MACA No. 2433 of 2012

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943 ``` ## **`MACA NO. 2433 OF 2012`** ``` AGAINST THE AWARD IN OPMV 833/2007 DATED 10.08.2011 OF I ADDITIONAL ``` ## **`DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM APPELLANTS/PETITIONERS:`** - `1 SMITHA @ AMBILI D/O.RAJAMMA AMMA,REMESH VIHAR @ KUMPAZHA VEEDU,MENAMPALLY MURI,CHAVARA VILLAGE,KARUNAGAPPALLY TALUK,KOLLAM.` - `2 ABHIMANYA.S.REMESH, AGED 9 YEARS D/O.SMIHA,REMESH VIHAR @ KUMPAZHA VEEDU,MENAMPALLY MURI,CHAVARA VILLAGE,KARUNAGAPPALLY TALUK,KOLLAM.` - `3 GANESHA PILLAI, AGED 70 YEARS` - `S/O.VASU PILLAI,REMESH VIHAR @ KUMPAZHA VEEDU,MENAMPALLY MURI,CHAVARA VILLAGE,KARUNAGAPPALLYTALUK,KOLLAM.` - `4 RAJAMMA AMMA, AGED 55 YEARS` - `D/O.DEVAKI AMMA,REMESH VIHAR @ KUMPAZHA VEEDU,MENAMPALLY MURI,CHAVARA VILLAGE,KARUNAGAPPALLY TALUK,KOLLAM(2ND APPELLANT IS REPRESENTED BY HER MOTHER/IST APPELLANT). BY ADV SRI.THYPARAMBIL THOMAS THOMAS` ## **`RESPONDENTS/RESPONDENTS:`** - `1 K.P.SURESH KUMAR` - `S/O.K.V.RAMAKRISHNAN,14 HOSUR MAIN ROAD,BANGALORE.` - `2 K.SURESH KUMAR S/O.KANDASWAMY,6/286,VARIYAMADOM,ERATTAKULANGARA,NALLEPPA LLY.` - `3 THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO.LTD,LIC BUILDING,CHINNAKKADA,KOLLAM.` - `4 SONU` - `S/O.SADANANDAN NAIR,KALEEKKAL VEEDU,SOORNADU NORTH,KOLLAM.` - `5 THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD,PARAMESWARAN PILLAI BHAVAN,HOSPITAL ROAD,KOLLAM.` - `BY ADVS.` - `SRI.P.JACOB MATHEW` ``` MACA NO. 2433 OF 2012 ``` ``` -2- ``` ``` SRI.MATHEWS JACOB SR. SRI.K.B.RAMANAND ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2433 OF 2012 ``` ## JUDGMENT The appellants were petitioners in O.P.(MV)No.833/2007 of the Additional Motor Accidents Claims Tribunal I, Kollam. The respondents in the appeal were respondents before the Tribunal. 2. The appellants had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Remesh Kumar (deceased), the husband of the 1[st] appellant, father of the 2[nd] appellant and the son of the appellants 3 and 4. They have averred in the claim petition that, on 20.05.2007, while the deceased was riding his motor cycle bearing registration No.KL 23/4063 along the Kollam – Alappuzha National Highway 47, a bus bearing registration No.KA – 01/AC 6336, driven by the 2[nd] respondent in a rash and negligent manner, hit the motor cycle of the deceased. The deceased suffered fatal injuries. Although he was rushed to the Harippad Government Hospital, he succumbed to the injuries instantaneously. The bus was owned by the 1[st] respondent and insured with the 3[rd] respondent. The motor cycle was owned by the 4[th] respondent and insured with the 5[th] respondent. The deceased was a driver by profession and working in Abu Hithan Trading ``` MACA NO. 2433 OF 2012 ``` ``` -4- ``` Group, Saudi Arabia, for 10 years prior to the accident, and was earning an income not less that Rs.50,000/-. He had a bright future. The appellants were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.15 lakh from the respondents. 3. The respondents 1, 2 and 5 did not contest the proceeding. 4. The 3[rd] respondent had filed a written statement admitting that the bus had a valid insurance policy. The 3[rd] respondent denied the fact that the deceased was drawing a monthly salary of Rs.50,000/-. The 3[rd] respondent also contended that the deceased was guilty for contributory negligence and, therefore, the claim put forth by the appellants was excessive. 5. The 4[th] respondent had filed a written statement contending that he was an unnecessary party in the proceedings. The accident occurred due to the negligence of the 2[nd] respondent. Hence, the 4[th] respondent prayed for exoneration. 6. The appellants had produced and marked Exts.A1 to A16 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after appreciating the pleadings and the materials ``` MACA NO. 2433 OF 2012 ``` ``` -5- ``` on record, allowed the claim petition in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.10 lakh with interest and cost. 8. Dissatisfied by the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri. T.Thomas Thomas, the learned Counsel appearing for the appellants / petitioners and Sri. Mathews Jacob, the learned Senior Counsel appearing for the 3[rd] respondent insurer and Sri. K.B.Ramanand, the learned Counsel appearing for the 5[th] respondent insurer of the motor cycle. 10. The point that emanates for consideration of the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## Negligence and liability 11. Ext.A4 charge sheet laid by the Kareelakulangara Police in Crime No.180/2007 proves that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the respondents have not let in any evidence to discredit Ext.A4 charge sheet. The 3[rd] respondent has also not ``` MACA NO. 2433 OF 2012 ``` ``` -6- ``` 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 appellants have pleaded that the deceased was employed as a driver in Saudi Arabia and drawing a monthly income of Rs.50,000/-. To substantiate their pleading, they had produced Ext.A13 salary certificate issued by the General Manager of Abu Hithan Trading Group, stating that the deceased was working as a mechanic for three years and drawing a salary of 1800 Saudi Riyals. Indisputably, Ext.A13 is not attested by the Indian Mission abroad. 13. In United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others [2020 (3) KHC 760 ,] the Honorable Supreme Court has specifically held that, if the salary certificate issued from abroad is to be accepted in evidence, the same has to be attested by the Indian Embassy/Consulate in the said country. 14. In National Insurance Company Ltd v. Ramla and others [2016 (4) KHC 891] and in Valsamma v. Binu Jose [2014 (1) KLT 10] , this Court ``` MACA NO. 2433 OF 2012 ``` has reiterated the above legal position and that if the salary certificate / income certificate is not attested by the Indian Mission abroad, the income has to be fixed as per Indian standards. 15. In the case at hand, the appellants have pleaded in the claim petition that, the deceased was a driver by profession and employed abroad for a period of 10 years. As per Ext.A13, it is certified that the deceased was a mechanic and employed in the said company for a period of three years. So, there is contradiction in the pleading and Ext.A13. In the above circumstances, I treat the deceased as a skilled labourer and fix his monthly income on notional basis at Rs.8,000/-, following the principles laid down in Chameli Devi and others v. Jivrail Mian and another [2019 KHC 5352] . ## Personal living expenses of the deceased 16. The appellants have claimed that they are the wife, daughter and parents of the deceased. This fact is not disputed by the respondents. The appellants are four in number. Therefore, in the light of the law laid down in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] , and National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680], one-forth of the compensation has to be deducted towards the personal living ``` MACA NO. 2433 OF 2012 ``` ``` -8- ``` expenses of the deceased. ## Multiplier 17. As the deceased was aged 33 years at the time of the accident, and following the principles in Sarla Verma (supra) , I adopt the multiplier of ‘16’. ## Future prospects 18. Following the ratio in Sarla Verma and Pranay Sethi (supra), and considering the fact that the deceased was aged 33 years at the time of the accident / death, I award the appellants future prospects @ 40%. ## Loss of dependency 19. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.8,000/-, the multiplier at '16', future prospects @ 40% and after deducting one-fourth of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.16,12,800/-, instead of Rs.9,60,000/- awarded by the Tribunal. ## Conventional heads of claim 20. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of ``` MACA NO. 2433 OF 2012 ``` ``` -9- ``` Pranay Sethi (supra) has 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/- respectively. It is also observed that the conventional heads of compensation have to be enhanced every three years by 10%. 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 has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accident. Thus, it is to be inferred and followed that the escalation of 10% is to be awarded after three years from the pronouncement of the judgment in Pranay Sethi (supra) , which was rendered in the year 2017, and not for accidents that occurred three years after 2017. 22. The Tribunal has awarded an amount of Rs.5,000/- each towards ‘funeral expenses’, and ‘loss of estate’, and Rs.10,000/- towards ‘loss of consortium’. In the above circumstances, I award the appellants a ``` MACA NO. 2433 OF 2012 ``` further amount of Rs.11,500/- each towards ‘funeral expenses’, and ‘loss of estate’ and a further amount of Rs.1,66,000/- towards ‘loss of consortium’, i.e., Rs.44,000/- each to the appellants. ## Loss of love and affection 23. The Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection'. In New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644] the Hon'ble 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 awarded under the head 'loss of love and affection'. ## Other heads of compensation 24. With respect to the compensation awarded under the heads transportation expenses and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 25. 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/petitioner are entitled for enhancement of compensation ``` MACA NO. 2433 OF 2012 ``` ``` -11- ``` as modified and re-calculated above, and given in the table below for easy reference. |Sl<br>No.|Head of claim|Amount awarded<br>by the Tribunal<br>(in Rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transportation expenses|5000/-|5000/-| |2|Funeral expenses|5000/-|16500/-| |3|Loss of estate|5000/-|16500/-| |4|Loss of love and affection|10,000/-|Nil| |5|Medical expenses|5,000/-|5,000/-| |6|Loss of consortium|10,000/-|1,76,000/-| |7|Loss of dependency|9,60,000/-|16,12,800/-| ||Total|10,00,000/-|18,31,800/-| 26. Even though the appellants had claimed only an amount of Rs.15,00,000/- as compensation, in view of the law laid down in Sarla Verma and Pranay Sethi (supra), I have awarded the appellants future prospects as well as compensation under the conventional heads. Therefore, the compensation has exceeded the amount claimed in the claim petition. This course is permissible in the light of the law laid down in Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC) and Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)] . In the result, the appeal is allowed by enhancing the compensation ``` MACA NO. 2433 OF 2012 ``` by a further amount of Rs.8,31,800/- (Rupees Eight Lakh Thirty One Thousand Eight Hundred only) with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit, after deducting interest for a period of 360 days, i.e., the period of delay in filing the appeal and as ordered by this Court in C.M.Appln.No.1/2012 dated 11.10.2021, and proportionate costs. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall, after deducting liability of the appellants, if any, towards balance court-fee, disburse the compensation amount to the appellants in the ratio of 40: 40: 10:10 and in accordance with law. ``` Sd/- C.S.DIAS JUDGE ``` uu/25.01.2022 ``` MACA NO. 2433 OF 2012 ``` ``` -13- ``` ## **APPENDIX** ## **PETITIONER’S EXHIBITS:** ANNEXURE A TRUE COPY OF THE MEDICAL LABORATORY FORM AND RESULT OF 4TH APPELLANT, ISSUED FROM MEDICAL COLLEGE HOSPITAL, VANDANAM, ALAPPUZHA, DATED 10.12.2011