Mariamamma Jose and others v. Ramachandran Karthikayil and Royal Sundaram Alliance Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944 MACA NO. 821 OF 2013** **AGAINST THE AWARD DATED 21.12.2012 IN OPMV 611/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANTS/PETITIONERS:** 1 MARIAMMA JOSE RESIDING AT POWATHUPARAMBIL HOUSE, PAMPADY P.O. PAMPADY VILLAGE, KOTTAYAM DISTRICT. 2 JEMI MARY JOSE D/O.LATE P.S. JOSE, RESIDING AT POWATHUPARAMBIL HOUSE, PAMPADY P.O. PAMPADY VILLAGE, KOTTAYAM DISTRICT. 3 JITTU JOSE ZACHARIA S/O.LATE P.S. JOSE, RESIDING AT POWATHUPARAMBIL HOUSE, PAMPADY P.O. PAMPADY VILLAGE, KOTTAYAM DISTRICT. 4 JEROME JOSE (MINOR) S/O.LATE P.S. JOSE, RESIDING AT POWATHUPARAMBIL HOUSE, PAMPADY P.O. PAMPADY VILLAGE, KOTTAYAM DISTRICT, REPRESENTED BY MOTEHR AND NEXT FRIEND MARIAMMA JOSE, POWATHUPARAMBIL HOUSE, PAMPADY P.O. PAMPADY VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS ## **RESPONDENTS/RESPONDENTS:** 1 RAMACHANDRAN KARTHIKAYIL HOUSE, KADUTHURUTHI VILLAGE, KADUTHURUTHI KARA, PALA KARA. M.A.C.A.No.821/2013 2 2 ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD. SUNDARAM TOWERS, 46 WHITES ROAD, ROYAPETTAH CHENNAI-600014 SRI. V.P.K PANICKER-R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON 07.04.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.821/2013 3 ## **M.R.ANITHA, J** ****************** M.A.C.A.No.821 of 2013 -----------------------------------------Dated this the 7[th] day of April, 2022 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (M.V) No.611/2011 on the file of Motor Accidents Claims Tribunal, Kottayam (hereinafter be referred as 'Tribunal'). The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short 'the Act') out of death of one Jose.P.S in a motor accident. Claimants are wife and children of the deceased (hereinafter be referred as 'the deceased'). It is alleged that on 15.10.2010 at about 11.30 a.m., while the deceased was riding motor cycle bearing Reg.No.KEK-5226 along with NH 220 and when reached at Vattamalapady Bhagam, the car bearing Reg.No.KL/36-A 5569 driven by the 1[st] respondent came in a rash and negligent manner hit the motor cycle on which the deceased was travelling, thereby he sustained grievous injuries. Immediately he was taken to the Indo American hospital and M.A.C.A.No.821/2013 4 while undergoing treatment, he succumbed to injuries on 29.10.2010. A total compensation of Rs.25,00,000/- was claimed. 2. Before the Tribunal, first respondent filed written statement contending that the accident happened due to the negligence of the deceased. First respondent was having valid driving licence. The car was insured with the second respondent and hence second respondent is liable to indemnify the first respondent. It was also contended that the compensation claimed under various heads are excessive and that claimants are put to strict proof regarding age, occupation and income of the deceased. 3. 2[nd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending vehicle but the negligence on the part of the second respondent is denied and contended that the deceased was responsible for the accident. 4. There was no oral evidence from either side. Exts.A1 M.A.C.A.No.821/2013 5 to A13 were marked from the side of the appellants/claimants (hereinafter be referred as 'claimants'). 5. On evaluating the pleadings as well as the documents, the Tribunal found that the accident happened due to the rash and negligent driving of the first respondent and the second respondent is liable to indemnify the first respondent as per the contract of insurance. A total compensation of Rs.8,59,000/- was awarded. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimants came up in appeal on various grounds stated in the memorandum of appeal. 7. Service of notice against the first respondent is dispensed with at the risk of the claimants. 2[nd] respondent/insurer appeared through learned Standing Counsel Sri.P.V.K.Panicker. Lower court records were called for and perused. 8. According to the learned counsel for the claimants, the deceased was a Civil Engineer running a construction company M.A.C.A.No.821/2013 6 and was having a monthly income of Rs.15,000/- and documents were also produced to substantiate that fact, but Tribunal has notionally taken the income as Rs.7,000/- which, according to the learned counsel, is very low. He would also contend that the compensation awarded under the various heads including the conventional heads are not in consonance with the current position of law and hence seeks for enhancement under all heads. 9. Learned Standing Counsel, on the other hand, would contend that no convincing evidence has been adduced by the claimants to prove the actual income of the deceased and hence Rs.7,000/- taken as the monthly income of the deceased by the Tribunal is quite reasonable. He would also contend that just and reasonable compensation has been awarded under all heads and hence no interference is called for at the instance of this Court. 10. Accident, death and liability of the second respondent is not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. 11. Claimants produced Ext.A13 course certificate issued M.A.C.A.No.821/2013 7 by Kerala Institute of Engineering Technology recognised by the Kerala Government certifying that the deceased is awarded the certificate in Civil Engineering and he completed the theoretical and practical course of training in that Government Recognised Technical Institute in the following subjects for two academic years in Paper I : Mathematics, Applied Machanics & Hydraulics, Paper 2A : Geometrical Drawing & Solid Geometry 2B) Civil Engineering Drawing & Estimating Paper 3 : Survey, Roads, Bridges & Railways, Paper 4 : Building Materials – Construction – Earth Work, Paper 5 : Public Health Engineering & Irrigation, Paper 6 : Survey Practical. Ext.A14 is the copy of the Registration Certificate with respect to KL-01-AN-3202 Maruti Swift VXI in the name of the deceased which was seem to have been delivered on 23.06.2006 along with copy of the policy of that vehicle. Ext.A15 is the CST Certificate of Registration issued from Deputy Commercial Tax Officer, Nagercoil certifying that the principal place of business of the deceased is within the State of Tamilnadu and has been registered as a dealer under Section 7(1) / 7(2) of M.A.C.A.No.821/2013 8 the Central Sales Tax Act, 1956. Ext.A16 is the Certificate of Registration issued from Deputy Commercial Tax Officer, Nagercoil certifying that the deceased is registered as a dealer under Section 20 of the Tamil Nadu General Sales Tax Act, 1959. Ext.A17 is the photocopy of Registration Certificate dated 06.07.2010 issued as per Kerala Value Added Tax Rules, 2005 showing business name and address and stating the deceased as the Proprietor of Viva Constructions and the principal place of business is shown as Keralapuram. The description of the goods dealt with is shown as works contract. Ext.A18 is the Contractor's Registration Pass issued to the deceased. Ext.A19 is a certificate dated 30.05.1980 issued by M.M.Chacko & Sons, Engineers & Contractors certifying that the deceased has been working in their firm as a Civil Draughtsman cum Supervisor from 02.12.1978 to 15.05.1980. Ext.A20 is a certificate issued by Anickad Regional Farmers' Service Co-op.Bank certifying that the construction of the annex building and hall has been carried out under the responsibility of the deceased. Ext.A21 is a copy of M.A.C.A.No.821/2013 9 certificate dated 13.08.1993 issued by Blessed Alphonsa Church, A.R.P.Camp Road, Nagercoil certifying that the deceased had constructed the church building along with copy of the certificate dated 13.09.1993 issued by Assistant Engineer, Karoor P.O, Pala certifying that the deceased is a Contractor in KSEB to carry out several works costing P.A.C upto Rs.9.00,000/-. It is also stated that the deceased is an experienced Contractor. 12. So the documents produced from the side of the claimants would prove that the deceased was a Contractor carrying out various works to various authorities including KSEB. Copy of the Registration Certificate of the two vehicles Maruti Swift car as well as Tata 20 7D 1 LMV goods carriage in his name would speak in volumes the status and the capacity of the deceased during the relevant time. Certificates issued by Assistant Engineer, KSEB certifying that he had been carrying out several works for the Board costing P.A.C upto Rs.9.00,000/during 1993 also would reveal the volume of work which he was carrying. So, taking the totality of the facts and circumstances, I M.A.C.A.No.821/2013 10 find it just and proper to take the monthly income of the deceased as Rs.12,000/- instead of Rs.7,000/- taken by the Tribunal. 13. In **National Insurance Co. Ltd v. Pranay Sethi** **((2017) 16 SCC 680)** , a Constitutional Bench of the Apex Court held that the thumb rule of there would be no addition after 50 years will be an unacceptable concept. But taking into account the fact that the salary does not remain the same, when a person is in a permanent job there would always be enhancement due to one reason or other and hence laid down as a thumb rule, that there will be no addition after 50 years will be an unacceptable concept and hence an addition of 15% was fixed if the deceased is between the age of 50 to 60 years and there would be no addition thereafter. In the case of self employed persons of fixed salary also, an addition of 10% towards future prospects was fixed for the age group of 50 to 60 years. 14. In the present case, the monthly income of the deceased has already been taken as Rs.12,000/-. Giving 10% M.A.C.A.No.821/2013 11 enhancement towards future prospects, the actual monthly income would be Rs.13,200/- [12,000 + (10 % of 12,000)]. 15. In **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802)** , Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependents and when number of dependent family members is between 2 and 3, the deduction towards dependent family members is 1/3 and when number of dependent 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 **Resma Kumari & Ors. V. Madan Mohan & Anr : 2013 (9) SCC 65** and approved by the Constitution Bench in **Pranay Sethi** . 16. As held in **Sarla Verma** and as approved in **Pranay Sethi** , the proper multiplier to be applied is 18 for the age group of 15 to 20 and 21 to 25 years and reduced by one unit for every five years, that is multiplier of 17 for 26 to 30 years, multiplier of 16 for 31 to 35 years, multiplier of 15 for 36 to 40 M.A.C.A.No.821/2013 12 years, multiplier of 14 for 41 to 45 years, and multiplier of 13 for 46 to 50 years, then reduced by two units for every five years, that is, multiplier of 11 for 51 to 55 years, multiplier of 9 for 56 to 60 years, multiplier of 7 for 61 to 65 years and multiplier of 5 for 66 to 70 years. In this case, the age of the deceased though claimed is 54 years, in the claim petition, Tribunal, on perusing the driving licence Ext.A12 of the deceased and the date of birth mentioned therein, found that the deceased was 55 years 8 months old at the time of accident. That fact is not further challenged. So, the age of the deceased is above 55 years. Hence the proper multiplier to be applied is 9. 17. In this case, since claimants are wife and three children of the deceased, 1/4 is to be deducted towards personal and living expenses. So, after deducting Rs.3,300/- (Rs.13,200 x 1/4), the monthly income would be Rs.13,200 – Rs.3,300 = Rs.9,900/-. Suitable multiplier to be applied is '9'. Hence loss of dependency would be Rs.9,900 x 12 x 9 = 10,69,200/-. M.A.C.A.No.821/2013 13 Deducting the amount of Rs.5,67,000/- already awarded by the Tribunal under the head loss of dependency, the balance amount would be **Rs.5,02,200/-** [Rs.10,69,200 – Rs.5,67,000]. 18. Next contention of the learned counsel for the claimants is with regard to the compensation awarded under conventional heads. In **Pranay Sethi** , Constitutional Bench has fixed the compensation under the conventional heads, as Rs.15,000/- each towards loss of estate and funeral expenses and Rs.40,000/- towards loss of consortium. That has been followed in **Magma General Insurance Co. Ltd** ., with an expansion of the consortium as spousal consortium, ‘parental consortium’, and ‘filial consortium’. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse and 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. M.A.C.A.No.821/2013 14 Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. 19. The Apex Court in **Rasmita Biswal & Others v. Divisional Manager, National Insurance Company Ltd., & Another (CDJ 2021 SC 1024** ) has awarded 10% increase to the conventional heads taking into account the directions in **Pranay Sethi** for 10% enhancement after every three years. Accordingly the claimants in that case were awarded 16,500/each towards loss of estate and funeral expenses and Rs.44,000 towards spousal consortium by giving 10% enhancement to Rs.15,000/- as well as to Rs.40,000/-. The accident in that case, was on 9.5.2013. In **pranay Sethi** the Apex Court while declaring 10% enhancement in every three years did not make any reference with respect to the date of accident also. Hence claimants are entitled to get 10% escalation of conventional heads. 20. So claimants are entitled to get Rs.16,500/- under the head 'loss of estate', Rs.44,000/- each to respondents 1 and 4 M.A.C.A.No.821/2013 15 under the head 'loss of consortium' and as well as Rs.16,500/towards funeral expenses, thus a total amount of Rs.2,09,000/[Rs.16,500 + 1,76,000 (Rs.44,000 x 4) + Rs.16,500] towards conventional heads. Once the compensation is awarded under the head of consortium, claimants would not be entitled to get any amount towards loss of love and affection. (See **The New India Assurance Company Limited v. Somwati (2020 (9)** **SCC** 644). Deducting the amounts already awarded by the Tribunal under the heads of loss of consortium, loss of love and affection, funeral expenses, loss of estate etc., the balance amount the claimants are entitled to get under the conventional heads is Rs.2,09,000 – Rs.96,000 (Rs.20,000 + Rs.60,000 + Rs.6,000 + Rs.10,000) = **Rs.1,13,000/-** . 21. Learned Standing Counsel has also raised a contention that Tribunal awarded Rs.25,000/- towards pain and suffering. The learned counsel placed reliance on **United India Insurance Company Limited v. Satinder Kaur and Others : 2020(3) KHC 760 : ILR 2020(3) Ker. 334 : AIR 2020 SC 3076.** In M.A.C.A.No.821/2013 16 that decision, the Hon'ble Apex Court quoted the relevant paragraphs in **Sarla Verma** , which is extracted below: ".........................s _tep 3 (Actual calculation): The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000/- to Rs.10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased."_ 22. Learned counsel also placed reliance on **The Oriental** **Insurance Company Limited v. Kahlon through his Legal Representative Narinder Kahlon Gosakan and Ors. : AIR** **2021 SC 3913 : 2021 ACJ 2576** . But, that was a case originally filed by the injured in a motor accident seeking compensation under Section 166 of the Act. Pending the proceedings, the injured died and his legal heirs are impleaded. Paragraph 18 of the said decision is relevant in this context to be M.A.C.A.No.821/2013 17 ## extracted, which read thus: _“18. The Tribunal, on technicalities rejected his claim for salary, medical expenses and percentage of disability and granted a measly compensation of Rupees one lakh only by a cryptic order. We are therefore of the opinion that while the claim for personal injuries may not have survived after the death of the injured unrelated to the accident or injuries, during the pendency of the appeal, but the claims for loss of estate caused was available to and could be pursued by the legal representatives of the deceased in ” the appeal._ 23. So, the above position would emphasize that the claim for personal injuries may not have survived after the death of the injured provided the death was unrelated to the accident or injuries. In this context, page No.110 of the Law of Torts by Ratanlal and Dheerajlal updated 26[th] Edition Justice G.P.Singh relates to the damages recoverable and Para 3(A) deals with damages recoverable for loss of dependency. The relevant paragraphs reads as follows: _“3. DAMAGES RECOVERABLE : It has been said that the damages assessed must answer “what_ M.A.C.A.No.821/2013 18 _contemporary society would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing” and that “the amount awarded must not be niggardly since the law values life and limb in a free society in generous scales.” These emotive statements only mean that the sum awarded must be fair and reasonable by accepted legal standards. These legal standards are discussed below._ _3(A) For Loss of Dependency: As earlier mentioned, the Fatal Accidents Acts provide a new cause of action." The claim under the Acts is for injuriously affecting the family of the deceased. It is not a claim which the deceased could have pursued in his own lifetime because the claim is for damages suffered not by himself but by his dependants after his death." This is an entirely new cause of action in favour of the dependants mentioned in the Acts. But to determine whether any such cause of action arises under the Acts one has to consider a hypothetical question that had the deceased not died but survived could he have sued for his injury. The basis of the action is the causing of death by wrongful act, neglect or default and the ability of the deceased to sue the defendant for damages had death not ensued. If, therefore, the deceased himself was wholly responsible for his death in the sense that_ M.A.C.A.No.821/2013 19 _his negligence alone had resulted in his death, there will be no cause of action under the Acts. The Acts do not provide for a liability on no fault basis and wrongful act, neglect or default of the defendant or of some person for whom he is vicariously liable is necessary to be established to maintain an action under the Acts. Again, if in spite of the fact that the defendant's fault caused the injury, the deceased, had death not ensued, could not have sued him, for example when any possibility of liability had been excluded by a valid contract between them, the dependants will not get any cause of action under the Acts. Further, if the deceased himself was partly responsible for the accident because he too was negligent, the damages recoverable by the dependants will be proportionately reduced._ _The Acts do not provide the principle on which damages are to be assessed. The English Act merely says that "damages may be awarded as are proportioned to the injury resulting from the death to the dependents respectively." The Indian Act similarly says that "the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively." The principle of assessment silent in these Acts was formulated by POLLOCK C.B. according to which damages are assessed "in reference_ M.A.C.A.No.821/2013 20 _to a reasonable expectation of pecuniary benefit as of right or otherwise from the continuance of life". It is this basic principle which expanded into various rules, is followed even now in assessing damages. The dependents for whose benefit the right exists should show some appreciable pecuniary damage at the time or prospective to themselves owing to the death of the deceased. Speaking generally, no action can be maintained for any pain or suffering arising from the loss of the deceased or loss of society or if the deceased had accepted satisfaction for his injuries in his lifetime, or if the loss arises not from the relationship, but through some contract with the deceased. The damages are given in reference to a pecuniary loss, they are not given as a solatium, that is to say, for injured feelings." There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The common law has never awarded damages for the pain of bereavement. The English Act, however, as amended in 1982, now provides for a claim for bereavement to the extent of £7,500, (a) for the benefit of the wife or husband of the deceased; and (b) where the deceased was a minor who was never married, for the benefit (1) of his_ M.A.C.A.No.821/2013 21 _parents, if he was legitimate and (ii) of his mother if he was illegitimate. The Indian Act contains no parallel provision of this nature. But Indian cases have generally granted damages for loss of consortium. Further development of the common law also allows a person to recover damages for nervous shock i.e., positive psychiatric illness suffered by him as a result of seeing or hearing of the death of or injuries caused to his close relative such as parent or child, husband or wife in exceptional circumstances, but this is not on the basis of the Acts. Horror and fear for oneself or for others are emotions which can no doubt be described as suffering but they do not sound in damages. It is only when they result in recognisable psychiatric injury that an action lies for such injury not for the fear or horror. Thus a mother claiming damages as dependent and legal representative of her son who died in a motor accident which was not witnessed by her cannot be allowed damages for mental shock, agony or pain not resulting in any recognizable psychiatric illness._ " 24. What emerges from the above is that no compensation can be awarded for the pain and suffering out of death of the deceased to the legal representatives. On the other hand, damages towards pain and suffering undergone by the deceased M.A.C.A.No.821/2013 22 could have been received by him had he been alive. So also, if the death occurred not due to the injuries sustained by the deceased, damages towards pain and suffering undergone by the deceased will not survive after the death of the injured and hence legal representatives will not be entitled to get any compensation under that head. 25. So, **Kahlon** referred above is an injury case and the death was not related to the accident or injuries and it was in that context it has been held by the Apex Court that claim for personal injuries may not have survived after the death of the injured. It is relevant in this context to quote **Jaini and Others v. Raphel. V and Others : 2016(2) KLT S.N.32 (Case No.40)** **: 2016 (6) KHC 870** wherein a Division Bench of this Court held that death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably M.A.C.A.No.821/2013 23 present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. 26. In this case, as stated earlier, Tribunal awarded Rs.25,000/- towards pain suffered by the victim before his death. The facts of the case would reveal that the accident was on 15.10.2010 and the deceased died on 29.10.2010 while undergoing treatment due to the injuries sustained out of the accident. So, the claimants are entitled to get compensation towards pain and suffering undergone by the deceased out of the accident. Hence the enhanced compensation claimants are entitled to get is **Rs.6,15,000/-** (Rs.5,02,200 + Rs.1,13,000). 27. In the result appeal allowed. The claimants are allowed to realise enhanced compensation of **Rs.6,15,000/-** (Rupees six lakhs fifteen thousand only) with interest at 6% from M.A.C.A.No.821/2013 24 the date of petition till realisation. The 2rd respondent, Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment. The disbursement of compensation to claimants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Respondents/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. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge