Motor Accidents Claims Tribunal, Ottapalam. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) claiming compensation on account of the death of one Kalyani out of a motor vehicle accident occurred on 18.11.2006. The appellant/claimant is the only daughter of the deceased aged 8 years (minor). Total compensation of Rs.5,00,000/has been claimed. According to the appellant/claimant, while the deceased Kalyani (herein after be referred as deceased) was walking along the Vandumathara Yaram Road, a mini lorry bearing Registration No. KL-9/L-9916 driven by the 2[nd] respondent came in a rash and negligent manner with high speed and granite stones loaded in the vehicle was fallen on Kalyani and she sustained grievous injuries. Immediately she was taken to Al-Shifa Hospital and while undergoing treatment she succumbed to the injuries on the next day. 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. 1[st] respondent is the M.A.C.A No. 2584 of 2010 **3** registered owner of the offending vehicle and 3[rd] respondent is the insurer. 2. Before the Tribunal, the 1[st] and 2[nd] respondents owner and driver of the offending vehicle remained ex parte and the 3[rd] respondent insurer filed written statement admitting the insurance coverage with respect to the offending vehicle. The rashness and negligence on the part of the 2[nd] respondent is denied. It is contended that the accident occurred due to the negligence of the deceased herself and hence 3[rd] respondent is not liable to indemnify the 1[st] respondent. It is also contended that the compensation claimed under various heads are excessive. 3. PW1 was examined and Exts. A1 to A10 have been marked from the side of the appellant/claimant. Ext.B1 was marked from the side of respondents. On evaluating the evidence and other materials, the Tribunal found that the accident happened only due to the rash and negligent driving of the mini lorry by the 2[nd] respondent and 3[rd] respondent is liable to indemnify the 1[st] respondent. The Tribunal awarded a total compensation of Rs.2,33,000/- under various heads together with interest at the rate of 7% per annum. 4. Dissatisfied with the quantum of compensation awarded by M.A.C.A No. 2584 of 2010 **4** the Tribunal, the appellant/claimant approaches this Court in appeal for the various grounds stated in the memorandum of appeal. Respondents 1, 2 and 3 appeared through counsel. Lower court records were called for and perused. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. 6. According to the learned counsel for the appellant, the deceased was 33 year old at the time of the accident. Tribunal fixed the monthly income of the deceased as Rs.1,500/- which is very low. It is contended that the amount awarded under other heads are also very low in view of the loss sustained by the appellant/claimant (hereinafter be referred as claimant). It is also contended that though medical bills for Rs.46,600/- was produced, only Rs.10,000/- was awarded by the Tribunal towards medical expenses. Hence she seeks for enhancement of compensation on all heads. 7. 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. 8. To prove the income of the deceased, brother of the M.A.C.A No. 2584 of 2010 **5** deceased was examined as PW1 and he deposed that the deceased was a Coolie earning 100 to 150 per day. It is true that the claimant cannot produce any document to prove the actual income of the deceased. 9. 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 M.A.C.A No. 2584 of 2010 **6** the relevant point of time. 10. 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. 11. In the present case, the deceased was a coolie and the accident occurred in the year 2006. Having regard to the principle laid down by the Apex Court in the above decisions, the monthly income of the deceased can reasonably be fixed as **Rs.5,500/-.** 12. In **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** , the Apex Court laid down M.A.C.A No. 2584 of 2010 **7** 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. 13. 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 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, M.A.C.A No. 2584 of 2010 **8** 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. 14. In **Pranay Sethi** , 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 - 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. 15. Deceased was a Coolie and her monthly income has already been fixed as Rs.5,500/-. So claimant is entitled for 40% enhancement towards future prospects. Then monthly income of the deceased would be **Rs.7,700/-** (5,500+2,200(40% of 5,500)). Then the annual income of the deceased would be Rs.92,400/- (7,700x12). 16. On the question of deduction towards personal expenses in **Sarla Verma** , 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 M.A.C.A No. 2584 of 2010 **9** 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 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the 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)** . 17. 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. 18. In the present case, the Tribunal deducted 1/3 from the income of the deceased towards personal and living expenses. According to the learned counsel, that has to be maintained and he also brought my attention to **Surti Gupta v. United India Insurance** M.A.C.A No. 2584 of 2010 **10** **Company and Another [(2015) 11 SCC 457]** . It is an identical case of death of the mother of the claimant wherein 1/3 has deducted towards personal and living expenses that can be followed in this case also. Deducting 1/3 towards personal and living expenses, the balance would be **Rs.61,600/-** (92,400-30,800(1/3 of 92,400)). 19. The proper multiplier to be applied as held in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '16'. So the annual dependency would be 61,600x16=9,85,600/-. From that the amount already awarded by the Tribunal to be deducted, the balance would be **Rs.7,93,600/-** (9,85,600-1,92,000). 20. Next is with respect to the compensation of Rs.10,000/awarded by the Tribunal towards medical bills. It has been found by the Tribunal that medical bills of Rs.46,600/- have been produced. But for the sole reason that amount claimed is Rs.10,000/- alone, award also limited to an amount of Rs.10,000/-. Time and again, Apex Court as well as this Court has laid down that just compensation should be awarded. When medical bills for Rs.46,600/- have been produced, I find no justification in reducing the amount towards medical expenses to M.A.C.A No. 2584 of 2010 **11** Rs.10,000/-. So claimant is entitled for **Rs.36,600/-** more towards medical expenses. 21. Next aspect is the compensation under conventional heads. In Pranay Sethi, Apex Court held that Rs.15,000/- to be awarded under loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 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 be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 22. 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 M.A.C.A No. 2584 of 2010 **12** conventional heads, following the principles in Pranay Sethi, 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 claimant is entitled for 10% increase on conventional heads. 23. Next is with regard to the consortium to be awarded, the law laid down by the Apex Court in **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130)** 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). M.A.C.A No. 2584 of 2010 **13** 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 which cause 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 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. 24. In the present case, claimant is the sole daughter of the deceased. So claimant is entitled to get Rs.44,000/- towards parental consortium. Once compensation is awarded under consortium, claimant is 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.15,000/- awarded by the Tribunal towards loss of love and affection has to be deducted. M.A.C.A No. 2584 of 2010 **14** 25. So under the conventional heads, claimant is entitled to get Rs.44,000/towards loss of parental consortium, Rs.6,500/- more towards loss of estate and Rs.11,500/- towards funeral expenses, total Rs.62,000/-. From that, Rs.15,000/- awarded towards loss of love and affection by the Tribunal to be deducted. So the balance amount due to the claimant under the conventional head is **Rs.47,000/-** (62,00015,000). 26. So in total the claimant is allowed to realize enhanced compensation of **Rs.8,77,200/-** (7,93,600+47,000+36,600). 27. In the result, the claimant is allowed to realize enhanced compensation of **Rs.8,77,200/-** (Eight lakhs seventy seven thousand two hundred only) which will carry interest at the rate of 7.5% per annum from the date of petition, till realization. T hird 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 certified copy of this judgment, deducting the liability towards balance Court Fee. 28. The disbursement of the amount to the appellant/claimant 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 M.A.C.A No. 2584 of 2010 **15** No.D1-62475/2016 dated 07.11.2019. Appellant/claimant shall provide her 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 this judgment. In the result appeal stands allowed. Parties shall bear their respective costs. SD/- rps/ **M.R.ANITHA, JUDGE**