MACA No. 2632 of 2009 (Appellants: Bindu w/o Venugopalan; Varun (minor) s/o Venugopalan; Arun (minor) s/o Venugopalan; Leelamani w/o Late Balan Nair) vs K.O. Joju (deleted); Johnson K.O.; The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 31[ST] DAY OF AUGUST 2021 / 9TH BHADRA, 1943** ## **MACA NO. 2632 OF 2009** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 76/2004 OF THE MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL , THRISSUR** ## **APPELLANTS/PETITIONERS:** - **1 BINDU, W/O LATE VENUGOPALAN, KARUMANA HOUSE, AMIRTHA THRIVENI GARDEN, POOTHOLE, THRISSUR-680004.** - **2 VARUN (MINOR) S/O. LATE VENUGOPALAN (REPRESENTED BY GUARDIAN MOTHER RESIDING AT DO-DO)** - **3 ARUN (MINOR) S/O. LATE VENUGOPALAN (REPRESENTED BY GUARDIAN MOTHER RESIDING AT DO-DO-)** - **4 LEELAMANI W/O. LATE BALAN NAIR KARUMANA HOUSE, AMIRTHA THRIVENI GARDEN, POOTHOLE THRISSUR-680004.** **BY ADV SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** - **1 K.O.JOJU (DELETED), KURUTHUKULANGARA HOUSE MANAKODY.P.O. THRISSUR DISTRICT.** - **2 JOHNSON.K.O. KURUTHUKULANGARA HOUSE MANAKODY.P.O. THRISSUR DISTRICT.** - **3 THE NEW INDIA ASSURANCE CO. LTD. PERINCHERY BUILDING ROUND NORTH, THRISSUR.** **RESPONDENT NO. 1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER THE ORDER DATED 5/8/2021 IN I.A. NO. 1/2021 IN MACA 2632/2009.** ## **BY ADV PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2632 OF 2009 2** ## **JUDGMENT** **Dated this the 31[st] day of August, 2021** The appellants were the petitioners in O.P (MV) No.76/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents 1 and 2 in the appeal were the respondents 2 and 3 before the Tribunal. Even though the appellants had impleaded the 1[st] respondent before the Tribunal as the 1[st] respondent in the appeal, at the instance of the appellants, the 1[st] respondent was deleted from the party array as per order in I.A. No.1/2021. Hence, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of Venugopalan (deceased) – the husband of the 1[st] petitioner, the father of petitioners 2 and 3 and the son of the 4[th] petitioner. ## **MACA NO. 2632 OF 2009 3** 3. The petitioners had averred in the claim petition that on 23.11.2003, while the deceased was riding his motorcycle bearing registration No.KL 8/V 7324 through the Laloor Chittupuzha Public road, when he reached the Laloor pipe bus stop, a motorcycle bearing registration No. KL 8/R4 382(Offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner hit against the motorcycle of the deceased. The deceased was thrown on to the road and he sustained serious fatal injuries. Although he was taken to the West Fort Hospital, Thrissur, his life could not be saved. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The deceased was a sales manger in Nandilath Fridge Center, Thrissur and drawing a monthly salary of Rs.6000/-. The petitioners were the dependents of the deceased and they were entitled for compensation of Rs.9,16,000/- from the respondents, which was limited to Rs.9,00,000/-. 4. The 1[st] respondent did not contest the ## **MACA NO. 2632 OF 2009 4** proceedings. Even though the 2[nd] respondent had entered appearance, no written statement was filed. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the deceased. The 3[rd] respondent also disputed the age, income and occupation of the deceased. 5. The 1[st] petitioner and the employer of the deceased were examined as PWs1 and 2 and Exhibits A1 to A12 were marked in evidence. The 3[rd] respondent produced copy of the insurance certificate, which was marked as Exhibit B1. 6. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to realise an amount of Rs.5,74,000/- with interest and costs from the respondents. The 3[rd] respondent was directed to pay the compensation amount. **MACA NO. 2632 OF 2009 5** 7. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 8. Heard; Sri. T.C. Suresh Menon, the learned counsel appearing for the appellants/petitioners and Sri. P.M.M. Najeeb Khan, the learned counsel appearing for the 2[nd] respondent in the appeal/insurer. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext.A5 charge sheet filed by the Thrissur Traffic Police in Crime No.763 of 2003 proves that the accident occurred due to the negligence of the 2[nd] respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the offending vehicle. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent. ## **Income** 11. The petitioners had pleaded that the deceased ## **MACA NO. 2632 OF 2009 6** was working as a Sales Manager in Nadilath Fridge Center, Thrissur, and he was drawing a monthly salary of Rs.6000/-. In order to substantiate the said pleading, the petitioners produced Exhibit A8 salary certificate, which was proved through PW2. The Tribunal for the reason that PW2 did not produce the wage and attendance registers, declined to accept the income shown in Exhibit A8. Instead, the Tribunal fixed the monthly notional income of the deceased at Rs.4000/- and deducted 1/3 towards the personal living expense of the deceased. 12. On a perusal of Exhibit A8 salary certificate, it is certified that the deceased was earning a monthly salary of Rs.5000/-. The said certificate is proved through PW2, who has clearly deposed that the deceased was earning a monthly salary of Rs.5000/-. In view of the uncontroverted oral testimony of PW2 read with Exhibit A8 salary certificate, I am of the definite opinion that the salary of the deceased has to be accepted as certified in Exhibit A8. Therefore, I fix the monthly salary of the deceased at Rs.5000/-. ## **MACA NO. 2632 OF 2009 7** ## **Multiplier** 13. The deceased was aged 35 years at the time of accident. In the light of the law laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier is '16' instead of ‘13’ adopted by the Tribunal. Hence, I fix the relevant multiplier at ‘16’. ## **Personal living expenses of the deceased** 14. Undisputedly, the petitioners are the wife, children and mother of the deceased. They all claimed that they are the dependents of the deceased. As they are four in number and in the light of law in Sarala Verma (Supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** only 1/4 of the compensation has to be deducted towards the personal living expenses of the deceased, instead of 1/3 deducted by the Tribunal. ## **Future prospects** 15. In **Sarla Verma** and **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of ## **MACA NO. 2632 OF 2009 8** the deceased are entitled for future prospects. As the relevant multiplier is '16', the petitioners are entitled for future prospects at 40% on the compensation for loss of dependents. ## **Loss of dependency** 16. Taking into account the above mentioned factors, i.e, the age of the deceased at 35, the relevant multiplier at ‘16’, his monthly income at Rs.5000/-, future prospects at 40% after deducting ¼ towards personal living expense of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.10,08,000/- instead of Rs.5,12,000/- fixed by the Tribunal. ## **Conventional heads of compensation** 17. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents 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. 18. In the instant case, the Tribunal has awarded ## **MACA NO. 2632 OF 2009 9** only an amount of Rs.5,000/- towards 'funeral expenses'. Therefore, I enhance the compensation under the said head by a further amount of Rs.10,000/-. Similarly, the Tribunal has awarded only an amount of Rs.15,000/under the head loss of consortium. Going by the principles laid down in **Pranay Sethi** (supra), I enhance the compensation under the said head by Rs.40,000/each to the petitioners i.e. an enhancement by a further amount of Rs.1,45,000/-. ## **Loss of love and afection and pain and suferings** 19. The Hon'ble Supreme Court in **United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur and others** [2020(3) KHC 760] has held that the dependents of the deceased are not entitled for any compensation under the head 'pain and sufferings'. Hence, I set aside the amount of Rs.10,000/- awarded under the said head. 20. In **New India Assurance Co. Ltd. v. Somwati** **and others** [(2020) 9 SCC 644], the Hon'ble Supreme Court has held that once the compensation is awarded ## **MACA NO. 2632 OF 2009 10** under the head 'loss of consortium', no amount can be awarded under the head 'loss of love and affection', as it would amount to overlapping or duplication of compensation. In such circumstances, I set aside the amount of Rs.15,000/- awarded under the head 'loss of love and affection'. 21.On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down 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 easy reference. |Sl No.|Head of Claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation<br>expenses|1000|1000| |2|Damage to<br>clothing|1000|1000| |3|Funeral|5000|15000| ## **MACA NO. 2632 OF 2009 11** ||expenses||| |---|---|---|---| |4|Pain and<br>suferings|10000|---| |5|Loss of love and<br>afection|15000|---| |6|Loss of estate|15000|15000| |7|Loss of<br>consortium|15000|1,60,000| |8|Loss of<br>dependency|5,12,000|10,08,000| ||Total|**5,74,000**|**12,00,000**| 22. Even though the petitioners had only claimed an amount of Rs.9,00,000/- as compensation, in the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra) that the dependants of the deceased are also entitled for future prospectsat 40%. Therefore, compensation now awarded is more than the amount that is claimed in the claim petition. 23 **. In Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3)** ## **MACA NO. 2632 OF 2009 12** **KLT 89 SC]** , the Honourable Supreme Court has held that there is no restriction in more awarding compensation than what is claimed in the claim petition, because the amount that is awarded by the Tribunals/ Courts in a claim under the Motor Vehicles Act, 1988, is just compensation. Therefore, I award more amount than what is claimed in the claim petition, on the condition that the petitioners would have to pay court fee on the enhanced compensation amount. In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.6,26,000/(Rupees Six lakh twenty six thousand only)** with interest at the rate of 7% per annum from the date of petition till the date of deposit and proportionate cost. The 2[nd] respondent in the appeal/ 3[rd] respondent before the Tribunal/insurer shall 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. The Tribunal shall disburse the enhanced compensation to the appellants/ **MACA NO. 2632 OF 2009 13** petitioners in the ratio of 40:25:25:10, respectively and in accordance with law after deducting the liability of the petitioners, if any, towards court fee. Sd/- **C.S.DIAS JUDGE** rmm