MACA No.2319 of 2009 (Balkees B. & Ors v. Muralidharan & Ors)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943** ## **MACA NO. 2319 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1170/1997 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, PALAKKAD** ## **APPELLANTS/PETITIONERS:** - **1 B.BALKEES B.,AGED 50 YEARS, W/O.LATE CHANDU MOHAMMED ROWTHAR,, RESIDING AT POOLAMPARA, WALAYAR DAM P.O., PUDUSSERY EAST VILLAGE, PALAKKAD DISTRICT.** - **2 JEENATH THUMEEZA -DO-** - **3 NAZEER -DO-** - **4 HAMEED AMMA -DOBY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** - **1 MURALIDHARAN, AGED 41 YEARS S/O.RAMACHANDRAN, RESIDING AT CHELAT,, ASOKAPURAM, ALUVA VILLAGE, (DRIVER OF MARUTHI CAR NO.KL.7.TC 97E.86), DL.NO.104/87/PO.** - **2 THE MANAGER M/S.POPULAR VEHICLES & SERVICES LTD., MAMANGALAM, KOCHI, (R.C.OWNER OF MARUTHY CAR NO.KL.7.TC 97E-86).** - **3 THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, M.G.ROAD,, ERNAKULAM-682 016. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2319 OF 2009 2 ## **JUDGMENT** This appeal is directed against the Award passed in O.P. (M.V)No.1170/1997 on the file of Motor Accident Claims Tribunal, Palakkad. 2. Appellants are the claimants in the above O.P.(M.V.) and the legal heirs of deceased Chandu Mohammed Rowther. 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.5 lakhs on account of the death of deceased Chandu Mohammed Rowther (hereinafter be referred as the deceased). The first appellant is the wife, appellant Nos.2 & 3 are the children and 4[th] appellant is the mother of the deceased. 3. It is alleged that on 25.03.1997 at about 8.30 p.m while the deceased was walking through the side of public road at Marathakkara, a maruti car bearing Registration No.KL 7 TC 97 E.86 driven by the first respondent came from behind and knocked him down, by which, he sustained grievous injuries. He was taken to West Fort Hospital, Thrissur and timely medical attention was given, but he succumbed to the injuries on 06.04.1997 at the hospital. It is alleged that the accident MACA.No.2319 OF 2009 3 occurred due to the rash and negligent driving of the first respondent. Second respondent is the R.C. owner of the vehicle involved in the accident and the third respondent is the insurer. 4. Before the Tribunal, respondents 1 and 2 denied the rashness and negligence on the part of the first respondent. It is also contended that the claim of the petitioners are highly excessive and exorbitant and baseless. 5. The third respondent filed written statement admitting the insurance coverage of the vehicle involved. Though there was a contention of duplication of claim by the petitioners in filing a separate O.P.No.875/1997 before the Motor Accidents Claims Tribunal, Thrissur, the judgment of the Tribunal would go to show that the counsel for the third respondent made an endorsement in the written statement to the effect that O.P. No.875/1997 before the Motor Accidents Claims Tribunal, Thrissur was withdrawn by the claimants. It is further contended that petitioners are put to strict proof of the income and occupation of the deceased. 6. PWs 1 and 2 were examined and Exts.A1 to A13 were marked from the side of the appellants/claimants (hereinafter be referred as claimants). MACA.No.2319 OF 2009 4 7. On evaluating the pleadings and evidence and hearing both sides, it was found by the Tribunal that accident occurred due to the rash and negligent driving of the first respondent. Since the policy coverage is not disputed, the third respondent Insurance Company was held liable to pay the compensation. The Tribunal awarded a total compensation of Rs.2,93,250/(Rupees two lakhs ninety three thousand two hundred and fifty only) with interest at the rate of 9% per annum from the date of petition i.e. on 01.09.1997 till the date of deposit and cost of Rs.500/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimants came up in appeal before this Court on various grounds stated in the memorandum of appeal. 9. Heard the learned counsel for the appellants and also the learned Standing Counsel for the third respondent Insurance Company. Lower court records were called for and perused. 10. The argument of the learned counsel for the appellants was mainly on the head of fixation of monthly income at the rate of Rs.2,100/- for the purpose of assessing the compensation. According to the learned counsel, petitioners claimed monthly MACA.No.2319 OF 2009 5 income as Rs.3,000/- per month in the claim petition and during evidence PW1 deposed that deceased was earning monthly income of Rs.4,000/-. The accident was on 25.03.1997. So, according to the learned counsel, in view of the evidence tendered by PW1 and the claim shown in the petition as Rs.3,000/-, at least Rs.3,000/- ought to have been fixed as the monthly income of the deceased. The age of the deceased was 40 years at the time of incident. 11. The learned counsel for the third respondent on the other hand would contend that the income of Rs.2,100/- fixed by the Tribunal is very just and reasonable in view of the fact that the accident occurred in the year 1997 and according to him no interference is called for in the monthly income fixed by the Tribunal. 12. In this case, the compensation awarded by the tribunal under various heads are as follows: |ous heads are as follows:|| |---|---| |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |Transportation charges|2,000-00| |Damage to clothing|250-00| |Funeral expenses|2,000-00| |Loss of estate|2,500-00| |Pain and sufferings|7,000-00| |Medical expenses|20,000-00| MACA.No.2319 OF 2009 6 |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |---|---| |Loss of consortium to the 1st<br>petitioner|7,500-00| |Loss of dependency|2,52,000-00| |Total|2,93,250-00| 13. Towards monthly income, as stated earlier, the claim of the appellants in the claim petition was Rs.3,000/- per month and during evidence PW1 deposed it as Rs.4,000/- per month and the Tribunal fixed the monthly income as Rs.2,100/-. 14. The accident was occurred on 25.03.1997 and at the time of accident the deceased was 40 years old. The total claim under various heads is Rs.5 lakhs. Deceased is claimed to be a Driver.Ext.A7 is the driving licence issued to the deceased. It would show that he was authorized to drive Heavy Goods Vehicle with effect from 11.02.1991 and it was renewed upto 16.11.1996.Monthly income claimed in the petition is Rs.3,000/per month. But during evidence PW1, the wife of the deceased deposed the monthly income as Rs.4,000/-. Ext.A7 driving licence of the deceased would prove that he was authorized to drive heavy vehicle, though would show that the licence was renewed only upto 16.11.1996. So as on the date of accident there was no MACA.No.2319 OF 2009 7 valid driving licence. However his occupation as driver will not be effaced for the reason that license was not in force or was expired about three months back of the incident. True, the claimants did not produce any document to prove the actual income of the deceased. In this context the learned counsel for the appellants bring to my attention Mohd. Ameeruddin v. United India Insurance Co. Ltd. [2011(1)KLT Suppl. 23 (SC)]. In that case deceased was a cleaner in a tanker Lorry aged 20 years and accident occurred on 22.10.1997 and parents were the claimants. Proceedings were held ex parte before the Tribunal. Hence his monthly salary as Rs.2,500/- and daily batta at the rate of Rs.50/- was taken together and accordingly his monthly earning was taken as Rs.4000/-. That was upheld by the Apex Court. So according to the learned counsel the deceased was a driver in this case and hence Rs.4,000/- as monthly income spoken to by PW1 ought to have been accepted by the Tribunal. 15. But in the case in hand monthly income claimed in the claim petition is Rs.3,000/-. Though his occupation originally stated as coolie is subsequently amended as Driver, there is no amendment made with respect to monthly income. Only during evidence PW1 deposed the monthly income as Rs.4,000/- without MACA.No.2319 OF 2009 8 any supporting documents. Whereas, in the above cited decision, it has been found by the Apex Court that there was evidence on record to prove that the deceased was having a monthly salary of Rs.2,500/- from the Company and daily allowance of Rs.50/-. Respondents were ex-parte to the proceedings also. Whereas the third respondent in this case was hotly contesting the case from the beginning. During cross examination of PW1 it was put to her that licence was not renewed after 16.11.1996. It was also brought out that he was not paying amount in welfare fund etc. 16. Assain v. Keeran [2010 (4) KLT 209] was further relied on by the counsel for the claimants. In that case, claimant was a Driver in M/s. Grasim Industries, Mavoor, Calicut and claimed a monthly salary of Rs.4306.66 as borne out from the salary certificate which was marked as Ext.A3. The accident in that case was on 26.08.1992. Respondent did not dispute the salary certificate. Inspite of that the Division Bench of this Court reckoned the monthly income as Rs.3,000/-. 17. In the case on hand, the Tribunal taken the monthly income as Rs.2,100/-. It has come out in evidence that the deceased was having heavy vehicle driving licence though it expired few months back of the incident. The amount claimed in MACA.No.2319 OF 2009 9 the petition is Rs.3,000/- per month. PW1 though deposed the monthly income as Rs.4,000/-, there is no document produced to prove that income. So taking into account the totality of the facts and circumstance, I find it just and proper to fix the the monthly income of the deceased as Rs.3,000/- per month. 18. The learned counsel for the appellants further claims for 25% enhancement towards future prospects as has been held in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121] the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was below 40 years and the said addition was reduced by 30% if the age of the deceased was 40 – 50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons having permanent job. 19. But in Pranay Sethi's case the Apex Court though accepted the findings in Sarla Verma's case in fixing the multiplier made some 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 MACA.No.2319 OF 2009 10 there is no rationale not to apply the said principle to the selfemployed 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's case 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 in the case of 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, in the present case, the claim of the counsel for 25% enhancement towards future prospects of the deceased is in compliance of the law laid down in Pranay Sethi's case. So the monthly income of the deceased can be computed as 3000+750 (25% of Rs.3000/) = Rs.3,750/-. The multiplier as per Sarla Verma's case which has been correctly followed by the Tribunal as '15'. That is followed MACA.No.2319 OF 2009 11 in Pranay Sethi's case also. 20. 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 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) as made out in the facts and circumstances of the case. 21. 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 MACA.No.2319 OF 2009 12 exactly correspond to the number of dependants. 22. In Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram and Ors. [(2018) 18 SCC 130], with respect to deduction of personal expenses in the case of the death of a bachelor son in that case was made as one-third instead of ½ taking into account the fact that deceased was living in a village where he was residing with his aged father who was 65 years of old and unmarried sister and both of them were considered as dependants of the deceased. 23. The deceased was 40 years old at the time of accident in this case. He was having a family consisting of 4 dependants. First appellant is the wife and appellants 2 and 3 are the children and the 4[th] appellant is the mother. 24. In the present case, deceased has 4 dependants. So from Rs.3,750/- already arrived at, one-fourth has to be deducted towards personal and living expenses of the deceased and balance (3750-937.5) is Rs.2,812.5. Applying the multiplier of '15', the compensation under the head of loss of dependency would be 2812.5x12x15=5,06,250/-. Deducting the amount already awarded by the Tribunal, the additional compensation under the head of loss of dependency will be **Rs.2,54,250/-** MACA.No.2319 OF 2009 13 [5,06,250– 2,52,000]. 25. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in Pranay Sethi's case. The Tribunal awarded Rs.2,500/- towards loss of estate, Rs.7,500/- towards loss of consortium to the first claimant and Rs.2,000/- towards funeral expenses. In Pranay Sethi's case, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 26. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited 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/- x 4 towards loss of consortium is Rs.1,76,000/-. MACA.No.2319 OF 2009 14 27. The learned counsel for the third respondent in this context would contend that the incident occurred in the year 1997 and the Tribunal passed the Award on 28.12.2004. So the appellants are not entitled for any enhancement of 10% as laid down in Pranay Sethi's case. In this context, claimant's counsel brought to my attention 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.2319 OF 2009 15 loss of estate and funeral expenses, claimants are entitled to get Rs.33,000/- [16500+16500]. From that the amount already awarded under those heads are to be deducted, then the amount will be **Rs.28,500/** -. [33000-2000+2500]. 28. Next is with regard to the consortium to be awarded, 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 child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their MACA.No.2319 OF 2009 16 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. 29. Parental consortium can be granted to the children upon the premature death of a parent for the loss of “parental aid, protection, affection, society, discipline, guidance and training” apart from spousal consortium. 30. Here, the appellants 2 and 3 are minors, aged 17 and 16 years. So the amount of Rs.44,000/- each for parental consortium can be granted to the appellants 2 and 3. As far as the filial consortium is concerned, since the deceased was aged 40 years and he was having his own family and has been living with wife and children and the 4[th] appellant is also aged 70 years no amount need be awarded under filial consortium. So under the head of loss of consortium, in total, the petitioners are entitled for a compensation of Rs.44000 x 3 =1,32,000/-. From MACA.No.2319 OF 2009 17 that Rs.7,500/- awarded by the Tribunal to be deducted ie.1,32,000 -7,500= **1,24,500** /-. 31. The Tribunal awarded Rs.7,000/- towards pain and sufferings, which the learned counsel for the appellants wanted to uphold. But the counsel for the third respondent placed reliance on 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)] to contend that once the claimants are awarded amounts towards the conventional heads no amount can be awarded towards pain an suffering. But on going through the said decision, what could be gathered is that, the law laid down therein is that once the amounts are awarded under the conventional head in view of Pranay Sethi's case, no further amount can be awarded towards love and affection. Here, Rs.7,000/- has been awarded by the Tribunal not under the head of love and affection but towards pain and sufferings. It has come out that the deceased died on the 11[th] day of the accident. Grievous injuries also sustained to him on his vital parts. So no interference is called for in that aspect. Contention to the contra advanced by the learned counsel for the 3[rd] respondent is only to be negatived. Hence the total enhanced compensation the MACA.No.2319 OF 2009 18 claimants are entitled to get is **Rs.4,07,250/-** [Rs.2,54,250+28,500+1,24,500]. 32. Next is with regard to the interest. According to the learned counsel for the third respondent, the accident is of the year 1997 and hence 9% interest awarded by the tribunal is on a bit higher side. In view of the facts and circumstances and the rate of award of interest now followed, I am of the view that the future interest can be restricted to 7.5% on the enhanced amount from the date of petition. 33. In the result, the appellants will be entitled for payment of enhanced compensation of **Rs.4,07,250/-** (Rupees four lakhs seven thousand two hundred and fifty only) which will carry interest at the rate of 7.5% per annum from the date of petition ie.29.08.1997, till realisation. The third 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 a certified copy of this judgment, after deducting the liability of the appellants/claimants towards Balance Court Fee. 34. The disbursement of enhanced compensation to appellants shall be made taking note of the law on the point and MACA.No.2319 OF 2009 **==> picture [15 x 9] intentionally omitted <==** 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. 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. Parties shall bear their respective costs. 35. The enhanced compensation granted in this appeal, excluding that granted to the 1[st] appellant as spousal consortium, that granted to appellants 2 and 3 under the head parental consortium shall be apportioned among the appellants in the ratio 40:20:20:20. As per order dated 29.03.2019 in C.M.Appln.No.2722/2009, while condoning the delay, it was ordered that the appellants would not be entitled to get interest for a period of 1628 days occurred in the matter of filing appeal. In such circumstances, it is made clear that the appellants would not be entitled to get interest for the period of 1628 days. MACA.No.2319 OF 2009 20 In the result appeal stands allowed. Parties shall bear their respective costs. Sd/- **M.R.ANITHA** **JUDGE** shg