MACA No. 1834 of 2009

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943 MACA NO. 1834 OF 2009** **AGAINST THE AWARD IN OP(V)NO.1604/2000 OF ADDITIONAL DMOTOR** **ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANTS/PETITIONERS:** **1 SUMANGALA, W/O. LATE PADMAJAN, RESIDING AT PADMAPURAM, KALLIKKADU,, ARATTUPUZHA SOUTH P.O., MUTHUKULAM, ALLEPPEY.** **2 NIVIN BALAJI NOW MAJOR, S/O. -DO3 SRUTHI NOW MAJOR, D/O. -DO4 S.K.CHITHRA BHANU OF -DO- -DO5 K.BHARGAVI OF -DO- -DOBY ADV SRI. T R HARIKUMAR** ## **RESPONDENTS:** **1 N.RAMANATHAN S/O.NAGAPPA CHETTIAR, RAMA TRAVELS, COIMBATORE-2, T.NADU. 2 N.KANAKARAJ, S/O. P.NAGARAJ MEDUKKARAI ROAD, THOPPAPALAYAM, 72-C, COIMBATORE.** MACA No.1834 of 2009 _2_ - **3 MS. UNITED INDIA INSURANCE COMPANY LTD., KOLLAM, REPRESENTED BY ITS DIVISIONAL, MANAGER.** ## **BY ADV SMT.P.A.REZIYA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1834 of 2009 _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No.1834 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of August, 2021 ## **JUDGMENT** The appellants were the petitioners in OP(MV)No.1604 of 2000 on the file of the Additional Motor Accidents Claims Tribunal, Mavelikkara. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of C.Padmajan (deceased) - the husband of the 1[st] appellant, the father of the appellants 2 and 3 and the son of the appellants 4 and 5. 3. The appellants had averred in the claim petition that : on 24.01.1999 while the deceased was travelling in a stage carriage Bus bearing registration MACA No.1834 of 2009 _4_ No.KL 37 R/ 5781 on the R V R Hotel road, Coimbatore, the Bus abruptly turned to the western side and the deceased was thrown on the road. The deceased sustained serious injuries and was treated at the Government Hospital, Coimbatore and thereafter at the Kongunad Hospitals Private Limited, Tatabad, Coimbatore. Unfortunately, he succumbed to the injuries on 30.01.1999. The appellant was a retired Junior Warrant Officer from the Air Force and he was also a Laboratory Technician working in a laboratory at Belgam. The deceased was earning a monthly income of Rs.6,500/- The accident occurred solely due to the negligence of the 2[nd] respondent – the driver of the Bus. The Bus was owned by the 1[st] respondent and insured with the 3[rd] respondent. Hence, the appellants were entitled to a total compensation of Rs.8,77,000/from the respondents. 4. The respondents 1 and 2 did not contest the MACA No.1834 of 2009 _5_ ## proceedings and were set ex-parte. 5. The 3[rd] respondent filed a written statement disputing the age, occupation and income of the deceased. Nevertheless, the 3[rd] respondent admitted that the Bus had a valid insurance policy. The 3[rd] respondent also disputed the fact that the accident occurred on account of the negligence of the 2[nd] respondent. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. 6. The 1[st] appellant was examined as PW1 and Exts.A1 to A18 were marked in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to realise an amount of Rs.3,46,500/- with interest at the rate of 7.5% per annum from 04.12.2000 till 22.11.200 for an amount of Rs.3,96,500/- (i.e. including the interim MACA No.1834 of 2009 _6_ amount passed under Section 140 of the Act) and thereafter, with interest at the rate of 7.5% per annum for an amount of Rs.3,46,500/- and cost of Rs.3,000/-. The 3[rd] respondent was directed to deposit the compensation amount. The Tribunal apportioned the compensation by holding that the 1[st] appellant was entitled to 30%, the appellants 2 and 3 were entitled to 25% each and the appellants 4 and 5 were entitled to 10% each. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard Sri.T.R.Harikumar, the learned Counsel appearing for the appellants and Smr.P.A.Reziya, the learned Counsel appearing for the 3[rd] respondent – insurer. 10. The sole question that emerges for consideration in this appeal is whether the quantum of MACA No.1834 of 2009 _7_ compensation awarded by the Tribunal is reasonable and just? ## **Notional income** 11. The appellants had claimed that the deceased was a retired Junior Warrant Officer from the Air Force and was also a Laboratory Technician working in Belgam. They claimed that he was earning a monthly income of Rs.6,500/- 12. The Tribunal, after appreciating the pleadings and materials on record, especially Ext.A8 Pension Book and Ext.A9 pay slip fixed the notional income of the deceased at Rs.3,000/- per month. 13. On a re-appreciation of the pleadings and materials on record, I find that the notional income fixed by the Tribunal is reasonable and just. I do not find any illegality in the notional income fixed by the Tribunal, which I confirm. MACA No.1834 of 2009 _8_ ## **Multiplier** 14. The deceased was aged 48 years on the date of his death. In the light of the law laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802], the relevant multiplier is '13', which has been rightly fixed by the Tribunal. ## **Personal living expenses** 15. The appellants were the wife, children and parents of the deceased, which shows that the deceased was maintaining five family members. Hence, as held in **Sarala Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], 1/4[th] of the compensation for 'loss of dependency' has to be deducted towards the 'personal living expenses of the deceased', which I do. ## **Future prospects** 16. In **Sarala Varma** and **Pranay Sethi** (supra), the Honourable Supreme Court has held that the MACA No.1834 of 2009 _9_ dependants of the deceased are also entitled for future prospects. As the deceased was aged 48 years and the relevant multiplier being '13', the dependants of the deceased – the appellants are entitled for an additional amount of 25% towards 'future prospects' on the compensation for loss 'due to dependency'. Therefore, I award the appellants 25% towards 'future prospects'. ## **Loss of dependency** 17. Taking into account the above-mentioned factors namely, the notional income of the deceased at Rs.6,500/-, the multiplier at '13', the future prospects at 25% and after deducting 1/4[th] of the total compensation towards the personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.4,38,750/- instead of Rs.3,12,000/awarded by the Tribunal. ## **Conventional Heads of compensation** 18. In Clause (viii) of paragraph 61 of **Pranay** MACA No.1834 of 2009 _10_ **Sethi** (supra), the Honourable Supreme Court has held 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. In such circumstances, I enhance the funeral expenses by a further amount of Rs.12,000/- and award an amount of Rs.15,000/towards 'loss of estate.' ## **Loss of consortium** 19. It is on record and is undisputed that the appellants were the dependants of the deceased. As the 1[st] appellant was the wife, the appellants 2 and 3 were children and the appellant 4 and 5 were the parents of the deceased, they are all entitled to Rs.40,000/- each toward 'loss of consortium'. Accordingly, I award an amount of Rs.2,00,000/- under the head 'loss of consortium'. MACA No.1834 of 2009 _11_ ## **Loss of Love and affection** 20. The Tribunal has awarded an amount of Rs.20,000/- as compensation for 'loss of love and affection'. 21. In **New India Assurance v. Company Somwati and others** [2020 (9) SCC 644], the Honourable Court has held that once Supreme compensation is awarded under the head ' loss of consortium', no amount can be awarded under the head 'love and affection', as it would be amount to duplication of compensation. Hence, I set aside the amount of Rs.20,000/- awarded under the head 'loss of love and affection'. ## **Compensation for Pain and suffering** 22. It is seen that the Tribunal has awarded an amount of Rs.15,000/- under the head 'pain and suffering'. 23. In **United India Insurance Company Ltd.** MACA No.1834 of 2009 _12_ ## **v Satinder Kaur @ Satwinder Kaur and others** [2020 (3) KHC 760], the Honourable Supreme Court has held that the no amount shall be awarded under the head 'pain and suffering'. In the said circumstances, I set aside the amount awarded under the aforesaid head. 24. With respect to the compensation awarded towards transportation expenses at Rs.4,000/-, damage to clothing at Rs.500/-, extra nourishment at Rs.1,000/- and reimbursement of the medical expenses at Rs.31,000/-, I find the same to be reasonable and just. 25. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the considered opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for MACA No.1834 of 2009 _13_ ## easy reference. |Sl.<br>No|Heads of claim|Amount awarded by the<br>Tribunal (in rupees)|Amounts modified<br>and recalculated<br>by this Court| |---|---|---|---| |1|Transport to hospital|4,000/-|4,000/-| |2|Clothing|500/-|500/-| |3|Extra nourishment|1,000/-|1,000/-| |4|Medical expenses|31,000/-|31,000/-| |5|Funeral expenses|3,000/-|15,000/-| |6|Pain and suffering|15,000/-|nil| |7|Love and affection|20,000/-|nil| |8|Loss of consortium|10,000/-|2,00,000/-| |9|Loss of dependency|3,12,000/-|4,38,750/-| |10|Loss of estate|nil|15,000/-| |||3,96,500/-|7,05,250/-| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.3,08,750/with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting 188 days, that is the period of delay in preferring the appeal and as ordered by this Court on 10.10.2019 in C.M.Appl.No.2107 of 2009, and proportionate costs. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and proportionate cost MACA No.1834 of 2009 _14_ before the Tribunal 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 in the same ratio and proportion as fixed in the impugned award and in accordance with law. **Sd/- C.S.DIAS,JUDGE** dlk 05.08.2021