Lipika w/o Late Vasanthan; Ashitha d/o Late Vasanthan; Aswani d/o Late Vasanthan v. Joseph, S/o Thomas; The Oriental Insurance Co. Ltd.; S. Joshy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943** **MACA NO. 2124 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1494/2006 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE APPELLANT/S:** - **1 LIPIKA W/O. LATE VASANTHAN, KADAYKKAL AKAM VEEDU, NADAKKAVU POST,, PUTHIYAKADAVU, KOZHIKODE.** - **2 ASHITHA D/O.LATE VASANTHAN KADAYKKAL AKAM VEEDU, NADAKKAVU POST,, PUTHIYAKADAVU, KOZHIKODE.** - **3 ASWANI D/O.LATE VASANTHAN D.O.B. 10/10/1992,, KADAYKKAL AKAM VEEDU, NADAKKAVU POST,, PUTHIYAKADAVU, KOZHIKODE.** **BY ADVS. P.V.ANOOP K.V.SREERAJ** ## **RESPONDENT/S:** - **1 JOSEPH, S/O. THOMAS, THAIKKADAN HOUSE RAMAVARMAPURAM POST, VILLADAM, THRISSUR - 680020** - **2 THE ORIENTAL INSURANCE CO.LTD.NO.7 UTHAMAR GANDHI SALAI, 2ND FLOOR, ROSY TOWERS,, NUNGAMBAKKAM, CHENNAI, TAMILNADU - 600012.** -2- MACA. No. 2124 of 2011 **3 S.JOSHY S/O.SEBASTIAN, 22 SULTHAN ROWTHAR COLONY,, MORTH METTU ST.E.PUDAR,, TRICHY - 600021.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- MACA. No. 2124 of 2011 ## **JUDGMENT** The appellants were the petitioners 1, 3 and 4 in OP(MV) No.1494 of 2006 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The 2[nd] petitioner before the Tribunal had passed away during the pendency of the claim petition. The respondents in the appeal were the respondents before the Tribunal. Therefore, the parties are for the sake of convenience and wherever the context so requires, are referred to as per their status in the claim petition before the Tribunal. 2. The petitioners had filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one 'Vasanthan' (deceased), the husband of the 1[st] petitioner, the son of the 2[nd] petitioner and the father -4- MACA. No. 2124 of 2011 of the petitioners 3 and 4. The appellants had averred in the claim petition that, on 08.04.2006, while the deceased was returning from his friend's house, a bus bearing registration No.KL-8Z/4041 (bus) driven by the 3[rd] respondent in a rash and negligent manner hit the deceased. The deceased sustained fatal injuries and lost his life on the same day. The deceased was a fisherman and earning a monthly income of Rs.5,000/-. The 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the bus. The petitioners were the dependants of the deceased. Hence, the petitioners claimed a compensation of Rs.13,58,500/- from the respondents, which was limited to Rs.5,00,000/-. 3. The respondents 1 and 3 did not contest the proceedings. The 2[nd] respondent filed a written statement refuting the allegations in the claim -5- MACA. No. 2124 of 2011 petition. They disputed the age, income and occupation of the deceased. 4. The 3[rd] petitioner was examined as PW1 and Exts.A1 to A6 were marked in evidence. The respondents did not let any evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to realise from the 2[nd] respondent an amount of Rs.3,52,000/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.1,500/-. 6. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 7. Heard; Sri. Anoop P.V. the learned counsel appearing for the appellants/petitioners 1, 3 and 4 -6- MACA. No. 2124 of 2011 and Sri. P. Jacob Mathew, the learned counsel appearing for the second respondent in the appeal/insurer. 8. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 9. As per Ext.A1 certified copy of the FIR and FIS and Ext.A3 scene mahazar, it is proved that the accident occurred due to the negligence of the 3[rd] respondent, the driver of the bus. Undisputedly, the 1[st] respondent was the owner of the bus. Therefore, the 1[st] respondent is vicariously liable to pay the compensation. As the 2[nd] respondent was the insurer of the vehicle and there being no violation of the insurance policy conditions, the 2[nd] respondent is to -7- MACA. No. 2124 of 2011 indemnify the liability of the 1[st] respondent. ## **Notional income:** 10. The petitioners had claimed that the deceased was a fisherman and earning a monthly income of Rs.5,000/-. Nevertheless, the Tribunal fixed the notional income of the deceased as Rs.3,000/-. 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.,** [(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. 12. Following the ratio in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2006 and the deceased was a fisherman, I am of the firm opinion that the deceased notional income can safely be fixed at -8- MACA. No. 2124 of 2011 ## Rs.5,000/- per month. ## **Multiplier:** 13. The deceased was aged 47 years on the date of his death. In the light of the law laid down in **Sarla Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)], the relevant multiplier is '13'. ## **Dependants of the deceased:** 14. Admittedly, the petitioners were the wife, mother and children of the deceased, who are four in number. Following the ratio in **Sarla Verma** (supra) reiterated in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)], 1/4[th] of the income of the deceased has to be deducted towards the personal living expenses of the deceased. ## **Future prospects:** 15. Again following the principles laid down in -9- MACA. No. 2124 of 2011 **Sarla Verma** and **Pranay Sethi** (supra) and considering that the deceased was aged 47 years on the date of his death, I hold that the petitioners are entitled to future prospects at 25% on the compensation for 'loss of dependency'. ## **Loss due to dependency:** 16. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.5,000/-, the multiplier at 13, future prospects at 25% and deducting 1/4[th] of compensation for loss of dependency towards the personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.7,31,250/- instead of Rs.3,12,000/fixed by the Tribunal. ## **Conventional heads of compensation:** 17. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held -10- MACA. No. 2124 of 2011 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. 18. In the instant case, the Tribunal has only awarded an amount of Rs.3,000/- towards 'funeral expenses', Rs.10,000/- towards 'loss of estate' and Rs.10,000/- towards 'loss of consortium'. Therefore, following the law in **Pranay Sethi** (supra), I enhance the compensation under the heads 'funeral expenses' by a further amount of Rs.12,000/-, 'loss of estate' by a further amount of Rs.5,000/- and 'loss of consortium' by a further amount of Rs.1,10,000/- i.e., Rs.40,000/- each to the petitioners 1, 3 and 4. In view of the fact that the 2[nd] respondent has expired after the award, I decline to award any amount for -11- MACA. No. 2124 of 2011 her towards loss of consortium. ## **Loss of love and affection and pain and sufferings:** 19. It is seen that the Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection' and Rs.5,000/- under the head 'pain and sufferings'. 20. 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. Similarly, **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others** [2020(3)KHC 760], the Hon'ble Supreme Court has held that in the case of death, no -12- MACA. No. 2124 of 2011 amount can be awarded under the head 'pain and sufferings'. Accordingly, I set aside the amounts of Rs.10,000/- and Rs.5,000/- awarded under the above two heads. 21. With respect to the compensation awarded under the heads 'transportation' and 'damage to clothing', I find the same to be reasonable and just. 22. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners 1, 3 and 4 are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. -13- MACA. No. 2124 of 2011 |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transport|1,500|1,500| |2|Damage to<br>Clothing|500|500| |3|Pain and sufferings|5,000|Nil| |4|Funeral expenses|3,000|15,000| |5|Loss of love and<br>affection|10,000|Nil| |6|Loss of estate|10,000|15,000| |7|Loss of consortium|10,000|1,20,000| |8|Loss of<br>dependency|3,12,000|7,31,250| |**Total**||**3,52,000**|**8,83,250**| 23. Even though the petitioners had limited their claim to Rs.5,00,000/-, following the ratio in -14- MACA. No. 2124 of 2011 **Sarla Verma** and **Pranay Sethi** (supra), that the dependants of the deceased are entitled for future prospects at 25%, and also the other conventional heads of compensation, the amount that has been now awarded is more than that amount that was claimed in the claim petition. Nevertheless, in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 (SC)] the Hon'ble Supreme Court has held that there is no restriction in awarding more compensation than that is awarded in the claim petition. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.5,31,250/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 627 days, that is -15- MACA. No. 2124 of 2011 the period of delay in filing the appeal and as ordered by this Court on 21.12.2011 in C.M.Appln No.3134 of 2011, and cost of Rs.4,000/-. The 2[nd] respondent/ insurer is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and cost within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants/petitioners 1, 3 and 4 in the ratio of 50:25:25 and in accordance with law, after deducting their liability, if any, towards payment of court fee. All pending interlocutory applications will stand closed. Sd/ **C.S.DIAS JUDGE** das -16- MACA. No. 2124 of 2011 ## **APPENDIX** ## **ANNEXURE A** **COPY OF CERTIFICATE SHOWING THE FEES STRUCTURE OF THE CIVIL ENGINEERING AT TECHNICAL INSTITUTE, KOZHIKODE DATED 1.10.2011.**