Kunjumol and Others v. K P Veeran Koya and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944** ## **MACA NO. 2040 OF 2014** **AGAINST THE AWARD DATED 11.07.2013 IN OPMV 1272/2012 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/APPELLANTS:** **1 KUNJUMOL AGED 44 YEARS W/O. (LATE) RAJAN, 2 HAREESH.K. RAJAN AGED 23 YEARS S/O. LATE. RAJAN, 3 SUDHEESH.K.RAJAN AGED 20 YEARS S/O. RAJAN,ALL ARE RESIDING AT 493(1/67A) PLATHARAYIL HOUSE, PO, CHERIYANAD, CHENGANNOOR, ALAPPUZHA-689511. BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN** ## **RESPONDENTS/RESPONDENTS:** **1 K P VEERAN KOYA, AGE NOT KNOWN, S/O. ABDULLA, RESIDING AT KUTTOOLI PARAMBIL HOUSE, P.O. MALAYAMMA, NIT(VIA) KOZHIKODE-673601. 2 HAREESH.C.T. AGED 28 YEARS S/O. KUNHIKRISHNAN.C.T.,RESIDING AT CHANGATHAZHATHU HOUSE, P.O. CHATHAMANGALAM, KOZHIKODE-673601. 3 THE ORIENTAL INSURANCE COMPANY LTD. DIVL. OFFICER-1, SEEMA BUIDING, GH.ROAD, OPP. KOTTAPARAMBU, KOZHIKODE-673001. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.PREETHY R. NAIR** ## **SRI. MATHEWS JACOB SR - R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2040 of 2014 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.1272/2012 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode (in short 'Tribunal') which was a claim under Section 166 of Motor Vehicles Act, 1988 (In short the Act). Appellants are wife and children of late Rajan who died in a motor accident occurred on 22.04.2012 due to hit by a bus while he was travelling as pillion rider on a motor cycle. He was immediately taken to Medical College Hospital, Kozhikode wherein he succumbed to injuries while undergoing treatment. It is alleged that the accident happened due to the rash and negligent driving of the bus by the 2[nd] respondent. The 1[st] respondent is the registered owner of the offending vehicle and 3[rd] respondent is the insurer. Total compensation of Rs.6,50,000/- has been claimed. 2. Before the Tribunal, 3[rd] respondent alone contested the matter. Policy coverage with respect to the offending vehicle is admitted. Compensation claimed under various heads is disputed. 3. Exts.A1 to A6 were marked from the side of the appellants/claimants.There was no oral evidence from either side. On evaluating the pleadings as well as documents produced from the side of the appellants/claimants, Tribunal awarded a total compensation of Rs.4,12,000/- under various heads together with interest at the rate of M.A.C.A No. 2040 of 2014 **3** 8% per annum. Tribunal found that the accident happened due to the rash and negligent driving of the bus by the 2[nd] respondent. 1[St] respondent is held vicariously liable for the act of the 2[nd] respondent and 3[rd] respondent is held liable to indemnify the 1[st] respondent insured as per the contract of insurance. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants/claimants (hereinafter be referred as claimants) are before this Court in appeal for various grounds stated in the memorandum of appeal. Though service is complete as against respondents 1 and 2, there is no appearance on behalf of them. 3[rd] respondent insurer appeared through the learned Standing Counsel Adv. P.Mathews Jacob. 5. Heard the learned counsel for the claimants and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the claimant, deceased was a Coolie aged 52 years and monthly income claimed is Rs.12,000/-. But the Tribunal taken only Rs.4,000/- per month as income which according to him is very low. It is also contended that compensation awarded under other heads were not in consonance with the settled M.A.C.A No. 2040 of 2014 **4** position of law. Hence he seeks for enhancement of compensation on all heads. 7. The learned counsel for the 3rd respondent/insurer 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. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the Apex Court fixed the monthly income of a coolie, who met with a road accident in the year 2004, notionally as Rs.4,500/-. In **Syed Sadiq v.** **Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, notionally as Rs.6,500/-. Accident in this case is on 22.04.2012. Hence based on the principles laid down in the above decisions, I am of the considered view that **Rs.8,500/-** can be taken as monthly income of the deceased. 9. 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 M.A.C.A No. 2040 of 2014 **5** 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. 10. 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 M.A.C.A No. 2040 of 2014 **6** emphasized that the compensation should not be a windfall nor be a pittance. 11. 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. 12. In the present case, monthly income of the deceased has already been fixed as Rs.8,500/-. Since the deceased was 52 years at the time of accident, claimants are entitled for 10% enhancement towards future prospects. Then monthly income of the deceased would be Rs.9,350/- (8,500+850(10% of 8,500)). 13. 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 personal and living expenses because it is assumed that a bachelor M.A.C.A No. 2040 of 2014 **7** 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). 14. 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. 15. The suitable 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 '11'. Claimants are wife and two sons of the deceased. So 1/3 has to be deducted towards personal and living expenses. Hence, compensation towards M.A.C.A No. 2040 of 2014 **8** dependency would be 9,350x12x11x2/3=8,22,800/-. Deducting the amount already awarded by the Tribunal, balance would be **Rs.4,70,800/-** (8,22,800-3,52,000). 16. The next contention of the learned counsel is with regard to enhancement of compensation under 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 Pranoy Sethi 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. 17. 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. 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. In Pranay Sethi's case M.A.C.A No. 2040 of 2014 **9** while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. The judgment in Pranay Sethi was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. Hence the amounts to be awarded should be Rs.16,500/- each under the head of loss of estate and funeral expenses . 18. 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 has classified it 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 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 M.A.C.A No. 2040 of 2014 **10** 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. 19. In the present case, claimants are wife and two unmarried sons of the deceased. So claimants are entitled to get Rs.44,000/- each towards consortium, amounting to Rs.1,32,000/-(44,000x3). Tribunal already awarded Rs.10,000/- towards loss of consortium. That has to be deducted. Once compensation is awarded under consortium, claimants are 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.25,000/- awarded by the Tribunal towards loss of love and affection has also to be deducted, the balance would be Rs.97,000/- (1,32,000-35,000(25,000+10,000)). Towards funeral expenses, Tribunal awarded Rs.8,000/-. Deducting that amount, the claimants are entitled to get Rs.8,500/- (16,500-8,000) towards M.A.C.A No. 2040 of 2014 **11** funeral expenses. Tribunal awarded Rs.10,000/- under the head of loss of estate. Deducting that amount, towards loss of estate claimants are entitled to get Rs.6,500/- (16,500-10,000) 20. So under the conventional heads, claimants are entitled to get Rs. **1,12,000/-** (97,000+8,500+6,500). 21. Hence in total claimants are entitled to get enhanced compensation of **Rs.5,82,800/-** (1,12,000+4,70,800). 22. In the result, appeal allowed and the claimants are allowed to realize enhanced compensation of **Rs.5,82,800/-** which will carry interest at the rate of 6% per annum from the date of petition, till realization. The enhanced compensation shall be apportioned among the appellants in the ratio of 60:20:20. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest,deducting the liability of the appellants towards balance court fee within a period of two months from the date of receipt of certified copy of this judgment. 23. The disbursement of the amount to the claimants 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.D162475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank M.A.C.A No. 2040 of 2014 **12** 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. **SD/-** **M.R.ANITHA, JUDGE** rps/