Mallika and others v. V.R. Ramachandran and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA,** **1943** **MACA NO. 1669 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 3084/2001 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL** ## **THRISSUR** ## **APPELLANT/S:** 1 MALLIKA AGED 50 YEARS W/O PRABHAKARAN NAIR PERULIL HOUSE,, KADAVANTHARA, ERNAKULAM DISTRICT. 2 PRAJITH S/O.PRABHAKARA NAIR. PERULIL HOUSE,, KADAVANTHARA, ERNAKULAM DISTRICT. 3 PRAVEENA MINOR D/O.PRABHAKARAN NAIR PERULIL HOUSE,, KADAVANTHARA, ERNAKULAM DISTRICT. (MINOR APPELLANT 3 IS REPRESENTED BY HER GUARDIAN MOTHER THE 1ST APPELLANT HEREIN), BY ADV T.C.SURESH MENON ## **RESPONDENT/S:** 1 V.R.RAMACHANDRAN S/O RAMAKRISHNAN RESIDING AT VALAPARAMBIL HOUSE,, P.O.KANJANY, THRISSUR. MACA NO. 1669 OF 2009 2 2 CHANDRAN S/O.KUMARAN RESIDING AT CHILLIPARAMBIL HOUSE, NEAR TO SRI.SANKARAN SHED, KANJANY,, MANALOOR, THRISSUR. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED KOLLANNUR BUILDINGS, PALACE ROAD,, THRISSUR (DIVISIONAL OFFICE). 4 K.C.RUGMANI AMMA W/O.MADHAVAN NAIR RESIDING AT CHUNTHARATH HOUSE,, KOOGALAKKODE, KAVASSERY P.O.,, ALATHUR, PALAKKAD. 5 LAKSHMIKUTTY D/O.MADHAVAN NAIR RESIDING AT CHUNTHARATH HOUSE,, KOOGALAKKODE, KAVASSERY P.O.,, ALATHUR, PALAKKAD. BY ADV. LAL K JOSEPH, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1669 OF 2009 3 ## **`JUDGMENT`** ``` The appellants were the petitioners in O.P(M.V) No.3084/2001 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. ``` ``` 2. The appellants had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 'Prabhakaran Nair' (deceased), the husband of the first appellant and the father of the appellants 2 and 3. It was their case, on 20/08/2001, while the deceased was travelling in a bus bearing Registration No. KER 7081 (bus), through the Swaraj Round, Thrissur. When the bus reached the Bini Junction, the deceased attempted to alight from the bus, but the second respondent/driver of the bus, without giving any signal and in a negligent manner moved the bus ``` MACA NO. 1669 OF 2009 4 ``` forward. The deceased fell down and sustained severe injuries. Even though he was taken to the Medical College Hospital, Thrissur, his life could not be saved. The first respondent was the owner and the third respondent was the insurer of the bus. The respondent Nos. 4 and 5 were the mother and sister of the deceased. The deceased was a driver by profession and earning a monthly income of Rs.5,000/-. The appellants were the dependants of the deceased. Hence, the appellants sought an amount of Rs. 5,00,000/- (Rupees Five Lakh Only) from respondent Nos. 1 to 3 as compensation. ``` ``` 3. The respondent Nos. 1 and 2 had filed a written statement contending that the deceased was not a passenger in the bus. It is averred that there was no negligence on the part of the 2[nd] respondent, and the accident occurred due to the negligence of the deceased. ``` MACA NO. 1669 OF 2009 5 ``` 4. The third respondent had filed a written statement admitting that the bus had a valid insurance coverage. It was contended that the appellants had filed another original petition before Motor Accidents Claims Tribunal, Palakkad. Hence, the present claim petition was not maintainable. The 3[rd] respondent prayed that the claim petition be dismissed. ``` `5. The appellants produced and marked Exhibits A1` `to A7(2) in evidence. The 3[rd] respondent produced a copy of the insurance policy and marked it as Exhibit B1.` ``` 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to realise and amount of Rs.3,02,000/- (Rupees Three Lakhs and Two Thousand Only) with interest at the rate of 7% per annum, from the rate of petition till date of payment and proportionate ``` MACA NO. 1669 OF 2009 6 ``` costs. ``` `7. Dissatisfied with the quantum of compensation` `awarded by the Tribunal, the petitioners/appellants are in appeal.` `8. Heard; Sri. T.C. Suresh Menon, the learned` `counsel appearing for the appellant/petitioners and Sri Lal K. Joseph, the learned counsel appearing for the 3[rd] respondent/insurer.` `9. The sole question that arises for consideration is:-` `“whether the quantum of compensation awarded by the Tribunal is reasonable and just?”` ## **`- Insurance and Liability:`** ``` 10. Exhibit A6 final report filed by the Traffic police, Thrissur in Crime No. 363/2001 substantiates that the accident occurred due to the negligence of the second ``` MACA NO. 1669 OF 2009 7 ``` respondent. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The 3[rd] respondent has admitted the insurance policy and has not alleged that the 1[st] respondent has violated the policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent and pay the compensation amount. ``` ## **`- Notional Income:`** ``` 11. The appellants have claimed that the deceased was a Driver by profession and was earning a monthly income of Rs. 5000/-. But, the Tribunal fixed the monthly income of the deceased notionally at Rs. 2000/-. ``` ## `12. In` **`Ramachandrappa v. Manager, Royal`** ## **`Sundaram Alliance Insurance Company Limited`** ``` [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year ``` MACA NO. 1669 OF 2009 8 ## `2004 at Rs. 4500/- per month.` ``` 13. Following the benchmark fixed in the aforesaid decision and taking into account that the accident occurred in the year 2001, I am of the opinion that the notional income of the deceased can safely be fixed at Rs. 3,000/- per month. ``` ## **`- Multiplier:`** ``` 14. The deceased was aged 44 years at the time accident. In the light of the law laid down in Sarla Varma and others v. Delhi Transport Corporation and others ``` ``` [(2010) 2 KLT 802 (SC)], the relevant multiplier is '14'. ``` ## **`- Dependents of the deceased:`** ``` 15. It is proved that the appellants were the wife and two children of the deceased. So, they are three in number and all three of them were the dependents of the deceased. ``` MACA NO. 1669 OF 2009 9 `16. In the light of the decision in` **`Sarla Verma and`** ``` National Insurance Company Ltd. v. Pranay Sethi ``` ``` [2017 (4) KLT 662 (SC)], 1/3rd of the compensation has to be deducted towards the personal living expenses of the deceased. ``` ## **`- Future Prospects:`** `17. Following the ratio in` **`Sarla Verma`** `and` **`Pranay`** ``` Sethi (supra) and considering the fact that the deceased was aged 44 years at the time of accident, the appellants are also entitled for future prospects at 25% on the compensation for 'loss of dependency'. ``` ## **`- Loss due to dependency:`** ``` 18. Taking into account the above-mentioned factors, that is the monthly income of the deceased at Rs. 3,000/-, the multiplier at '14', future prospects at 25% and after deducting 1⁄3[rd] of the compensation for loss of dependency ``` MACA NO. 1669 OF 2009 10 ``` towards personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' of the appellants at Rs. 4,20,000/- instead of Rs.2,40,000/- awarded by the Tribunal. ``` ## **`- Conventional heads of compensation:`** ``` 19. In clause (viii) of paragraph 61 of Pranay Sethi (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely, 'funeral expenses', 'loss of consortium' and 'loss of estate' at the rate of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. ``` ``` 20. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- towards 'funeral expenses' and Rs.10,000/- towards 'loss of estate'. In view of the law laid down inPranay Sethi (supra), I enhance the compensation under the head 'funeral expenses' by a ``` MACA NO. 1669 OF 2009 11 ``` further amount of Rs.10,000/- and compensation for 'loss of estate' by a further amount of Rs.5,000/-. ``` ``` 21. The Tribunal has awarded an amount of Rs.15,000/- towards 'loss of consortium'. As the appellants are the wife and children of deceased, I hold that all the three appellants are entitled for compensation for 'loss of consortium' at Rs. 40,000/- each, i.e., totaling to an amount of Rs.1,20,000/- which is an enhancement by a further amount of Rs.1,05,000/-. ``` ## **`- Loss of love and affection and pain and sufferings:`** ``` 22. The Tribunal has awarded an amount of Rs.15,000/- as compensation for 'pain and sufferings' and and Rs.15,000/- for 'loss of love and affection'. ``` ``` 23. In New India Assurance Company Ltd. v. Somwati & Ors. [2020(9)SCC 644], the Hon'ble Supreme Court has held that once compensation is ``` MACA NO. 1669 OF 2009 12 ``` awarded under the head 'loss of consortium', no amount can be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. ``` `24. Similarly, in` **`United India Insurance Company`** **`Ltd. v. Satinder Kaur @ Satwinder Kaur and Others`** ``` [2020(3)KHC 760], the Hon'ble Supreme Court has held that in the case of instantaneous death, no amount can be awarded under the head 'pain and sufferings'. ``` ``` 25. Therefore, I set aside the amounts of Rs. 15,000/- and Rs.10,000/- awarded by the Tribunal under the above heads. ``` ``` 26. With respect to the compensation awarded under the heads 'transportation expenses' and 'damage to clothing', I find the same to be reasonable and just. ``` `27. On a comprehensive re-appreciation of the` `pleadings and materials on record and the law referred to` MACA NO. 1669 OF 2009 13 ``` in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. ``` |**`Sl.`**<br>**`No.`**|**`Head of claim`**|**`Amount`**<br>**`awarded by`**<br>**`Tribunal`**<br>**`(in Rs.)`**|**`Amount`**<br>**`modifed and`**<br>**`recalculated`**<br>**`by this Court`**<br>**`(in Rs.)`**| |---|---|---|---| |`1`|`Transportation to`<br>`hospital`|`1,500`|`1,500`| |`2`|`Damage to clothing`|`500`|`500`| |`3`|`Funeral expenses`|`5,000`|`15,000`| |`4`|`Pain and sufferings`|`15,000`|`0`| |`5`|`Love and affection`|`15,000`|`0`| |`6`|`Loss of estate`|`10,000`|`15,000`| |`7`|`Loss of consortium`|`15,000`|`1,20,000`| MACA NO. 1669 OF 2009 14 |`8`|`Loss of dependancy`|`2,40,000`|`4,20,000`| |---|---|---|---| ||**`Total`**|**`3,02,000`**|**`5,72,000`**| ``` In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.2,70,000/- (Rupees Two Lakhs and Seventy Thousand Only) with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 210 days, i.e., the period of delay in flng the appeal and as ordered by this Court 20.07.2021 in C.M. Appl. No. 1909/2009, and a cost of Rs.4,000/-. The 3[rd] respondent/insurer is ordered to deposit the enhanced compensation with interest and costs awarded in the appeal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants /petitioners in the ratio of 50:25:25 and in ``` MACA NO. 1669 OF 2009 15 ``` accordance with law, after deducting their liability, if any, towards payment of court fee. ``` ``` All pending interlocutory applications will stand ``` ``` closed. ``` ``` Sd/- ``` ``` C.S.DIAS JUDGE ``` ``` avs ```