MACA No. 2329/2009

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 8[TH] DAY OF FEBRUARY 2022 / 19TH MAGHA, 1943 ``` ``` MACA NO. 2329 OF 2009 ``` ``` AGAINST THE AWARD DATED 07.05.2008 IN OP(MV)NO. 975/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## `APPELLANTS/PETITIONERS:` ``` 1P.V.RAMACHANDRAN, AGED 54, RESIDING AT CHITHRA NIVAS, MALAMKKAVU P.O., ANGADI AMSOM, ARIKKAD DESOM. 2T.V. SANTHA, AGED 51, RESIDING AT CHITHRA NIVAS, MALAMKKAVU P.O., ANGADI AMSOM, ARIKKAD DESOM. 3P.V. CHITRA, AGED 18, RESIDING AT CHITHRA NIVAS, MALAMAKKAVU P.O., ANGADI AMSOM, ARIKKAD DESOM. ``` ``` BY ADVS.SRI.NAGARAJ NARAYANAN SRI.BENOJ C AUGUSTIN SRI.PRATHAP PILLAI SRI.SUNIL NAIR PALAKKAT SRI.A.S.SABU ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1NOUSHAD, KIZHAKKETTU VALAPPIL HOUSE, NELLKATTIRI P.O., THIRUMILLAKODE, PALAKKAD DIST. 2P.P JAYAPRAKASH, PARTNER CORDIAL ENTERPRISES, 845, MANAVATTY COMPLEX, PALAKKAD DISTRICT. ``` ``` 3THE ORIENTAL INSURANCE CO. LTD. PRANAVAM, MELE PATTAMBI P.O., ``` M.A.C.A.No.2329/2009 -:2:- ``` PATTAMBI -06. ``` ``` BY ADVS.SRI.ALEXY AUGUSTINE SRI.GEORGE A.CHERIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2329/2009 -:3:- Dated this the 8[th] day of February,2022 ## **J U D G M E N T** The appellants were the petitioners in O.P.(MV) No.975/2005 on the file of the Motor Accidents Claims Tribunal, Ottapalam. 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 Sajith P.V.(deceased) – the son of the appellants 1 and 2, the brother of the third appellant. It was their case that, on 10.12.2004, while the deceased was riding pillion on a motorcycle bearing registration No. KL-9-N-6013 from Pattambi to Nhangattiri, a lorry bearing registration No.KL-9-B-2097, driven by the first respondent in a negligent manner, hit the M.A.C.A.No.2329/2009 -:4:- motorcycle on which the deceased was travelling. The deceased lost his life instantaneously. He was a 17 year old Plus 2 Science student in the Gokhale Higher Secondary School. Due to his death, the appellants 1 and 2 lost the love and affection of their son and third appellant lost the love and affection of her brother. The lorry was owned by the second respondent and insured with the third respondent. Hence, the appellants claimed a compensation of Rs.10,00,000/- from the respondents. 3. The legal representatives of other deceased and an injured in the same accident, filed O.P. (MV)Nos.591/2005, 1206/2005 and 1324/2005 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1 and 2 had filed separate M.A.C.A.No.2329/2009 -:5:- written statements in all the claim petitions denying negligence on the part of the first respondent. They contended that the accident occurred due to the negligence of the rider of the motorcycle. The respondents 1 and 2 also disputed the age, income and occupation of the deceased/injured. 5. The third respondent also had filed separate written statements in all the claim petitions refuting the pleadings in the claim petitions, especially negligence on the part of the first respondent. The third respondent reiterated the very same contentions as that of the respondents 1 and 2. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The appellants in all the claim petitions produced and marked Exts.A1 to A22 in evidence. The M.A.C.A.No.2329/2009 -:6:- third respondent produced the insurance policy, which was marked as Ext.B1. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the appellants to recover from the third respondent an amount of Rs.2,31,000/- with interest and cost. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 10. Heard; Sri. Nagaraj Narayanan, the learned counsel appearing for the appellants/petitioners and Smt. K.S. Santhi the learned counsel appearing for the third respondent-insurer. 11. The sole point that arises for consideration in M.A.C.A.No.2329/2009 -:7:- this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?. ## **Negligence and liability** 12. Ext.A5 chargesheet filed by the Thrithala Police in Crime No.234/2004 proves that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Ext.A5 chargesheet. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Loss due to disability:** 13. As per Ext.A20 admission Ticket and Ext.A22 M.A.C.A.No.2329/2009 -:8:- Secondary School Leaving Certificate, the deceased was born on 18.03.1987. Thus, on the date of accident the deceased had not complete the age of 18 years. Therefore, he was a minor at the time of the accident/death. 14. In **Kuruvan Ansari vs. Shyam Kishore Murmu and another** [2021 SCC Online SC 1060], the Honourable Supreme Court, following its earlier decision in **Kishan Gopal and another v. Lala and others –** [(2014) 1 SCC 244], has fixed the notional income of a ten year old child at Rs.30,000/- per annum and adopted the multiplier of ‘15’. 15. As the deceased was a minor, I follow the principles laid down in **Kuruvan Ansari** and **Kishan Gopal** (supra) and fix the notional annual income of the deceased at Rs.30,000/- and adopt the multiplier of M.A.C.A.No.2329/2009 -:9:- 15, which works out to **Rs.4,50,000/-.** ## **Conventional heads of compensation** 16. 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. 17. 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 M.A.C.A.No.2329/2009 -:10:- 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 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'. 18. In the instant case, the Tribunal has awarded an amount of Rs.5,000/under the head ‘funeral expenses’. Therefore, I award the appellants a further amount of **Rs.11,500/-** under the head ‘funeral M.A.C.A.No.2329/2009 -:11:- expenses’. I also award an amount of **Rs.16,500/-** under the head ‘loss of estate’ and an amount of **Rs.88,000/-** i.e.,Rs.44,000/- each to the appellants 1 and 2, towards ‘loss of consortium’. ## **Loss of love and affection:** 19. The Tribunal has awarded an amount of Rs.15,000/under the head 'loss of love and affection'. 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 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'. M.A.C.A.No.2329/2009 -:12:- 20. With respect to the compensation awarded under the head 'transportation expenses, I find the same to be reasonable and just. 21. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants/petitioners 1 and 2 are entitled for enhancement of compensation as modified and recalculated above, and given in the table below for easy reference. |Sl.No.|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport<br>expenses|3,000|3,000| |2|Funeral<br>expenses|5,000|16,500| |3|Loss of estate|Nil|16,500| |4|Loss of|Nil|88,000| M.A.C.A.No.2329/2009 -:13:- ||consortium||| |---|---|---|---| |5|loss of love and<br>affection|15,000|Nil| |6|Loss of<br>dependency|1,98,000|4,50,000| ||**TOTAL**|**2,21,000**<br>but awarded<br>**Rs.2,31,000**|**5,74,000**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.3,43,000/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 357 days i.e., the period of delay in filing the appeal and as ordered by this Court on 28.10.2021 in C.M.Appln. No.1/2009, and proportionate costs. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty 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 M.A.C.A.No.2329/2009 -:14:- deposited amount to the appellants 1 and 2 in equal shares and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/08.02.22 //True copy/ P.A.To Judge