Mariyamma and others v. Mathai Jose and ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** ## **MACA.No.4093 OF 2019** **AGAINST THE AWARD IN OP(MV) 936/2017 DATED 03-04-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANTS/RESPONDENTS:** - **1 MARIYAMMA, AGED 70 YEARS W/O LATE VARKEY, PUTHENKUDIYIL HOUSE, PAIPRA KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 673.** - **2 ANNAKUTTY ISSAC, AGED 54 YEARS W/O ISSAC, MUTHIYELIL HOUSE, RAYAMANGALAM (PO), RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE, ERNAKULAM DISTRICT, PIN-683 545.** - **3 LISSY, AGED 46 YEARS W/O KURIAKOSE, MANNARKUDIYIL HOUSE, KEEZHILLAM (PO), KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, PIN-683 541.** - **4 ELDHO VARGHESE, AGED 44 YEARS S/O LATE VARKEY PUTHENKUDIYIL HOUSE, PAIPRA KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 673.** - **BY ADV. SRI.R.BINDU (SASTHAMANGALAM)** ## **RESPONDENTS/RESPONDENTS:** - **1 MATHAI JOSE, NADAMKUZHI HOUSE, VALAYANCHIRANGARA (PO), VALAYANCHIRANGARA KARA, KUNNATHUNADU TALUK, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 556.** - **2 JOSE N.M, NADAMKUZHI HOUSE, VALAYANCHIRANGARA (PO), VALAYANCHIRANGARA KARA, KUNNATHUNADU TALUK, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 556.** MACA No.4093 of 2019 2 **3 ORIENTAL INSURANCE COMPANY LIMITED, PMC VII/C9, 1ST FLOOR, KM TOWERS, PERUMBAVOOR, PIN-683 542.** **R3 BY ADV. SMT.K.S.SANTHI, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.4093 of 2019 3 ## **JUDGMENT** The appellants are the claimants in O.P.(MV)No.936 of 2017 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Varkey, husband of the 1[st] appellant and father of appellants 2 to 4, in a motor accident which occurred on 30.07.2017, while he was walking along the side of a public road. At the place of accident, he was knocked down by a scooter bearing registration No. KL-40/E-6612, owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries on 02.08.2017, while undergoing in-patient treatment. Alleging that the accident occurred due to rash and negligent riding of the scooter by the 2[nd] respondent rider, claim petition was filed before the Tribunal, claiming a total compensation of Rs.37,35,000/under various heads, which was limited to Rs.18,00,000/-, for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 filed written statement admitting the accident; however, contending that the accident occurred due to the negligence on the part of the MACA No.4093 of 2019 4 deceased in crossing the road. The 3[rd] respondent insurer filed written statement admitting the policy coverage of the scooter involved in the accident; however, denying negligence alleged against the rider of that vehicle. The insurer contended that the accident occurred due to the negligence on the part of the deceased. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellants/claimants. Exts.B1 and B2 were marked on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the scooter by the 2[nd] respondent rider. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.5,73,400/- together with interest at the rate 7% per annum from 30.10.2017 till realisation, with proportionate cost and directed the 3[rd] respondent insurer to MACA No.4093 of 2019 5 satisfy the award. The amount of compensation was ordered to be apportioned among the appellants in the ratio 70:10:10:10. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/ claimants are before this Court in this appeal. 6. Heard the learned counsel for the appellants/claimants and also the learned Standing Counsel for the 3[rd] respondent insurer. Since insurance coverage of the scooter is admitted by the 2[nd] respondent insurer, service of notice on the 1[st] respondent owner and the 2[nd] respondent rider was dispensed with, by the order dated 16.11.2019 in C.M.Application No.2 of 2019. 7. During the course of arguments, learned counsel for the appellants would confine the challenge made in this appeal against the compensation awarded by the Tribunal under the head loss of dependency. Learned Standing Counsel for the 3[rd] respondent insurer would point out that the compensation awarded by the Tribunal under the head pain and suffering is on the higher side. 8. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Apex Court laid down the principles governing determination of quantum of compensation in the case MACA No.4093 of 2019 6 of death in a motor accident. The Apex Court held that, the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by following the well settled steps, namely, ascertaining the multiplicand (annual contribution to the family), the multiplier and calculation of loss of dependency by multiplying the multiplicand by such multiplier. 9. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and 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. It can MACA No.4093 of 2019 7 never be perfect. 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 conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the Tribunal is quite wide, yet it is obligatory on the part of the Tribunal to be guided by the expression, i.e., just compensation. 10. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus: |Head of claim<br>Compensation for|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>(in Rs.)|Notes| |---|---|---|---| |Transport to hospital<br>and from there|30,000|6,000|Reasonable| |Damage to clothing|5,000|1,000|Reasonable| |Expense for treatment<br>and attendant|0|56,336|actual| |Funeral expenses|0|15,000|Reasonable| |Pain and sufferings|0|50,000|Reasonable| |Loss<br>of<br>expected<br>future earnings/loss of<br>dependency|10,00,000|2,70,000|Reasonable| |Loss of estate|5,00,000|15000|Reasonable| |Loss of expectation of|5,00,000|0|Not entitled| MACA No.4093 of 2019 8 |life|||| |---|---|---|---| |Loss of consortium|2,00,000|1,60,000|Reasonable| |Love and affection|8,00,000|0|Not entitled| |Total<br>Claim limited to|37,35,000<br>18,00,000|5,73,336|Just compensation| 11. The accident occurred on 30.07.2017. At the time of accident, the deceased was aged 79 years. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.20,000/- as coolie (manual labourer). None of the appellants have chosen to mount the box to prove the monthly income of the deceased. In the absence of any reliable materials, the Tribunal fixed the monthly income of the deceased notionally as Rs.6,000/-. ## 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex MACA No.4093 of 2019 9 Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 13. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning MACA No.4093 of 2019 10 6,500/- per month. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2017, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the deceased notionally as Rs.11,000/-, for the purpose of assessing compensation under various heads. 15. In **Sarla Verma [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 MACA No.4093 of 2019 11 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., 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. 16. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds a place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 17. In the instant case, as on the date of accident, the deceased was aged 79 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of **5** applied by the Tribunal is correct and proper. 18. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Apex Court, on the question of deduction towards the personal and living expenses of the deceased held that, the personal and living expenses of the deceased should be deducted from his monthly income, to arrive at the contribution to the dependents. Where the deceased was **married** , the deduction towards personal and living expenses of MACA No.4093 of 2019 12 the deceased should be **one-third** where the number of dependent family members is **2 to 3** ; **one-fourth** where the number of dependent family members is **4 to 6** ; and **one-fifth** where the number of dependent family members **exceeds 6** . In regard to **bachelors** , normally, **50%** is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is **large and dependent on the income of the deceased** , as in a case MACA No.4093 of 2019 13 where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to **one-third** and contribution to the family will be taken as **two-third** . 19. In **Reshma Kumari [(2013) 9 SCC 65]** a ThreeJudge Bench of the Apex Court reproduced paragraphs 30, 31 and 32 of **Sarla Verma** and approved the same, in paragraph 38 of the decision, by stating that, the standards fixed in **Sarla Verma** provide guidance for the appropriate deduction for personal and living expenses. 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 dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. Therefore, the standards fixed in **Sarla Verma** on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out. In paragraph 43.6 MACA No.4093 of 2019 14 the Apex Court directed that, insofar as deduction for personal and living expenses is concerned, the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in **Sarla Verma** , subject to the observations made in para 38 of **Reshma Kumari** . 20. In **Pranay Sethi [(2017) 16 SCC 680]** , the Constitution Bench of the Apex Court, after considering the analysis made in **Sarla Verma** , which was reconsidered in **Reshma Kumari** , approved the method provided therein by stating that, as far as the guidance provided for appropriate deduction for personal and living expenses is concerned, the Tribunals and Courts should be guided by the conclusion in paragraph 43.6 of **Reshma Kumari** . 21. In the instant case, at the time of accident, the deceased was aged 79 years. The wife of the deceased alone can be treated as his dependant. Appellants 2 to 4, who are the major children aged 54, 46 and 44 years, cannot be treated as his dependants. In the light of the decisions of the Apex Court in **Sarla Verma** , **Reshma Kumari** and **Pranay Sethi** referred to supra, deduction of **50%** of the notional monthly income of the deceased towards his personal and living expenses has to be MACA No.4093 of 2019 15 made. Therefore, the Tribunal went wrong in deducting only 1/4[th] of the notional monthly income towards the personal and living expenses of the deceased. 22. Towards loss of dependency, the Tribunal awarded a sum of Rs.2,70,000/- (6,000 x 12 x 5 x 3/4). In this appeal, the monthly income of the deceased has already been re-fixed as Rs.11,000/-. Deducting 50% towards the personal and living expenses of the deceased; and applying the multiplier of 5, the compensation under the head loss of dependency is re-fixed as Rs.3,30,000/- (11,000 x 12 x 5 x 1/2), resulting an additional compensation of **Rs.60,000/-** (3,30,000 – 2,70,000). 23. The Tribunal awarded Rs.50,000/- as compensation towards pain and suffering of the deceased. 24. In **Jyni and others v. Raphel P.T. and others [2016 (2) KHC 870]** 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 present, as in the case of survival for hours or days. In cases of instantaneous death as MACA No.4093 of 2019 16 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. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases. 25. In the instant case, the deceased succumbed to the injuries after undergoing in-patient treatment for a period of 3 days. Considering the said fact, the compensation awarded by the Tribunal towards pain and suffering of the deceased is scaled down to Rs.15,000/-, resulting an **excess payment** of **Rs.35,000/-** (50,000 – 15,000). 26. The Tribunal awarded no compensation towards extra nourishment and bystander expenses. The Tribunal awarded a sum of Rs.1,000/- towards damage to clothing and articles. The accident is of the year 2017. The deceased succumbed to the injuries after undergoing in patient treatment for 3 days. Therefore, this Court deem it appropriate to grant a sum of **Rs.750/-** (250 x 3) towards extra nourishment and **Rs.900/-** (300 x 3) towards bystander expense. The compensation under MACA No.4093 of 2019 17 under the head damage to clothing and articles is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 – 1,000). 27. In the result, the appellants/claimants are entitled for payment of an additional compensation of **Rs.27,150/-** (Rupees Twenty seven thousand one hundred and fifty only) [(60,000 + 750 + 900 + 500) – 35,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation granted in this appeal shall be paid to the 1[st] appellant/1[st] claimant, who is the wife of the deceased. The 3[rd] 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, after deducting the liability, if any, of the appellants/claimants towards Balance Court Fee and Legal Benefit Fund. The insurer shall also deduct the liability of the appellants/claimants towards additional court fee in this appeal, in view of the amendment made to sub-rule (3) of Rule 397 of the Kerala Motor Vehicles Rules, 1989, with effect from 16.01.2015, and the same shall be deposited before this Court. Registry shall calculate the additional court fee payable in this MACA No.4093 of 2019 18 appeal and a statement to that effect shall also be enclosed along with the certified copy of this judgment. The disbursement of additional compensation to the 1[st] appellant/1[st] claimant shall be made taking note of the law on the point and 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.D162475/2016 dated 07.11.2019. The 1[st] appellant shall provide her 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 learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K. NARENDRAN** **JUDGE** MACA No.4093 of 2019 19 ## Statement of Additional court fee payable Total amount claimed in MACA :Rs.18,00,000 Amount awarded by MACT Muvattupuzha :Rs.5,73,400 Additional Compensation awarded by this Court :Rs.27,150 The total Court fee to be paid in view of the amendment to Sub Rule (3) of Rule 397 of Kerala Motor Vehicle Rules 1989 :Rs.1000 CF paid :Rs.100 Additional amount to be paid :Rs.900 The above statement showing additional court fee payable in the appeal is appended along with the certified copy of the judgment as per direction contained in the judgment dated 08/01/2020 in MACA 4093/2019. sd/- ASSISTANT REGISTRAR