M.A.C.A. 2022 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 MACA NO. 2022 OF 2018** **OPMV 317/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA, APPELLANTS/PETITIONERS** 1 GOPINATHA KAIMAL MATHUPARAMBIL VADAKKE VEEDU, KUTTAMANGALAM P.O., KAINAKARI. 2 SINDHU GOPINATH SARASWATHI SADANAM, KALAVOOR P.O., ALAPPUZHA. 3 SINIMOL GOPINATH MATHUPARAMBIL VADAKKE VEEDU, KUTTAMANGALAM P.O., KAINAKARI. 4 SINEESH GOPINATH MATHUPARAMBU, KUTTAMANGALAM P.O., KAINAKARI. 5 SAVITHRI CHERUNGADI VELI, S.L.PURAM P.O., ALAPPUZHA. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL ## **RESPONDENTS/RESPONDENTS** 1 M.S.JAYAKUMAR MAYA BHAVAN, KAINAKARI PANCHAYATH WARD NO. XIV, KAINAKARI - 688 501. 2 KOSHY KOMBITHARAYILAYA ANCHAL HOUSE, ANAPRAMBAL NORTH, THALAVADY, ALAPPUZHA - 689 572. 3 SBI GENERAL INSURANCE CO.LTD. 2ND FLOOR, TARRA TOWER, T.C.NO. 9/2596(6), VELLAYAMBALAM, SHASTHAMANGALAM ROAD, SHASTHAMANGALAM P.O., THIRUVANANTHAPURAM - 695 010. BY ADVS. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY SRI.JITHIN SAJI ISAAC M.A.C.A.2022 of 2018 2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.8.2021, THE COURT ON 21.10.2021, DELIVERED THE FOLLOWING: M.A.C.A.2022 of 2018 3 ## **JUDGMENT** 1. The appellants are the claimants in O.P..(M.V) No. 317 of 2014 on the file of Motor Accidents Claims Tribunal, Alappuzha. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of death of Retnamma, the wife of the first appellant and the mother of appellants 2 to 4 and daughter of 5[th] appellant. 2. It is alleged that on 21-12-2013 at about 11:30 am while the deceased was walking through the side of Kuttamangalam – Kuppapuram public road and reached near Kolothu junction, Tractor bearing registration number KL-04/AA2894 which was driven by the first respondent, came in a rash and negligent manner and knocked down the deceased causing fatal injuries. Immediately she was taken to General Hospital Alappuzha and thereafter to Medical College Hospital Vandanum, but succumbed to the injuries sustained, on the same day. The claim petition was filed alleging that the accident occurred due to the rash and negligent driving of the first respondent the driver of the vehicle number KL-04/AA 2894 owned by the second respondent. Third respondent is the insurer. 3. Before the tribunal respondents 1 and 2 entered appearance but M.A.C.A.2022 of 2018 4 did not file any written statement. Third respondent filed written statement admitting that the vehicle involved is duly insured with them during the period of accident. It is also contented that accident was not reported and vehicular records and driving licence were not produced for verification. First respondent did not have any valid driving licence and the vehicle had no valid fitness certificate on the date of accident. So the company is not liable due to the violation of policy conditions. It is also contented that there was no negligence on the part of the first respondent and the accident occurred due to the negligence of the deceased herself. Appellants were put to strict proof regarding the age, occupation and income of the deceased. It is also the contention of the third respondent that the compensation claimed is exorbitant. 4. There was no oral evidence adduced from either sides. Exts.A1 to A8 were marked from the side of the appellants/claimants.(hear in after be referred as claimants.) 5. The Tribunal on evaluating the pleadings and the materials on record found that the accident occurred due to the rash and negligent driving of the tractor by the first respondent driver. So the second respondent owner was held vicariously liable. Since the insurance coverage of the vehicle was not in dispute, and Exts.A7 copy of the policy certificate proved that it was valid on the date of M.A.C.A.2022 of 2018 5 accident, the insurance company was held liable to pay the claim. At the same time it was further found that the first respondent was not having valid driving licence to drive the offending vehicle and hence there was violation of policy conditions. So the third respondent insurer is found to be entitled for reimbursement from the insured. Accordingly third respondent is directed to compensate the claimants and permitted to recover the amount from the respondents one and two and their assets as joint tort feasors. Under various heads the Tribunal awarded a total compensation of rupees 6,35,000 with interest at the rate of 8% per annum from the date of petition ie. 28.04.2014, till the date of deposit with proportionate cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimants came up in appeal before this court on various grounds stated in the memorandum of appeal. 7. Heard the learned counsel for the claimants and also the learned standing counsel for the third respondent ,insurance company. 8. The argument of the learned counsel for the claimant was mainly on the ground of the fixation of monthly income only at the rate of 5000 per month. According to the learned counsel the deceased was a Cooli aged 54 years and hence the monthly income of rupees 9000/- claimed by them ought to have been accepted. The learned M.A.C.A.2022 of 2018 6 counsel placed reliance on **Magma General Insurance Company Limited v. NanuRam alias Chuhru Ram and others (2018 (18) SCC 130 : 2018 ACJ 2782).** 9. The Learned counsel for the insurer on the other hand fully support the findings of the Tribunal and also contented that though claim under the head of consortium was only 20,000, 40,000 was awarded and the Tribunal went wrong in that regard. 10. The Hournable Apex Court laid down guiding principles in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** for determination of quantum of compensation under various heads which was followed in **National Insurance Co. Ltd. v Pranay Sethi and others (2017 (4) KLT 662 (S.C.)** 11. Again in **Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram and Others** , the principles laid down in **Sarla Varma** was followed. 12. In the present case the compensation awarded by the Tribunal under various heads reads as follows: |Sl.N<br>o.|Head of claim|Amount claimed|Amount<br>awarded|Basic vital<br>details in a nut<br>shell| |---|---|---|---|---| |1|Loss of earnings|Not applicable||| |2|Partial loss of earning|||| |3|Transport to hospital|Rs.1000/-|Rs.5000/-|Including<br>ambulance| M.A.C.A.2022 of 2018 7 |||7||| |---|---|---|---|---| |||||charges| |4|Extra nourishment|Rs.5000/-|Nil|Not entitled as<br>it was a death<br>claim| |5|Damage to clothing and<br>articles|Rs.1000/-|Rs.500/-|Reasonable| |6|Others : (1). Medical<br>expenses|Rs.7000/-|Nil|No evidence| ||(2). Bystanders Expense|Rs.1000/-|Nil|Not entitled, as<br>it was a death<br>claim| ||(3). Ambulance charges|Rs.1000/-|Nil|Allowed vide<br>column No.3| ||(4). Funeral expenses|Rs.10,000/-|Rs.15,000/-|As per the<br>decision<br>National<br>Insurance<br>Company Ltd v.<br>Pranay Sethi<br>and others<br>(2017 (4) KLT<br>662 SC )| ||Misc.expenses|Rs.10,000/-|Nil|No evidence| |7|Compensation for pain<br>and sufferings|Rs.30,000/-|Rs.15,000/-|As she died on<br>the date of<br>accident| |8|Compensation for<br>permanent disability|Not applicable||| |9|Compensation for loss of<br>contribution to the<br>welfare of the family (loss<br>of dependency )|Rs.80,000/-|Rs.5,44,500<br>/-|Rs.4,125/- x 12<br>x 11| |10|Compensation for loss of<br>(1). love and affection|Rs.20,000/-|Nil|Not entitled| ||(2). Consortium|Rs.20,000/-|Nil|Not entitled| ||(3). Estate of the<br>deceased, expectation of<br>life and prospects of the<br>family|Rs.15,000/-|Rs.15,000/-|Reasonable| M.A.C.A.2022 of 2018 8 ||Total|Rs.9,21,000/-<br>limited to<br>Rs.9,00,000|Rs.6,35,000||| |---|---|---|---|---|---| 13. As stated earlier, the main contention of the learned counsel for the claimants is with regard to fixation of Rs.5,000/- as the monthly income of the deceased. The accident occurred on 21-122013. Admittedly the deceased was 54 years old at the time of incident. The total claim under the various heads was Rs.9,21,000/which was limited to Rs.9,00,000/- by the claimants. The monthly income of the deceased according to them was Rs.9,000/- being a Cooli the Tribunal fixed the monthly income as Rs.5,000/- since the accident was in the year 2013. ## 14. In **Ramachandrapa v manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the Hon'ble Apex Court notionally fixed the monthly income of cooli in the year 2004 as rupees 4,500. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if the claim made is so exorbitant or if the claim made is contrary to ground realities the Tribunal may not M.A.C.A.2022 of 2018 9 accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 15. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-082008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end of right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in **Ramachandrapa's** case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 16. In the present case the deceased was a 54 year old lady. No reliable documents were produced to prove the actual income of the deceased. Deceased was claimed to be a coolie. Hence, taking into account the economic conditions prevailed in the year 2013, her notional income can be re-fixed at the rate of Rs.9000/ per month for the purpose of assessment of compensation under the M.A.C.A.2022 of 2018 10 ## various heads. 17. The determinative factors for fixing just compensation as per the guiding principles in **Sarla Verma** is the age and the income of the deceased. In **Sarla Verma** it has been provided that the multiplier to be applied for the age group of 50-55 is 11. 18. In **Pranay Sethi** Apex Court held that in case where deceased was self employed or on a fixed salary an addition of 10% of actual income can be made towards future prospects in cases where deceased was between age of 50 and 60 years. 19. Hence for the purpose of fixing the compensation under the head of dependency the monthly income is refixed as Rs.9000/-.10% of the monthly income is added towards future prospects ie, 9000x10/100=Rs.900/-. Hence monthly income of the deceased for the purpose of re-fixing the compensation under the head of loss of dependency is computed as Rs.9900/-(9000+900). 20. In **Sarala Verma,** the Apex court after referring to earlier decisions it has been held that multiplier to be applied is as mentioned in column (4) of the table in paragraph 40 of that decision .As per which the multiplier to be applied is 11 for the age group 51 to 55 years. The deceased in this case was 54 years old at the time of accident. 21. On the question of deduction towards personal expenses in M.A.C.A.2022 of 2018 11 **Sarla Verma,** the Apex court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependents since no departure as contemplated in **Reshma kumari and others V Madan Mohan and Another (2013 (9) SCC 65)** is made out in the facts and circumstances of the case. In **Reshma kumari** 's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 22. In **Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram and Others,** with respect to deduction of personal expenses in the case of the death of a bachelor son in that case was made as one third instead of ½ taking into account the fact that deceased was living in a village where he was residing with his aged father who was 65 years of old and unmarried sister and both of them were considered as dependants of the deceased. M.A.C.A.2022 of 2018 12 23. The deceased was 54 years old ,at the time of incident. She was having a family consisting of 5 dependents. First appellant is the husband and 5[th] appellant is the mother. Others are two daughters and a son. 24. In **Sarla Verma,** the Apex Court has held that personal and living expenses of the deceased should be deducted from the monthly income. In **Reshma Kumari,** the principles laid down in **Sarla Verma** was approved ie. the deduction towards personal and living expenses of the deceased should be one third where the number of dependent family members is 2 to 3 and one fourth where the number of dependent family members is 4 to 6. In the present case deceased has 5 dependents. So from Rs.9900/already arrived at one fourth has to be deducted towards personal and living expenses of the deceased (9900x1/4=7425). Applying the multiplier of 11, the compensation under the head of loss of dependency would be 7425x12x11=980,100. Deducting the amount already awarded by the Tribunal, the additional compensation under the head of loss of dependency will be Rs.435,600/- (980100-544500). 25. Tribunal awarded Rs.5000/- towards transportation expenses; Rs.500/- towards damage to clothing; Rs.15000/- towards funeral expenses; Rs.40,000/- towards loss of consortium; Rs.15000/- M.A.C.A.2022 of 2018 13 towards loss of estate. In **Pranay Sethi** the reasonable figures on conventional heads namely loss of estate, loss of consortium and funeral expenses are directed as Rs.15000/-, Rs.40000/- and 15000/- respectively. 26. The law laid down by the Apex Court in **Magma General Insurance Co.Ltd.V.Nanu Ram @ Chuhru Ram (2018 18 SCC** **130)** with respect to Consortium and classification of the term to spousal consortium,parental consortium,and filial consortium are yet another factor to be taken note of. Here the first appellant is the husband who is entitled to get Rs.40000/- towards spousal consortium towards loss of company, society, co-operation, affection and aid of the deceased. Daughters and son are all grown ups and hence parental consortium is not to be awarded. The 5[th] petitioner, the mother of the deceased is entitled to get Rs.20000/towards Filial consortium due to the shock and agony out of untimely death of her daughter. Apart from that the compensation awarded towards damage to clothing can be enhanced to 1000/from Rs.500/- already awarded, since the accident was in the year 2013. Rs.15000/- each awarded under the head of funeral expenses and loss of estate are in tune with **Pranoy Sethi** and hence no interference is called for in that regard. Rs.15000/ awarded by the Tribunal under the head of pain and suffering seems to be quite M.A.C.A.2022 of 2018 14 ## reasonable since death was on the same day of accident. 27. In the result, appeal allowed and appellants are allowed to realise an additional compensation of Rs.4,55,500/- which will carry interest at the rate of 8% per annum from the date of petition till realisation. Except the amount of Rs.20000/- awarded to the 5[th] petitioner towards the filial consortium, the balance additional amount and interest should be divided equally among the petitioners. 28. Since it has come out that the 1[st] respondent did not have any valid driving licence to drive the vehicle involved in the accident ,the insurer is entitled to be exempted .At the same time as per the directions in **National Insurance Company v. Swaran Singh (2004 (1) KLT 781)** and insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the claimants under the award. 29. The 3[rd] respondent insurer shall satisfy the additional amount together with interest with in a period of 2 months from the date of receipt of certified copy of this judgment,after deducting the liability of the claimants towards balance court fee and legal benefit fund. The disbursement of additional compensation to appellants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated M.A.C.A.2022 of 2018 15 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. Parties shall bear their respective costs. Sd/- ## **M.R.Anitha, Judge** Mrcs