Mariyakutty and others v. P. Aysumma and others

MACA NO. 2634 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943** ## **MACA NO. 2634 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 249/2000 OF ADDL.MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/S:** 1 MARIYAKUTTY, W/O.LATE SIDDIQUE, AGED 32 YEARS, AMMANATHU HOUSE,, SOUTH KONDAZHI (PO), THRISSUR DISTRICT. 2 SIRAJUDHEEN MINOR AGED 13 YEARS, S/O.LATE SIDDIQUE,, AMMANATHU HOUSE, SOUTH KONDAZHI (PO),, THRISSUR DISTRICT. 3 SIHABUDHEEN MINOR AGED 11 YEARS, S/O.LATE SIDDIQUE,, AMMANATHU HOUSE, SOUTH KONDAZHI (PO),, THRISSUR DISTRICT. 4 SIYAZ MINOR AGED 9 YEARS, S/O.LATE SIDDIQUE,, AMMANATHU HOUSE, SOUTH KONDAZHI (PO),, THRISSUR DISTRICT. (MINOR PETITIONERS REPRESENTED, BY THEIR MOTHER, NEXT FRIEND AND GUARDIAN THE FIRST APPELLANT MARIYAKUTTY). 5 KUNJUMMA W/O.LATE KUNJU MOIDU AGED 83 YEARS, AMMANATHU HOUSE,, SOUTH KONDAZHI (PO), THRISSUR DISTRICT. BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA ## **RESPONDENT/S:** 1 P. AYSUMMA W/O.K.B.ABDUL KHADER KIZHAKKEPEEDIKAYIL, GANDHI SEVA SADAN (PO), PERUR, MACA NO. 2634 OF 2009 **==> picture [7 x 9] intentionally omitted <==** MANKARA, PALAKKAD DISTRICT. 2 V.V.SUBRAMANIAN SO.V.VEEMBAN VALIAKADU HOUSE, KINAVALLUR,, PALAKKAD DISTRICT. 3 THE UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, DOOR NO.10/290,, G.B.ROAD, PALAKKAD. BY ADV SMT.S.JAYASREE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2634 OF 2009 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.249/2000 on the file of the Addl. Motor Accidents Claims Tribunal, Palakkad. 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, 1988, claiming compensation on account of the death of Siddique (deceased) - husband of the 1[st] appellant, father of the appellants 2 to 4 and son of the 5[th] appellant. It was their case that, on 15.12.1999, while the deceased was riding his motor cycle bearing registration No.KEH/1382 with a pillion rider through the Palakkad – Coimbatore National Highway, a lorry bearing Registration No.KL-09/B 4894, driven by the 2[nd] respondent in a negligent manner, hit the motor cycle of the deceased. The deceased was thrown to the road and he lost his life instantaneously at the District Hospital, Palakkad. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The deceased was a headload worker and he was earning a monthly income of Rs.7,000/-. The appellants were the dependents of the deceased. MACA NO. 2634 OF 2009 4 Hence, the appellants claimed a compensation of Rs.7,54,500/from the respondents. 3. The 1[st] respondent did not contest the proceeding and was set ex-parte. 4. The 2[nd] respondent, though entered appearance, did not contest the proceeding. 5. The 3[rd] respondent had filed a written statement stating that the compensation claimed was excessive. Nevertheless, the 3[rd] respondent admitted that the lorry had a valid insurance coverage. 6. The 1[st] appellant was examined as PW1 and Exts.A1 to A7 were marked through her in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the respondents an amount of Rs.4,54,500/- with interest. 8. Dissatisfied with the quantum of compensation awarded MACA NO. 2634 OF 2009 5 by the Tribunal, the petitioners are in appeal. 9. Heard; Sri.Binoy Vasudevan, the learned counsel appearing for the appellants/petitioners and Smt. S. Jayasree, the learned counsel appearing for the 3[rd] respondent/insurer. 10. The sole point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and liability** 11. Ext.A7 final report filed by the Kasaba Police in Crime No.272/1999 proves that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Ext.A7 final report. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. MACA NO. 2634 OF 2009 6 ## **Income** 12. The appellants had claimed that the deceased was a headload worker and was earning a monthly income of Rs.7,000/-. For want of materials, the Tribunal has fixed the notional monthly income of the deceased at Rs.3,000/-. I find the fixation of the notional monthly income of the deceased at Rs.3,000/- is justifiable and correct. ## **Multiplier** 13. The deceased was aged 28 years at the time of the accident. 14. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘17’. ## **Personal living expenses of the deceased** 15. The appellants were the wife, children and mother of the deceased. They are five in number. Following the principles laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] **,** one MACA NO. 2634 OF 2009 7 fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 16. In the light of the law laid down in **Sarla Verma and Pranay Sethi** (supra) and considering the fact that the deceased was aged 28 years at the time of the accident, the appellants are also entitled to future prospects at 40%. ## **Loss due to dependency** 17. Taking into account the above mentioned factors namely, the notional monthly income of the appellant at Rs.3,000/-, the multiplier at '17', future prospects at 40% and after deducting one fourth of the compensation towards the personal living expenses of the deceased, I award the appellants an amount of Rs.6,42,600/- towards ‘loss due to dependency', instead of Rs.4,32,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 18. In paragraph 59.8 of **Pranay Sethi** (supra) it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral MACA NO. 2634 OF 2009 8 expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 19. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another** [2021 SCC Online SC 1193], the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 20. In the instant case, the Tribunal has awarded an MACA NO. 2634 OF 2009 9 amount of Rs.2,000/- towards ‘funeral expenses’, an amount of Rs.2,000/- towards 'loss of estate' and an amount of Rs.5,000/towards ‘loss of consortium’. 21. In the light of the law referred to above, I award the appellants a further amount of Rs.14,500/- each under the heads ‘funeral expenses' and 'loss of estate', and a further amount of Rs.2,22,000/- under the head 'loss of consortium' that is Rs.44,000/- each to the appellants. ## **Loss of love and affection & pain and sufferings** 22. The Tribunal has awarded an amount of Rs.10,000/under the head 'loss of love and affection' and Rs.2,000/- under the head 'pain and suffering'. ## 23. In **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once 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.10,000/awarded under the head 'loss of love and affection'. Similarly, in **Sarla Varma** , it is held that no amount shall be awarded MACA NO. 2634 OF 2009 10 towards 'pain and sufferings' in the case of instantaneous death. Hence, I set aside the amount of Rs.2,000/- awarded under the said head. 24. With respect to the compensation awarded under the heads 'transportation expenses and clothing', I find the same to be reasonable and just. 25. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [460 x 246] intentionally omitted <==** **----- Start of picture text -----**<br> Amount<br>Amount<br>Sl. modified and<br>awarded by<br>Head of claim recalculated<br>the Tribunal<br>No by this Court<br>(in rupees)<br>(in rupees)<br>Transport to<br>1,000 1,000<br>hospital<br>Clothing 500 500<br>Pain and suffering 2,000 0<br>Funeral expenses 2,000 16,500<br>**----- End of picture text -----**<br> MACA NO. 2634 OF 2009 11 **==> picture [460 x 217] intentionally omitted <==** **----- Start of picture text -----**<br> Loss of love and<br> 10,000 0<br>affection<br>Loss of estate 2,000 16,500<br>Loss of consortium 5,000 2,22,000<br>Loss due to<br>4,32,000 6,42,600<br>disability<br>8,99,100<br>Total 4,54,500 rounded off to<br>Rs.9,00,000/-<br>**----- End of picture text -----**<br> 26. Even though the appellants had claimed only an amount of Rs.7,50,000/- in the claim petition, in the light of the law in **Sarla Verma** and **Pranay Sethi** (supra), that the dependents of the deceased are entitled to future prospects and compensation under the conventional heads, I have awarded the appellants more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down by the Honourable Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.4,45,500/-** with interest at the rate of 6% per annum from the date of petition MACA NO. 2634 OF 2009 12 till the date of deposit, after deducting interest for a period of 31 days i.e., the period of delay in filing the appeal and as ordered by this Court on 17.11.2021 in C.M. Appln.1/2009, and proportionate cost. The 3[rd] respondent is ordered to deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and cost within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the shall be disbursed to the appellants in the ratio of 30:30:30:10 and in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** rkc/24.02.22 The penultimate line of the judgment dated 24.02.2022 in MACA No.2634/2009 regarding apportionment of compensation is corrected as '40:15:15:15:15' instead of 30:30:30:10 as per order dated 27.05.2022 in IA No.1/2022 in MACA 2634/2009. sd/- Deputy Registrar