MACA NO. 2907 OF 2009

MACA NO. 2907 OF 2009 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 30[TH] DAY OF JUNE 2021 / 9TH ASHADHA, 1943 MACA NO. 2907 OF 2009 AGAINST THE ORDER/JUDGMENT IN OPMV 1219/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD ## APPELLANTS/PETITIONERS: 1 SUNILKUMAR, AGED 32, S/O.LATE KUNJAI, THENJEERIKUNDU VOLONY HOUSE, KANIYARKODE P.O., THIRUVILWAMALA, THRISSUR. 2 RAMACHANDRAN AGED 30 YEARS SO. LATE KUNJAI, THENJEERIKUNDU VOLONY HOUSE,, KANIYARKODE P.O., THIRUVILWAMALA, THRISSUR. 3 SANTHI, AGED 25 YEARS S/O. LATE KUNJAI, THENJEERIKUNDU VOLONY HOUSE,, KANIYARKODE P.O., THIRUVILWAMALA, THRISSUR. 4 UNNIKRISHNAN, AGED 22 YEARS, S/O. LATE KUNJAI, THENJEERIKUNDU VOLONY HOUSE,, KANIYARKODE P.O., THIRUVILWAMALA, THRISSUR. 5 SURESH BABU AGED 20 YEARS S/O. LATE KUNJAI, THENJEERIKUNDU VOLONY HOUSE,, KANIYARKODE P.O., THIRUVILWAMALA, THRISSUR. 6 SUCHITHRA AGED 14 YEARS (MINOR) S/O. LATE KUNJAI, THENJEERIKUNDU VOLONY HOUSE,, KANIYARKODE P.O., THIRUVILWAMALA, THRISSUR. BY ADV SRI.SHEJI P.ABRAHAM ## RESPONDENT/S: 1 MOHANAN @ K.R.MOHANAKUMARAN, AGED 41, MACA NO. 2907 OF 2009 2 S/O. RAMACHANDRAN, KADAMANGOTTIL HOUSE,, KANIYARKODE VILLAGE, KUTHAMBULLY P.O.,, THIRUVILWAMALA, THRISSUR-680 588. 2 UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, VADAKKANCHERRY, VADAKKANCHERRY,, THRISSUR., POLICY NO.100681/31/06/01/90001239 VALID FROM, 11.8.2006 TO 10.8.2007. BY ADV SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2907 OF 2009 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1219/2006 on the file of the Motor Accidents Claims Tribunal, Ottapallam. The respondents in the appeal were the respondents in the claim petition. 2. The appellants had filed claim petition, under section 166 of the Motor Vehicles Act, 1988, claiming compensation, on account of the death of Smt.Neeli (deceased) – the mother of the appellants. 3. The concise case of the appellants in the claim petition, relevant for the determination in the appeal is that : on 05.11.2006, while the deceased was walking through Thiruvilwamala-Kuthampully public road, a motor cycle bearing registration No.KL-48 941 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner, hit the deceased. She was taken to Valluvanadu Hospital, Ottappalam and thereafter referred to the Aswini Hospital, Thrissur. However, she MACA NO. 2907 OF 2009 4 succumbed to injuries on the following day, ie 06.11.2006. The deceased was a coolie worker by profession and was earning a monthly income of Rs.4,000/-. The appellants were dependants of the deceased and were hence entitled for compensation from the respondents. 4. The 1[st] respondent filed a written statement denying the assertions in the claim petition. It was contended that the accident occurred due to the negligence on the part of the deceased. However, it was stated that the offending vehicle was insured with the 2[nd] respondent. 5. The 2[nd] respondent also filed a written statement adopting the very same contentions of the 1[st] respondent. It was further contended that the amount of compensation claimed was excessive. Nevertheless, the insurance policy was admitted by the 2[nd] respondent. 6. The appellants marked Exts.A1 to A11 in evidence. The respondents produced Exts.B1 and B2 in MACA NO. 2907 OF 2009 5 evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award, allowed the claim petition in part, by permitting the appellants to recover an amount of Rs.2,63,050/- along with interest at the rate of 7% per annum from the date of petition till the date of realisation and cost of Rs.3,000/- from the respondents. The 2[nd] respondent was directed to pay the compensation amount. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/petitioners are in appeal. 9. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the 2[nd] respondent. 10. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. MACA NO. 2907 OF 2009 6 11. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation', and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 12. Ext.A5 charge sheet filed by the Police, proves that the accident occurred solely on account of the negligence of the 1[st] respondent. Admittedly, the 2[nd] respondent was the insurer of the offending vehicle. Therefore, it is the 2[nd] respondent, who is liable to indemnify the liability of the owner of the offending vehicle. 13. Ext.A10 legal heirship certificate proves that the appellants are legal heirs of the deceased. The MACA NO. 2907 OF 2009 7 appellants had claimed that the deceased was a coolie worker, earning an amount of Rs.4,000/- per month. However, the Tribunal fixed the notional income of the deceased at Rs.3,000/- per month. 14. The Honourable Supreme Court in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd. :** (2011) 13 SCC 236 has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/-. 15. Following the ratio in the afore cited decision and the claim put forth by the appellants and that the accident occurred in the year 2006, I fix the income of the deceased at Rs.4,000/- as claimed in the claim petition. 16. In **Sarala Varma vs. Delhi Transport Corporation:** 2010 (2) KLT 802, the Honourable Supreme Court has held that the dependents of the deceased are entitled for future prospects. As the deceased was aged 55 years, the appellants are entitled MACA NO. 2907 OF 2009 **==> picture [7 x 9] intentionally omitted <==** for future prospects at 10%. The Tribunal fixed the multiplier at 9. In view of the law laid in **Pranay Sethi** (supra) the relevant multiplier is 11. 17. The appellants were admittedly the dependents of the deceased. Even though the appellants 1 to 5 had attained majority, it was their mother who lost her life in the accident. Therefore, 1/4[th] of the compensation has to be deducted towards personal living expenses of the deceased. 18. Considering the above parameters, I refix the loss of dependency at Rs.4,35,600/- instead of Rs.2,43,000/- fixed by the Tribunal. 19. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra) the Honourable Supreme Court has fixed the quantum of 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. 20. In the said circumstances, I enhance the MACA NO. 2907 OF 2009 9 compensation under the head funeral expenses and loss of estate to Rs.15,000/- each instead of Rs.5,000 each fixed by the Tribunal. Similarly, it is seen that the appellants 5 and 6 were only aged 20 years and 14 years at the time of accident. Unquestionably, they were also very much dependent on their mother, as they were not leading independent life. Therefore, I am of the opinion that appellants 5 and 6 are entitled for compensation under the head 'loss of consortium' at Rs.40,000/- each, totaling to Rs.80,000/-. 21. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings and materials on record and the law laid down by the Honourable Supreme Court in the aforesaid decisions, I am of the firm opinion that the appellants are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy MACA NO. 2907 OF 2009 10 ## reference: |SI.<br>No|Head of claim|Amount<br>awarded by<br>the<br>Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1.|Medical expenses|7050|7050| |2.|Transportation to<br>hospital|3,000|3,000| |3.|Funeral expenses|5,000|15,000| |4.|Loss of estate|5,000|15,000| |5.|Loss of consortium|0|80,000| |6.|Loss<br>of<br>dependency|2,43,000|4,35,600| ||Total|2,63,050|5,55,650| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.2,92,600/with interest at the rate of 7% per annum from the date MACA NO. 2907 OF 2009 **==> picture [13 x 9] intentionally omitted <==** of petition till the date of deposit along with proportionate costs. The 2[nd] respondent shall deposit the enhanced compensation with interest in a proportionate cost within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellants as per the proportion fixed in the impugned award and in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc