MACA No. 886 of 2009

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 ``` ## `MACA NO. 886 OF 2009` ``` AGAINST THE AWARD DATED 30.07.2008 IN OP(MV)NO.1824/2000 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## `APPELLANTS/PETITIONERS:` ``` 1SAMINATHAN, S/O. VASU, AGED 59 YEARS, KANNANTAPURAYIL HOUSE, MARAD BEACH, ARAKKINAR P.O., BEYPORE AMSOM DESOM, (HUSBAND OF DECEASED). 2SARIKA, D/O.RUKMINI AGED 31 YEARS, KANNANTAURAYIL HOUSE, MARAD BEACH, ARAKKINAR P.O., BEYPORE AMSOM DESOM, (DAUGHTER OF DECEASED). 3SARITHA, D/O.RUKMINI, AGED 29 YEARS, KANNANTAPURAYIL HOUSE, MARAD BEACH, ARAKKINAR P.O., EYPORE AMSOM DESOM, DAUGHTER OF DECEASED). 4SARATH, S/O.SAMINATHAN, AGED 27 YEARS, KANNANTAPURAYIL HOUSE, MARAD BEACH, ARAKKINAR P.O., BEYPORE AMSOM DESOM, (SON OF DECEASED). BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ANEISH RAVINDRA SMT.C.G.PREETHA SMT.P.RANI DIOTHIMA ``` M.A.C.A.No.886/2009 -:2:- ## `RESPONDENTS/RESPONDENTS:` ``` 1M.K.VINURAJ, V/133-KOYARITHAZHAM, P.O.ERANHIPALAM, CALICUT. ``` ``` 2JAYANARAYANAN, S/O.SREEDHARAN NAIR, AGED 26 YEARS, PUTHENVEEDU HOUSE, P.O.PUNPALA, VENDOOR, MALAPPURAM. ``` - `3 NATIONAL INSURANCE CO. LTD., DIVISION OFFICE 11, P.B. BUILDING, NEAR ARAYIDATHUPALAM, CALICUT.` ``` BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.886/2009 -:3:- Dated this the 26[th] day of November,2021 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV)No.1824/2000 on the file of the Additional Motor Accidents Claims Tribunal-II, Kozhikode. The respondents in the appeal were respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of ‘Rukmini’(deceased), the wife of the first appellant and the mother of the appellants 2 to 4. It was their case that, on 28.06.2000, while the deceased was travelling along with her relatives in a jeep bearing registration No.KL-10/A-9511 (jeep) from Beypore to Koyilandy, when the jeep reached a place named ‘Pookkad’, a mini lorry bearing registration No.KCE-4006(lorry) came from the opposite direction and hit the jeep. The lorry was driven by the second respondent in a rash M.A.C.A.No.886/2009 -:4:- and negligent manner. All the passengers in the jeep sustained serious injuries. The deceased lost her life instantaneously. The deceased was a coolie worker by profession and earning a monthly income of Rs.2,500/-. The appellants were the dependants of the deceased. The lorry was owned by the first respondent and insured with the third respondent. Hence, the appellants claimed a total compensation of Rs.5,00,000/- from the respondents. 3. The other injured in the same accident also filed O.P.(MV) Nos. 1652/2000, 1657/2000, 1658/2000, 1659/2000, 1708/2000, 1751/2000, 1776/2000, 1815/2000, 1823/2000 and 2036/2000, before the same Tribunal, seeking compensation. 4. The respondents 1 and 2 filed separate written statements in all the claim petitions admitting the accident. However, they denied that there was negligence on the part of the second respondent. It was also contended that the accident occurred due to M.A.C.A.No.886/2009 -:5:- the negligence on the part of the driver of the jeep. Nevertheless, they contended that the lorry had a valid insurance coverage with the third respondent, and, therefore, the third respondent was to indemnify the liability of the first respondent. 5. The third respondent had filed separate written statements in all the claim petitions, admitting that the lorry had a valid insurance policy. The third respondent reiterated very same contentions of the respondents 1 and 2, that the accident occurred due to the negligence of the driver of the jeep. The third respondent also disputed the age, occupation and income of the deceased and the other petitioners in the claim petitions. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The petitioners in all the claim petitions produced documents to substantiate their respective contentions. M.A.C.A.No.886/2009 -:6:- 8. The Tribunal, by its common award, allowed the captioned claim petition, by permitting the appellants to recover from the third respondent an amount of Rs. 2,41,000/- with interest and cost. 9. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 10. Heard; Sri.Arjun Sreedhar, the learned counsel appearing for the appellants/petitioners and Sri.P. Jacob Mathew, the learned counsel appearing for the third respondent-insurer. 11. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 12. The petitioners in O.P(MV) No.1657/2000 had produced Ext.A1 First Information Report(FIR) in Crime No.312/2000 of the Koyilandy Police, which substantiates that the accident occurred due to the M.A.C.A.No.886/2009 -:7:- negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to the contrary to discredit and disprove the assertions of the petitioners in the claim petitions. 13. The third respondent has also admitted that the lorry had a valid insurance policy. It has not been proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income of the deceased:** 14. The appellants had claimed that the deceased was a coolie worker by profession and was earning a monthly income of Rs.2,500/-. 15. The Tribunal, for want of materials, fixed the notional income of the appellant at Rs.2,000/per month. M.A.C.A.No.886/2009 -:8:- 16. Following the principles in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], I find that the fixation of the notional monthly income of the deceased is justifiable and correct. ## **Multiplier:** 17. The deceased was aged 45 years at the time of accident/death. In the light of the law laid down in **Sarla Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)], the relevant multiplier to be adopted is ‘14’. ## **Dependants of the deceased:** 18. It is proved and established that the appellants were the husband and children of the deceased. As they were four in number,[1] /4th of the compensation has to be deducted towards the 'personal living expenses' of the deceased, following the ratio in **Sarla Verma** (supra) and **National** M.A.C.A.No.886/2009 -:9:- **Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)]. ## **Future prospects:** 19. Going by the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 45 years at the time of the accident/death, I hold that the appellants are entitled to 'future prospects' at 25%. ## **Loss due to dependency:** 20. Taking into account the above-mentioned factors, i.e, the monthly income of the deceased at Rs.2,000/-, the multiplier at '14', ‘future prospects’ at 25% and deducting[1] /4th of the compensation towards the 'personal living expenses' of the deceased, I re-fix the compensation for ‘loss of dependency’ at Rs.3,15,000/-, instead of Rs.2,08,000/- awarded by the Tribunal. ## **Conventional heads of compensation:** 21. In clause (viii) of paragraph 61 of **Pranay** M.A.C.A.No.886/2009 -:10:- **Sethi** (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for 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. 22. It is seen that the Tribunal has awarded only an amount of Rs.2,000/- towards ‘funeral expenses’,and Rs.5,000/- towards ‘loss of consortium’. 23. In the light of the law laid down in **Pranay Sethi** (supra), I enhance the compensation under the head ‘funeral expenses’ by an amount of Rs.13,000/and award an amount of Rs.40,000/- each to the appellants towards ‘loss of consortium’, totalling to an amount of Rs.1,60,000/- i.e., an enhancement by Rs.1,55,000/- under the said head. 24. Likewise, I award an amount of Rs.15,000/towards ‘loss of estate’. M.A.C.A.No.886/2009 -:11:- ## **P ain and sufferings and loss of love and affection:** 25. The Tribunal has awarded an amount of Rs.15,000/- towards compensation for 'pain and sufferings' and Rs.10,000/- towards 'loss of love and affection'. 26. In paragraph No.19 of **Sarla Verma** (supra), the Hon'ble Supreme Court has held that, in the case of instantaneous death, no amount shall be awarded under the head 'pain and sufferings' to the dependants of the deceased. 27. Similarly, in **New India Assurance Company Ltd. v. Somwati & Ors.** [2020(9)SCC 644], the Hon'ble 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 is amount to duplication of compensation. Therefore, I set aside the amounts of Rs.15,000/- and Rs.10,000/- awarded under M.A.C.A.No.886/2009 -:12:- the above mentioned heads. 28. With respect to the amount of compensation awarded under the head 'transport expenses', I find the same to be reasonable and just. 29. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the appellants/petitioners are entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport<br>expenses|1,000|1,000| |2|Funeral expenses|2,000|15,000| |3|Pain and sufferings|15,000|Nil| |4|Loss of love and<br>affection|10,000|Nil| |5|Loss of consortium|5,000|1,60,000| |6|Loss of estate|Nil|15,000| |7|Loss of<br>dependency|2,08,000|3,15,000| ||**TOTAL**|**2,41,000**|**5,06,000**| M.A.C.A.No.886/2009 -:13:- In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.2,65,000/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit and proportionate cost. The third respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellants in the ratio of 40:20:20:20, and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/26.11.21 //True copy/ P.A.To Judge