Latha and others v. R. Raja Gounder and S. Murugan and National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943** **MACA NO. 2815 OF 2009** **AGAINST THE JUDGMENT IN O.P.(MV)NO.406/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD, PALAKKAD** ## **APPELLANTS/PETITIONERS:** - **1 SMT.LATHA, W/O.LATE SUDEVAN, SHANKAR NILAYAM, CHERODE, POST PERUVEMBA,PALAKKAD DISTRICT.** - **2 JESHMA (MINOR), AGED 14 YEARS, D/O. LATE SUDEVAN, REPRESENTED BY GUARDIAN MOTHER LATHA - IST APPELLANT-, -DO-** - **3 KAMALAKSHI, W/O. SANKARAN (DIED)** - **4 SANKARAN, FATHER OF SUDEVAN (DIED)** **BY ADVS.SRI.VIVEK VARGHESE P.J. SRI.P.J.VINOD JOSEPH** ## **RESPONDENTS/RESPONDENTS:** **1 R.RAJA GOUNDER, S/O. RAMASWAMY GOUNDER, VANNAKADU, OLAKKACHIINNUR, SANGUPURI TALUK, SALEM DISTRICT, TAMIL NADU. 2 S. MURUGAN, S/O.T.K. SAKKARAPANI, 13/150, SUBRAMANIA NAGAR, PUDUSAMPALLI, METTUR DAM, POST METTUR.** **MACA NO. 2815 OF 2009** -2- **3 NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE II, II, RAMAKRISHNA ROAD, BALAJI TOWER, SALEM - 36007.** **BY ADV SRI.GEORGE CHERIAN THIRUVALLA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2815 OF 2009** -3- ## **JUDGMENT** The appellants were the petitioners in O.P.(MV) No.406 of 2003 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondents in the appeal were the 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 C.S.Sudevan (deceased), the husband of the 1[st] appellant, the father of the 2[nd] appellant and the son of appellants 3 and 4. 3. The appellants have averred in the claim petition that, on 02.01.2003, while the deceased was travelling on his bicycle through the National Highway at Kadunthuruthy, Palakkad, a lorry bearing registration No.KA-02/AA-6388 (lorry) driven by the 2[nd] respondent in a rash and negligent manner came from the opposite side **MACA NO. 2815 OF 2009** -4- and hit the deceased. The deceased succumbed to the injuries on the spot. The deceased was a Van Salesman in a company named M/s.Milkway Diary Products (P) Ltd and was getting a monthly income of Rs.4,500/-. The deceased was a sole bread winner of his family. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellants claimed an amount of Rs.6,71,000/- as compensation from the respondents, but limited the claim to Rs.6,00,000/-. 4. The respondents 1 and 2 did not contest the proceedings. The 3[rd] respondent filed a written statement contending that the documents of the offending vehicle were not produced before it for verification. They disputed the age, occupation and income of the deceased. It was further contended that the accident was caused due to the negligence on the part of the deceased and that the compensation claimed was on the higher side. **MACA NO. 2815 OF 2009** -5- 5. The appellants produced and marked Exts.A1 to A10 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to realise an amount of Rs.3,61,500/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and cost of Rs.1,000/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the 3[rd] respondent insurance company. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. Ext.A10 charge sheet filed by the police after ## **MACA NO. 2815 OF 2009** -6- investigation, clearly substantiates that the accident occurred solely on account of the negligence of the driver of the lorry, who drew the lorry in a negligent manner and hit against the bicycle of the deceased. Undisputedly, the 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the lorry. Therefore, the 3[rd] respondent is liable to indemnify the 1[st] respondent to pay compensation to the appellants. ## **Notional Income** 11. The appellants have claimed that the deceased was a salesman in a milk diary company and earning a monthly income of Rs.4,500/-. Nevertheless, the Tribunal fixed the notional income of the deceased at Rs.1,800/- per month, for want of materials on record. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie **MACA NO. 2815 OF 2009** -7- worker in the year 2004 at Rs.4500/- per month. 13. Following the ratio in the aforecited decision and considering that the accident occurred in the year 2003, I hold that the notional income of the deceased can safely be fixed at Rs.4,500/- per month. ## **Multiplier** 14. The deceased was aged 45 years at the time of death. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)], the relevant multiplier is '14' instead of '15' adopted by the Tribunal. ## **Personal living expenses of the deceased** 15. Undisputedly, the appellants were the wife, daughter and parents of the deceased. The deceased is stated to be the sole bread winner of the family. Therefore, he was maintaining a large family consisting of four members. In light of the law, in **Sarla Verma** (supra) and **MACA NO. 2815 OF 2009** -8- ## **National Insurance Company Ltd. v. Pranay Sethi** **[(2017) 16 SCC 680],** 1/4[th] of the total compensation has to be deducted from the compensations for loss due to dependency towards the personal living expenses of the deceased, which I do. ## **Future prospects** 16. In light of the law in **Sarla Verma** and **Pranay Sethi** (supra), the dependants of the deceased are also entitled to 25% of the compensation for loss due to dependency towards future prospects, as the deceased was 45 years of age at the time of his death. ## **Loss due to dependency** 17. Taking into account the above factors, namely, the notional income of the deceased at Rs.4,000/- per month, the multiplier at '14', deducting 1/4[th] of the compensation towards the personal living expenses of the deceased and adding 25% towards future prospects, I re-fix the **MACA NO. 2815 OF 2009** -9- compensation under the head loss due to dependency at Rs.6,30,000/- instead of Rs.3,24,000/- fixed by the Tribunal. ## **Conventional Heads of Compensation** 18. In Clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held 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/-, 15,000/- and 45,000/-, respectively. 19. In such circumstances, I enhance the compensation under the head loss of estate by a further amount of Rs.12,500/-, compensation under the head funeral expenses by a further amount of Rs.10,000/-, i.e., a total amount of Rs.15,000/- each under the aforesaid heads. ## **Loss of consortium** 20. In view of the fact that the 1[st] appellant and the 2[nd] appellant are the wife and daughter of the deceased, **MACA NO. 2815 OF 2009** -10- and the fact that the appellants 3 and 4 are no more, I hold that the appellants 1 and 2 are entitled for spousal consortium and parental consortium at Rs.40,000/- each, totalling to an amount of Rs.80,000/-. ## **Compensation for love and affection** 21. The Tribunal has awarded an amount of Rs.15,000/- under the head loss of love and affection. 22. In view of the law laid down by this Court in **Kunjandy v. Rajendran** [2020 (2) KLT 315], that once compensation is awarded under the head loss of consortium, no amount can be awarded under the head loss of love and affection, as it would amount to overlapping of compensation. Therefore, I set aside the compensation of Rs.15,000/- awarded under the head 'loss of love and affection'. 23. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the aforecited ## **MACA NO. 2815 OF 2009** -11- decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.No.|Head of claim|Amount<br>awarded by the<br>Tribunal<br>(in<br>rupees)|Amount<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of estate|2,500|15,000| |2|Funeral expenses|5,000|15,000| |3|Loss<br>of<br>consortium|15,000|80,000| |4|Loss of love and<br>affection|15,000|Nil| |5|Loss<br>due<br>to<br>dependency|3,24,000|6,30,000| ||Total|3,61,500|7,40,000| In the result, the appeal is allowed by enhancing the **MACA NO. 2815 OF 2009** -12- compensation by a further amount of Rs.3,78,500/- with interest at the rate of 7.5% from the date of petition till the date of deposit, after deducting a period of 421 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 29.03.2021 in C.M.Application No.3320 of 2009, and proportionate cost. The 3[rd] respondent shall deposit the enhanced compensation with interest and proportionate cost before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The enhanced compensation shall be disbursed by the Tribunal to the appellants 1 and 2/petitioners 1 and 2, in equal shares and in accordance with law. Sd/- **C.S.DIAS JUDGE** bpr