High Court of KeralaDivision Bench2013-07-19Appeal disposed of; award modified as described.

MACA.No. 1241 of 2010 (D) against the award dated 09/03/2010 in O.P.(M.V) No.986/2006 of the Motor Accidents Claims Tribunal, Kollam

Case / Petition Number:MACA.No.1241/2010-D

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
K. Ramakrishnan
Judgment Date: 2013-07-19
Court Decision / Holding: With the above modification of the Tribunal’s award, the appeal is disposed of. The court held that the deceased did not contribute to the accident, increased the monthly income to Rs. 2,500, applied the 4–6 dependants rule from Sarla Varma for personal expenses (1/4 deduction), enhanced loss of consortium and loss of love and affection, added Rs. 5,000 for loss of estate, and awarded an additional Rs. 1,00,952 with 9% interest. The insurer (2nd respondent) was directed to deposit the 20% deducted for contributory negligence with interest within two months. The distribution of the total compensation was specified (parents receive Rs. 50,000 each; amounts due to the deceased’s fifth claimant to be shared equally by respondents 3–6; remaining balance divided among appellants 1–3; wife’s share to her; children’s shares to be fixed deposits until majority).
Final Disposition: Appeal disposed of; award modified as described.

Parties to the Case

Appellants / Petitioners

SUDHARMAKUMARI
AMAL VIJAYAN
ARYA.S.VIJAYAN
KARUNAKARAN PILLAI

Respondents

RadhaKrishnan Pillai
The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Anchal C. Vijayan

Counsels for Respondents

• Sri. Reni Anto Kandamkulathy, S.C.

Case Synopsis & Summary

This appeal under MACA No. 1241 of 2010 arises from the Motor Accidents Claims Tribunal, Kollam’s award in OP(MV) No. 986/2006, as filed by the wife, two children and the father of Vijayan Pillai seeking compensation for his death in a road traffic collision caused by a vehicle owned by the first respondent and insured by the second respondent. The Tribunal found negligence by the driver and awarded compensation across heads including transport and funeral expenses, medical expenses, pain and sufferings, permanent disability, loss of consortium, and loss of love and affection, totaling Rs. 3,17,371 (rounded to Rs. 3,17,400). It deducted 20% for contributory negligence and fixed the deceased’s monthly income at Rs. 2,000, with five dependants. The appellants challenged liability and quantum. The High Court held there is no rule requiring pedestrians to walk along a road margin, thus negating contributory negligence by the deceased, and proceeded to reassess quantum. Income was raised to Rs. 2,500 per month; the personal expenses deduction was aligned with Sarla Varma’s rule for 4–6 dependants (1/4); losses for consortium and love/affection were increased; a loss of estate was added; an additional Rs. 1,00,952 was awarded with 9% interest. The insurer was directed to deposit the 20% previously deducted with interest within two months. The appeal was disposed of with these modifications.

Legal Doctrines & Maxims

Sarla Varma v. Delhi Transport Corporation (SC) 2010(2) KLT 802 – rule for personal expense deduction based on number of dependants (4–6 dependants → 1/4)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the deceased did not contribute to the accident; there is no rule mandating pedestrians to walk along the road margin; the driver could have avoided the accident and the claim for enhanced income and head-wise compensation should be allowed; they argued for higher quantum by fixing monthly income at Rs. 2,500 and applying Sarla Varma’s dependants rule (4–6 dependants) for personal expenses deduction; they pressed for increased loss of consortium, loss of love and affection, and inclusion of loss of estate.

Contentions of Respondents

The respondents (insurer) argued for keeping or validating the Tribunal’s findings or at least upholding some contributory negligence; they submitted that the Tribunal correctly applied the contributory negligence framework and the quantum. After hearing, the court reversed the contributory negligence finding and directed deposits of the deducted amount with interest.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Varma v. Delhi Transport Corporation	2010(2) KLT 802 (SC)	Positive	Court relied on the Sarla Varma rule for deducting personal expenses (1/4) when dependants are 4–6.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935** ## **MACA.No. 1241 of 2010 (D)** **-------------------------------------[AGAINST THE AWARD DTD. 09/03/2010 IN O.P(M.V).NO.986/2006 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM]** **.............** ## **APPELLANTS/PETITIONERS 1 TO 4 IN O.P.(M.V):** **---------------------------------------------------------------------** **1. SUDHARMAKUMARI, W/O VIJAYAN PILLAI, AMAL NIVAS, MANAKKARA MURI, SASTHAMCOTTA VILLAGE, KOLLAM DISTRICT.** **2. AMAL VIJAYAN, S/O. VIJAYAN PILLAI,** - **AMAL NIVAS, MANAKKARA MURI, SASTHAMCOTTA VILLAGE, KOLLAM DISTRICT.** **3. ARYA.S.VIJAYAN, AGED 16 YEARS, MINOR, D/O. VIJAYAN PILLAI, AMAL NIVAS, MANAKKARA MURI, SASTHAMCOTTA VILLAGE, KOLLAM DISTRICT.** ## **4. KARUNAKARAN PILLAI,** - **F/O VIJAYAN PILLAI, AMAL NIVAS, MANAKKARA MURI, SASTHAMCOTTA VILLAGE, KOLLAM DISTRICT. (1ST APPELLANT IS FILING THIS APPEAL FOR HERSELF AND FOR AND ON BEHALF OF 3RD APPELLANT ALSO WHO IS A MINOR).** ## **BY ADV. SRI.ANCHAL C.VIJAYAN.** **RESPONDENTS/RESPONDENTS 1 & 2 IN O.P.(M.V) & ADDL. PETITIONERS 6 TO 9 IN O.P.(M.V):** **---------------------------------------------------------------------------** **1. RADHAKRISHNA PILLAI, S/O. VIJAYAN PILLAI PULITHITTAYIL VENGA, MYNAGAPALLY P.O., KARUNAGAPALLY.** **2. THE NEW INDIA ASSURANCE CO. LTD., KOTTARAKKARA.** **Prv.** ## **M.A.C.A. NO.1241/2010-D:** **3. VIJAYAKUMARIAMMA,D/O. KAMALAMMA AMMA, SREEVIHAR, THOTTINUVADAKKU, CHAVARA, KOLLAM DISTRICT.** ## **4. PRASANNAKUMARI AMMA,** - **D/O. KAMALAMMA AMMA, SREEVIHAR, THOTTINUVADAKKU, CHAVARA, KOLLAM DISTRICT.** **5. MOHANAN PILLAI, S/O. KARUNAKARN PILLAI,** - **CHAKKINAL VEEDU, ARINALLOOR, THEVALAKKARA, KOLLAM DISTRICT.** ## **6. VALSAKUMARI AMMA,** - **D/O.KAMALAMMA AMMA, VRINDAVANAM, THOTTINUVADAKKU, CHAVARA, KOLLAM DISTRICT.** **R2 BY ADV. SRI.RENI ANTO KANDAMKULATHY, S.C.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------M.A.C.A. No.1241 of 2010 --------------------------------------------------------------Dated this, the 19[th] day of July 2013 ## Judgment ## Siri Jagan, J. The claimants in OP(MV) No.986/2006 before the Motor Accidents Claims Tribunal, Kollam, are the appellants herein. They are respectively the wife, children and father of the deceased Vijayan Pillai. Vijayan Pillai died in an accident caused by the negligent driving of a vehicle, owned and driven by the first respondent and insured with the second respondent. Appellants 1 to 4 and the parents of the deceased Vijayan Pillai filed the OP, claiming compensation for the death of Vijayan Pillai. During the pendency of the OP, the mother of the deceased died and respondents 3 to 6 have been impleaded as legal heirs of the deceased 5[th] respondent. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows : MACA No.1241/10 2 |**_Head_**|**_Amount ₹_**| |---|---| |**_Transport to hospital and_**<br>**_funeral expenses_**|**_5,000.00_**| |**_Medical expenses_**|**_69,423.00_**| |**_Pain and sufferings_**|**_15,000.00_**| |**_Permanent disability_**|**_207,948.00_**| |**_Loss of consortium_**|**_10,000.00_**| |**_Loss of love and affection_**|**_10,000.00_**| |**_Total_**|**_317,371.00_**| |**_Rounded off to_**|**_317,400.00_**| On a finding that the deceased contributed to the accident by his negligence, 20% was deducted from the compensation assessed by the Tribunal, in the award as payable to the claimants. Dissatisfied with the finding regarding negligence as also the quantum of compensation awarded by the Tribunal, the appellants have filed this appeal, seeking enhanced compensation. 2. We have heard the counsel for the Insurance Company also. 3. The accident occurred while the deceased was walking along a road, lying north south. The spot of the accident was 1.2 cms west from the eastern tar road end. The MACA No.1241/10 3 deceased was walking from north to south. The offending vehicle also came from north to south and hit the deceased from behind. The Tribunal found that there was a road margin through which only the deceased should have walked and on that ground, found negligence on the part of the deceased. We are not satisfied that there is any rule that pedestrians should walk only along the road margin. Apart from that, when a vehicle is coming from behind, the driver can very well see the person walking along the side of the road and unless the driver was totally negligent, the driver could have very well avoided the accident. Therefore, we are not satisfied that the deceased contributed to the accident by his negligence. Therefore, we set aside the finding of the Tribunal that the deceased contributed to the accident by his negligence by 20%. 4. The Tribunal fixed the monthly income of the deceased as Rs.2,000/-. The accident was on 19.1.2006 and the deceased died on 29.1.2006. The appellants claim that MACA No.1241/10 4 the deceased was earning a monthly income of Rs.5,000/from his business and agriculture. In 2006, a person can be expected to earn an income of at least Rs.2,500/- per month. Accordingly, we fix the income of the deceased as Rs.2,500/per month. 5. The Tribunal deducted 1/3[rd] for the personal expenses of the deceased, who was aged 46 years. The claimants were 5 in number, namely, the wife, two children and the parents of the deceased. Going by the decision in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), th where the number of dependants is between 4 to 6, only 1/4 can be deducted for the personal expenses of the deceased. Calculated on that basis, the appellants would be entitled to Rs.2,92,500/- (2500 x 12 x 13 x ¾), instead of Rs.2,07,948/awarded by the Tribunal under the head permanent disability. The difference would be Rs.84,552/-. 6. The first appellant was aged 36 years at the time of death of her husband. Therefore, we are of the opinion that the compensation awarded for loss of consortium awarded by the MACA No.1241/10 5 Tribunal, namely, Rs.10,000/- is on the lower side. We increase it to Rs.20,000/-. 7. Appellants 2 and 3 were minor children, aged 14 years and 12 years respectively and the parents were aged 76 and 65 years respectively. For the loss of love and affection of the parents and the children, Rs.10,000/- as compensation is also on the lower side. We increase it to Rs.20,000/-. 8. The Tribunal has not awarded any amount for loss of estate. We fix Rs.5,000/- as compensation under this head. Accordingly, the appellant would be entitled to an additional compensation of Rs.1,00,952/-, over and above what has been awarded by the Tribunal. That amount would carry interest @ 9% per annum from the date of the claim petition till the date of payment. The second respondent is liable to deposit the 20% deducted for contributory negligence with interest at the rate fixed by the Tribunal along with the additional compensation awarded by us as above. Such amounts shall be deposited by the 2nd respondent - Insurance Company, within a period of two months from today. MACA No.1241/10 6 9. We hold that out of the total compensation amount, Rs.50,000/- each shall be paid to the parents as their shares. The amounts due to the deceased 5th claimant in the OP shall be paid equally to respondents 3 to 6. The balance amount shall be divided equally among appellants 1 to 3. The share of the wife shall be disbursed to her. The share of the children shall be deposited in a Nationalised bank in fixed deposit account, bearing interest till they attain majority. After they attain majority, appellants 2 and 3 are free to approach the Tribunal for disbursal of their share also showing appropriate reasons for such disbursal. With the above modification of the award of the Tribunal, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA No.1241/10 7 MACA No.1241/10 8