Kumari (widow) and others v. Vittal and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 MACA NO. 960 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 6/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **THODUPUZHA** ## **APPELLANTS/PETITIONERS:** **1 KUMARI AGED 35 YEARS W/O.LATE SAJEEV, KALLIKKATTU HOUSE, KEERIKODU KARA, THODUPUZHA, IDUKKI DISTRICT. 2 NANDU K. SAJEEV, AGED 10 YEARS (MINOR), S/O.LATE SAJEEV, REPRESENTED BY MOTHER KUMARI, KALLIKKATTU HOUSE, KEERIKODU KARA, THODUPUZHA, IDUKKI DISTRICT. 3 SANDU K SAJEEV AGED 5 YEARS (MINOR), S/O.LATE SAJEEV, REPRESENTED BY MOTHER KUMARI, KALLIKKATTU HOUSE, KEERIKODU KARA, THODUPUZHA, IDUKKI DISTRICT. BY ADVS. SRI.P.P.THAJUDEEN SRI.MANSOOR.B.H. SMT.C.SEENA SMT.P.B.WAHIDA** ## **RESPONDENTS/RESPONDENTS:** **1 VITTAL AGED 30 YEARS S/O.BASAPPA, A.P.570, MAHATHMAPULLAI, JOPPERPETTI, MOLIKHANA SHOLAPUR, MAHARASHTRA-414 001. 2 THE CHIEF PROJECT MANAGER ORIENTAL STRUCTURAL ENGINEERS PRIVATE LTD, KSTP III, PROJECT OFFICE, THRIKKALATHOOR, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN 686 673. 3 THE ORIENTAL INSURANCE COMPANY LTD REPRESENTED BY ITS BRANCH MANAGER, NEW DELHI-110 001. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** ## **OTHER PRESENT:** ## **ADV SRI. JACOB MATHEW-R3-R** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.960/2013 2 ## JUDGMENT This appeal has been filed against the Award passed in O.P.(MV).6/2007 on the file of Motor Accidents Claims Tribunal, Thodupuzha. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) by the legal heirs of deceased Sajeev Krishna Pillai, who died out of a motor accident occurred on 12.12.2006 at Vazhakkulam. First appellant is the widow, appellants 2 and 3 are the children. The mother of the deceased, the 4[th] claimant expired during the pendency of the petition before the Tribunal. 2. It is alleged that on 12.12.2006 at about 12.15 a.m while the deceased was riding a motorcycle bearing Reg.No.KL 6C/3081 and reached at Vazhakkulam a lorry bearing Reg.No.KL 17C/7344 driven by the first respondent dashed against the motorcycle resulting in fatal injuries to him. On the way to hospital, he succumbed to the injuries. Second respondent is the owner of the offending lorry and MACA No.960/2013 3 third respondent is the insurer. A total claim of Rs.30,00,000/was put in by the claimants. 3. Respondents 1 & 2 remained exparte before the Tribunal. Third respondent-insurer filed written statement admitting the policy coverage with respect to the vehicle. But rashness and negligence on the part of the first respondent is denied. The age, income and occupation of the deceased are also denied and the claims under the various heads are also contended to be exorbitant. 4. There was no oral evidence from either side. Exts.A1 to A7 were marked from the side of the claimants and Ext.B1 marked from the side of the third respondent. 5. The Tribunal on evaluating the pleadings and materials found that the accident happened due to the rash and negligent driving of the lorry by the first respondent and the second respondent-the owner was held vicariously liable and third respondent is directed to make good the loss sustained by the second respondent as per the contract of insurance. A total compensation of Rs.12,79,400/- was MACA No.960/2013 4 awarded. 6. Dissatisfied with the quantum of compensation the appellants/claimants approaches this Court. The accident as well as the liability is not disputed by the third respondent. The only challenge is with regard to the quantum of compensation awarded under various heads. 7. According to the learned counsel for the claimants, the deceased was an LIC Agent and Ext.A7 certificate issued by the Branch Manager of LIC, Thodupuzha branch has been produced to prove the income of the deceased. But the Tribunal arbitrarily fixed the monthly income as Rs.10,370/which is very low comparing to the income actually derived by the deceased at the time of accident. 8. The learned counsel would also contend that compensation awarded by the Tribunal under various heads are not in consonance with the current position of law and hence he seeks for enhancement of compensation on all heads. 9. I will first deal with the issue regarding monthly income of the deceased. The deceased was aged 38 years and MACA No.960/2013 5 PAN Card copy has been produced as Ext.A6 and his age was found as 39 years. That fact is not in dispute also. He was survived by his wife and two children as well as the mother. Ext.A7 certificate issued by the Branch Manager of LIC office, Thodupuzha would certifies that he is an LIC agent who started career in the year 2000. His agency commission for the year 2000-01 was Rs.14,714/-; 2001-02 - Rs.43,871/-; 200203 - Rs.85,279/-; 2003-04 – Rs.1,75,479/-; 2004-05 – Rs.1,94,540 and 2005-06 – Rs.2,32,662/-. It was steadily increasing. 10. Learned Standing Counsel for the third respondent insurance company would contend that the Branch Manager was not examined and Ext.A7 certificate has not been proved and hence cannot be acted upon. But it is to be noted that Ext.A7 has been marked without any objection. It is relevant in this context to quote R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P.Temple and another [(2003) 8 SCC 752 : AIR 2003 SC 4548] and Smt. Dayamathi Bai v. Sri.K.M.Shaffi [(2004) 7 SCC 107 : AIR 2004 SC 4082]. MACA No.960/2013 6 ## 11. In R.V.E.Venkatachala Gounder with respect to the objection as to admissibility of documents the Apex Court held as follows in paragraph 20: “20.The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled MACA No.960/2013 7 to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to herein above, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.” 12. In Smt.Dayamathi Bai also the objection as to admissibility of document came up for consideration. The Apex Court reiterated that objection as to mode of proof falls within procedural law. Therefore, such objection could be waived. They have to be taken before the document is marked as an MACA No.960/2013 8 exhibit and admitted to the record. In the said decision, the Apex Court quoted after approval, paragraph 20 of the decision in R.V.E.Venkatachala Gounder. 13. So Ext.A7 is a certificate issued by the Branch Manager certifying the rate of commission which was being received by the deceased during 2000-01 to 2005-06. The document being a certificate issued by the branch manager, the admissibility would be with regard to the mode of proof. In other words it cannot be said that Ext.A7 is a document inadmissible in evidence. So when it was marked without any objection it could be presumed that the respondent has waived the objection as to the admissibility. So if at all the insurer has got any objection in marking the document it ought to have been raised at the time of marking itself. Then the claimants could have taken steps to examine the manager and properly prove Ext.A7. So without raising any objection in marking the document at the right time, the objection raised at this stage is not legal and proper. However as rightly found by the Tribunal it is a self-employed job and it all depends on how he MACA No.960/2013 9 could add subscribers in each year and it cannot be said as stable also. Ext.A7 certificate would go to show that a steady increase of his income from 2000-01 to 2005-06 and hence taking into account the totality of the facts and circumstances, I find it reasonable to re-fix the monthly income as Rs.13,000/per month. 14. In Sarla Verma (Smt.) & Ors. v. Delhi Transport 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 MACA No.960/2013 10 identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 15. 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, 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. 16. 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 MACA No.960/2013 11 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. 17. 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 - 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. 18. So in the present case the deceased being 39 years, the claimants are entitled to get 40% enhancement towards future prospects. So the monthly income would be Rs.18,200/[13,000+5200 (40% of 13,000)]. 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 12 deducted from the monthly income to calculate the contribution to the de pendants. 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 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). 20. In the present case the claimants are wife and children and the mother who died during the pendency of the proceedings before the Tribunal. In this context it is relevant to quote Kirti & Anr. v. Oriental Insurance Co.Ltd [(2021) 2 SCC 166] wherein while dealing with Section 168 of the Act and deduction towards personal expenses it has been held that subsequent death of deceased's dependant ought not to be a MACA No.960/2013 13 reason for reduction of motor accident compensation and claims and legal liabilities crystallise at time of accident and the changes post thereto ought not to ordinarily affect pending proceedings. In that case also subsequent to the accident one of the dependants i.e the mother died and the Apex Court held that appropriate deduction for personal expenses would be 1/4[th] only and not 1/3[rd] . In the present case also at the time of filing the petition the mother was alive subsequently the mother died and the Tribunal deducted 1/3[rd] towards personal and living expenses. Since the mother was also alive at the time of accident and filing the petition the claims and legal liabilities crystallize at the time of accident and hence the proper deduction towards personal and living expenses would be 1/4[th] and not 1/3[rd] as adopted by the Tribunal. So towards loss of dependency from Rs.18,200/- 1/4[th] has to be deducted towards personal and living expenses i.e. Rs.4,550/-. Then the monthly income would be Rs.13,650/- [18,200-4,550]. So, towards loss of dependency, claimants are entitled to get Rs.24,57,000/- [13,650x12x15]. Deducting the amount already MACA No.960/2013 14 awarded, the balance amount towards loss of dependency is Rs.12,12,600/ - [24,57,000-12,44,400]. 21. The next contention of the learned counsel is with regard to the enhancement of 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. 22. 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 MACA No.960/2013 15 heads of loss of estate and funeral expenses and Rs.44,000/each towards loss of consortium. 23. 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 i.e. 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. MACA No.960/2013 16 24. Next is with regard to the consortium to be awarded, 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, cooperation, 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 MACA No.960/2013 17 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. 25. So in the present case the claimants 1 to 4 are entitled for consortium at the rate of Rs.44,000/- each. Though 4[th] claimant died pending the proceedings, that will not be a reason for reduction of motor accident compensation and claims and legal liabilities crystallize at the time of accident and the changes post thereto ought not to ordinarily affect pending proceedings. [See: Kirti & Anr. v. Oriental Insurance Co.Ltd [(2021) 2 SCC 166]. Once compensation is awarded for consortium the claimants are not entitled to get any amount towards loss of love and affection. [See: New India Assurance Co. Ltd. v. Somwati & Ors. [(2020) 9 SCC 644]. So amount of Rs.10,000/- awarded towards love and affection has to be 18 MACA No.960/2013 deducted. Apart from that, Rs.5,000/- each was awarded under loss of estate and funeral expenses also to be deducted. So under the conventional heads total compensation which the claimants are entitled to get is Rs.1,89,000/[44,000x4+16,500+16,500-10,000-5,000-5,000]. 26. In the result, appeal allowed in part and claimants will be entitled for an enhanced compensation of Rs.14,01,600/- [12,12,600+1,89,000] (Rupees fourteen lakhs one thousand six hundred only) in this appeal, which will carry interest at the rate of 7.5 % per annum from the date of petition till realisation. The enhanced amount shall be apportioned among the appellants 1 to 3 in the ratio 50:25:25. Out of it, the amount due towards appellant No.3, who will be a minor even now, shall be deposited in a nationalized bank and fixed deposit receipt shall be produced before the Tribunal for safe custody till the third appellant attains majority. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with 19 interest, within a period of two months from the date of receipt of a certified copy of this judgment. 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. 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 this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** **JUDGE** ## **shg/**