MACA No. 580 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943** ## **MACA NO. 580 OF 2012** **AGAINST THE AWARD DATED 20.06.2011 IN OPMV 379/2007 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANTS/CLAIMANTS NO.1 AND 2:** - **1 V.ABOOBACKER AGED 60, S/O.HASSAN KUTTY, R/AT RAZEENA MANZIL, KANWATHEERTHA P.O., KUNJATHUR - 673 123** - **2 K.M.KHADEEJA AGED 55, W/O.V.ABOOBACKER AND D/O.MOIDEEN KUNHI, DO...DO....DO....DO.... BY ADV SMT.R.PADMAKUMARI** ## **RESPONDENTS/RESPONDENTS:** - **1 NARAYANA AGED 50, S/O.KITTA MOOLYA @ KRISHNAPPA, R/AT KAPPIKKAD HOUSE, ALLIHADDE, ALLIHADDE VILLAGE, BANTWAL TALUK, PIN:675 142.** - **2 A HAMEED S/O.HAMMABBA ADYAR, ACHARPAL HOUSE, P.O.ADYAR, MANGALORE.PIN:575 012.** - **3 THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD., BEAUTY PLAZA, BALMATTA ROAD, HAMPANKATTA, MANGALORE - 575001. BY ADV SRI.A.R.GEORGE-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 580 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the award in O.P.M.V No.379/2007 on the file of Motor Accidents Claims Tribunal, Kasaragod. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) claiming compensation on account of the death of Nawaz Shereef out of a motor vehicle accident occurred on 27.04.2006. Appellants/Claimants Nos.1 and 2 are parents of deceased, Nawaz Shereef (herein after be referred as deceased). According to the appellants, while the deceased was travelling on a Motor Cycle bearing Registration No. KA.19Q/1017 along with two pillion riders, a Lorry bearing Registration No. KA19A/696 driven by the 1[st] respondent came in a rash and negligent manner and hit on the Motor Cycle on which deceased was travelling, thereby he sustained grievous injuries. Immediately he was taken to Unity Health Complex, Mangalore. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent. The 2[nd] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. Total compensation of Rs.10,00,000/- has been claimed. M.A.C.A No. 580 of 2012 **3** 2. Before the Tribunal, the 1[st] and 2[nd] respondents the driver and owner of the offending vehicle remained ex parte and the 3[rd] respondent insurer filed written statement admitting the insurance coverage with respect to the offending vehicle. It is contended that the accident happened due to the rash and negligent driving of the rider of the Motor Cycle and further that the Motor Cycle was overloaded by two pillion riders and it hit against the parked Lorry. The deceased was not having driving license to ride the motor cycle. Hence, appellants/claimants are not entitled to claim any compensation from the respondents. 3. Exts. A1 to A4 have been marked from the side of the appellants. There is no oral evidence on either side. On evaluation of the documents and pleadings, the Tribunal awarded a total compensation of Rs.2,41,000/- under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants approach this Court in appeal for the various grounds stated in the memorandum of appeal. Notice to respondents 1 and 2 has been dispensed with since the 3[rd] respondent insurer admitted the policy coverage with respect to the offending M.A.C.A No. 580 of 2012 **4** vehicle. Adv.A.R.George, Standing Counsel appeared on behalf of the 3[rd] respondent. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. Accident, death and liability of the 3[rd] respondent is not disputed and the dispute between the parties is only with respect to the quantum of compensation awarded under various heads by the Tribunal. 7. According to the learned counsel for the appellant, deceased was a student aged 21 years old studying for Pre-university course in Rosario Composite Pre-university College, Mangalore. But the Tribunal fixed his monthly income as Rs.2,000/- which is very low. It is also contended that the amount awarded under other heads are very low in view of the loss sustained by the appellants/claimants (hereinafter be referred as claimants). Hence he seeks for enhancement of compensation on all heads. 8. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in M.A.C.A No. 580 of 2012 **5** this appeal. 9. In **National Insurance Co. Ltd v. Fathimath Zuhara @ Zuhara Razak & Another** [2016 3 KLT 459], a Division Bench of this Court approved monthly income of Engineering student in an accident on 10.09.2005 as Rs.12,000/- fixed by a Tribunal. In **Basanti Devi & Another v. The New India Assurance Co. Ltd and Others** (Civil Appeal Nos. 7435-7436 of 2021), the Apex Court fixed the notional income of an Engineering graduate who lost life in an accident occurred on 10.03.2011 at the age of 25 as Rs.20,000/-. The accident in this case is in 2006. Claimant in this case was 21 years doing PreUniversity Course. Hence the monthly income of the claimant can notionally be fixed as **Rs.4,000/-.** 10. 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, should nevertheless be objective and M.A.C.A No. 580 of 2012 **6** 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. 11. 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 non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 12. In Pranay Sethi's case, 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 years M.A.C.A No. 580 of 2012 **7** 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. 14. In the present case, the deceased was a student and his monthly income has already been fixed as Rs.4,000/-. So claimants are entitled for 40% enhancement towards future prospects. Then annual income of the deceased would be **Rs.67,200/-** (48,000+19,200(40% of 48,000)). 15. 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 M.A.C.A No. 580 of 2012 **8** Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65). 16. In Reshma Kumari's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 17. Here, deceased was a bachelor. So 50% has to be deducted towards personal and living expenses. Hence contribution to the family would be Rs.33,600/-(67,200x1/2). 18. The proper multiplier to be applied as held in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '18'. So the annual dependency would be 33,600x18=6,04,800/-. From that the amount already awarded by the Tribunal to be deducted, the balance would **Rs.1,92,000/-** (6,04,800-4,12,800). M.A.C.A No. 580 of 2012 **9** 19. The next contention of the learned counsel is with regard to the enhancement under the conventional heads as per the directions in Pranay Sethi's case followed by Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130) In that decision, the Apex court has 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. 20. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in Pranay Sethi's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 21. In this context, Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] is to be taken note of. That was a case in which the accident occurred on M.A.C.A No. 580 of 2012 **10** 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 22. Next is with regard to the consortium to be awarded, the law laid down by the Apex Court in Magma General Insurance Co.'s case is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other M.A.C.A No. 580 of 2012 **11** in every conjugal relation”. (Black's Law Dictionary (5[th] ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child which cause great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 23. In the present case, appellants are claimants Nos.1 and 2 who are parents of the deceased. So claimants Nos. 1 and 2 are entitled to get Rs.44,000/- each towards filial consortium, amounting to **Rs.88,000/** -(44,000x2). Once compensation is awarded under consortium, claimants are not entitled to get any compensation towards love and affection. (See **New India Assurance Co. Ltd v. Somwati and** M.A.C.A No. 580 of 2012 **12** **Others** [2020 9 SCC 644]) So amount of Rs.10,000/- awarded by the Tribunal towards loss of love and affection has to be deducted. Deduction also to be made of Rs.5,000/- awarded towards funeral expenses and Rs.10,000/- towards loss of estate already awarded by the Tribunal. 25. So under the conventional heads, claimants are entitled to get Rs.1,21,000/-. (88,000+33,000(16,500+16,500). From that, the amount already awarded by the Tribunal to be deducted that is 10,000+10,000+5,000=25,000, 1,21,000-25,000= **Rs.96,000/-.** 26. So in total the claimants are entitled to get enhanced compensation of **Rs.5,08,800/-** (4,12,800+96,000). 27. In the result, the appellants are allowed to realize enhanced compensation of **Rs.5,08,800/-** which will carry interest at the rate of 7.5% per annum from the date of petition, till realization. The enhanced compensation shall be apportioned among the appellants in the ratio of 40:60. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment. M.A.C.A No. 580 of 2012 **13** 28. The disbursement of the amount to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellants/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 a certified copy of this judgment. In the result appeal stands allowed. Parties shall bear their respective costs. **SD/-** rps/ **M.R.ANITHA, JUDGE**