MACA No. 775 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF JUNE 2021 / 3RD ASHADHA, 1943** **MACA NO. 775 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 961/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL (ADDL. DISTRICT & SESSIONS JUDGE-II), MAVELIKKARA, APPELLANTS/PETITIONERS 1,3 & 4:** 1 PRAHALA, VEENALAYAM VEEDU, MUTHUKATTUKARA MURI, PALAMEL. 2 PANKAJAKSHY, VEENALAYAM VEEDU, MUTHUKATTUKARA MURI, PALAMEL. 3 KESAVAN, VEENALAYAM VEEDU, MUTHUKATTUKARA MURI, PALAMEL. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN ## **RESPONDENTS/RESPONDENTS & 2ND PETITIONER:** 1 GOPI, INCHIKKALAYIL VEEDU, PAPPADI, KOTTAYAM-686001. 2 K.S.R.T.C., REP. BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM-695001. 3 VEENA @ BEENA, VEENALAYAM VEEDU, MUTHUKATTUKARA MURI, PALAMEL. BY ADVS. SRI.P.C.CHACKO(PARATHANAM) SRI.P.J.JOE PAUL SRI.MANU SRINATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 775 OF 2014 2** ## **JUDGMENT** The appellants and the 3[rd] respondent were the petitioners in OP(MV) No.961 of 2003 on the file of the Motor Accidents Claims Tribunal, Mavelikara. The respondents 1 and 2 in the claim petition are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per their status in the appeal. 2. The petitioners had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of late Vikraman (deceased) – the late husband of the 1[st] petitioner, the father of the 2[nd] petitioner and the son of the petitioners 3 and 4. 3. The concise case of the petitioners in the claim petition, relevant for the determination of the appeal is **MACA NO. 775 OF 2014 3** that: on 5.3.2003 while the deceased was riding his scooter bearing Reg.No.KL2H/6637 on the Adoor – Pandalam MC Road, while he reached Kurumbala junction, a bus bearing Reg.No.KL-15/4119 (offending vehicle) driven by the 1[st] respondent and owned by the 2[nd] respondent hit the scooter of the deceased. The 1[st] respondent drew the offending vehicle in a rash and negligent manner so as to endanger human life. The deceased sustained fatal injuries and his life could not be save even though he was taken to NSS Medical Mission Hospital, Pandalam. The deceased was conducting a stationary store and earning a monthly income of Rs.6,000/-. The petitioners were dependent on him. The respondents were jointly and severally liable to pay compensation to the petitioners, which they quantified at Rs.8,08,000/-, but limited to 8,00,000/-. 4. The 1[st] respondent did not contest the **MACA NO. 775 OF 2014 4** proceedings. The 2[nd] respondent filed a written statement, inter alia, contending that the accident occurred solely due to the negligence on the part of the deceased. The amounts that were claimed under different heads were excessive and that the petitioners were put to strict proof to prove their dependency on the deceased. 5. The petitioners produced and marked Exts.A1 to A8 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by directing the respondents to pay an amount of Rs.4,35,000/- to the petitioners with interest @ 7.5 % per annum from the date of filing of the claim petition till the date of realization and Rs.5,500/- as costs. 7. Dissatisfied with the quantum of compensation **MACA NO. 775 OF 2014 5** awarded by the Tribunal, the petitioners 1, 3 and 4 are in appeal. 8. Heard, the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the 2nd respondent/ Corporation. 9. The question that eminates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. 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- **MACA NO. 775 OF 2014 6** violation of the principle of equitability. 11. Exts.A1 FIR and Ext.A5 Charge Sheet substantiate that the accident occurred solely due to the negligence on the part of the 1[st] respondent who drew the offending vehicle in a rash and negligent manner. Ext.A3 Postmortem Certificate proved that the deceased died on the same day on account of the accident. Admittedly, the offending vehicle was owned by the 2[nd] respondent. Therefore, the 2[nd] respondent is liable to pay the compensation to the petitioners. 12. The principal area of dispute in this appeal is regarding the fixation of notional income of the deceased and non awarding of compensation under the conventional heads and the future prospects to the petitioners. 13. It was the specific case of the petitioners that the deceased was conducting a stationary shop at **MACA NO. 775 OF 2014 7** Pandalam and he was getting a monthly income of Rs.6,000/-. However, the Tribunal, for the want of material, fixed the notional income of the deceased at Rs.3,000/- per month. ## **Notional Income** 14. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)** and in_ _**Syed Sadiq and Others vs.Divisional Manager, United India Insurance Company Ltd. (2014 (2) SCC**_ _**735)**_ has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/- per month and that of a Vegetable Vendor in the year 2006 at Rs.6.500/- per month, respectively. Similarly, in _**Pushkar Mehra v. Brij Mohan kushwaha and others (2015 (12) SCC 688)**_ the Hon'ble Supreme Court has fixed the notional income of a skilled labourer in the year 2004 at ## **MACA NO. 775 OF 2014 8** Rs.7,020/- per month. 15. Following the parameters laid down in the aforesaid decisions and considering the fact that the deceased was aged 38 years as on the date of his death and that he was self employed by running a stationary store, I am of the considered opinion that the deceased's notional income can safely be fixed at Rs.4,500/- per month. Hence, I fix the deceased's notional income at Rs.4,500/- per month. ## **Future prospects** 16. In _**Sarala Verma v. Delhi Transport Corporation (2009) 6 SCC 121)**_ and in a line of subsequent decision, the Hon'ble Supreme Court has categorically held that the dependents of the deceased are also entitled for future prospects. 17. In the case on hand, as the deceased was 38 years, and the relevant multiplier being 15, the **MACA NO. 775 OF 2014 9** petitioners - the dependents of the deceased are entitled for future prospects at 40%. In the said circumstances, the appellants/petitioners are entitled for compensation under the head 'loss of dependency with future prospects', after deducting 1/4[th] of the amount towards personal living expenses of the deceased i.e., Rs.8,50,500/- instead of Rs.3,60,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 18. In _**Pranay Sethi**_ (supra), the Hon'ble Supreme Court in Clause (viii) of paragraph 61 has held that the dependents 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. 19. The Tribunal has awarded only an amount of Rs.5,000/- each under the heads 'funeral expenses' and ## **MACA NO. 775 OF 2014 10** 'loss of estate'. Following the ratio in _**Pranay Sethi**_ , I enhance the compensation under the said heads to Rs.15,000/- each. Similarly, the Tribunal has only awarded Rs.15,000/- as loss of consortium. In light of _**Pranay Sethi**_ and that the petitioners were the wife, daughter and parents of the deceased, I hold that they are entitled for compensation under the head spousal consortium, filal consortium and parental consortium at Rs.40,000/- each. Thus, total to Rs.1,60,000/- under the said head. 20. On a perusal of the impugned award, it is seen that the Tribunal has awarded compensation of Rs.15,000/- to the 1[st] petitioner under the head love and affection and a further amount of Rs.25,000/- under the head love and affection. 21. This Court in _**and others v. Kunjandy Rajendran (2020(2) KLT 315)**_ has held that once **MACA NO. 775 OF 2014 11** compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head loss of love and affection as it would be a duplication of compensation. In view of the said law, I set aside the amount of compensation granted under the two heads. Likewise, it is seen that an amount of Rs.10,000/- as compensation under the head pain and sufferings. 22. The Hon'ble Supreme Court in _**United India Insurance Company Ltd. v. Sachindar Kaur @ Satindar Kaur and others (2020 (3) KHC 760)**_ has held that the dependents of the deceased are not entitled for compensation under the head 'pain and sufferings'. Therefore, I set aside the amount of compensation awarded under the said head. 23. With respect to the other heads of compensation, namely; transport and clothing, I find that ## **MACA NO. 775 OF 2014 12** the Tribunal has awarded reasonable and just compensation. 24. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforesaid decisions, I am of the firm 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. |Head of claim|Amount<br>Awarded by<br>the Tribunal<br>(in Rs.)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---| |Transportation<br>expenses|1,000/-|1,000/-| |Damages<br>to<br>clothing|1,000/-|1,000/-| |Funeral expenses|5,000/-|15,000/-| |Pain and sufferings|10,000/-|-| **MACA NO. 775 OF 2014 13** |||| |---|---|---| |Love and affection|40,000/-|-| |Loss of estate|5,000/-|15,000/-| |Loss of consortium|15,000/-|1,60,000/-| |Loss of dependency<br>with<br>future<br>prospects|3,60,000/-|8,50,500/-| |Total|4,37,000/-|10,42,500/-| In the result, the appeal is allowed, by modifying the order of the Tribunal and enhancing the compensation by a further amount of Rs.6,05,500/- with interest at the rate of Rs.7.5% per annum on the compensation from the date of petition till the date of realisation with proportionate costs. The 2[nd] respondent shall deposit the additional compensation amount awarded in the appeal before the Tribunal with interest and proportionate costs within a **MACA NO. 775 OF 2014 14** period of three months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellants/petitioners in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm