Kunjan (Died) v. Ramachandran and Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 ``` ## `MACA NO. 726 OF 2007` ``` AGAINST THE AWARD DATED 29.12.2006 IN OP(MV)NO. 40/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD. ``` ## `APPELLANTS/PETITIONERS:` ``` 1KUNJAN (DIED), SON OF AYYAN, ILLATTIPADAM,VATTEKKAD P.O., KOLLANGODE VIA, ELAVANCHERRY VILLAGE, CHITTUR TALUK. ``` ``` 2DEVI @BABY @DEVU, D/O.KUNJAN, ILLATTIPADAM,VATTEKKAD P.O., KOLLANGOD VIA,ELAVANCHERRY VILLAGE, CHITTUR TALUK. 3CHAMI.SO.LATE KUNJAN ILLATTIPADAMVATTEKKAD P.O., KOLLANGODE VIA, ELVANCHERRY VILLAGE, CHITTUR TALUK. 4KRISHNANSO.LATE KUNJAN ILLATTIPADAM,VATTEKKAD P.O., KOLLANGOD VIA, ELAVANCHERRY VILLAGE, CHITTUR TALUK. 5SANTHADO.LATE KUNJAN ILLATTIPADAM,VATTEKKAD P.O., KOLLANGODE VIA,ELAVANCHERRY VILLAGE, CHITTUR TALUK ``` ``` BY ADVS.DEVI@BABY@DEVU(PARTY) SRI.T.K.SANDEEP ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1RAMACHANDRAN, PANANTHARA VEEDU,VATTEKKAD POST, ELAVANCHERRY VILLAGE, CHITTUR TALUK. ``` M.A.C.A.No726/2007 -:2:- - `2 MANIKANDAN, S/O.VELAYUDHAN KUMBLAKKODE, ELAVANCHERRY POST, CHITTUR TALUK.` - `3 NATIONAL INSURANCE COMPANY, BRANCH OFFICE,III FLOOR, EAST FORT COMPLEX, PALAKKAD.` ``` BY ADVS.SRI.P.JAYASANKAR SRI.LAL GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No726/2007 -:3:- Dated this the 25[th] day of November, 2021 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV)No.40/2000 on the file of the Motor Accidents Claims Tribunal,Palakkad. The respondents in the appeal were 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 'Velayudhan'(deceased), the son of the first appellant and the brother of the appellants 2 to 5. It was their case that, on 19.11.1999, while the deceased was working as a helper for a tractor bearing Registration No.KL-9D-157(tractor), the deceased fell under the tractor, due to the negligence of the second respondent. The tractor was owned by the first respondent and insured with the third respondent. The deceased was a coolie worker and earning a monthly M.A.C.A.No726/2007 -:4:- income of Rs.3,000/-. The appellants were the dependants of the deceased. Hence, they claimed a compensation of Rs.2,50,000/- from the respondents. 3. The respondent Nos.1 and 2 did not contest the proceedings. 4. The third respondent had filed a written statement, refuting the allegations in the claim petition. It was contended that although the tractor had a valid insurance policy, the second respondent was not holding a valid driving licence. Therefore, the first respondent had violated the insurance policy conditions. At the same breath, the third respondent took a contradictory plea and denied that the tractor had a valid insurance policy. The third respondent also disputed the age, income and status of the deceased. The third respondent prayed that the claim petition be dismissed. 5. The second appellant and a witness were M.A.C.A.No726/2007 -:5:- examined as PWs.1 and 2 and Exts. A1 to A8 were marked in evidence. The third respondent produced and marked Exts.B1 to B3 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the first respondent an amount of Rs.2,29,500/- with interest and cost, on the finding that, in the insurance policy, the column for filling the registration number and the engine number of the vehicle, the details were blank. Therefore, the first respondent had not proved that the tractor had a valid insurance policy. Also the first respondent had not produced the registration certificate of the tractor for verification. 7. Aggrieved by the exoneration of the third respondent, and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. M.A.C.A.No726/2007 -:6:- 8. Heard; Sri. T.K. Sandeep, the learned counsel appearing for the appellants/petitioners and Sri. Lal George, the learned counsel appearing for the third respondent-insurer. 9. The questions that arise for consideration in the appeal are: - (i) whether the exoneration of the third respondent is correct or not? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No:(i)** 10. The appellants had specifically contended that the tractor bearing registration No.KL-9D-157 was covered by policy bearing No.570705/1999/6302344 valid for the period from 07.08.1999 to 06.08.2000. They had produced Ext.A2 insurance policy certificate to substantiate their assertion. M.A.C.A.No726/2007 -:7:- 11. The Tribunal, on the basis of a bald assertion made by the third respondent, in its written statement, that it was denying the policy and by finding that the details of the registration number and engine number of the tractor were not entered in Ext.B1, arrived at a conclusion that the tractor was not covered by a valid insurance policy. The finding of the Tribunal is erroneous and perverse for more reasons than one. Firstly, there was nothing on record to substantiate the assertions of the third respondent, other than the mere pleadings. Secondly, the appellants had examined PWs.1 and 2 and proved Ext.A2 insurance policy certificate issued by the third respondent, which establishes that the tractor was covered by a valid policy. The Tribunal, ignored Ext.A2 and the oral testimonies of PWs.1 and 2, for the reason that the details were left blank in Ext.B1 copy of the insurance policy. M.A.C.A.No726/2007 -:8:- 12. In view of the uncontraverted oral testimonies of PWs.1 and 2 read with Ext.A2 insurance policy and the specific assertions in the claim petition, I hold that the tractor was covered by a valid insurance policy. Similarly, the third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent, arising out of the accident. 13. Hence, I answer Question No.(i) in favour of the appellants. ## **Question No:(ii)** ## **Notional income:** 14. The deceased was aged 22 years at the time of accident/death and he was a coolie worker. The appellants claimed that he was earning a monthly income of Rs.3,000/-. The Tribunal, for the want of materials, fixed the notional monthly notional income M.A.C.A.No726/2007 -:9:- of the deceased at Rs.1,500/-. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 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. 16. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred at the fag end of 1999, I fix the notional monthly income of the deceased at Rs.3,000/-. ## **Multiplier** 17. As the deceased was aged 22 years at the time of the accident/death, the relevant multiplier to be adopted is ‘18’, in the light of the law laid down in **Sarala Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)]. ## **Future prospects:** 18. In view of the ratio in **Sarla Verma** (supra) M.A.C.A.No726/2007 -:10:- and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] and considering the fact that the deceased was a bachelor at the time of his death, one-half of the compensation has to be deducted towards the ‘personal living expenses’ of the deceased. ## **Loss of dependency:** 19. Taking into account the above-mentioned factors, that is the monthly income of the deceased at Rs.3,000/-, the '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 Rs.2,04,000/- awarded by the Tribunal. ## **Conventional heads of compensation:** 20. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held M.A.C.A.No726/2007 -:11:- 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. 21. In the instant case, the Tribunal has not awarded any amount under the conventional heads. Therefore, I award an amount of Rs.15,000/- towards ‘funeral expenses’, Rs.15,000/- towards ‘loss of estate’ and Rs.40,000/- towards ‘loss of consortium’ to the second appellant alone, who is the widowed sister of the deceased. I decline to award ‘loss of consortium’ to the first appellant, who passed away during the pendency of the proceeding and the supplemental appellants 3 to 5 – the other siblings of the deceased,who are leading independent lives. ## **Loss of Love and affection:** 22. The Tribunal has awarded an amount of M.A.C.A.No726/2007 -:12:- Rs.15,000/- under the head ‘loss of love and affection’. 23. In **New India Assurance Company Ltd. v. Somwati & Ors.** [2020(9)SCC 644], the Hon'ble Supreme Court has held that once compensation under the head 'loss of consortium' is awarded, no amount can be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. 24. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport<br>expenses|5,000|5,000| M.A.C.A.No726/2007 -:13:- |2|Clothing|500|500| |---|---|---|---| |3|Funeral expenses|Nil|15,000| |4|Pain and sufferings|5,000|5,000| |5|Loss of love and<br>affection|15,000|Nil| |6|Loss of estate|Nil|15,000| |7|Loss of consortium|Nil|40,000<br>(second<br>appellant)| |8|Loss of<br>dependency|2,04,000|4,53,600| ||**TOTAL**|**2,29,500**|**5,34,100**| 25. Even though the appellants had claimed only an amount of Rs.2,50,000/- as compensation, in the light of the principles in **Sarla Verma** and **Pranay Sethi** (supra), I have awarded ‘future prospects’ and also compensation under the conventional heads. Thus, the amount now awarded is more than what is claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003(1) KLT 115 (SC)] and **Rajesh v. Rajbir Singh** [2013(3) KLT 89 (SC)]. M.A.C.A.No726/2007 -:14:- Therefore, I hold the appellants are entitled for enhancement of compensation by a further amount of **Rs.3,04,600/-** . In view of my findings on Question No. (i), the third respondent is ordered to deposit the total compensation of **Rs.5,34,100/-** . In the result, the appeal is allowed by permitting the appellants to recover from the third respondent an amount of **Rs.5,34,100/-** with interest on the said amount at the rate of 6% per annum from the date of petition till the date of deposit and proportionate cost. The third respondent is ordered to deposit the said amount with interest and cost before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the above amount to the appellants 2 to 5, in the ratio of 60:10:10:20, after deducting their liability, if any, towards payment of court fee, and in M.A.C.A.No726/2007 -:15:- ## accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge