Manju Francis and Others v. Eldo T.C., Kunjappan C.V. and HDFC ERGO General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943** ## **MACA NO. 1728 OF 2013** **AGAINST THE AWARD DATED 28.04.2012 IN OPMV 1591/2011 OF MOTOR ACCIDENTS** ## **CLAIMS TRIBUNAL, ERNAKULAM.** ## **APPELLANTS/PETITIONERS:** - **1 MANJU FRANCIS, AGED 35 YEARS, W/O. LATE FRANCIS, POLAKKATTU HOUSE, EDAPALLY NORTH P.O., NORTH KUNNUMPURAM, KOCHI - 24 .** - **2 MISHEL MARY FRANCIS, AGED 11 YEARS, D/O. LATE FRANCIS, POLAKKATTU HOUSE, EDAPALLY NORTH P.O., NORTH KUNNUMPURAM, KOCHI - 24, ( MINOR REPRESENTED BY NEXT FRIEND MOTHER MANJU FRANCIS DO - DO- DO)** - **3 SHIMIL FRANCIS, AGED 8 YEARS, S/O. LATE FRANCIS, POLAKKATTU HOUSE, EDAPALLY NORTH P.O., NORTH KUNNUMPURAM, KOCHI - 24, ( MINOR REPRESENTED BY NEXT FRIEND MOTHER MANJU FRANCIS DO - DO- DO)** - **4 MARY GEORGE, AGED 75 YEARS, M/O. LATE GEORGE, POLAKKATTU HOUSE, EDAPALLY NORTH P.O., NORTH KUNNUMPURAM, KOCHI - 24. * ( EXPIRED ) * ADDITIONAL APPELLANTS 5 TO 8 IMPLEADED ( L EGAL HEIRS OF DECEASED 4TH APPELLANT)** - **5 ADDL.P5 SHYNI.P, AGED 60 YEARS, W/O. JOY, MANAYATHU HOUSE, THEVARA P.O., ERNAKULAM DISTRICT.** - **6 ADDL.P6 PHYLOMINA P.G., AGED 58 YEARS, W/O. JOHN, ILLATHPARAMBIL HOUSE, ELAMKULAM P.O., ERNAKULAM DISTRICT.** - **7 ADDL. P7 MARY METILDA P.G., AGED 53 YEARS, W/O. SIJI ABRAHAM, PAIMPILLIL HOUSE, S.H. MOUNT P.O., KOTTAYAM.** - **8 ADDL. P8 SHYJA. P.G.,. AGED 49 YEARS, W/O. THEOPHIN,** M.A.C.A No. 1728 of 2013 **2** **POLAKATTU HOUSE, EDAPALLY NORTH P.O. COCHIN, 682 024. AS PER ORDER DATED 21/12/2021 IN I.A 1/2021 IN MACA 1728/2013. BY ADVS. BENNY JOSEPH R.PRIYA M.B.SANDEEP V.VISAL AJAYAN** ## **RESPONDENTS/RESPONDENTS:** **1 ELDO T.C, S/O CHERIAN, THELAPPILLY HOUSE, KURUPPAPARA, RAYAMANGALAM, ERNAKULAM DISTRICT-683 545. 2 KUNJAPPAN C.V, S/O VARKEY, 5/451, CHIRACKAKUDY HOUSE, VAYKARA PO, PERUMBAVOOR, ERNAKULAM DISTRICT-683 549. 3 H.D.F.C ERGO GENERAL INSURANCE COMPANY LIMITED, H 4 E, 4TH FLOOR, K.G.OXFORD BUSINESS CENTRE, RAVIPURAM, KOCHI-682 016.** ## **SRI.K.B RAMANAND-R3** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1728 of 2013 **3** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.1591/2011 on the file of Motor Accidents Claims Tribunal, Ernakulam. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) claiming compensation on account of death of Sri.Francis.P out of motor vehicle accident occurred on 27.01.2011. Total compensation of Rs.12,00,000/- has been claimed. According to the appellants, while the deceased was riding his Motor Cycle bearing Registration No. KL-7/BQ-3505 through Aluva-Munnar road and reached at Nangelipadi, Iramallur Village, a Bus bearing Registration No. KL-40/C-4959 driven by the 1[st] respondent came in a rash and negligent manner and hit the Motor Cycle on which deceased was travelling, thereby he sustained grievous injuries. The 1[st] respondent is the driver of the bus, 2[nd ] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. 2. Before the Tribunal, the 1[st] and 2[nd] respondents the driver and owner of the offending vehicle remained ex parte and the 3[rd] respondent insurer filed written statement admitting the insurance coverage with respect to the offending vehicle. M.A.C.A No. 1728 of 2013 **4** 3. Exts. A1 to A27 have been marked from the side of the appellants. On evaluating the pleadings as well as the materials produced, the Tribunal found that the accident occurred due to the rash and negligent driving of the 1[st] respondent and hence 3[rd] respondent is liable to indemnify the 2[nd] respondent and awarded a total compensation of Rs.8,33,000/- under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants (hereinafter be referred as claimants) approach this Court in appeal for the various grounds stated in the memorandum of appeal. 4[Th] respondent died pending the appeal and legal heirs of 4[th] respondent have been impleaded as additional appellants 5 to 8. Though service is complete as against respondents 1 and 2, there is no appearance on behalf of them. Adv.K.B.Ramanad, appeared on behalf of the 3[rd] respondent. 5. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the claimants, deceased was a self employed person and claimed monthly income of M.A.C.A No. 1728 of 2013 **5** Rs.15,000/-. Though documents were produced to prove the source of income of the deceased, the Tribunal fixed his monthly income as Rs.6,000/- which according to him is is very low. It is also contended that the amount awarded under other heads are very low in view of the loss sustained by the claimants. Hence he seeks for enhancement of compensation on all heads. 7. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 8. The learned counsel contended that the deceased had purchased two landed properties worth Rs.1.81 crores in Udumbumchola Village in the year 2009, it is averred in the proof affidavit and produced as Exts.A16 and A17 to substantiate that. Ext.A15 series are documents of renewal with respect to two insurance policies issued in his name. Claimants also produced Ext.A14 estimate to show that he has constructed a new house with estimate value of Rs.15 lakhs and Ext.A13 occupancy certificate dated 07.10.2009. The above documents were produced to prove that he was having sufficient fund and the monthly income of Rs.15,000/- as claimed in the petition is M.A.C.A No. 1728 of 2013 **6** the actual income he was earning. But the above documents will not establish his monthly income as Rs.15,000/-. However, in the year 2004, the Apex Court taken monthly income of a Coolie as Rs.4,500 as per **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236].** In the year 2008 as per **Syed** **Sadiq v. Divisional Manager, United India Insurance Co. Ltd.** **[(2014) 2 SCC 735],** income of a Vegetable Vendor has taken as Rs.6,500 per month. So taking those facts into account, the monthly income of the deceased in this case can very well be fixed as **Rs.9,000/-** . 9. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision M.A.C.A No. 1728 of 2013 **7** making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 10. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in 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. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 11. In Pranay Sethi, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established M.A.C.A No. 1728 of 2013 **8** income also provided as the income minus tax component in the case of salaried persons. 12. In this case, the deceased was below 45 years of age and hence claimants are entitled for 25% enhancement towards future prospects. Then monthly income of the deceased would be **Rs.11,250/-** (9,000+2,250(25% of 9,000)). The annual income of the deceased would be Rs.1,35,000/- (11,250x12). 13. On the question of deduction towards personal and living expenses in Sarla Verma, 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. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. 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). 14. In Reshma Kumari's case, in paragraph No.38 it has been M.A.C.A No. 1728 of 2013 **9** 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 exactly correspond to the number of dependants. 15. Claimants are wife, children and mother of the deceased. Mother died pending the proceedings. Subsequent death of the mother is not a reason to reduction of motor accident compensation and claim and legal liabilities crystallise at the time of accident and changes post there to aught not to affect ordinarily pending the proceedings. (See Kirti & Another v. Oriental Insurance Co. Ltd. [2021 2 SCC 166]). So 1/4 has to be deducted towards personal and living expenses. 16. The proper multiplier to be applied as held in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '14'. So the M.A.C.A No. 1728 of 2013 **10** annual dependency would be 1,35,000(11,250x12)x14=18,90,000/-. 1/4 has to be deducted towards personal and living expenses. Hence contribution to the family would be Rs.14,17,500/- (18,90,0004,72,500(18,90,000x1/4). From that the amount already awarded by the Tribunal to be deducted, the balance would **Rs.6,61,500/-** (14,17,5007,56,000). 17. The next contention of the learned counsel is with regard to the enhancement under the conventional heads as per the directions in Pranay Sethi's case followed by Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130) In that decision, 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. 18. 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 M.A.C.A No. 1728 of 2013 **11** under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 19. In this context, Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] is to be taken note of. 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. 20. Next is with regard to the consortium to be awarded, the law laid down by the Apex Court in Magma General Insurance Co.'s M.A.C.A No. 1728 of 2013 **12** 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 which cause great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their 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. M.A.C.A No. 1728 of 2013 **13** 21. In the present case, claimants are entitled to get Rs.16,500/- each towards loss of estate and funeral expenses. Appellants are claimants Nos.1 and 3 who are wife and children of the deceased. So claimants Nos. 1 and 3 are entitled to get Rs.44,000/each towards filial and parental consortium. Mother was alive at the time of filing the petition. After her death legal heirs have been impleaded as Additional respondents 5 to 8. So Rs.44,000/- is to be awarded under the head of consortium to the mother also. Hence towards consortium, claimants are entitled to get 44,000x4=Rs.1,76,000/-. Once compensation is awarded under consortium, claimants are not entitled to get any compensation towards love and affection. (See **New India Assurance Co. Ltd v. Somwati and Others** [2020 9 SCC 644]). So amount of Rs.40,000/- awarded by the Tribunal towards loss of love and affection has to be deducted. Deduction also to be made of Rs.7,500/- awarded towards funeral expenses, Rs.2,500/- towards loss of estate and Rs.20,000/- awarded towards loss of consortium already awarded by the Tribunal. 22. So under the conventional heads, claimants are entitled to get Rs.2,09,000/-. (1,76,000+33,000(16,500+16,500). From that, the amount already awarded by the Tribunal to be deducted that is M.A.C.A No. 1728 of 2013 **14** 40,000+7,500+2,500+20,000=70,000, 2,09,000-70,000= **Rs.1,39,000/-.** 23. So in total the claimants are entitled to get enhanced compensation of **Rs.8,00,500/-** (6,61,500+1,39,000). 24. In the result, the appellants are allowed to realize enhanced compensation of **Rs.8,00,500/-** which will carry interest at the rate of 7.5% per annum from the date of petition, till realization. The enhanced compensation except the consortium awarded to the deceased 4[th] respondent shall be apportioned among the appellants in the ratio of 50:25:25. Rs.44,000/- awarded under the head of consortium to 4[th] respondent (since deceased) shall be apportioned among her legal heirs equally. The share of the 3[rd] claimant/appellant shall be deposited in a nationalised Bank and Fixed Deposit receipt shall be produced before the Tribunal, which shall be kept in safe custody, till she attains majority. 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. 25. The disbursement of the amount to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1- M.A.C.A No. 1728 of 2013 **15** 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. In the result appeal stands allowed. Parties shall bear their respective costs. **SD/-** rps/ **M.R.ANITHA, JUDGE**