M. Deepa v. K.M. Rajan and The United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** **MACA NO. 700 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 428/2005 OF MOTOR ACCIDENTS** ## **CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT:(APPELLANT** ) M.DEEPA, W/O.LATE LALU, AGED 27, MARATHADATHIL HOUSE, NEDUVA POST, NEDUVA AMSOM DESOM, MALAPPURAM. BY ADV SRI.HARISH R. MENON ## **RESPONDENTS/RESPONDENTS:** 1 K.M.RAJAN, S/O.KESAVAN, POOLAPARAMBIL HOUSE, M.M.PARAMBA,, UNNIKULAM VIA,BALUSSERY, KOZHIKODE. 2 THE UNITED INDIA INSURANCE CO.LTD., CITY BRANCH, RAMEEZ ARCADE, C.B.FLY OVER JUNCTION, CHEROOTY ROAD, KOZHIKODE. 3 SHERLI.P, D/O.LATE DAMODARAN, AGED 38 VILAMTHANGAL ROAD, KALAKKURICHI, VILLAPURAM DT, TAMIL NADU. (DELETED) 4 SREEJA T, D/O.LATE DAMODARAN, AGED 36, KANAYAM PARAMBIL, ALAPPUZHA. (DELETED). * R3 AND R4 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 23.03.2021 IN I.A.NO.1 OF 2021 AT THE RISK OF THE APPELLANT. BY ADVS. SRI.P.JACOB MATHEW SMT.T.A.LUXY SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 700 OF 2010 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.428 of 2005 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. Pursuant to the direction of this Court on 23.3.2021 in I.A.No.1 of 2021 the respondents 3 and 4 were deleted from the party array. It is seen from the records that, the 3[rd] respondent before the Tribunal had expired during the pendency of the claim petition, and as per the order in I.A.No.2560 of 2006, the respondents 3 and 4 in the appeal were impleaded as supplemental respondents 4 and 5 before the Tribunal. Therefore, for the sake of convenience, the parties are referred to as per their status in the claim petition. 2. The petitioner had claimed in the claim petition u/S.166 of the Motor Vehicles Act claiming compensation **MACA NO. 700 OF 2010 3** on account of the death of Lalu (deceased) her husband. The 3[rd] respondent was the father of the deceased. 3. The concise case of the petitioner in the claim petition, relevant for the determination of the appeal is that: on 6.6.2004 while the deceased was riding a motorcycle bearing Reg. No.KL-11-J-2672 from Naduvattom to Thampi road, the motorcycle hit a lorry bearing Reg.No.KL-07-B-4392, (offending vehicle) which was loaded with timber and parked on the road without parking lights or reflector. The deceased was taken to the MIMS Hospital, Kozhikode and, thereafter, treated at the Medical College Hospital, Kozhikode. He succumbed to his injuries on the very same day. The deceased was a goldsmith by profession and earning a monthly income of Rs.7,000/-. The 1[st] respondent was the owner of the offending vehicle and the 2[nd] respondent was the insurer of the offending vehicle. Hence, the appellant claimed compensation from the respondents at Rs.10,22,000/-, **MACA NO. 700 OF 2010 4** which was limited to Rs.6,00,000/-. 4. The respondents 1 and 3 did not contest the proceedings and were set ex parte. During the pendency of the claim petition, the 3[rd] respondent died and the supplemental respondents 4 and 5 were impleaded. They also did not contest the proceedings. 5. The 2[nd] respondent Insurance Company filed a written statement, inter alia, contending that the accident was caused on account of the negligence on the part of the deceased, who hit the motorcycle on the rear portion of the offending vehicle. Therefore, the deceased was guilty for contributory negligence. 6. The appellant produced and marked Exts.A1 to A3 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition by awarding a compensation of Rs.3,12,178/- but deducted 50% of the amount, holding **MACA NO. 700 OF 2010 5** that the deceased was guilty for contributory negligence to the extent of 50% as he had hit on the rear portion of the parked lorry. Accordingly, the Tribunal permitted the petitioner and the respondents 4 and 5 to recover an amount of Rs.1,56,089/- from respondents 1 and 2 with interest @ 7% per annum from the date of filing of the claim petition till the date of realization and Rs.500/- as costs. 8. Aggrieved by the fixation of contributory negligence, the direction that the respondents 4 and 5 were entitled to compensation and also dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard, the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 2nd respondent/ Insurance Company. 10. The questions that arise for consideration in this appeal are: **MACA NO. 700 OF 2010 6** (i) Whether the deceased can be held to be guilty of contributory negligence ? (ii) Whether the respondents 4 and 5 before the Tribunal are entitled for a share in compensation ? (iii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just ? 11. Ext.A1 FIR, proves that the deceased had hit on the rear portion of a parked lorry which caused the accident. 12. The Division Benches of this Court in _**Rose Lynd v. Lekha (2008 4 KLT Short Note 43 (Case No.38)**_ and _**Mirshad.C.K. v. Babu Mathew and others (2017 1 KHC 887)**_ have held when the driver/rider of the vehicle hit on a parked lorry certainly it has to be held that there was contributory negligence on the part of the driver/rider of the vehicle. 13. In view of the categoric declaration of law in **MACA NO. 700 OF 2010 7** _**Rose Lynd**_ and _**Mirshad.C.K**_ (supra) and Ext.A1 FIR, I answer Question No.1 against the appellant and hold that the deceased was guilty for contributory negligence to the extent of 25%. 14. Now, coming to the 2[nd] question whether the father of the deceased was a legal heir entitled to claim compensation on account of the death of the deceased son, and consequentially were his daughters – respondents 4 and 5 entitled to a share in the compensation. 15. The parties are Hindus by religion. They are governed by the provisions of the Hindu Succession Act 1956 (in short 'Act'). Section 9 of the Act deals with the general rules of succession in case of males. A wife falls within Class I of the Schedule of the Act. Only when there is no legal heir in Clause I of the Schedule of the Act, would an heir under the Class II get a share in the property of the Hindu male who dies intestate. **MACA NO. 700 OF 2010 8** 16. In light of the above statutory stipulation in the Act, it is clear that only the widow of the deceased Hindu who dies intestate is entitled to inherit the estate of the deceased. Therefore, I hold that the father of the deceased, namely the deceased 3[rd] respondent was not entitled for a share in the compensation. Resultantly, his legal heirs/representatives the respondents 4 and 5 are not entitled to a share in the compensation. Hence, the findings of the Tribunal that the respondents 4 and 5 are entitled to a share in the compensation is erroneous and wrong. Hence, I set aside the said finding and answer Question No.2 in favour of the appellant. 17. Now coming to the 3[rd] question with regard to reasonable and just compensation to be fixed. 18. The deceased was a gold smith by profession and was stated to be an earning a monthly income of Rs.7,000/-. The Tribunal fixed the notional income of the deceased at Rs.2,000/-. ## **MACA NO. 700 OF 2010 9** 19. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)**_ has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/- per month. 20. Following the ratio in the above decision, I refix the notional income of the deceased at Rs.4,500/- as the accident was in the year 2004. ## **Multiplier** 21. The deceased was aged 27 on the date of his death. Hence, the relevant multiplier in light of the decisions in _**Sarala Verma v. Delhi Transport Corporation (2009) 6 SCC 121**_ and _**National Insurance Co.Ltd., v. Pranay Sethi (2017) 16 SCC 680)**_ is ‘17’. Similarly, in _**Sarala Verma and Pranay Sethi,**_ the Hon’ble Supreme Court has held that the dependence of the deceased, if the deceased is aged 27, is entitled for future prospects at 40%. **MACA NO. 700 OF 2010 10** ## **Personal living expenses of the deceased** 22. As only the appellant was a dependent of the deceased, one half of the compensation on the loss of dependency has to be deducted towards the personal living expenses of the deceased. ## **Loss due to dependency with Future Prospects** 23. In view of the aforecited parameters, namely, the relevant multiplier being ‘17’, the notional income being Rs.4,500/- per month, future prospects at 40% and one half of the amount to be deducted towards the personal living expenses of the deceased, I refix the compensation for loss due to dependency at Rs.6,42,600/- instead of Rs.2,87,928/- fixed by the Tribunal. ## **Conventional heads of compensation** 24. In Clause (viii) of paragraph 61 of _**Pranay Sethi**_ (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for **MACA NO. 700 OF 2010 11** compensation under the conventional heads namely; funeral expenses, loss of estate and loss of consortium at Rs. 15,000/-, 15,000/- and 40,000/-, respectively. Accordingly, I fix the compensation under the aforesaid heads at the aforesaid amounts. ## **Compensation for loss of Love and Affection** 25. The Tribunal has awarded an amount of Rs.5,000/- under the head loss of love and affection. In light of the law laid down in _**Kunjandy and others v. Rajendran (2020(2) KLT 315),**_ I set aside the amount of compensation of Rs.5,000/- awarded under the said head in view of the grant of compensation under the head loss of consortium. 26. With respect to the other heads of compensation, namely; transport and clothing, I find that the Tribunal has awarded reasonable and just compensation. 27. On an over all re-appreciation of the pleadings **MACA NO. 700 OF 2010 12** and materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the aforecited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount<br>Awarded by<br>the Tribunal<br>(in Rs.)|Amounts<br>modified<br>and<br>recalculated by<br>this Court| |---|---|---| |Transportation<br>expenses|1,000/-|1,000/-| |Damages to clothing|250/-|250/-| |Funeral expenses|3,000/-|15,000/-| |Loss of Estate|-|15,000/-| |Love and affection|5,000/-|-| |Loss of consortium|15,000/-|40,000/-| |Loss of dependency|2,87,928/-|6,42,600/-| |Total|3,12,178/-|7,13,850/-| **MACA NO. 700 OF 2010 13** 28. In light of the finding of this Court that the deceased was guilty for contributory negligence to the extent of 25%, I deduct 25% from the total compensation i.e., an amount of Rs.1,78,463/-. Therefore, the appellant is entitled for a compensation of Rs.5,35,387/- i.e., an enhancement of Rs.2,23,209/-. In the result, the appeal is allowed, by allowing the appellant to realise the entire compensation amount of Rs.5,35,387/- from the 2[nd] respondent- with interest at the rate of Rs.7% per annum from the date of petition till the date of deposit, after deducting a period of 166 days, i.e., the period of delay in filing the appeal as ordered by this Court on 23.3.2021 in C.M.Appln. No.892/2010, and proportionate costs. The 2[nd ] respondent shall deposit the above compensation with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. Needless to mention that if any amount has already been deposited, **MACA NO. 700 OF 2010 14** only the balance amount need to be deposited by the 2[nd] respondent. The Tribunal shall disburse the compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm