MACA No. 2441 of 2013 against the Award in OP (MV) No.1175/2006, Motor Accidents Claims Tribunal, Alappuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944** ## **MACA NO. 2441 OF 2013** **AGAINST THE AWARD IN OP (MV) 1175/2006 ON THE FILED OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA** ## **APPELLANTS/PETITIONERS NO.1 TO 4:** 1 ANITHA KUMARY W/O.ANIL KUMAR, SABARI, VIRIPALA, THAKAZHY, ALAPPUZHA DISTRICT. 2 ANANDA KRISHNAN (MINOR) S/O.ANIL KUMAR, RESIDING -DO3 ANOOP KRISHNAN (MINOR) S/O.ANIL KUMAR, RESIDING -DO4 ANUPAMA MINOR D/O ANIL KUMAR, RESIDING -DO-(APPELLANTS 2 TO 4 ARE MINORS REP BY MOTHER ANITHA KUMARY, THE 1ST APPELLANT) BY ADV SRI.T.G.RAJENDRAN ## **RESPONDENTS/RESPONDENTS/PETITIONERS NO.4 AND 5:** 1 AJITH, S/O KRISHNAN, THEKKEVELIYIL HOUSE, MANNANCHERRY PO, WARD NO.21 ALAPPUZHA 688 538. 2 NAZAR, S/O.ABDUL RASAQ MANAPARAMBU, MANNANCHERRY PO, WARD NO.21 ALAPPUZHA - 688 538. 3 NATIONAL INSURANCE CO. LTD. REP. BY ITS MANAGER, ALAPPUZHA - 688 001. 4 R. SIVASANKARAN NAIR MANNATHUPARAMBU, PUNNAPRA NORTH, PANCHAYATH WARD NO.5, ALAPPUZHA 688 004. 5 KAMALAMMA W/O.SIVASANKARAN NAIR RESIDING DO. 688 004. BY ADV.SRI. E.M JOSEPH - R3 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2441 of 2013 2 ## **JUDGMENT** Dated this the 25[th] day of May, 2022 This appeal has been filed against the award passed in O.P.(MV) No.1175/2006 on the file of the Motor Accidents Claims Tribunal, Alappuzha (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the death of Anil Kumar, husband of 1st appellant and father of appellants 2 to 4 and son of respondents 5 and 6. Accident occurred on 24.4.2006 at about 12.35 p.m., near Karumady Bridge, due to hit by motorcycle bearing Reg,No.KL-04-U/421 driven by the 1st respondent. Out of the accident deceased Anil Kumar (herein after be referred as 'deceased') sustained grievous injuries and succumbed to the injuries on the same day. It is alleged that the accident happened due to the rash and negligent riding of the 1st respondent. 2nd respondent is the owner/insured and 3rd respondent is the insurer of the offending vehicle. The appellants claimed a total compensation of Rs.6,70,000/-. 2. Before the Tribunal, 2[nd] respondent remained ex-parte. MACA.No.2441 of 2013 3 Appellant relinquished the claim against the 1[st] respondent. 3[rd] respondent filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence on the part of the 1st respondent is denied. Compensation claimed under various are also denied. 3. There was no oral evidence from either side. Exts.A1 to A6 were marked from the side of the appellants/claimants. Tribunal on evaluating the pleadings and documents found that the accident happened due to the rash and negligent driving of 1[st] respondent. 2[nd] respondent/owner is held vicariously liable for the acts of the 1[st] respondent. The 3[rd] respondent insurance company was held liable to indemnify the 2[nd] respondent. A total compensation of Rs.5,12,000/- was awarded. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants (herein after be referred as claimants) came up before this Court in appeal under various grounds stated in the Memorandum of appeal. 5. Notice as against claimants 1 and 2 and respondents 4 and 5 (parents of the deceased) is dispensed with at the risk of the claimants. Adv.E.M.Joseph, entered appearance for the 3[rd] respondent/insurer. MACA.No.2441 of 2013 4 6. Heard the learned Counsel for the claimants as well as the learned Standing Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. 7. According to the learned counsel for the claimants, Tribunal though approved the monthly income of Rs.3,000/claimed by the claimants, no addition was made towards loss of future prospects and amount awarded under conventional heads are also very low. Hence, seeks for enhancement of compensation under the above heads. 8. The learned Standing Counsel for the insurer/3rd respondent would contend that just and reasonable compensation has already been awarded and no interference is called for at the instance of this Court. 9. In **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, MACA.No.2441 of 2013 5 should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 10. In **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)],** a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 11. In **Pranay Sethi** , the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 MACA.No.2441 of 2013 6 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 12. Deceased in this case was 34 years old. Monthly income is Rs.3,000/-. So, claimants are entitled to get 40% addition towards future prospects. Hence, monthly income of the deceased would be Rs.3,000 +1200 (40% of Rs.3,000). So, the total monthly income would be Rs.4,200/-. 13. 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. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. 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** MACA.No.2441 of 2013 7 **Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65)** and approved by the Constitution Bench in Pranay Sethi. 14. Claimants and respondents 4 and 5 are wife, children and parents respectively of the deceased. Since they are 6 in number, the deduction towards personal and living expenses would be '¼' as per Sarala Varma approved by the Constitution Bench in Pranay Sethi. 15. Deducting 1/4th annual contribution to the family would be Rs.3,150/- (Rs.4200-1050 (1/4[th] of Rs.4,200). Since, the deceased was 34 years old, the proper multiplier to be applied as per **Sarla Verma** followed in **Reshma Kumari & Ors.,** approved by the Constitutional Bench in **Pranay Sethi** is '16'. So compensation towards loss of dependency would be Rs.3,150 x 12 x 16)= Rs.6,04,800/-. Deducting the amount already awarded, balance would be Rs.1,72,800/- (Rs.6,04,800-4,32,000). 16. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in **Pranay Sethi** , where in Apex court 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. 17. Apex Court has also held that the above amounts should MACA.No.2441 of 2013 8 be revised on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. **(** See **Rasmita Biswal and Ors. v. Divisional Manager, National Insurance Co.Ltd. And Another CDJ 2021 SC 1024).** 18. In **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. [2018 (18) SCC 130],** the Apex court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. 19. In this case, claimants as well as respondents 5 and 6 are entitled for consortium. So, towards loss of consortium they are entitled to get Rs.2,64,000/- (Rs.44,000x6). From that amount Rs.10,000/- already awarded by the Tribunal towards consortium to be deducted. Once compensation has been awarded under the head of consortium, the claimants are further not entitled to get any amount towards love and affection. (See **New India Assurance Co. Ltd. v. Somwati and others [2020 (9) SCC 644])** . Hence, Rs.50,000/- awarded by the Tribunal towards loss of love and affection to be deducted. So, actual amount due to the claimants towards consortium would be Rs.2,04,000/- (Rs.2,64,000-60,000). Towards loss of estate Tribunal awarded Rs.10,000/-. Deducting the MACA.No.2441 of 2013 9 amount, the claimants are entitled to get Rs.6,500/- (Rs.16,5006,500). Towards funeral expenses Rs.5,000/- has already been awarded by the Tribunal. Deducting the amount already awarded, balance would be Rs.11,500/-. (16,500-5,000). So the claimants and respondents 4 and 5 are entitled to get enhanced compensation of Rs.3,94,800/- (Rs.1,72,800 + 2,04,000 + 6,500 + 11,500) 20. In the result, appeal allowed and claimants are allowed to realise enhanced compensation of **Rs.3,94,800/-** ( **Rupees three lakhs ninety four thousand eight hundred only** ) in this appeal, which will carry interest at the rate of **6%** per annum from the date of petition till date of realization (Excluding 682 day delay). Out of the enhanced compensation excluding the compensation towards consortium due to respondents 4 and 5, balance due to apportioned among the claimants 1 to 4 in the ratio of 40:20:20:20. The amount due to the 4[th] claimant shall be deposited in a Nationalised Bank and the fixed deposit receipt shall be produced before the Tribunal, which has to be kept in safe custody till she attain majority. 3[rd] respondent, insurer shall satisfy the additional compensation granted in this appeal, together with interest, deducting the liability of the claimants towards balance MACA.No.2441 of 2013 10 court fee within a period of two months from the date of receipt of certified copy of this judgment. 21. The disbursement of enhanced compensation to appellant 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 No.D1-62475/2016 dated 07.11.2019. The 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. Sd/- **M.R.ANITHA JUDGE** SMF