Mathu @ Madhavi, Sivanandan R. @ Vasudevan, Priyalathal and Preetha v. K.K. Sankar, Musthafa So. Muthuppa Vattathu Veedu, The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** ## **MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943** ## **MACA NO. 2046 OF 2009** ## **AGAINST THE JUDGMENT DATED 20.09.2008 IN OPMV 747/2003 OF MOTOR ACCIDENTS** ## **CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** - **1 MATHU @ MADHAVI, W/O LATE RAJAN 2 SIVANANDAN R. @ VASUDEVAN, S/O. RAJAN** - **3 PRIYALATHAL, D/O. RAJAN** - **4 PREETHA, D/O. RAJAN (MINOR) REP. BY MOTHER FIRST APPELLAT, ALL RESIDING AT, PANTHAKKAL HOUSE, KUMARAMPUTHUR, PALLAVUR.P.O., PALLASSANA, ALTHUR TALUK, PALAKKAD DIST.** - **BY ADV SRI.A.R.GANGADAS** ## **RESPONDENTS/RESPONDENTS:** - **1 K.K.SANKAR, KARUKIL PUTHAVN VEEDU KARIMBA.P.O. PALAKKAD DIST.** - **2 MUSTHAFA SO. MUTHUPPA VATTATHU VEEDU KARIMBA.P.O., PALAKKAD DIST.** - **3 THE NEW INDIA ASSURANCE CO. LTD. BRANCH OFFICE, INDIRA GANDHI STADIUM, COIMBATORE ROAD, PALAKKAD.** - **BY ADV SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2046 of 2009 **2** ## **M.R.ANITHA, J. ----------------------------------------M.A.C.A No. 2046 of 2009 ----------------------------------------** Dated this th 21[st] day of February, 2022 ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.747/2003 on the file of Motor Accidents Claims Tribunal, Palakkad. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) claiming compensation on account of the death of one P.M.Rajan out of a motor accident occurred on 31.03.2001, while he was walking along the public road at Kalladikkode, bus bearing Registration No.KL 9F/1522 hit him and thereby he sustained fatal injuries. Immediately he was taken to PCM, Medical Centre, Kalladikkode and thereafter referred to Fort Hospital, Palakkad. Later he succumbed to the injuries on 03.04.2001. It is alleged that accident happened due to the rash and negligent driving of the bus by the 2[nd] respondent, the driver. The 1[st] respondent is the registered M.A.C.A No. 2046 of 2009 **3** owner of the bus and the 3[rd] respondent is the insurer. Claimants are wife and children of the deceased P.M.Rajan (herein after be referred as deceased). Total compensation of Rs.6,57,000/- was claimed which is limited to Rs.5,00,000/-. 2. Before the Tribunal, respondents 1 and 2 filed written statements denying the negligence alleged against the 2[nd] respondent and contending that the accident occurred due to the negligence of the deceased. The 3[rd] respondent filed written statement admitting the policy coverage with respect to the bus bearing Registration No.KL 9F/1522 during the relevant time. The claimants were put to strict proof regarding the age, occupation and income of the deceased. It is further contended that the compensation under various heads are exorbitant and excessive. 3. PW1, the wife of the deceased was examined and Exts.A1 to A9 were marked from the side of the claimants. Exts.B1 was marked from the side of the respondents. 4. Tribunal on evaluating the pleadings and evidence awarded Total compensation of Rs.2,29,199/- with 7.5% interest. The 2[nd] respondent was held responsible for the accident and first M.A.C.A No. 2046 of 2009 **4** respondent owner is held vicariously liable and the 3[rd] respondent insurer is held liable to indemnify the 1[st] respondent insured. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants/claimants are before this Court in appeal for the various grounds stated in the memorandum of appeal. The 3[rd] respondent insurer appear through standing counsel. Service of notice as against Respondents 1 and 2 dispensed with at the risk of the appellant. 6. Heard the learned counsel for the appellants/claimants and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 7. Negligence on the part of the 2[nd] respondent and the liability of the 3[rd] respondent are not in dispute. The only dispute between the parties is with respect to the quantum of compensation awarded by the Tribunal under various heads. 8.According to the learned counsel for the appellants/claimants (hereinafter be referred as claimant), deceased was a PWD contract worker and his monthly income was Rs.4,000/-. Ext.A9 salary certificate issued by the employer of the M.A.C.A No. 2046 of 2009 **5** deceased was produced, which was not relied upon and income was notionally fixed as Rs.2,500/- per month, which is very low. It is also contended that there are four claimants, but the Tribunal deducted 1/3rd of the income towards personal and living expenses of the deceased, which is wrong and ¼th ought to have been deducted. Multiplier adopted by the Tribunal was 8 which is also wrong and the proper multiplier would be 11 since the deceased was 55 years old. 9. The learned counsel for the insurer on the other hand contended that the deceased was 55 years old and the multiplier aught to have been 9 and though the income alleged as Rs.4,000/per month, it is not proved by examining the employer who issued Ext.A9 salary certificate. Hence, the Tribunal rightly taken the monthly income as Rs.2,500/- per month. According to him, just and reasonable compensation has already been awarded by the Tribunal and no interference is called for at the instance of this Court. 10. The first aspect is the income fixed notionally as Rs.2,500/-. It is true that though PW1 was examined and Ext.A9 M.A.C.A No. 2046 of 2009 **6** was marked, the employer was not examined to prove the genuineness of Ext.A9 salary certificate, which is in the form of a letter. So as rightly found by the Tribunal, Ext.A9 cannot be accepted as such. 11. In this context it is relevant to quote **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 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 M.A.C.A No. 2046 of 2009 **7** 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. 12. 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 unorganized 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 6,500/- per month. M.A.C.A No. 2046 of 2009 **8** 13. The accident in this case was on 31.03.2001 and he succumbed to the injuries on 03.04.2001. Based on the principles laid down in the above decisions, I am of the considered view that Rs.3,000/- can be taken as monthly income of the deceased. 14. 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 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. M.A.C.A No. 2046 of 2009 **9** 16. 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. 17. In Sarla Verma, the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the M.A.C.A No. 2046 of 2009 **10** age of deceased is more than 50 years. 18. 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 income also provided as the income minus tax component in the case of salaried persons. 19. In the present case, the deceased was self employed and he was 55 years of old at the time of accident. So claimants are entitled for 10% enhancement towards future prospects. The monthly income of the deceased already taken as Rs.3,000/-. Total monthly earning would be 3,000+300(10% of 3,000)=3,300. The annual income of the deceased is **Rs.39,600/-** (3,300x12). 20. On the question of deduction towards personal expenses in Sarla Verma's case, 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 M.A.C.A No. 2046 of 2009 **11** 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). 21. In Reshma Kumari's case, in paragraph No.38 it has been 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. 22. Here, there are four claimants, wife and children of the deceased. So ¼ has to be deducted towards personal and living M.A.C.A No. 2046 of 2009 **12** expenses. That will come to Rs.29,700/- (39,600-9,900(1/4 of 39,600)). So the annual dependency would be 29,700x11=3,26,700/-. From that the amount already awarded by the Tribunal to be deducted ie 3,26,700-1,63,200= **Rs.1,63,500/-.** 23. The next contention of the learned counsel is with regard to the enhancement of 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. 24. 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 M.A.C.A No. 2046 of 2009 **13** to him, the amounts to be awarded 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. 25. 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. M.A.C.A No. 2046 of 2009 **14** 26. Next is with regard to the consortium to be awarded, the law laid down by the Apex Court in Magma General Insurance Co.'s 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 causes 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 M.A.C.A No. 2046 of 2009 **15** 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. 27. In the present case, claimants are wife and 3 children of the deceased. The 2[nd] claimant is the major son of the deceased aged 28 years old at the time of filing claim petition. So he is not entitled to get any amount towards loss of consortium. The 3[rd] claimant, who is the daughter of the deceased was aged 20 years and 4[th] claimant is a minor daughter is also entitled for compensation towards parental consortium. So claimants 1, 3 and 4 are entitled to get Rs.44,000/- each towards spousal and parental consortium, amounting to **Rs.1,32,000/** -(44,000x3). 28. Next is with regard to loss of estate and funeral expenses. Once amount is awarded under conventional heads, claimants are not further entitled to get any amount towards loss of love and affection. (See New India Assurance Co. Lte. Somwati & Others [2020 9 SCC 644]) So amount of Rs.10,000/- awarded by M.A.C.A No. 2046 of 2009 **16** the Tribunal towards loss of love and affection has to be deducted. Deduction also to be made of Rs.10,000/- awarded towards the loss of consortium by the Tribunal along with Rs.2,500 towards loss of estate and Rs.2,000/- towards funeral expenses. So under the conventional heads, claimants are entitled to get Rs.1,65,000/-. (1,32,000+33,000(16,500+16,500). From that, the amount already awarded by the Tribunal to be deducted that is 5,000+10,000+2,500+2,000=19,500, 1,65,000-19,500= **Rs.1,45,500/-.** 29. So in total the claimants are entitled to get total enhanced compensation of **Rs.3,09,000/-.** (Three lakhs nine thousand only) (1,63,500+1,45,500). 30. In the result, the appellants are allowed to realize enhanced compensation of Rs.3,09,000/- which will carry interest at the rate of 7.5% per annum from the date of petition, till realization. The enhanced compensation shall be apportioned among the appellants in the ratio of 40:20:20:20 deducting the consortium awarded to claimants 1, 3 and 4. The third respondent insurer shall satisfy the additional compensation granted in this M.A.C.A No. 2046 of 2009 **17** appeal, together with interest, deducting the amount due towards balance court fee, within a period of two months from the date of receipt of a certified copy of this judgment. 31. 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.D1-62475/2016 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**