MACA NO. 873 OF 2010

MACA NO. 873 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943** ## **MACA NO. 873 OF 2010** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 989/2005 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM, KOTTAYAM** ## **APPELLANT/S:** 1 MRS.SHINY, W/O LATE JAMES, AGED 25,AGE 25, CHIRACKAL HOUSE, MANTHURUTHY P.O.,, KOTTAYAM. 2 BLESSON SO.LATE JAMES, AGED 8, DO. GUARDIAN AND NEXT FRIEND AS THE IST PETITIONER. 3 ADON SO.LATE JAMES AGED 6, DO. GUARDIAN AND NEXT FRIEND AS THE IST PETITIONER. 4 SAMUEL.C.J SO.ISSAC AGED 55, DO. DO. 5 ALEYKUTTY WO.SAMUEL AGED 52, DO. DO. BY ADVS. SRI.T.K.RADHAKRISHNAN SMT.K.L.SREEDEVI ## **RESPONDENT/S:** 1 MR.BIJU GEORGE, VAYALIL HOUSE, MALLIKKASSERRY P.O., PAIKA, KOTTAYAM. 2 JOSE JOSEPH KINATTUKARA HOUSE KALAKETTY P.O., KANJIRAPPALLY. 3 THE ORIENTAL INSURANCE CO.LTD. 2 MACA NO. 873 OF 2010 KANJIRAPPALLY BRANCH, REPRESENTED BY ITS, DIVISIONAL MANAGER, DIVISIONAL OFFICE,, KOTTAYAM. BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 873 OF 2010 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.989/2005 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of James alias Roy (deceased), husband of the 1[st] appellant, father of the appellants 2 and 3 and the son of the appellants 4 and 5.They have averred in the claim petition that, on 22.03.2005, while the deceased was riding his bicycle through Vazhoor-Changanassery road, when he reached the Champakkara Pallippadi bhagom, a tipper lorry bearing registration No.KL-58-2135 (lorry), driven by the 1[st] respondent in a rash and negligent manner, hit the deceased. The deceased sustained fatal injuries and lost his life instantaneously. The lorry was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The 4 MACA NO. 873 OF 2010 deceased was a carpenter by profession and earning a monthly income of Rs.5,000/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.9,99,499/- from the respondents, which was limited to Rs.8,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings. 4. The 3[rd] respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the deceased, who cut across from a pocket road to the main road. However, the 3[rd] respondent admitted that the lorry had a valid insurance coverage. But, it was stated that the 1[st] respondent did not possess a driving license. Hence, the 3[rd] respondent prayed for exoneration of its liability. 5. The 1[st] appellant and two other witnesses were examined as PWs 1 to 3 and Exts.A1 to A11(a) were marked in evidence. The respondents did not let in any evidence. MACA NO. 873 OF 2010 5 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.3,99,500/- with interest @ 7.5% per annum from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. T.K. Radhakrishnan, the learned counsel appearing for the appellants/petitioners and Smt. Latha Susan Cherian, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The point that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 10. Ext.A2 charge sheet filed by the Police clearly proves that the accident happened due to the negligence of the 1[st] respondent. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. MACA NO. 873 OF 2010 6 The 3[rd] respondent has not proved that the 2[nd] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out the accident. ## **Income** 11. The appellants had claimed that the deceased was a carpenter by profession and earning a monthly income of Rs.5,000/-. However, they did not produce any materials to substantiate his income. Therefore, the Tribunal fixed the monthly notional of the deceased at Rs.3,000/- 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/ per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I fix the notional monthly income of the deceased at Rs.5,000/-, as claimed in the claim petition. MACA NO. 873 OF 2010 7 ## **Multiplier** 14. The deceased was aged 29 years on the date of accident/death as evidenced by Ext.A8 - SSLC book. 15. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '17'. ## **Dependents of the deceased** 16. The appellants are the wife, children and parents of the deceased. The deceased was aged only 29 years at the time of the accident. The appellants 4 and 5 – his parents - were aged 55 and 52 years of age and were leading an independent life. Therefore, it cannot be said that the appellants 4 and 5 were the dependents of the deceased, as the deceased was living with the appellants 1 to 3 - his wife and two children. Thus, I hold that only the appellants 1 to 3 are the dependents of the deceased. 17. Following the law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], I deduct one third of the compensation MACA NO. 873 OF 2010 8 has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 18. Going by the law laid down in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 29 years at the time of the accident, I hold that the appellants 1 to 3 are entitled to future prospects at 40% on the compensation for loss due to dependency. ## **Loss due to Dependency** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.5,000/-, multiplier at 17, future prospects at 40% and after deducting one third of the compensation towards the personal living expenses of the deceased, I refix the compensation for 'loss due to dependency' at Rs.9,52,000/-, instead of Rs.3,60,000/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 20. In clause (viii) of paragraph 61 of **Pranay Sethi** MACA NO. 873 OF 2010 9 (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled to 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. 21. In the instant case, the Tribunal has awarded only an amount of Rs.3,000/- under the head 'funeral expenses'. Therefore, I enhance compensation under the said head by a further amount of Rs.12,000/-. 22. It is seen that the Tribunal has not awarded any amount towards loss of estate. Therefore, I award an amount of Rs.15,000/- under the said head. 23. Likewise, the Tribunal has awarded only an amount of Rs.10,000/- towards 'loss of consortium' to the 1[st] appellant. Following the principles in **Pranay Sethi** (supra), and as the appellants 1 to 3 are held to be the dependents of the deceased, I hold that the appellants 1 to 3 are entitled to Rs.40,000/- each towards loss of consortium, totaling to an amount of Rs.1,20,000/-. MACA NO. 873 OF 2010 10 ## **Loss of love and affection and pain and sufferings** 24. The Tribunal has awarded an amount of Rs.10,000/under the head 'loss of love and affection'. 25. In **New India Assurance Company Ltd. vs. Somvathy and others :** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount awarded under the head 'loss of love and affection'. 26. The Tribunal has also awarded an amount of Rs.10,000/- towards pain and sufferings. 27. In paragraph 19 of **Sarla Verma** (supra), the Honourable Supreme Court has held that in the case of instantaneous death, no amount shall be awarded under the head pain and sufferings. Therefore, I set aside the amount of Rs.10,000/- awarded under the above head. 28. The Tribunal has awarded an amount of Rs.1,500/- MACA NO. 873 OF 2010 11 under the head 'transportation expenses', which I find to be reasonable and just. 29. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants 1 to 3/ petitioners 1 to 3 are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [435 x 358] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>awarded by the modified<br>No Tribunal(in and<br>rupees) recalculated<br>by this<br>Court (in<br>rupees)<br>1. Transportation 1,500 1,500<br>expenses<br>2. Funeral expenses 3,000 15,000<br>3. Loss of estate 0 15,000<br>4. Loss of love and 15,000 0<br>affection [Rs.10,000/-<br>(awarded to the<br>petitioners 2 and 3)<br>+ Rs.5,000/-<br>(awarded to<br>petitioners 4 and 5)]<br>5. Loss of pain and 10,000 0<br>sufferings<br>**----- End of picture text -----**<br> MACA NO. 873 OF 2010 12 **==> picture [435 x 133] intentionally omitted <==** **----- Start of picture text -----**<br> 6. Loss of consortium 10,000 1,20,000<br>7. Loss of dependency 3,60,000 9,52,000<br>Total 3,99,500 11,03,500<br>**----- End of picture text -----**<br> 30. Even though the appellants had claimed only an amount of Rs.8,00,000/- in the claim petition, in the light of the law in **Sarla Verma** and **Pranay Sethi** (supra) that the dependents of the deceased are entitled to future prospects and compensation under the conventional heads, I have awarded more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down by the Honourable Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.7,04,000/- with interest at the rate of 7% per annum on the enhanced compensation, from the date of petition till the date of MACA NO. 873 OF 2010 13 realisation, and proportionate cost. The 3[rd] respondent is ordered to deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and cost within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellants 1 to 3 in the ratio of 50:25:25, after deducting their liability, if any, towards court fee, and in accordance with law. **C.S.DIAS JUDGE** rkc