MACA No.1838 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 6[TH] DAY OF APRIL 2022 / 16TH CHAITHRA, 1944** **MACA NO. 1838 OF 2010** **AGAINST THE JUDGMENT DATED 12.5.2010 IN OPMV 734/2004 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANTS/PETITIONERS:** 1 MRS.ROSSY, W/O LATE JOSE, THEETHAYI HOUSE, PAREKKATUKARA DESOM,, MURIYAD VILLAGE( P.O.), MUKUNDAPURAM TALUK. 2 MR.ROJO, S/O. LATE JOSE THEETHAYI HOUSE, PAREKKATUKARA DESOM, MURIYAD VILLAGE( P.O.), MUKUNDAPURAM TALUK. 3 MISS. RINTA, D/O. LATE JOSE THEETHAYI HOUSE, PAREKKATUKARA DESOM, MURIYAD VILLAGE( P.O.), MUKUNDAPURAM TALUK. 4 MR.JUSTIN, S/O. LATE JOSE THEETHAYI HOUSE, PAREKKATUKARA DESOM, MURIYAD VILLAGE( P.O.), MUKUNDAPURAM TALUK. 5 MR.JERIN, AGED 19 YEARS S/O. LATE JOSE, THEETHAYI HOUSE, PAREKKATUKARA, DESOM, MURIYAD VILLAGE( P.O.), MUKUNDAPURAM TALUK. BY ADV SRI.V.BINOY RAM ## **RESPONDENTS/RESPONDENTS:** 1 MR.BALAN P.R., M/S. PUZHEKADAVIL TRANSPORT PUZHEKADAVIL COMPLEX NO.1, NEAR BATA, SHOWROOM, HOSUR MAIN ROAD, MADIWALA,, BANGALORE - 560 068. 2 MR.RADHAKRISHNAN, S/O. SANKARANKUTTY NAIR, KAITHAKKAT (H), KOTTAPPADI DESOM, POOKKOD, VILLAGE, CHAVAKKAD TALUK. 3 NATIONAL INSURANCE CO.LTD. CHENNAI DIVISIONAL OFFICE VIII, MAMANJI CENTRE,, S-7, THIRU-VI-KA INDUSTRIAL CENTRE, GUNDY,, CHENNAI - 600 032. 4 M R. ASSOCIATES 4, MOOKAMBIKA COMPLEX LADY DOSILA ROAD, MULAPORE, CHENNAI - 600 004. BY ADVS. SRI.RAJESH NAMBIAR SMT.RAJI T.BHASKAR SMT.RAJI T.BHASKAR-R3 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1838 of 2010 2 ## **JUDGMENT** This appeal has been filed against the award in O.P.(MV) No.734/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the death of husband of 1[st] appellant and father of appellants 2 to 5 Sri.Jose. It is alleged that accident occurred on 3.5.2004 at about 10.05 p.m., while deceased was riding a motor cycle bearing Reg.No.KL-7/Z 7418, due to hit by tourist bus bearing Reg.No.KA-01/AD 6030 driven by the 2nd respondent. While undergoing treatment he died on the same day. It is alleged that the accident happened due to the rash and negligent driving of the bus by the 2[nd] respondent. 1[st] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. Additional supplementary 4[th] respondent is the agent of 3[rd] respondent. The appellants claimed a total compensation of Rs.3,50,000/-. 2. Before the Tribunal, respondent Nos.1 and 2 remained ex-parte. The supplementary 4[th] respondent filed written statement MACA.No.1838 of 2010 3 contending that as corporate agent under the 3[rd] respondent policy of insurance was issued in the name of the 1[st] respondent for the vehicle No. KA-01/AD 6030. 3. The 3[rd] respondent/insurer filed written statement, admitting the policy coverage with respect to the offending vehicle. The accident and injury sustained by the deceased was not disputed. 4. This claim petition was tried along with O.P.(M.V) No.874/2004. PW1 and RW1 examined. Exts.A1 to A13 series were marked from the side of the appellants/claimants. Ext.B1 to B3 marked from the side of the 3[rd] respondent. Tribunal on evaluating the evidence and facts and circumstances found that the accident happened due to the rash and negligent driving of the bus by the 2[nd] respondent. 1[st] respondent/owner is held liable for the act of the 2[nd] respondent. The 3[rd] respondent insurance company was held liable to indemnify the 1[st] respondent/owner. A total compensation of Rs.2,60,200/- was awarded. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants (herein after be referred as claimants) came up before this Court in appeal under various MACA.No.1838 of 2010 4 grounds stated in the Memorandum of appeal. 6. Notice to 1[st] respondent is dispensed with at the risk of the claimants. Adv.Smt.Raji T Bhaskar, entered appearance for the 3[rd] respondent/insurer. Service is complete as against 4[th] respondent. Adv.Rajesh Nambiar, entered appearance on behalf of the 4[th] respondent. 7. Heard the learned Counsel for the claimants as well as the learned Standing Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. 8. The accident as well as the liability of the 3[rd] respondent is not disputed. The only challenge is with regard to the quantum of compensation awarded by the Tribunal under various heads. 9. According to the learned counsel for the claimants, the deceased was an Agriculturist, he was earning Rs.6,000/- per month. But, the Tribunal taken the monthly income notionally as Rs.2,500/-. The learned counsel also would contend that the claimants produced Exhibits A8 and A9 to prove that he was an Agriculturist and hence monthly income of Rs.3,500/- taken by the Tribunal is very low. He also would contend that the compensation awarded under the conventional heads are also very low and hence, MACA.No.1838 of 2010 5 seeks for enhancement under those heads . 10. The learned Standing Counsel for the insurer/3rd respondent would contend that though Exhibits A8 and A9 has been produced, it will not reflect his income. 11. It is true that no documents as such could be produced by the claimants to prove the actual income of the deceased. PW1 the 1[st] appellant, deposed that the deceased has 4 acres of coconut garden and 75 cents of paddy land and is getting monthly income of Rs.6,000/-. However, no convincing materials have been produced to prove the actual income of the deceased. In the said circumstances, I am inclined to take monthly income of the deceased as Rs.5,000/- per month as per the principles in **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** . 12. In **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802),** the Apex Court laid down the principles to be followed in determining the quantum of compensation in a case of death out of Motor Vehicle accident. It is held that just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make good the loss MACA.No.1838 of 2010 6 sustained by the victim of accident as far as money can do. 13. In **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** constitution Bench of the Apex Court held that Section 168 of the Act deals with the concept of “just compensation” and that has to be determined on the foundation of fairness, reasonableness and equitable on acceptable legal standard because such determination can never be with 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. 14. In **Pranay Sethi** Constitutional Bench held that in case of self employed persons 10% to be added towards future prospects for this age group of 50 to 60 years. 15. In the present case, the deceased was an agriculturist aged 53 years at the time of accident. So, the claimants are entitled to get 10% future prospects also. So, the monthly income would be Rs.5,000+500 (10% of 5,000)= Rs.5,500/-. 16. 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 MACA.No.1838 of 2010 7 monthly income to calculate the contribution to the dependants and where number of dependent family members is between 4 and 6 the deduction would be ¼. Claimants here are 5 in number. That will come to Rs.1,375/- (¼ th of Rs.5,500/-). So, monthly contribution to the family would be Rs.4,125/- (Rs.5,500-1,375). 17. The deceased was 53 years old. The proper multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '11'. So, towards annual dependency the claimants are entitled to get Rs.4,125x12x11=Rs.5,44,500/-. Deducting the amount already awarded, balance would be Rs.3,24,500/- (Rs.5,44,5002,20,000/-). 18. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in **Pranay Sethi** followed by **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. [2018 (18) SCC 130],** the Apex court held that Rs.15,000/- to be awarded under the head MACA.No.1838 of 2010 8 loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 19. The learned counsel would contend that the Apex Court has also held that the above amounts should be revised 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/- towards loss of consortium. 20. In this case, 1[st] claimant, wife as well as the claimants 3 to 5 are entitled for consortium. 2[nd] claimant being a major son 27 years is not entitled to get any amount towards parental consortium. So, towards loss of consortium the claimants are entitled to get Rs.44,000x4=Rs.1,76,000/-. Once compensation has been awarded under the head of consortium, the claimants are further not entitled to get any amount towards loss of love and affection. So, Rs.15,000/- towards love and affection also has to be MACA.No.1838 of 2010 9 deducted. Rs.15,000/- already awarded towards consortium also to be deducted. So, deducting those amounts the claimants are entitled to get Rs.1,46,000/- (Rs.1,76,000-30,000) under the head of consortium. Towards funeral expenses the Tribunal already awarded Rs.3,000/-. Deducting that amount the claimants are entitled to get RS.13,500/- (Rs.16,500-3,000). Towards loss of estate no amount seen awarded by the Tribunal. So the claimants are entitled to get Rs.16,500/- towards loss of estate. So the claimants are entitled to get enhanced compensation of Rs.5,00,500/- (R.3,24,500+1,46,000+13,500+16,500). 21. In the result, appeal allowed and claimants are allowed to realise enhanced compensation of **Rs.5,00,500/-** in this appeal, which will carry interest at the rate of **6%** per annum from the date of petition till date of realisation. Enhanced compensation shall be apportioned in the ratio 50:10:10:10:20 among claimants 1 to 5 respectively, except the amount granted under consortium. The 3[rd] 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 certified copy of this judgment. 22. The disbursement of enhanced compensation to MACA.No.1838 of 2010 10 appellant 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. The 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 certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA JUDGE** SMF