M.A.C.A. No. 1881 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** ## **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943** ## **MACA NO. 1881 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OPMV 2444/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **THRISSUR** ## **APPELLANTS/PETITIONERS 1 TO 4:** - **1 SAVITHRI, AGED 40 YEARS, W/O.LATE SUBHASH.** - **2 SARANYA, AGED 19 YEARS D/O.LATE SUBHASH.** - **3 SANDRA (MINOR), AGED 11 YEARS D/O.LATE SUBHASH.** - **4 SANTHA, AGED 61 YEARS W/O.LATE BHASKARAN.** **(MINOR 3RD APPELLANT REPRESENTED HEREIN BY HER GUARDIAN MOTHER THE IST APPELLANT)** **ALL ARE RESIDING AT NADUMURY HOUSE, P.O CHOOLISSERY, THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS/6TH PETITIONER:** - **1 THE EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION, KSEB, MANJERI, MALAPPURAM, PIN 676 121.** - **2 JAYAKUMAR S/O.RAVI, RESIDING AT MATTATHIL HOUSE, AMARAMALAM, NILAMBUR, MALAPPURAM. PIN 679 329.** - **3 UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, MALAPPURAM PIN 676 505.** - **4 SUBITHA, AGED 38 YEARS, D/O.BHASKARAN, RESIDING AT NADUMURY HOUSE, P.O CHOOLISSERY, THRISSUR 680 541.** **BY ADVS. SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** ## **OTHER PRESENT:** ## **ADV.P.JACOB MATHEW-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** ## **24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1881/2013 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P. (M.V)No.2444/2006 on the file of the Motor Accidents Claims Tribunal, Thrissur (in short, Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation due to the death of Subhash in a motor accident occurred on 28.10.2006 at 4.50 p.m while riding motorcycle due to hit with lorry bearing registration No.KL-10/D 3746 driven by the 2nd respondent. First respondent is the owner. Third respondent is the insurer of the offending vehicle. It is alleged that the accident happened due to the rash and negligent driving of the 2nd respondent. First appellant is the wife, appellants 2 and 3 are children, 4th appellant is the mother of the deceased. The father of the deceased was the 4th claimant, who died pending the proceedings before the Tribunal. Respondent No.4 is the daughter of deceased 4th claimant. Appellants and 4th respondent are the legal heirs of deceased 4th claimant. A total claim of Rs.11,98,000/- was made, which was limited to Rs.10,00,000/-. 2. Before the Tribunal, respondents 1 and 2 remained M.A.C.A.No.1881/2013 3 exparte. Third respondent filed written statement admitting the policy coverage with respect to the offending vehicle. But further contended that the second respondent was not having any valid driving licence and badge. Hence there is violation of policy conditions and the third respondent is not liable to indemnify the first respondent. The deceased was not wearing helmet at the time of accident. It is contended that the accident happened due to the contributory negligence of the deceased. The compensation claimed under various heads are also disputed. 3. Exts.A1 to A8 were marked from the side of the appellants/claimants. Exts.B1 and B2 were marked from the side of the respondents. There was no oral evidence from either side. 4. On evaluating the pleadings and materials on record the Tribunal found that the accident happened due to the rash and negligent driving of the second respondent and hence the first respondent was held vicariously liable and the third respondent insurer was directed to make good the loss sustained by the first respondent and awarded a total compensation of Rs.6,6,4,500/-. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/claimants (hereinafter be referred as the claimants) are before this Court in M.A.C.A.No.1881/2013 4 appeal for the various grounds stated in the memorandum of appeal. 5. First respondent appeared through Adv. Sri. Sajeevkumar K. Gopal and third respondent appeared through the Standing Counsel Sri. P. Jacob Mathew. Though service is complete against the second respondent, there was no appearance on behalf of him. 6. Heard the learned counsel for the claimant as well as the learned Standing Counsel for the 3rd respondent, insurer. Lower court records were called for and perused. 7. The accident and finding of negligence on the part of the second respondent is not in dispute. The challenge is only with regard to the quantum of compensation awarded by the Tribunal. Deceased alleged to have been conducting a canteen and the monthly income claimed is Rs.5,000/-. Certificate issued from Star Flex Firm has been produced and marked subject to proof. Hence the Tribunal was not inclined to accept the certificate without the examination of the person who issued it. Hence, taking into account the facts and circumstances, Tribunal fixed monthly income notionally as Rs.4,500/-. 8. In Ramachandrappa v. Manager, Royal Sundaram Alliance M.A.C.A.No.1881/2013 5 Insurance Company Limited [(2011) 13 SCC 236] , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.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 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. 9. 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 14-08-2008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in Ramchandrappa'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 M.A.C.A.No.1881/2013 6 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. 10. In the present case, deceased was aged 36 years. It is alleged that he was conducting a canteen and claimed Rs.5,000/as his monthly income. The accident in this case occurred in the year 2006. So in view of the law laid down in Ramachandrappa 's case as followed in Syed Sadiq , the income of Rs.5,000/- per month claimed by the claimant can very well be accepted. So the monthly income of the deceased is re-fixed as Rs.5,000/-. 11. The learned counsel for the claimants further claims for 40% enhancement towards future prospects as has been held in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121] 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 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 M.A.C.A.No.1881/2013 7 ## 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 self-employed 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 deceased was between 40 – 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. M.A.C.A.No.1881/2013 8 13. So, in the present case, the claim of the counsel for 40% enhancement towards future prospects of the deceased is in compliance of the law laid down in Pranay Sethy. So the monthly income of the deceased can be computed as Rs.7,000/[Rs.5,000+2000 (40% of Rs.5,000/-). The multiplier as per Sarla Verma approved in Pranay Sethi is '15'. 14. On the question of deduction towards personal 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. If the deceased is a bachelor ½ of the income is to be deducted towards personal and living expenses 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 & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65). 15. 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 M.A.C.A.No.1881/2013 9 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 dependents. 16. In the present case the claimants are wife and children as well as the parents, total five in numbers. So the deduction towards personal and living expenses of the deceased would be ¼th.. So the monthly contribution to the family can be calculated at Rs.5,250/- [7,000 – 1,750 (¼ of Rs.7,000)]. So the amount towards loss of dependency would Rs.9,45,000/-[5,250x12x15]. From that the amount already awarded by the Tribunal is to be deducted, then the balance would be Rs.3,37,500/[9,45,000-6,07,500]. 17. Next contention of the learned counsel is with regard to the enhancement of compensation under the conventional heads as per the directions in Pranay Sethi. 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 of consortium and Rs.15,000/towards funeral expenses. 18. The learned counsel would contend that the Apex Court M.A.C.A.No.1881/2013 10 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. 19. In Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram and Ors. [(2018) 18 SCC 130], the Apex Court dealt with the term consortium in legal parlance and it has been classified into spousal consortium, parental consortium and filial consortium. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5[th] ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their M.A.C.A.No.1881/2013 11 love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 20. In this context the learned counsel took my attention to Chandra & Anr. v. Mukesh Kumar Yadav & Ors. [2021 ACJ 2554]. That was an appeal filed by the parents of a deceased truck driver, aged 32 years at the time of death. They challenged the appeal mainly on the ground that the monthly income fixed was low and also that the consortium to the parents were refused by the Tribunal, which was confirmed by the High Court in appeal. While disposing the appeal the Apex Court categorically held in paragraph 11 also quoting the decision in Magma General Insurance Co.'s case that the appellants/parents are also entitled to get compensation towards loss of parental consortium of Rs.40,000/- each. 21. In the present case, the parents of the deceased, who are claimants 4 & 5 are also entitled for filial consortium at the rate of M.A.C.A.No.1881/2013 12 Rs.44,000/- each. In this case the 4[th] claimant, the father, died pending the proceedings. In this context it is relevant to quote Kirti & Anr. v. Oriental Insurance Co.Ltd [(2021) 2 SCC 166] wherein while dealing with Section 168 of the Act and deduction towards personal expenses it has been held that subsequent death of deceased's dependant ought not to be a reason for reduction of motor accident compensation and claims and legal liabilities crystallise at time of accident and the changes post thereto ought not to ordinarily affect pending proceedings. In that case also subsequent to the accident one of the dependants i.e the mother died and the Apex Court held that appropriate deduction for personal expenses would be 1/4[th] only and not 1/3[rd] . So the fact that the father died pending the proceedings is also not a reason for not awarding Rs.44,000/- towards consortium to him since at the time of death and filing the petition he was alive. So towards loss of consortium the claimants are entitled to get Rs.2,20,000/[44,000x5]. Deducting the amount already awarded, the amount would come to Rs.2,00,000/- [2,20,000-20,000]. Once compensation is awarded under the head consortium, the claimants are not entitled to get compensation for love and affection. [See: New India Assurance Co. Ltd. v. Somwati & Ors. M.A.C.A.No.1881/2013 13 [(2020) 9 SCC 644]. So the amount of Rs.20,000/- awarded by the Tribunal under the head love and has to be deducted. Then the - balance amount under consortium would be Rs. 1,80,000/ [2,00,000-20,000]. Further the claimants are entitled to get Rs.16,500/- each towards funeral expenses and loss of estate. Deducting the amount already awarded under those heads, the balance would be Rs.23,000/ - [33,000-10,000]. 22. In the result, the claimants are allowed to realise enhanced compensation of Rs.5,40,500/- (Rupees five lakhs forty thousand five hundred only) [3,37,500+1,80,000+23,000] which will carry interest at the rate of 7.5% per annum from the date of petition (excluding 121 days) till realisation. The 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. 23. The disbursement of enhanced 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 06.09.2019 and clarified further in Official Memorandum M.A.C.A.No.1881/2013 14 No.D1-62475/2016 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 certified copy of this judgment. 24. The enhanced compensation granted in this appeal except the consortium awarded to the 4[th] claimant shall be apportioned among the appellants/claimants 1 to 3 and 5 in the ratio of 40:25:25:10. 4[th] respondent/6[th] claimant is entitled for the proportional share out of consortium awarded to the 4[th] claimant as per law. 25. In the result appeal stands allowed. Parties shall bear their respective costs. Sd/- **M.R.ANITHA** **JUDGE** **shg/**