MACA.No.1976 OF 2010 (C) — Against the award in OPMV 495/2008, Motor Accidents Claims Tribunal, Tirur

1 MACA.No.1976 OF 2010 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** **MACA.No.1976 OF 2010(C)** **AGAINST THE AWARD IN OPMV 495/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR DATED 9.10.2009** ## **APPELLANT/S:** - **1 PULLITHODI FATHIMA, W/O. LATE KUNHIMOHAMMED, MATHARAMBATH HOUSE,, P.O.TENHIPALAM, PIN-673 636, MALAPPURAM DISTRICT.** - **2 MATHARAMBATH MOHAMMED RASHID, AGED 15 YRS (MINOR), S/O. LATE KUNHIMOHAMMED,, MARAMBATH HOUSE, P.O.TENHIPALAM, PIN-673 636,, MALAPPURAM DISTRICT.** - **3 MATHARAMBATH MOHAMMED RAZAL, AGED 12 YRS (MINOR), S/O. LATE KUNHIMOHAMMED,, MARAMBATH HOUSE, P.O.TENHIPALAM, PIN-673 636,, MALAPPURAM DISTRICT.** - **4 MATHARAMBATH MOHAMMED RASHEEK, AGED 11 YRS (MINOR), S/O. LATE KUNHIMOHAMMED,, MARAMBATH HOUSE, P.O.TENHIPALAM, PIN-673 636,, MALAPPURAM DISTRICT.** - **5 MATHARAMBATH RISLA SHERIN, AGED 3 1/2 YRS (MINOR), D/O. LATE KUNHIMOHAMMED,, MARAMBATH HOUSE, P.O.TENHIPALAM, PIN-673 636,, MALAPPURAM DISTRICT., (THE MINORS ARE REP.BY THEIR MOTHER AND GUARDIAN,, THE 1ST APPELLANT)** **BY ADV. SRI.P.CHANDRASEKHAR** ## **RESPONDENT/S:** - **1 P.A.SIVARAMAN, PARAMEL HOUSE, PANNISSERY, KOONAMOOCHI P.O.,, THRISSUR, PIN-680 504.** - **2 RANJITH KUMAR K., S/O. VELU K.** - **KOZHIYATTU HOUSE, MAVOOR AMSOM, VALAYANNUR DESOM,, P.O.VALAYANNUR, PIN-673 661, MALAPPURAM DISTRICT.** - 3 **M/S.NEW INDIA ASSURANCE CO LTD., ORISON COMPLEX WADAKKANCHERRY ROAD, KUNNAMKULAM 680 503.** **R3 BY ADV. SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2021, THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:** 2 MACA.No.1976 OF 2010 ## **C.S.DIAS, J. ====================== MACA No.1976 of 2010** ## **====================== Dated this the 18[th] day of March, 2021.** ## **JUDGMENT** The appellants were the petitioners 1 to 5 in OP (MV) 495/2008 on the file of the Motor Accidents Claims Tribunal, Tirur. The sixth petitioner in the claim petition is no more. The respondents 1 to 3 were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988 (in short 'the Act'), claiming compensation on account of the death of one Matharambath Kunhimohammed (deceased) – the late husband of the first petitioner, father of petitioners 2 to 5 and son of the sixth petitioner. 3. The concise case of the petitioners in the claim petition, relevant for determination of appeal, is that on 3 MACA.No.1976 OF 2010 17.2.2008, while the deceased was travelling in a motor cycle bearing registration No.KL-10/M-6552 through Thrissur – Kozhikode National Highway when he reached the Chelambra Junction in Kakancheri, a bus bearing registration No.KL-46-3009 (offending vehicle) driven in a rash and negligent manner by the second respondent, hit the motor cycle of the deceased. The deceased fell on the road and was dragged for some distance. He sustained serious injuries. He was taken to the Red Crescent Hospital, Chungam and, thereafter, referred to the Medical College Hospital, Kozhikode. However, he unfortunately passed away on the same day. The deceased was a cook in a hotel. He was the sole breadwinner of the family and was earning Rs.200/- per day from his employment. The petitioners were fully depending on the income of the deceased. The petitioners have no job or avocation. The accident occurred solely due to the negligence on the part of the second respondent, who drove the offending vehicle in a rash and negligent manner. The offending vehicle was owned by the first respondent and insured with the third respondent. 4 MACA.No.1976 OF 2010 Therefore, the respondents 1 to 3 were jointly and severally liable to pay compensation to the petitioners, which they quantified at Rs.16,70,000/-. 4. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent – Insurance Company – filed a written statement admitting that the offending vehicle was covered by a valid insurance policy. However, it was contended that the accident occurred due to the gross negligence on the part of the deceased, who rode the motor cycle in an inexperienced manner without observing the Rules and Regulations. Moreover, he was not holding a driving licence. Hence, the respondents prayed that the claim petition be dismissed. 6. The first petitioner was examined as PW1 and Exts A1 to A20 were marked through her in evidence. The respondents did not adduce any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the third respondent to 5 MACA.No.1976 OF 2010 pay an amount of Rs.4,72,000/- to the petitioners with interest at the rate of 7.5% per annum from the date of petition till the date of realisation with costs of Rs.6,000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 1 to 5 are in appeal. 9. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the third respondent – Insurance Company. 10. The question that emanates for consideration in the appeal is whether the amount of compensation awarded by the Tribunal is reasonable and just. 11. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation', and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of 6 MACA.No.1976 OF 2010 fairness, reasonableness and non-violation of the principle of equitability. 12. Ext A6 charge-sheet filed by the Police after investigation, based on Ext A3 inquest report, Ext A4 scene mahazar and Ext A5 series AMVI reports, substantiate that the accident was caused due to the rash and negligent driving of the offending vehicle by the second respondent. Ext A2 postmortem report and Ext A7 body mahazar proves that the deceased expired on 17.2.2008 as a result of the accident. Exts A9 to A15 prove that the petitioners are the legal heirs of the deceased. Ext A16 death certificate establishes that the sixth respondent – the mother of the deceased - also expired. 13. The principal area of dispute in this appeal is with regard to the fixation of the notional income of the deceased as well as the non-award of compensation on the conventional heads and future prospects to the petitioners. 14. It was the specific case of the petitioners that the deceased was employed as a Cook in a hotel, by name, Friends Hotel, 14[th] Mile, Olippuram Road. The petitioners 7 MACA.No.1976 OF 2010 claimed that the deceased was earning an income of Rs.200/- per day. He was, undisputedly, 34 years on the date of his death. 15. The Tribunal fixed the notional income of the deceased at Rs.3,000/- per month. 16. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** has fixed the notional income of a coolie worker at Rs.4,500/- in the year 2004 and that of a vegetable vendor at Rs.6,500/- in the year 2006, respectively. In **Pushkar Mehra vs. Brij Mohan Kushwala and others** [(2015) 12 SCC 688] the Hon'ble Supreme Court had fixed the notional income of a skilled labourer in the year 2004 at Rs.7,020/- per month. ## **Notional Income** 17. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decisions and considering the fact that the deceased was aged 34 years on the date of 8 MACA.No.1976 OF 2010 his death and was employed as a Cook in a hotel and he passed away in the year 2008, I am of the considered opinion that the deceased's notional income can safely be fixed at Rs.6,500/- as claimed in the claim petition. Hence, I fix the deceased's notional income at Rs.6,500/- per month. ## **Future prospects** 18. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** and in line of subsequent decisions the Hon'ble Supreme Court has categorically laid down the law that the dependents of the deceased are entitled for future prospects @ 40% of the total compensation to be awarded under the head loss of dependency, in the case where the deceased was a self employed person. Undisputedly, the deceased was a self employed person and the petitioners were his dependents. 19. In the said circumstances, following the ratio in **Sarla Verma** and **Pranay Sethi** (supra), adopting the multiplier at '16' and fixing the notional income of the deceased at Rs.6,500/- per month, I fix the compensation under the head 'loss of dependency with future prospects' at 9 MACA.No.1976 OF 2010 Rs.13,97,760/- instead of Rs.4,32,000/- as fixed by the Tribunal. ## **Conventional Heads of Compensation** 20. In **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others- [(2020(3)KHC 760],** the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads of funeral expenses, loss of estate and loss of consortium. The Hon'ble Supreme Court in concluding paragraph of **Pranay Sethi** (supra) has gone onto hold in clause (viii) of paragraph 61 that, the compensation to be awarded under the conventional heads has to be enhanced @ 10% in every three years from the date of the judgment in **Pranay Sethi** (supra) on 31.10.2017. Since we are in March 2021, the petitioners are entitled for compensation under the heads 'loss of estate' at Rs.16,500/-, 'funeral expenses' at Rs.16,500/- and loss of consortium, namely, spousal consortium to the first petitioner @ Rs.44,000/-, parental consortium to the petitioners 2 to 5 @ Rs.44,000/- each and filial consortium to 10 MACA.No.1976 OF 2010 the sixth petitioner @ Rs.44,000/- totalling to an amount of Rs.2,64,000/-. ## **Other Heads of claim** 21. I find that the Tribunal had not awarded any amount under the heads, transportation expenses, damage to clothing and pain and sufferings. Accordingly, I award an amount of Rs.2,000/- towards transportation expenses as the deceased was taken to two hospitals, Rs.500/- towards damage to clothing and Rs.10,000/- towards pain and sufferings. 22. It is seen that the Tribunal has awarded an amount of Rs.20,000/- under the head loss of love and affection to the petitioners 2 to 5. In view of the fact that the compensation has been awarded for loss of love and affection, I hold that the petitioners are not entitled for compensation under the said head of claim. ## **Personal and living expenses** 23. In light of the ratio in **Sarla Verma** (supra) and as the deceased has six dependents, one-fourth of the total amount that has been awarded is to be deducted towards 11 MACA.No.1976 OF 2010 the personal living expenses of the deceased. 24. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited precedents, I am of the firm opinion that the appellants are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transport to Hospital|Nil|2,000/-| |2|Damage to clothing|Nil|500/-| |3|Funeral expenses|5,000/-|16,500/-| |4|Pain and sufferings|Nil|10,000/-| |5|Loss of estate|5,000/-|16,500/-| |6|Loss of consortium|10,000/-|2,64,000/-| |7|Loss of dependency|4,32,000/-|13,97,760/-| |8|Loss of love and affection|20,000/-|20,000/-| ||Total|4,72,000/-|17,27,260/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.12,55,260/(Rupees Twelve Lakh Fifty Five Thousand Two Hundred and Sixty only) with interest on the enhanced compensation at the rate of 7.5% per annum from the date of claim petition till the date of realisation with proportionate costs. The 12 MACA.No.1976 OF 2010 third respondent shall deposit the additional compensation granted in this appeal before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation to the appellants 1 to 4/petitioners 1 to 4 in proportion and in accordance with law. The proportionate claim of the fifth appellant shall be put in fixed deposit till she attains the age of majority. The disbursement of compensation to the sixth claimant shall be made to her legal representatives, in accordance with law. SKS/18.3.2021 **Sd/C.S.DIAS JUDGE**