MACA No. 1184 of 2013

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** ## **MACA NO. 1184 OF 2013** **AGAINST THE ORDER/JUDGMENT IN I.A.153/2013 IN OP(MV) 387/2010 OF MOTOR** ## **ACCIDENTS CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANTS/PETITIONERS:** - **1 PADMAVATHY AMMA AGED 53 YEARS W/O.LATE SASIKUMARAN PILLAI, KAIPPALLIL VEEDU, KANNIMEL CHERRY, KAVANADU, KOLLAM DISTRICT** - **2 GIRIJAKUMARI D/O.PADMAVATHY AMMA, KAIPPALLIL VEEDU, KANNIMEL CHERRY, KAVANADU, KOLLAM DISTRICT BY ADV SRI.C.RAJENDRAN** ## **RESPONDENTS/RESPONDENTS:** - **1 VENU PARTNER, GEM INDUSTRIES, CHERTHALA, ALAPPUZHA 688 524.** - **2 SURESH PUTHENKADUVEEDU, ALATHOOR 678 541.** - **3 THE MANAGER ORIENTAL INSURANCE CO.LTD., KOLLAM 691 001. BY ADV SRI.VPK.PANICKER** ## **OTHER PRESENT:** **ADV.V.P.K PANICKER-R3** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1184/2013 2 ## **JUDGMENT** This appeal has been filed against the Revised Award in I.A.No.153/2013 in O.P.(MV) No.387/2010 on the file of the Motor Accidents Claims Tribunal, Kollam. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act) claiming compensation of Rs.10,00,000/- due to the death of Aneesh, who is the son of 1st appellant and brother of 2nd appellant. 2. It is alleged that deceased died out of motor vehicle accident occurred on 18.01.2010 while driving KL-02 AB 2122 car from Kollam to Alappuzha by hit with KL-03 E 3828 lorry driven by the 2nd respondent at Purakkad. It is alleged that the accident occurred due to the rash and negligent driving of the 2nd respondent. First respondent is the owner of the lorry and third respondent is the insurer. 3. Before the Tribunal, only the 3rd respondent contested the case by filing written statement denying negligence on the MACA.No.1184/2013 3 part of the 2nd respondent, driver. But the policy with respect to the offending lorry is admitted. It is also contended that the 2nd respondent was not having a valid driving licence and that accident occurred on the middle of the road and hence the deceased was negligent. 4. PW1 examined and Exts.A1 to A9 marked. There was no evidence from the side of the respondents. 5. The Tribunal on evaluating the evidence found that the 2nd respondent is responsible for the accident and third respondent held liable to make good the loss of the first respondent, insured. 6. Learned counsel for the appellants/claimants (hereinafter be referred as the claimants) argued that deceased was a bachelor, aged 24 years, and his date of birth as per Ext.A9 driving licence is 30.05.1986. But the Tribunal wrongly noted the year of birth as 1956 and consequently a wrong multiplier was also adopted. As per Ext.A9, as on the date of incident, the claimant was 24 years old. It is claimed that the deceased was a heavy vehicle licence holder and his driving licence has been produced as Ext.A9. Ext.A8 certificate issued from Aspin Food Products, Thirumullavaram, Kollam has been MACA.No.1184/2013 4 produced to prove that deceased alleged to have been working there and getting a monthly salary of Rs.12,000/- from the beginning of 2009 till first week of 2010. 7. Learned counsel for the respondent, insurer, would vehemently objects in accepting the income shown in Ext.A8 since the employer was not examined. Since the document is not proved by examining the person who issued Ext.8 it cannot be found that Ext.A8 has been duly proved. 8. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** 's case, the Apex Court take the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. So in view of the above settled principles of law, the claimant in the present case, being 24 year old, holding heavy vehicle driving licence, his monthly income can notionally be fixed as Rs.8,000/- MACA.No.1184/2013 5 per month. 9. In **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** the Apex Court laid down the principles to be followed in determining the quantum of compensation in a case of death out of Motor Vehicle accident. It is held that just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make good the loss sustained by the victim of accident as far as money can do. 10. In **National Insurance Company Limited v. Pranay Sethi and Ors [2017 (4) KLT 662 (SC)]** constitution Bench of Apex Court held that Section 168 of the Act deals with the concept of “just compensation” and that has to be determined on the foundation of fairness, reasonableness and equitable on acceptable legal standard because such determination can never be with arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. 11. In Sarla Verma's case, the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was below 40 MACA.No.1184/2013 6 years and the said addition was reduced by 30% if the age of the deceased was 40 – 50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons having permanent job. 12. But in Pranay Sethi's case the Apex Court though accepted the findings in Sarla Verma's case in fixing the multiplier made some variance with regard to the grant of future prospects in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not to apply the said principle to the selfemployed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust and the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. It is also laid down in Pranay Sethi's case that with respect to self-employed or persons with fixed salary when the deceased was below 40 years an addition of 40% can be granted and in the case of between 40 – MACA.No.1184/2013 7 50, an addition of 25% and with respect to persons between 50 – 60 years, the addition has been fixed as 10%. The established income also provided as the income minus tax component. 13. In the present case, the monthly income of the claimant has already been fixed as Rs.8,000/- per month. Deceased was aged 24 years at the time of accident and hence 40% enhancement can be granted towards future prospects. So the monthly income would be Rs.11,200/- [8,000+3,200 (40% of 8,000)]. 14. On the question of deduction towards personal expenses and living expenses, in Sarla Verma's case, 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 dependants and where the deceased is a bachelor it would be 'half' because it is assumed that a bachelor would tend to spend more on himself and where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in **Reshma Kumari &** MACA.No.1184/2013 8 ## **Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65]** . 15. In this case, the deceased is a bachelor. The claimants are mother and married sister. Monthly income of the deceased has already been fixed as Rs.11,200/- by giving 40% enhancement towards future prospects. Since the deceased was a bachelor, one-half should be deducted towards personal and living expenses. Then it will come to Rs.5,600/-. 16. Claimant was 24 years old at the time of accident. Hence, as per Sarla Verma as approved by Pranay Sethi, the suitable multiplier would be '18' and not '13' as adopted by the Tribunal. So compensation towards loss of dependency would be Rs.12,09,600/- [5,600x12x18]. Deducting the amount already awarded, the balance would be **Rs.7,41,600** /- [12,09,6004,68,000]. 17. The next contention of the learned counsel is with regard to the enhancement of conventional heads as per the directions in Pranay Sethi's case. The Tribunal awarded compensation under the head of funeral expenses Rs.10,000/-, loss of love and affection Rs.5,000/-, loss of estate Rs.5,000/-. In Pranay Sethi, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss MACA.No.1184/2013 9 of consortium and Rs.15,000/- towards funeral expenses. 18. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in Pranay Sethi's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. 19. In this context, **Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024]** is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of MACA.No.1184/2013 10 accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 20. In the present case, only the first claimant, mother, is entitled for compensation towards loss of consortium and further they are entitled to get Rs.16,500/- each towards funeral expenses and loss of estate. But once compensation is awarded for consortium, the claimants are not entitled to get any amount towards loss of love and affection. [See: New India Assurance Co. Ltd. v. Somwati & Ors. (2020) 9 SCC 644]. Towards funeral expenses, Tribunal already awarded Rs.10,000/-. Deducting that amount the balance amount towards funeral expenses would be **Rs.6,500** /-. Towards loss of estate Rs.5,000/- has already been awarded by the Tribunal. Deducting that, the balance amount towards loss of estate would be **Rs.11,500** /-. Rs.5,000/- awarded towards love and affection to be deducted from Rs.44,000/-, the consortium awarded to first claimant, the balance would be Rs.39,000/-. Hence under the conventional heads claimants are entitled to get **Rs.57,000/** - [6,500+11,500+39,000]. 21. In the result, the claimants are allowed to realise MACA.No.1184/2013 11 enhanced compensation of **Rs.7,98,600/-** [7,41,600+57,000] (Rupees seven lakhs ninety eight thousand six hundred only) which will carry interest at the rate of 7.5% per annum from the date of petition till realisation. Third respondent, insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability of the appellants/claimants towards balance Court Fee. 22. The disbursement of enhanced compensation to 1[st] appellant/1[st] claimant 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 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. First appellant/first claimant shall provide her 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 certified copy of this judgment. Parties shall bear their respective costs. MACA.No.1184/2013 12 23. In the result appeal stands allowed. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** Shg **JUDGE**