K.V. Lalitha, M. Lakshmi and M. Parvathy v. Joy Varghese, Boban Sebastian and Royal Sundaram Alliance Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 MACA NO. 2289 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1854/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** 1 K.V.LALITHA, AGED 57 YEARS W/O.LATE A.K.MURALEEDHARAN ELAYADOM, RESIDING AT "SAPARYA", PUTHIYA ROAD, VENNALA, COCHIN-28. 2 M.LAKSHMI,AGED 30 YEARS D/O.LATE A.K.MURALEEDHARAN ELAYADOM, RESIDING AT "SAPARYA", PUTHIYA ROAD, VENNALA, COCHIN-28. 3 M.PARVATHY,AGED 26 YEARS D/O.LATE A.K.MURALEEDHARAN ELAYADOM, RESIDING AT "SAPARYA", PUTHIYA ROAD, VENNALA, COCHIN-28. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ## **RESPONDENT/S:** 1 JOY VARGHESE S/O.JOHN VARGHESE, MOOZHA HOUSE, ANAPPARA P.O., MANJAPRA, ERNAKULAM DISTRICT, PIN-683581. 2 BOBAN SEBASTIAN S/O.SEBASTIAN, PALANTHRA HOUSE, KUNDUTHODE P.O., KOZHIKODE-673513. 3 ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD. SUNDARAM TOWERS, 45&46, WHITES ROAD, CHENNAI-14. BY ADV SRI.B.N.SHIVSANKAR-R1 ADV.SRI.P.JACOB MATHEW - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.2289 of 2012 ## **C.S.DIAS, J.** ## **====================== MACA No.2289 of 2012** **====================== Dated this the 9[th] day of March, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.1854/2006 of the Motor Accident Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. During the pendency of the proceeding before the Tribunal, the fourth petitioner had died. Therefore, the petitioners 1 to 3 have not impleaded the fourth petitioner as a party in the appeal. Thus, for the sake of convenience, the parties are referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of A.K Muraleedharan (deceased), the husband of the first 3 MACA No.2289 of 2012 petitioner, the father of the petitioners 2 and 3 and the son of the fourth petitioner. It was their case that, on 31.10.2005, while the deceased was travelling in a car bearing registration No.KL-7/AY 6444 with his family members from Dharmapuri to Krishnagiri, due to the negligence of the second respondent, the driver of the car, the car hit against a lorry which was parked on the road. All the passengers in the car suffered multiple injuries. The deceased was rushed to the Dharmapuri Hospital and, thereafter, treated to the St.John's Medical College Hospital, Bangalore, but he succumbed to the injuries on 5.11.2005. The deceased was the Promoter and one of the major shareholders of a Company named M/s.Pooja Milk Foods (P) Ltd., Vennala, Kochi, and was drawing an annual salary of Rs.2,70,000/-. As per the income tax returns filed by the deceased, the Company had an average cash profit of Rs.13.65 Lakh every year. The 4 MACA No.2289 of 2012 deceased had also started a Nylon fishnet factory and had an annual turnover of Rs.30,00,000/-. The car was owned by the first respondent and was insured with the third respondent. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.20,91,000/- from the respondents, which claim was limited to Rs.20,00,000/-. 3. The first petitioner who also suffered injuries in the same accident had filed OP(MV) 1724/2006 before the same Tribunal, seeking compensation from the respondents. 4. The respondents 1 and 2 had filed separate written statements in both the claim petitions admitting the accident. Nevertheless, it was stated that as the car was insured with the third respondent, the third respondent was to indemnify the liability of the first respondent. 5 MACA No.2289 of 2012 5. The third respondent had filed separate written statements in both the claim petitions, inter alia, contending that the claim petitions were bad for nonjointer of necessary parties, as the driver, owner and insurer of the lorry were not made parties in the claim petitions. It was also stated that the deceased was only a gratuitous passenger in the car and no additional premium was paid. Therefore, the third respondent was to be exonerated of any liability. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners produced and marked Exts A1 to A15 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and material on record, allowed the captioned claim petition, in part, by permitting the petitioners 1 to 3 to realise from 6 MACA No.2289 of 2012 the third respondent an amount of Rs.10,20,000/-, with interest and proportionate cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 1 to 3 are in appeal. 10. Heard; Smt.Manju.M, the learned counsel appearing for the appellants/petitioners 1 to 3, Sri.B.N Shivsankar, the learned counsel appearing for the first respondent and Sri.P.Jacob Mathew, the learned counsel appearing for the third respondent/insurer. 11. The point that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Ext A7 charge-sheet filed by the Karimangalam Police in crime No.513/2005, proves that the accident occurred due to the negligence of the second respondent. 7 MACA No.2289 of 2012 Indisputably, the first respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext A7 charge-sheet. 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. ## **Notional Income** 13. The specific case of the petitioners was that the deceased was the Promoter and one of the major shareholders of a Company named M/s.Pooja Milk Foods (P) Ltd., Vennala, Kochi, and he was drawing an annual salary of Rs.2,70,000/-. To substantiate their contention, they had produced the Saral forms for the assessment years 2003-2004, 2004-2005 and 2005-2006. The Tribunal, after going through the above Saral forms, 8 MACA No.2289 of 2012 arrived at a conclusion that the deceased had a monthly income of Rs.15,000/-. 14. I have re-appreciated Ext A10 series Saral forms. It can be gathered from Ext A10 series that for the assessment year 2003-2004, the deceased had a taxable income of Rs.2,36,997/-, for the assessment year 20042005 he had a taxable income of Rs.2,90,203/- and for the assessment year 2005-2006 he had a taxable income of Rs.2,40,000/-. After deducting the income tax paid by the deceased, he had a net income of Rs.1,89,642/- for the assessment year 2003-2004, Rs.1,79,500/- for the assessment year 2004-2005 and Rs.2,13,937/- for the assessment year 2005-2006, i.e., a total net income of Rs.5,83,092/- for the above mentioned three assessment years. Therefore, the deceased had an average monthly net income of Rs.16,197/- rounded off to Rs.16,200/-, instead of Rs.15,000/- fixed by the Tribunal. 9 MACA No.2289 of 2012 ## **Multiplier** 15. The deceased was born on 17.12.1949 as evident from Ext A10 Saral forms. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '11'. ## **Future prospects** 16. In the light of the law laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , and considering the fact that the deceased was aged 55 years at the time of his death, I hold that the appellants/petitioners 1 to 3 are entitled to future prospects @ 10%. ## **Personal living expenses of the deceased** 17. The petitioners were the wife, daughters and father of the deceased. The Tribunal, for the reason that the petitioners 2 and 3 were in the age group of 24 and 20 10 MACA No.2289 of 2012 and that the fourth petitioner – the father of the deceased had died during the pendency of the proceeding, held that only the first petitioner was the dependent of the deceased. Accordingly, the Tribunal deducted one-third of the compensation towards the personal living expenses of the deceased. 18. This Court in **United India Insurance Co Ltd., v. Shalumol [2021 SCC Online Ker. 3209]** has categorically held that financial dependency is not the sole criteria to award compensation under section 166 of the Motor Vehicles Act, 1988. Dependency includes, gratuitous services dependency, physical dependency, so emotional dependency, psychological dependency and on and so forth. 19. In the above legal background, especially taking into consideration that the petitioners 2 and 3 were the daughters of the deceased and the fourth petitioner was 11 MACA No.2289 of 2012 the father of the deceased, who was alive at the time of arising out of the cause of action, following the principles in **Sarla Verma** and **Pranay Sethi** (supra), I deduct one-fourth of the compensation towards the personal living expenses of the deceased. ## **Loss of dependency** 20. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.16,200/-, the multiplier at 11, future prospects at 10% and after deducting one-fourth of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency of the petitioners 1 to 3 at Rs.17,64,180/- instead of Rs.9,60,000/- awarded by the Tribunal. ## **Conventional heads of claim** 21. In paragraph 59.8 of **Pranay Sethi (supra)** it is held that the dependents of the deceased are entitled for 12 MACA No.2289 of 2012 compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 22. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered 13 MACA No.2289 of 2012 on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 23. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- under the head 'funeral expenses' and Rs.10,000/- under the head ‘loss of consortium’. Therefore, I enhance the compensation towards funeral expenses by a further amount of Rs.11,500/- and I award the petitioners 1 to 3 an amount of Rs.44,000/- each towards ‘loss of consortium’.,i.e., a total amount of Rs.1,22,000/-. Likewise I award them an amount of Rs.16,500/- under the head 'loss of estate'. ## **Loss of love and affection** 24. The Tribunal has awarded an amount of 14 MACA No.2289 of 2012 Rs.25,000/- under the head 'loss of love and affection'. 25. In **New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644]** the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.25,000/- awarded under the head 'loss of love and affection'. ## **Other heads of compensation** 26. With respect to the compensation awarded under the heads 'transportation expenses' and 'pain and sufferings', I find the same to be reasonable and just, particularly for the reason that the deceased had lost his life only six days after the accident. 27. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in 15 MACA No.2289 of 2012 the afore-cited precedents, I hold that the appellants /petitioners 1 to 3 are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport to hospital|5,000/-|5,000/-| |2|Pain and sufferings|15,000/-|15,000/-| |3|Loss of consortium|10,000/-|1,32,000/-| |4|Loss of love and affection|25,000/-|Nil| |5|Funeral expenses|5,000/-|16,500/-| |6|Loss of estate|Nil|16,500/-| |7|Loss of dependency|9,60,000/-|17,64,180/-| |||10,20,000/-|19,49,180/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.9,29,180/- with interest on the said amount at the rate of 6% per annum from the date of claim petition till the date of deposit, after deducting interest for a period of 373 days, (i.e., the period of delay in filing the appeal 16 MACA No.2289 of 2012 and as ordered by this Court on 12.11.2021 in C.M Appln No.1/2012), and proportionate cost. The third respondent is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants /petitioners 1 to 3, in the ratio of 50:25:25 and in accordance with law. Sd/- sks/9.3.2022 **C.S.DIAS, JUDGE**