Latha and others v. S. Ansar and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943** **MACA NO. 1519 OF 2009** **AGAINST THE AWARD IN OPMV 2061/2004 OF THE PRINCIPAL MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.** ## **APPELLANTS/PETITIONERS:** 1 LATHA, W/O LATE MANI PUTHIYAKOVILAM PARAMBA,, PO, CHALAPURAM, KOZHIKODE 673 002. 2 RAJAMMA M/O.LATE MANI -DO- -DO3 MIDHUN. S/O.LATE MANI(MINOR) -DO- -DO4 NEETHU D/O. LATE MANI (MINOR) -DO- -DOBY ADVS. SRI.P.V.KUNHIKRISHNAN SMT.BINDU GEORGE ## **RESPONDENTS/RESPONDENTS:** 1 S.ANSAR, S/O SIKKANDAR 260/HOUSE UNIT, SELVAPURAM(SOUTH),, KUMARAPALAYAM(PO), COIMBATORE-26 2 NELSON THOMAS T. 14/23A, KRISHNASWAMY LAY OUT-1, METTUPALAYAM-641 301,, TAMIL NADU. 3 ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD,, 46, WHITES ROAD, CHENNAI-600 014. BY ADV SRI.T.J.LAKSHMANAN IYER **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No1519 of 2009 -:2:- ## Dated this the 21[st] day of October,2021 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV) No.2061/2004 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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 claiming compensation on account of the death of Mani (deceased), the husband of the 1[st] appellant, the son of the 2[nd] appellant and the father of appellants 3 and 4. It was the case of the appellants that, on 10.01.2004, while the deceased was returning with vegetables from Tamil Nadu in a Mini lorry bearing registration No. TN 40A -0104 (offending lorry), when the vehicle reached a place named Musaliarangadi, the lorry hit against a electric post and lost control M.A.C.A.No1519 of 2009 ## -:3:- and then hit against another lorry bearing registration No. KL 11 J 2504. The deceased sustained serious injuries and was rushed to the Baby Memorial Hospital, Calicut. However, his life could not be saved. The deceased was a vegetable vendor by profession and earning a monthly income of Rs.7500/-. The accident occurred solely due to the negligence of the 1[st] respondent, who drove the offending lorry. The Kondotty Police registered Crime No.11/2004 against the 1[st] respondent for negligence. The offending lorry was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellants were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.33,62,500/from the respondents, which was limited to Rs.7,00,000/-. 3. The respondent Nos.1 and 2 did not contest the proceedings. 4. The third respondent had filed a written M.A.C.A.No1519 of 2009 -:4:- statement admitting that the offending lorry had a valid insurance coverage. Nevertheless, the 3[rd] respondent denied negligence on the part of the 1[st] respondent. Hence, the 3[rd] respondent prayed for exoneration of any liability. 5. The 1[st] appellant and witness were examined as Pws1 and 2 and Exhibits A1 to A5 were marked in evidence. The 3[rd] respondent marked Exhibit ‘B1’ insurance policy 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 from the 3[rd] respondent an amount of Rs.3,06,333/- with interest at the rate of 7% per annum from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 8. Heard; Sri. Bindu George the learned counsel appearing for the appellants/petitioners and M.A.C.A.No1519 of 2009 -:5:- Sri.T.J.Lakshmanan Iyer, the learned counsel appearing for the third respondent/insurer. 9. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Exhibit A1 FIR registered by the Kondotty police clearly substantiates that the accident occurred due to the negligence of the 1[st] respondent. Undisputedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the offending lorry. The 3[rd] respondent admitted that the offending lorry had a valid insurance coverage and had not proved that the 2[nd] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is liable to indemnify the 2[nd] respondent of its liability arising out of the accident. ## **Income of the deceased** 11. The appellants had pleaded that the M.A.C.A.No1519 of 2009 -:6:- deceased was a fruit and vegetable vendor and was earning a monthly income of Rs.7500/-. The Tribunal fixed the monthly income of the deceased at Rs.2166/- (i.e. Rs.26,000/- per annum). 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2004, I hold that the deceased’s monthly notional income can safely be fixed at Rs.4500/-. ## **Multiplier** 14. The deceased was aged 38 years at the time of accident/death. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the M.A.C.A.No1519 of 2009 -:7:- relevant multiplier is ‘15’ ## **Dependents of the deceased** 15. It is proved by Exhibit A3 Family membership certificate that the appellants were the dependents of the deceased, namely, his wife, mother and children. Therefore, the deceased was maintaining a four member family. Going by the law laid down in **Sarla Verma** (supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (16) SCC 680], one fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 16. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 38 years at the time of his death, I hold that the appellants are entitled for future prospects at 40% on the compensation for loss due to dependency. M.A.C.A.No1519 of 2009 -:8:- ## **Loss due to dependency** 17. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.4500/-, multiplier at ‘15’, future prospects at 40% and after deducting one fourth of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.8,50,500/- instead of Rs.2,77,333/awarded 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/-, Rs.15,000/- and Rs.40,000/- each respectively. 19. In the instant case, the Tribunal has awarded only an amount of Rs.2500/- towards 'funeral M.A.C.A.No1519 of 2009 -:9:- expenses'. Therefore, I enhance the compensation under the said head by a further amount of Rs.12,500/-. Similarly, I award an amount of Rs.15000/- under the head ‘loss of estate'. 20. It is seen that the Tribunal has awarded only an amount of Rs.10,000/- as compensation for loss of consortium. In the light of the law in **Pranay Sethi (supra)** , I award each of the appellant Rs.40,000/each i.e. a total amount of Rs.1,60,000/- towards loss of consortium. ## **Pain and suffering.** 21. In paragraph 19 of **Sarla Verma** (supra), the Honourable Supreme Court has categorically held that no amount shall be awarded under the head ‘pain and sufferings’, in the case of instantaneous death, to the legal representatives of the deceased. The same view has been reiterated by the Honourable Supreme Court in **United India Insurance Company Ltd.** V. **Sathinder Kaur @** M.A.C.A.No1519 of 2009 -:10:- **Satwinder Kaur and others** [2020 (3 )KHC 760 (SC)]. Therefore, I set aside the amount of Rs.5000/awarded by the Tribunal under the said head. 22. With respect to other heads of compensation awarded by the Tribunal, I find that the same to be reasonable and just compensation. 23. On a comprehensive re-appreciation of the pleadings and 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<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Transport<br>expenses|1500|1500| |2|Funeral expenses|2500|15000| |3|Medical expenses|10000|10000| |4|Pain<br>and<br>sufferings|5000|0| M.A.C.A.No1519 of 2009 -:11:- |5|Loss of estate|0|15000| |---|---|---|---| |6|Loss<br>of<br>consortium|10000|160000| |7|Loss<br>of<br>dependency|277333|850500| ||**Total**|**306333**|**1052000**| ## 24. Even though the appellants had claimed only an amount of Rs.7,00,000/- as compensation, in view of the law laid down in **Sarla Verma** and **Pranay Sethi (supra),** wherein the Honourable Supreme Court has held that the dependents of the deceased are entitled for future prospects and compensation under the conventional heads, I have awarded more compensation what is claimed in the claim petition, as it is just and reasonable compensation it is envisaged under the Act. The above course is permissible in the light of law laid down by the Honourable Supreme Court in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC].** M.A.C.A.No1519 of 2009 -:12:- In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.7,45,667/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate cost. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall immediately on the deposit being made, disburse the compensation amount to the appellants in the ratio of 40.10.25.25 and in accordance with law, after deducting their liability, if any, towards balance court fee. Sd/- ## **C.S.DIAS,JUDGE** rmm/21.10.2021