MACA NO. 1213 OF 2010

MACA NO. 1213 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** **MACA NO. 1213 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1039/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** 1. RAJI,W/O. LATE JOSHY, NELLIPRAMABIL HOUSE, MATTATOORKUNNU KODAKARA. 2. MINOR DEVAPRIYA REP. BY HER MOTHER AND GUARDIAN RAJI ... DO ....DO BY ADV SRI.T.N.MANOJ ## **RESPONDENT/S:** 1. A.D.KRISHNAN MANAGING DIRECTOR VYSALI PHARMACEUTICALS, KOCHI – 682026 2. DAMODARAN S/O. KESAVAN NAMBOODIRI, PARAYIL HOUSE, SASTANKADAVU, KODANNOOR 3. THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., TRIPUNITHURA. 4. GIRIJA DAMODARAN, HOUSE NO.106/50, PARAYIL MANA TOWERS, CROSS ROADELAMAKKARA KOCHI 682026 5. KAUSALYA W/O. KOCHUNNI, NELLIPRAMBIL HOUSE, MATTATOORKUNNU KODAKARA 6. KOCHUNNI S/O. RAMAN ... DO ...DO .... BY ADVS. SRI.V.BINOY RAM SMT.T.C.SOWMIAVATHY MACA NO. 1213 OF 2010 **==> picture [7 x 9] intentionally omitted <==** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1213 OF 2010 3 ## **JUDGMENT** The appellants were the petitioners 1 and 2 in OP(MV) No.1039/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents 5 and 6 in the appeal were the petitioners 3 and 4, and the respondents 1, 2 and 4 in the appeal were the respondents 1, 2 and 4 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Joshy (deceased) - husband of the first petitioner, father of the 2[nd] petitioner and the son of the petitioners 3 and 4. It was their case that, on 10.01.2005, while the deceased was walking along the western side of the National Highway - 47, a car bearing registration No.KBF 6222, driven by the 2[nd] respondent in a negligent manner, hit the deceased. The deceased sustained fatal injures and lost his life on 12.01.2005 at the Aswini Hospital. The car was owned by the 1[st] respondent, insured with the 3[rd] respondent and insured by the 4[th] respondent. The deceased was an Auto Consultant cum Driver and he was earning a MACA NO. 1213 OF 2010 4 monthly income of Rs.4,500/-. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.8,00,000/- from the respondents. 3 Even though the respondents 1 and 2 entered appearance, they did not file any written statement. 4. The 4[th] respondent had filed a written statement, contending that, it was the 1[st] respondent who was the true owner of the car. 5. The 3[rd] respondent/insurer had filed a written statement admitting that the car had a valid insurance policy in the name of the 1[st] respondent. 6. The petitioners had produced and marked Exts.A1 to A8 in evidence. The 3[rd] respondent produced the insurance policy, which was marked as Ext.B1. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners 1 to 3 to recover an amount of Rs.3,46,500/- with interest and proportionate cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 1 and 2 are in appeal. 9. Heard; Sri. Manoj T. N., the learned counsel 5 MACA NO. 1213 OF 2010 appearing for the appellants/petitioners 1 and 2, Sri.Binoy Ram, the learned counsel appearing for the respondents 2 and 4 and Smt.T. C. Sowmiavathy, the learned counsel appearing for the 3[rd] respondent. Even though notice was served on the respondents 1, 5 and 6, there is no appearance for them. 10. The sole 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** 11. Ext.A2 charge sheet filed by the Kodakara Police in Crime No.24/2005 substantiates that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext.A2 charge sheet. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 12. The petitioners had claimed that the deceased was an MACA NO. 1213 OF 2010 6 Auto Consultant cum Driver and he was earning a monthly income of Rs.4,500/-. For want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.2,000/-. 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I refix the notional monthly income of the deceased at Rs.4,500/- as claimed in the claim petition. ## **Multiplier** 15. The deceased was aged 29 years at the time of the accident. 16. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘17’. ## **Personal living expenses of the deceased** 17. The petitioners had claimed that they were the wife, son and parents of the deceased. To substantiate their MACA NO. 1213 OF 2010 7 contention, they have produced Ext.A5 family membership certificate. It is also proved that the parents, namely the respondents 3 and 4, were aged 60 and 65 at the time of the accident. Therefore, they are considered as the dependents of the deceased. As they are four in numbers, one-forth of the compensation has to be deducted towards the personal living expenses of the deceased, instead of one-third deducted by the Tribunal, following the principles laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680]. ## **Future prospects** 18. In the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 29 years at the time of the accident, I hold that the petitioners are entitled to future prospects at 40%. ## **Loss due to dependency** 19. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.4,500/-, the multiplier at 17, future prospects at 40% and after deducting one-fourth of the compensation towards the personal living expenses of the deceased, I refix the compensation for 'loss due to MACA NO. 1213 OF 2010 8 dependency' of the petitioners 1 to 3 at Rs.9,63,900/-, instead of Rs.2,72,000/- awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 20. In paragraph 59.8 of **Pranay Sethi** (supra) it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 21. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another** [2021 SCC Online SC 1193], the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that MACA NO. 1213 OF 2010 9 occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 22. In the instant case, the Tribunal has awarded an amount of Rs.3,000/- under the head ‘funeral expenses’ and an amount of Rs.25,000/- under the head 'loss of consortium'. Therefore, I enhance the compensation under the head 'funeral expenses' by a further amount of Rs.13,500/- and award an amount of Rs.44,000/- each to the petitioners 1 to 3, namely, the appellants 1, 2 and the 5th respondent i.e., an enhancement by a further amount of Rs.1,07,000/-. I also award the petitioners/appellants and the 5th respondent an amount of Rs.16,500/- under the head 'loss of estate. ## **Loss of love and affection** 23. The Tribunal has awarded an amount of Rs.15,000/under the head 'loss of love and affection'. 24. In **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss MACA NO. 1213 OF 2010 10 of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.15,000/awarded under the head 'loss of love and affection'. 25. With respect to the compensation awarded under the heads 'pain and sufferings' and 'transportation expenses', I find that the Tribunal has awarded reasonable and just compensation. 26. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the aforecited precedents, I hold that the appellants 1, 2 and the 5th respondent/petitioners 1, 2 and 3 are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |**SI.**<br>**No**|**Head of claim**|**Amount**<br>**awarded by**<br>**the Tribunal**<br>**(in rupees)**|**Amounts**<br>**modified**<br>**and**<br>**recalculated**<br>**by**<br>**this**<br>**Court**| |---|---|---|---| |1|Transport to hospital|900|900| |2|Medical expenses|20,600|20,600| |3|Funeral expenses|3,000|16,500| |4|Pain and sufferings|10,000|10,000| MACA NO. 1213 OF 2010 11 ||||| |---|---|---|---| |5|Loss of love and<br>affection|15,000|0| |6|Loss of estate|0|16,500| |7|Loss of consortium|25,000|132000| |8|Loss due to dependency|2,72,000|9,63,900| ||**Total**|**3,46,500**|**11,60,400**| 27. Even though the petitioners had claimed only an amount of Rs.8,00,000/- as compensation in the claim petition, I have awarded them more compensation than what is claimed in the claim petition, following the principles laid down in **Sarla Verma** and **Pranay Sethi** (supra) by awarding them 'future prospects' as well as 'compensation under the conventional heads'. The said course is permissible in view of the law laid down by the Honourable Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed, by enhancing the compensation by an amount of **Rs.8,13,900/-** with interest at the rate of 6% per annum from the date of petition till the date MACA NO. 1213 OF 2010 **==> picture [13 x 9] intentionally omitted <==** of deposit, after deducting interest for a period of 53 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 09.11.2021 in C.M.Appln.No.1/2010, and proportionate cost. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and proportionate cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants 1 and 2 and the 5[th] respondent/petitioners 1 to 3, after deducting their liability towards court-fee, in the ratio of 40:40:20, and in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** rkc/28.02.2022