MACA NO. 928 OF 2013

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 18[TH] DAY OF JANUARY 2022 / 28TH POUSHA, 1943** **MACA NO. 928 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 180/2011 OF MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL,KOTTAYAM** ## **APPELLANTS/PETITIONERS 1, 2 & 4:** **1 PURUSHOTHAMAN M.K., AGED 59 YEARS S/O. NARAYANAN, MADATHIL HOUSE, ARUMANOOR P.O., KOTTAYAM. 2 B.LALITHAMBIKA AGED 57 YEARS W/O. PURUSHOTHAMAN M.K., MADATHIL HOUSE, ARUMANOOR P.O., KOTTAYAM. 3 AKHILA M.P. AGED 29 YEARS D/O. PURUSHOTHAMAN M.K., MADATHIL HOUSE, ARUMANOOR P.O., KOTTAYAM. BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENTS/RESPONDENTS 1 TO 3 AND THE 3RD PETITIONER:** |**1**|**BEKKER**| |---|---| ||**PUTHUVEETTIL, IRUMPOOZHYKARA P.O., VAIKOM, KOTTAYAM DISTRICT-**| ||**686 141.**| |**2**|**THE MANAGING DIRECTOR**| ||**KSRTC, THIRUVANANTHAPURAM-695 001.**| |**3**|**THE NEW INDIA ASSURANCE CO. LTD.**| ||**KOTTAYAM-686 001.**| |**4**|**ANOOP M.P.**| ||**AGED 33 YEARS**| ||**S/O. PURUSHOTHAMAN M.K., MADATHIL HOUSE, ARUMANOOR P.O.,**| ||**KOTTAYAM-686 564.**| ||**BY ADVS.**| ||**ALEX ANTONY SEBASTIAN P.A.**| ||**SRI.PMM.NAJEEB KHAN**| ## **OTHER PRESENT:** **ADV ALEX ANTONY FOR KSRTC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **18.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.928 OF 2013 2 ## **JUDGMENT** This appeal is directed against the Award passed in O.P. (M.V)No.180/2011 on the file of Motor Accidents Claims Tribunal, Kottayam. 2. Appellants are the claimants in the above O.P.(M.V.). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.22,98,000/-, limited to Rs.10,00,000/- on account of the death of deceased Aravind M.V. (hereinafter be referred as the deceased). Appellants are the father, mother and sister of the deceased. Respondent Nos.1 to 3 herein are respondents 1 to 3 respectively in the claim petition. Fourth respondent herein is the elder brother of the deceased, who is the third petitioner in the claim petition. 3. It is alleged that on 01.06.2010 at about 2.05 p.m while the deceased was riding the motorcycle No.KL 11/G 2968 along the MC Road in a moderate speed and when reached at Marygiri Asramam at Koothattukulam, K.S.R.T.C. Bus No.KL 15/7037 driven by the first respondent came in a rash and negligent manner from south to north and hit the motorcycle MACA.No.928 OF 2013 3 ridden by the deceased, resulting in fatal injuries to him. Though he was immediately taken to Devamatha Hospital, Koothattukulam, he succumbed to the injuries while undergoing treatment there. It is alleged that the accident happened due to the rash and negligent driving of the bus by the first respondent, driver of the K.S.R.T.C. bus. Second respondent is the Managing Director of the K.S.R.T.C., Thiruvananthapuram and the bus was insured with the third respondent-insurance company. 4. Before the Tribunal, respondents 1 and 2 though entered appearance, no written statement was filed. Third respondent – insurance company filed written statement and contended that the amount claimed under various heads are excessive. The appellants/claimants (hereinafter be referred as the claimants) were put to strict proof regarding the income of the deceased. The insurance coverage with respect to the vehicle is admitted. It is also contended that the accident happened due to the negligence of the deceased. 5. No oral evidence was adduced from either side. Exts.A1 to A9 were marked from the side of the claimants. On evaluating the pleadings and materials, the Tribunal awarded a total compensation of Rs.6,44,000/- with interest at the rate of MACA.No.928 OF 2013 4 7.5% from the date of petition (16.02.2011) till realisation. 6. Aggrieved by the quantum of compensation awarded by the Tribunal, the claimants came up in appeal for the various grounds stated in the memorandum of appeal with a delay of 40 days in filing the appeal. The delay of 40 days in filing the appeal has been condoned as per order dated 22.12.2021 in C.M.Appln.No.1/2013. 7. Learned Standing Counsel Sri. Alex Antony appeared for the 2[nd] respondent. Since the third respondent admitted the policy coverage, service of notice on respondents 1 and 4 was dispensed with. Lower court records were called for and perused. 8. Heard the learned counsel for the appellants and the Standing Counsel for the third respondent. 9. The deceased was a 19 year old final year student for B.Tech. According to the learned counsel for the appellants, the Tribunal took the monthly income as Rs.7,000/-, which according to him is very low. Relying on the decision in National Insurance Company Ltd. v. Fathimath Zuhara [2016 (3) KLT 459] the learned counsel would contend that income of an engineering student was taken as Rs.12,000/- per month in an accident MACA.No.928 OF 2013 5 occurred in 2005 by the Tribunal in that case, which was confirmed by this Court in appeal. So in the present case the accident occurred in the year 2010. Hence, the monthly income of the deceased, a B.Tech Student, ought to have been taken as Rs.14,500/-. He would also contend that the amount awarded under the conventional heads are also not in tune with the settled position of law and hence interference is required under those heads also. 10. The learned counsel for the third respondent on the other hand would contend that a very just and reasonable compensation has been awarded by the Tribunal under various heads and no interference is called for by this Court in this proceedings. 11. The fact that the deceased was a final year student of B.Tech is not in dispute. In Fathimath Zuhara referred above a Division Bench of this Court upheld the monthly income of an Engineering graduate student fixed by the Tribunal at Rs.12,000/- per month, who lost life in a motor accident on 10.09.2005. In Basanth Devi and Anr. v. The New India Assurance Co.Ltd and Ors. [Civil Appeal Nos.7435 -7436 of 2021] Apex Court fixed the notional monthly income of an MACA.No.928 OF 2013 6 Engineering Graduate who lost life in an accident on 10.03.2011 at the age of 25 as Rs.20,000/-. 12. In the present case deceased was a B.Tech student in Civil Engineering and appeared for the final year examination. In Ext.A9 certificate issued by the Principal of ILAHIA College of Engineering & Technology, Muvattupuzha would state his conduct and character as good. The accident was on 01.06.2010. Following the ratio in the above cited decisions the claim of Rs.14,500/- as the monthly income of the deceased appears as just and reasonable. Hence, the monthly income of the deceased is notionally is fixed as Rs.14,500/-. 13. In Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121] the Apex Court held that 50% of actual income to be added towards future prospects where the deceased had a permanent job and was below 40 years. The addition should be 30% if the age of the deceased was 40 – 50 years and it is also directed that there shall be no addition where the age of deceased is more than 50 years. 14. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the Apex Court though accepted the findings in Sarla Verma's case in fixing the multiplier, made some MACA.No.928 OF 2013 7 variance with regard to the grant of future prospects in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of muliplicand would be unjust and the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. It is also laid down in Pranay Sethi that with respect to self-employed or persons with fixed salary when the deceased was below 40 years an addition of 40% can be granted and between 40 – 50, an addition of 25% and with respect to persons between 50 – 60 years, the addition has been fixed as 10%. The established income also provided as the income minus tax component. So 40% addition can be given towards future prospects in this case. 15. On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that MACA.No.928 OF 2013 8 personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants and 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 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. In **Sarla Verma** paragraph No.31 the deduction when the deceased is a bachelor has been dealt with. It is provided that where the deceased was a bachelor and the claimants are MACA.No.928 OF 2013 **==> picture [8 x 9] intentionally omitted <==** the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. The possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically was also taken into account. That principle was followed in Reshma Kumari's case as well as in Pranay Sethi's case, referred above. 18. So, in the present case, the deceased being a bachelor, half of the monthly income has to be deducted towards the personal and living expenses. 19. With regard to the multiplier, in paragraph No.35 of Sarla Verma's case, the Apex Court pointed out the discrepancies and errors in the multiplier scale given in the Second Schedule Table and in paragraph No.42, it has been laid down that multiplier should be '18' for the age groups of 15 to 20 and 21 to 25 years and reduced by one unit for every five years, that is multiplier of '17' for 26 to 30 years, multiplier of '16' for 31 to 35 years, multiplier of '15' for 36 to 40 years, multiplier of '14' for 41 to 45 years, and multiplier of 13 for 46 to 50 years and then reduced by two units for every five years, that is, multiplier of 11 MACA.No.928 OF 2013 10 for 51 to 55 years, multiplier of 9 for 56 to 60 years and multiplier of 7 for 61 to 65 years and multiplier of 5 for 66 to 70 years. That principle was followed by the Constitution Bench in Pranay Sethi's case also. So the suitable multiplier, in the present case, would be '18', since the deceased was 19 years old. 20. So, the monthly income would be [14500 + 5800 (40% of 14500) = Rs.20,300/-. Half of it will come to Rs.10,150/-. So the annual dependency would be Rs.21,92,400/- [10,150x18x12]. Out of it, the amount already awarded by the Tribunal is to be deducted. So the amount towards dependency would be **Rs.16,88,400** /- [21,92,400-5,04,000]. 21. The next contention of the learned counsel is with regard to the amount awarded under the conventional heads. The Tribunal awarded Rs.6,000/- towards funeral expenses, Rs.10,000/- towards loss of estate and towards loss of love and affection Rs.1,00,000/- was awarded. Learned counsel would contend that in Pranay Sethi's case it is held that the amount towards funeral expenses and loss of estate would be Rs.15,000/each and Rs.40,000/- towards the loss of consortium. The Apex Court also held that the above amount should be revisited on percentage basis in every three years and enhancement should MACA.No.928 OF 2013 11 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. 22. In this context, it is relevant to quote Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024]. That was a case in which the accident occurred on 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. Hence, towards MACA.No.928 OF 2013 12 the funeral expense the claimants are entitled to get Rs.16,500/-, from that the amount already awarded to be deducted. So the amount which the claimants are entitled to get is **Rs.10,500/-** [16500-6000] **.** Towards loss of estate also claimants are entitled to get Rs.16,500/-. From that, Rs.10,000/- already awarded to be deducted. So the balance amount will be **Rs.6,500/** -. 23. Next is with regard to the consortium to be awarded. In this context 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 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 MACA.No.928 OF 2013 13 child causes 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. So in this case, claimants 1 & 2 who are parents are entitled to get Rs.44,000/- each towards filial consortium, deceased being unmarried son and that would come to **Rs.88,000** /-. 24. The Apex Court in United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur & Ors. [AIR 2020 SC 3076 : I.L.R. 2020 (3) Ker. 334 : 2020 (3) KHC 760 (SC)] has held that once the amount is awarded under conventional heads in view of Pranay Sethi's case, no further amount can be awarded towards love and affection. So the amount of Rs.1,00,000/- given under love and affection by the Tribunal has to be deducted. So the total enhanced compensation the claimants are entitled to get is MACA.No.928 OF 2013 14 Rs.16,93,400/- [16,88,400+10,500+6,500+,88,000-1,00,000]. 25. In the result, the appellants are allowed to realize an enhanced compensation of **Rs.16,93,400/-** (Rupees sixteen lakhs ninety three thousand four hundred only) which will carry interest at the rate of **7.5%** per annum from the date of petition ie.16.02.2011, (excluding a period of 40 days the delay caused in filing the appeal) till realisation. The third respondent insurer shall satisfy the enhanced 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, after deducting the liability of the appellants/claimants towards Balance Court Fee. 26. The enhanced compensation granted in this appeal, excluding that granted to the 1[st] and 2[nd] appellants towards filial consortium, shall be apportioned among the appellants and 4[th] respondent in the ratio **20:40:20:20.** 27. The disbursement of enhanced compensation to appellants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. MACA.No.928 OF 2013 **==> picture [15 x 9] intentionally omitted <==** 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/- **M.R.ANITHA** **JUDGE** shgx