Manjusha K.H and Others v Balakrishnan Kuruvath House and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943** ## **MACA NO. 1740 OF 2012** **AGAINST THE AWARD DATED 16.07.2011 IN OPMV 1477/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/CLAIMANTS:** - 1 MANJUSHA K.H AGED 32 YEARS - W/O.LATE THOMAS CHACKO, NOW RESIDING AT PALLISSERY HOUSE, THAMMANAM P.O., KOCHI-682032. - 2 MASTER ETHEN THOMAS S/O.LATE THOMAS CHACKO, AGED 3 YEARS, NOW RESIDING AT PALLISSERY HOUE, THAMMANAM P.O., KOCHI-682032, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN MANJUSHA K.H. - 3 SOSAMMA CHACKO W/O.CHACKO, AGED 56 YEARS, DIYA NIVAS, OTHUPALLIPARAMBU ROAD, VAZHAKKALA, KAKKANAD, THRIKKAKARA-21. BY ADV SRI.LEO GEORGE ## **RESPONDENTS/RESPONDENTS:** - 1 BALAKRISHNAN KURUVATH HOUSE, PAUL'S APARTMENTS, ELAMAKKARA (OWNER)-682026. - 2 SIVAN S/O.KUMARAN, PALLATHUSSERRY HOUSE, NEREKKADAVU ROAD, UDAYANAPURAM KARA, VADAKKEMURI VILLAGE, (DRIVER) - 3 UNITED INDIA INSURANCE COMPANY ## **MACA NO. 1740-2012 2** ERNAKULAM BRANCH, ERNAKULAM, KOCHI-31, REPRESENTED BY ITS BRANCH MANAGER (INSURANCE COMPANY). BY ADV SRI.GEORGE CHERIAN THIRUVALLA **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1740-2012 3** ## **JUDGMENT** ## **Dated this the 7[th] day of January, 2022** The appellants were the petitioners in O.P (MV) No.1477/2010 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988in short ‘Act’) claiming compensation on account of the death of Thomas Chacko (deceased) – the husband of the first appellant, the father of the second appellant and son of the third appellant. It was their case that, on 14.08.2009, while the deceased was riding his motorcycle bearing registration No.KL–7 BG 4361 along the Tammanam - Palarivattom road, a bus bearing registration No. KL-7/BG 7111(bus), driven by the ## **MACA NO. 1740-2012 4** second respondent in a rash and negligent manner, hit the motorcycle of the deceased. Although, the deceased was rushed to the General Hospital, Ernakulam, he lost his life. The bus was owned by the first respondent and insured with the third respondent. The deceased was working as a Administrative Assistant cum Sales Executive and earning a monthly income of Rs.8850/-. The appellants were the dependents of the deceased. Hence, the appellants claimed a total compensation of Rs.20,34,100/- from the respondents, which claim was limited to Rs.20,00,000/-. 3. The respondents did not contest the proceedings and were set exparte. 4. The appellants had produced and marked Exhibits A1 to A11 in evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the third respondent an amount of Rs.7,78,500/- with interest and cost. ## **MACA NO. 1740-2012 5** 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 7. Heard; Sri. Leo George the learned counsel appearing for the appellants/petitioners and Smt.Latha Susan Cherian, the learned counsel appearing for the third respondent /insurer. 8. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 9. Exhibits A2 charge sheet filed by the Kochi City Traffic Police in Crime No.7443/2009 substantiates the fact that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the bus. The respondents have not let in any evidence to discredit Exhibits A2 charge sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the ## **MACA NO. 1740-2012 6** liability of the first respondent arising out of the accident. ## **Income of the deceased** 10. The appellants had claimed that the deceased was employed as Administrative Assistant cum Sales Executive in two private firms and was earning a monthly income of Rs.8850/-. For the want of proper materials, the Tribunal fixed the notional monthly income of the deceased at Rs.4500/-. 11. 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 2004 at Rs. 4500/- per month. 12. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2009, I re-fix the notional monthly income of the deceased at Rs.7000/- per month. ## **Multiplier** 13. The deceased was aged 29 years at the time of ## **MACA NO. 1740-2012 7** accident. In the light of the law laid down in **Sarala Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier to be adopted is ‘17’. ## **Personal living expenses of the deceased** 14. It is proved by Exhibit A7 Legal heirship certificate that the appellants are the wife, son and mother of the deceased. They are three in number. In the light of the law laid down in **Sarala Verma** (Supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** one third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects.** 15. Following the ratio in **Sarala Verma** (Supra) and **Pranay Sethi** (supra) **,** and considering the fact that deceased was aged 29 years at the time of the accident/death, the appellants are entitled to future prospects at 40%. ## **Loss due to dependency** 16. Taking into account the above mentioned factors, ## **MACA NO. 1740-2012 8** namely, the notional monthly income of the deceased at 7000/-, the multiplier at ‘17’, future prospects at 40% and deducting one third of the compensation towards personal living expense of the deceased, I award the appellants an amount of Rs.13,32,800/-,instead of Rs.6,88,500/- towards ‘loss of dependency’ awarded by the Tribunal. ## **Conventional heads of compensation** 17. 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 estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. It is also observed that the said amount has to be enhanced by 10% in every three years. 18. In **N. Jayasree and others v. Cholamandalam M/s General Insurance Company Ltd.** [LL 2021 SC 588] and **Rashmitha Biswal and others v. Divisional Manager National Insurance Company Ltd and** ## **MACA NO. 1740-2012 9** **another** [LL 2021 SC 717], the Honourable Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accident. Thus, it is only to be interpreted and inferred that the escalation of 10% is awarded after three years from the pronouncement of Pranay sethi, which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, I hold that the appellants are entitled to a further amount of Rs.9000/- towards ‘funeral expenses’,Rs.16,500/- towards ‘loss of estate’ and a further amount of Rs.1,07,000/- towards ‘loss of consortium’. 19. With respect to the amounts awarded under the heads, ‘transportation expenses’ and ‘pain and sufferings’, I find that the Tribunal has awarded reasonable and just compensation. ## **Loss of love and affection** 20. It is seen that the Tribunal has awarded an amount of Rs.50,000/- under the head ‘loss of love and ## **MACA NO. 1740-2012 10** affection’. In **New India Assurance Co. Ltd. v. Somwati and others** [(2020) 9 SCC 644], the Hon'ble Supreme Court has held that once the compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.50,000/- awarded under the head ‘loss of love and affection.’ 21. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation<br>expenses|2500|2500| |2|Funeral expenses|7500|16500| ## **MACA NO. 1740-2012 11** ||||| |---|---|---|---| |3|Loss of estate|0|16500| |4|Pain and<br>sufferings|5000|5000| |5|Loss of love and<br>affection|50000|---| |6|Loss of<br>consortium|25000|1,32,000| |7|Loss of<br>dependency|688500|13,32,800| ||Total|**7,78,500**|**15,05,300**| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **Rs.7,26,800/-** with interest at the rate of 7.5% per annum from the date of petition till the date of realisation, after deducting interest for a period of 62 days i.e. period of delay and as ordered by this Court on 07.10.2021 in C.M. Application No.2/2012 and proportionate cost. The third respondent is ordered to deposit the enhanced compensation with interest and ## **MACA NO. 1740-2012 12** proportionate cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellants in the ratio of 50:35:15 and in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/7/01/2022