MACA No. 2953 of 2008; CO No. 53 of 2021, High Court of Kerala (Ernakulam)

Maca 2953/2008 and C.O. 53/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943** **MACA NO. 2953 OF 2008** **AGAINST THE JUDGMENT IN OPMV 1027/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/2ND RESPONDENT:** TANILNADU STATE ROAD TRANSPORT CORPORATION LTD AGED 1 YEARS SALAM DIVISION,, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV SRI.ANIL SIVARAMAN ## **RESPONDENTS:** *1 BEENA JAYAN, W/O.LATE JAYAN, KALACHIRA HOUSE, POOLANI KURUPPAM, DESOM, MELOOR VILLAGE. *2 RAHUL JAYAN REP. BY MOTHER BEENA JAYAN,S/O.LATE JAYAN -DO*3 ABHIJITH JAYAN REP. BY MOTHER BEENA JAYAN,S/O.LATE JAYAN -DO(RESPONDENTS 1 TO 3 ARE RECORDED AS THE SOLE LAGAL HEIRS OF THE DECEASED 4TH AND 5TH RESPONDENTS AS PER ORDER DATED 24/5/17 IN IA 1253/17 IN MACA 2953/2008) 4 SUBRAMANIAN (DIED) KALACHIRA HOUSE, POOLANI KURUPPAM DESOM, POOLANI VILLAGE. (DEAD) 5 KOMALAM (DIED) W/O.SUBRAMANIAN, KALACHIRA HOUSE, MELOOR VILLAGE,, POOLANI KURUPPAM DESOM. (DIED) 6 RAVICHANDRAN S/O.CHINNAPPAN VALASAIYUR, P.O.SALAM. Maca 2953/2008 and C.O. 53/2021 2 7 SAKTHI.M.R. SO.RAJU 31 C KOTTAI MEDI, KALLAKURICHI. 8 SHRI.K.MURUGAN S/O.KANNAN NO.280 KADAITHERY, SIRUVANGOOR POST, KALLAKURICHI TALUK. 9 THE MANAGER NATIONAL INSURANCE CO.LTD., VILLPURAM BRANCH, OFFICE, MURUGA COMPLEX FIRST FLOOR, NO.12,, K.K.ROAD, 605 602. BY ADVS. SRI.A.N.SANTHOSH SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2021 ALONG WITH CO 53/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Maca 2953/2008 and C.O. 53/2021 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943** **CO NO. 53 OF 2021** **AGAINST THE JUDGMENT IN O.P (MV) 1027/2001 OF THE MACT,** **IRINJALAKUDA** ## **CROSS OBJECTORS/RESPONDENTS 1 TO 3:** 1 BEENA JAYAN AGED 52 YEARS W/O.LATE JAYAN, KALACHIRA HOUSE, POOLANI, KURUPPAN DESOM, MELOOR VILLAGE. 2 RAHUL JAYAN, AGED 32 YEARS S/O.LATE JAYAN, KALACHIRA HOUSE, POOLANI, KURUPPAN DESOM, MELOOR VILLAGE. 3 ABIJITH JAYAN, AGED 29 YEARS S/O.LATE JAYAN, KALACHIRA HOUSE, POOLANI, KURUPPAN DESOM, MELOOR VILLAGE. BY ADV A.N.SANTHOSH ## **RESPONDENT/APPELLANT:** TAMIL NADU STATE ROAD TRANSPORT CORPORATION LTD., SALEM DIVISION-I, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV ANIL SIVARAMAN THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 22.06.2021, ALONG WITH MACA.2953/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING Maca 2953/2008 and C.O. 53/2021 4 ## **COMMON JUDGMENT** The appeal and cross—objection are filed challenging the Award passed by the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(MV) No.1027/2001. The appellant was the 2[nd] respondent in the claim petition. The respondents 1 to 5 were the petitioners and respondents 6 to 9 were the respondents 1 and 3 to 5, respectively in the claim petition. The parties are, for the sake of convenience, wherever the context so requires are referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition, inter alia, contending that on 5.3.2001 while late Sri.Jayan, the husband of the 1st petitioner, the father of the petitioners 2 and 3 and son of petitioners 4 and 5, was travelling in a bus bearing registration No.TN 27/M3208 (offending vehicle) belonging to the appellant/2nd Maca 2953/2008 and C.O. 53/2021 5 respondent and driven by the 6[th] respondent/1[st] respondent, the vehicle hit a lorry bearing registration No.TN-28/5926 driven by the 7[th] respondent/3rd respondent at Udumelpett in Tamil Nadu. The lorry was owned by the 8[th] respondent/4[th] respondent and was insured with 9[th] respondent/5[th] respondent. 3. It was the case of the petitioners that, the deceased was 40 years of age and was a Maison by profession earning a monthly income of Rs.6,000/-. The petitioners were dependents of the deceased and were hence entitled to compensation, which they quantified at Rs.6,81,000/- under different heads. 4. The respondents 2,3 and 4 did not contest the proceedings and were set ex-parte. The 2[nd] respondent had filed a written statement, but was later set ex parte. The 5[th] respondent admitted the insurance policy of the lorry, but contended that the accident occurred solely due to the rashness and negligence on the part of Maca 2953/2008 and C.O. 53/2021 6 the 1[st] respondent. 5. The petitioners had produced and marked Exts.A1 to A4 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the petitioners 1 to 3 to realise a compensation of Rs.2,85,000/- from the respondents 1 and 2 jointly and severally. The Tribunal held that the petitioners 4 and 5 – the parents of the deceased – were not the dependents of the deceased. 7. Aggrieved by the award passed by the Tribunal, the 2[nd] respondent has preferred the appeal and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 1 to 3 have filed the Cross-objection. 8. Heard the learned counsel appearing for the Maca 2953/2008 and C.O. 53/2021 7 appellant, the learned counsel appearing for the respondents 1 to 3/Cross Objectors/petitioners 1 to 3 and the learned appearing for the 9[th] respondentinsurance company. 9. The learned counsel appearing for the appellant argued that even though the appellant had filed a written statement, it was set ex parte and sufficient opportunity was not given to the appellant to contest the claim petition. The appellant had produced valid documents to substantiate that the respondents 1 to 3 are not entitled for compensation. Moreover, the quantum of compensation awarded by the Tribunal is excessive. Hence the appeal has to be allowed. 10. Per contra, the learned counsel appearing for the respondents 1 to 3/cross objectors contended that the Tribunal has not awarded just compensation as contemplated under the law. The notional income of the deceased was erroneously fixed by the Tribunal. Maca 2953/2008 and C.O. 53/2021 8 Similarly, the multiplier as well as the personal living expenses of the deceased was not fixed as laid down by the Hon'ble Supreme Court. Hence he prayed that the appeal be dismissed and the cross-objection be allowed. 11. The questions that emerge for consideration in the appeal is: (i) Whether the appellant should be granted another opportunity to contest the proceedings on merits; and (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? 12. The accident occurred on 5.3.2001. The petitioners had filed the claim petition in the year 2001 itself. The Tribunal allowed the claim petition, in part, as early as in the year 2007. Thereafter, the appeal was filed in the year 2008 and has been pending consideration before this Court for the last 12 years. Maca 2953/2008 and C.O. 53/2021 9 13. The bone of contention of the appellant/2nd respondent is that even though the appellant had filed its written statement, the Tribunal later set it ex parte and, therefore, the appellant could not contest the case on merits. 14. Undisputedly, the appellant did not file anyapplication to set aside the ex-parte order. Instead, the appellant has only challenged the award on its merits. Therefore, the appellant cannot be permitted to contend that the order setting the appellant ex- parte is erroneous or wrong. Moreover, two decades have lapsed after the accident and death of the breadwinner of the respondents 1 to 3. It would be a travesty of justice, at this distance of time on the mere asking of the appellant, to set aside the impugned award to provide the appellant an opportunity to contest the case on merits. Likewise, the law with respect to payment of compensation under different heads including conventional heads is fairly well Maca 2953/2008 and C.O. 53/2021 10 settled. Hence, I do not find any ground to set aside the award. Thus, the said question is answered against the appellant. 15. Now coming to the next question whether the quantum of compensation awarded by the Tribunal is reasonable and just? 16. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Ltd. v. Company 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. 17. Ext.A1 F.I.R, Ext.A2 FIS and Ext.A3 inspection Maca 2953/2008 and C.O. 53/2021 11 mahazar clearly substantiate that the accident occurred due to the rash and negligent driving of the offending vehicle by the 1[st] respondent. It is admitted that the offending vehicle was owned by the 2[nd] respondent/appellant. The Tribunal based on the aforesaid documents arrived at the conclusion that it was due to the rashness and negligence on the part of the 1[st] respondent that the accident occurred and the deceased succumbed to his injuries. There is absolutely no error in the said finding of the Tribunal. Therefore, it is appellant who is liable to pay the compensation to the petitioners. 18. The other area of dispute is the notional income fixed by the Tribunal as well as the quantum of compensation awarded by the Tribunal under the different heads. ## 19. The petitioners had claimed that the deceased was aged 40 years and was a Maison by profession Maca 2953/2008 and C.O. 53/2021 12 getting a monthly income of Rs,6000/-. I 20. It is true that the petitioners had not produced evidence to substantiate the any documentary contentions regarding the age and income of the deceased. The Tribunal relying on Ext.A4 post-mortem certificate came to the conclusion that the deceased was aged 43 years. This finding is not seriously disputed by the petitioners. Therefore, I concur with the finding of the Tribunal as regards the age of the deceased i.e, 43 years. The petitioners had claimed that the deceased was a Maison by profession earning an income of Rs.6,000/- per month. They had not produced any documents to substantiate their contentions. 21. The Hon'ble Supreme CourIn **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] has fixed the notional income of a coolie Maca 2953/2008 and C.O. 53/2021 13 worker in the year 2004, at Rs.4,500/- per month. ## **Notional Income** 22. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decisions and considering the fact that the deceased was a Maison by profession, and that the accident had occurred in the year 2001, I fix the the notional income of the deceased at Rs.3,000/- per month. ## **Multiplier** 23. The Tribunal has fixed the multiplier as 15. In view of the law laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], **Pranav Sethi** (supra) and that the deceased was aged 43 years , the correct multiplier is 14. Hence, I fix the multiplier as 14. ## **Future prospects** 24. The Hon'ble Supreme Court has categorically Maca 2953/2008 and C.O. 53/2021 14 held that the dependents of the deceased are also entitled for future prospects. In view of the fact that the deceased was aged 43 years at the time of his death and the multiplier is 14, the petitioners are entitled for future prospects at 25%. 25. Admittedly, the petitioners 1 to 3 are the wife and children of the deceased. The petitioners 4 and 5 were the parents of the deceased. It is nobody's case that the petitioners 4 and 5 were not the dependents of the deceased. However, the Tribunal arrived at a conclusion that the petitioners 4 and 5 were not the dependents of the deceased. 26. Unfortunately, after the passing of the award, the petitioners 4 and 5 have expired. The petitioners 4 and 5 have not preferred any appeal/cross objection against the above finding of the Tribunal. Nevertheless, in view of the fact that there was no specific contention taken by the respondents that the Maca 2953/2008 and C.O. 53/2021 15 petitioners 4 and 5 were not dependents of the deceased, I hold that the petitioners 4 and 5 –-the parents of the deceased –- were the dependents of the deceased. As they are no longer alive, I am of the opinion that no amount need be paid as parental consortium, but only 1/4th of the compensation payable has to be deducted towards personal living expenses of the deceased instead of 1/3rd as deducted by the Tribunal because the deceased was looking after to the affairs of the petitioners 4 and 5. 26. Following the above parameters i.e, fixing the age of the deceased at 43, his income at Rs.3,000/per month, the multiplier at 14, future prospects at 25% and deducting 1/4th towards personal living expenses of the deceased, I re-fix the loss of dependency at Rs.4,72,500/-, instead of Rs.2,40,000/fixed by the Tribunal. Maca 2953/2008 and C.O. 53/2021 16 27. In **Pranay Sethi** (supra), the Hon'ble Supreme Court has held in Clause No.8 of paragraph 61 that the dependants of the deceased are entitled for compensation under the conventional heads namely loss of estate, loss of consortium and funeral expenses at Rs.15,000/-, 40,000/- and 15,000/- respectively. Thus, I hold that the petitioners 1 to 3 are entitled to compensation under the heads loss of estate at Rs.15,000/-, funeral expenses at Rs.15,000/- and loss due to spousal consortium at Rs.40,000/- for the 1[st] petitioner and filial consortium at Rs.40,000/- each for the petitioners 2 and 3, totalling to Rs.80,000/-. 28. With respect to the other heads of compensation awarded by the Tribunal, I find that even though the petitioners had claimed an amount of Rs.6,000/- towards transportation expenses, as the deceased had to be transported from Udumalpett in Tamil Nadu to Thrissur in Kerala, a reasonable amount of Rs.5,000/- has to be awarded towards transportation Maca 2953/2008 and C.O. 53/2021 17 expenses. Similarly, even though the petitioners had claimed expenses for clothing, no amount was awarded under the said head. Hence, I fix Rs.1500/- towards clothing expenses. It is seen that the Tribunal had awarded an amount of Rs.5,000/- towards pain and suffering, which according to me is reasonable. However, the Tribunal has awarded an amount of Rs.10,000/- towards loss of love and affection. In view of the awarding of compensation under the head 'loss of consortium' and in view of the laid down by this Court in **Kunjandy v. Rajendran and Others** [2020 (2) KLT 315] **,** I set aside the amount of compensation awarded under the head 'loss of love and affection'. 29. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am of the firm opinion that the petitioners 1 to 3/cross objectors are entitled for enhancement of compensation as modified and recalculated above and Maca 2953/2008 and C.O. 53/2021 18 ## given in the table below for easy reference. |SI.<br>No|Head of claim|Amount awarded<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation expenses|….|5,000| |2|Clothing|….|1,500| |3|Funeral expenses|10,000|15,000| |4|Pain and suffering|5,000|5,000| |5|Loss of love and affection|10,000|…..| |6|Loss of estate|…..|15,000| |7|Loss of consortium|20,000|1,20,000| |8|Loss of dependency|2,40,000|4,72,500| ||Total|2,85,000<br>========|6,34,000<br>=========| In the result, MACA No.2953/2008 is dismissed and Cross Objection No.53/2021 is allowed by enhancing the compensation by a further amount of Rs.3,49,000/- (Rupees Three Lakh fourty nine thousand only) with interest at the rate of 6% per annum from the Maca 2953/2008 and C.O. 53/2021 19 date of petition till the date of realisation with proportionate costs on the enhanced compensation. The appellant/2nd respondent shall deposit the additional compensation before the Tribunal with interest and proportionate costs within a period of two months from after the of the cross- today deducting liability objectors/petitioners 1 to 3 towards balance court fee, if any. The disbursement of the additional compensation to the cross-objectors/petitioners 1 to 3 shall be done in the proportion fixed in the impugned award and in accordance with law. Sd/- **C.S.DIAS, JUDGE** ma/22.06.2021 /True copy/