N. Mani, M. Prakash, and R. Nachammal v. Rajeendranath and The Oriental Insurance Co. Ltd.

**MACA NO. 1831 OF 2011** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943** **MACA NO. 1831 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1448/2006 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOZHIKODE** ## **APPELLANTS/PETITIONERS IN THE O.P (MV):** - 1 N. MANI ,MEGALAI, W/O.LATE MANI, "RAJA NIVAS", CHEVARAMBALAM.P.O., CHEVAYUR AMSOM &, DESOM, KOZHIKODE DISTRICT. - 2 M. PRAKASH SO. LATE MANI "RAJA NIVAS", CHEVARAMBALAM.P.O., CHEVAYUR AMSOM &, DESOM, KOZHIKODE DISTRICT. - 3 R. NACHAMMAL W/O. LATE RASAPPA GOUDER "RAJA NIVAS", CHEVARAMBALAM.P.O., CHEVAYUR AMSOM &, DESOM, KOCHIKODE DISTRICT. NOW RISIDING AT, NAMBAGOWNDNUR.P.O., ARAVAKKURICHI TALUK,, KARUR DISTRICT, TAMILNADU. BY ADVS. THOMAS ANTONY M.P.PRAKASH ## **RESPONDENTS/RESPONDENTS** - 1 RAJEENDRANATH, S/O.SADASIVAN, VARIANKANDY HOUSE, KOTTULI, KOZHIKODE DISTRICT., (OWNER OF TRACTOR KL-11-N-4942). - 2 THE ORIENTAL INSURANCE CO.LTD. G.H. ROAD, KOZHIKODE – 673 004, (INSURER OF TRACTOR, KL-11-N-4942). **MACA NO. 1831 OF 2011** **2** BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1831 OF 2011** **3** ## **J U D G M E N T** The appellants were the petitioners in OP(MV) No.1448/2006 on the file of the II Additional Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of R.Mani (deceased)the husband of the 1[st] appellant, the father of 2[nd] appellant and the son of the 3rd appellant. It was their case that, on 28.10.2005, while the deceased was riding his motor cycle bearing registration No.KL-11-W-358 from Kunnamangalam to Calicut, a Tractor bearing registration No.KL-11/N -4942 (Tractor), driven by one Anil Mathew in a rash and negligent manner and owned by the 1[st] respondent, hit the motor cycle of the deceased. The deceased had sustained fatal injuries and lost his life instantaneously. The Tractor **MACA NO. 1831 OF 2011** **4** was insured with the 2[nd] respondent. The deceased was an Agriculturist and Businessman and was earning a monthly income of Rs.20,000/-. The appellants were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.48,31,000/- from the respondents, which claim was limited to Rs.22,00,000/-. 3. The 1[st] respondent had filed a written statement admitting that he was the owner of the Tractor. Nevertheless, he disputed negligence on the part of the driver of the Tractor and stated that the accident occurred due to the negligence of the deceased. 4. The 2[nd] respondent had filed a written statement reiterating the pleadings of the 1[st] respondent. The 2[nd] respondent prayed that it may be exonerated of its liability. 5. The appellants had produced and marked Exts A1 to A10 in evidence. The respondents did not let in any evidence. **MACA NO. 1831 OF 2011** **5** 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to recover from the 2[nd] respondent an amount of Rs.8,59,167/- with interest at the rate of 7% per annum from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri.Thomas Antony, the learned Counsel appearing for the appellants/petitioners and Sri.P.Jacob Mathew, the learned counsel appearing for the 2nd respondent/insurer. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? **MACA NO. 1831 OF 2011** **6** ## **Negligence and liability** 10. The appellants had specifically contended in the claim petition that the accident occurred due to the negligence of the 1[st] respondent. In order to substantiate their pleadings, the appellants had produced Ext.A1 F.I.S and Ext.A2 Scene Mahazar. Even though the respondents 1 and 2 denied that there was negligence on the part of the driver of the Tractor, they did not let in any evidence to controvert the pleadings in the claim petition or discredit Exts.A1 and A2. Indisputably, the 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the Tractor. The 2[nd] respondent has not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellants had claimed that the deceased was an Agriculturist and Businessman by profession and was **MACA NO. 1831 OF 2011** **7** earning a monthly income of Rs.20,000/-. To prove the above assertion, the appellants had produced Exts.A6, A7 and A8 Saral Forms and Exts.A9 and A10 Balance Sheets of the deceased. The Tribunal, for reason that there can be ups and downs in money lending business, took the average professional income of the deceased as per Exts.A6 to A8, and fixed the same at Rs.99,577/- per annum, but deducted Rs.5,000/- towards income and professional tax. Accordingly, the Tribunal fixed the net annual income of the deceased at Rs.94,577/-. 12. I have re-appreciated Exts.A6 to A8 Saral Forms. As per Ext.A6, the deceased had a professional income of Rs.87,890/- and an agricultural income of Rs.59,600/- for the assessment year 2002-2003; as per Ext.A7, the deceased had a professional income of Rs.87,970/- and an agricultural income of Rs.41,760/- for the assessment year 2003-2004; and as per Ext.A8, the deceased had a professional income of Rs.1,22,870/- and an agricultural income of Rs.52,370/- for the assessment year 2004-2005. **MACA NO. 1831 OF 2011** **8** 13. On a scrutiny of the impugned award, it can be gathered that the Tribunal had omitted to take the agricultural income of the deceased which is erroneous and wrong. On totalling the professional income and agricultural income of the deceased, as per Exts.A6 to A8 for the three assessment years, he had a gross income of Rs.1,47,490/-, Rs.129,730/- and Rs.1,75,240/- respectively. 14. Exts.A6 to A8 also reflects that the deceased had paid tax for the three financial years. Thus, the net income of the deceased for the above three assessment years works out to Rs.1,43,990/-, Rs.1,25,604/- and Rs.1,71,338/respectively, i.e., a total net income of Rs.4,40,932/- for the three assessment years. Therefore, the deceased had an average net income of Rs.12,248/- per month for the three years . In the above factual analysis, I re-fix the average net income of the deceased at Rs.12,248/-. **MACA NO. 1831 OF 2011** **9** ## **Multiplier** 15. The deceased was aged 48 years at the time of his death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '13'. ## **Personal living expenses of the deceased** 16. As per Ext A5 legal heir ship certificate, it is proved and established that the appellants are the wife, son and mother of the deceased. They are three in number. As per the principles laid down in **Sarla Verma** (supra) **and National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680], one- third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 17. Following the ratio decidendi in **Sarla Verma** (supra) and **Pranay Sethi** (supra), and considering the fact **MACA NO. 1831 OF 2011** **10** that the deceased was aged 48 years at the time of his accident/death, I hold that the appellants are entitled to 25% future prospects. ## **Loss of dependency** 18. Taking into account the above mentioned factors, namely, the net monthly income of the deceased at Rs.12,248/-, the multiplier at '13', future prospects at 25% and after deducting one-third of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.15,92,240/-, instead of Rs.8,19,667/- awarded by the Tribunal. ## **Conventional heads of compensation** 19. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **Pranay Sethi** (supra) has held that the dependents of the deceased are entitled for compensation under the conventional heads viz., 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 **MACA NO. 1831 OF 2011** **11** conventional heads of compensation have to be enhanced every three years by 10%. 20. 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 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 to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three years after 2017. 21. The Tribunal has awarded an amount of Rs.3,000/towards funeral expenses. Therefore, I award the appellants a further amount of Rs.13,500/- under the said head. Similarly, the Tribunal has awarded an amount of Rs.5,000/- under the head 'loss of estate'. Thus, I award ## **MACA NO. 1831 OF 2011** **12** the appellants a further amount of Rs.11,500/- under the said head. Likewise, the Tribunal has awarded only an amount of Rs.10,000/- under the head 'loss of consortium'. As the appellants are three in number, I award each of them an amount of Rs.44,000/- under the said head which works out to Rs.1,32,000/. After deducting Rs.10,000/awarded by the Tribunal, I award the appellants a further amount Rs.1,22,000/- under the head 'loss of consortium'. ## **Pain and suffering and loss of love and affection** 22. The Tribunal has awarded an amount of Rs.10,000/under the head 'pain and suffering' and Rs.10,000/- under the head 'loss of love and affection'. 23. In the light of the law laid down in **Sarla Verma** (supra) that no amount shall be paid for pain and sufferings in the case of instantaneous death, and in **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644], wherein, the Hon'ble Supreme Court has held that once compensation is awarded under the head 'loss of **MACA NO. 1831 OF 2011** **13** consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation, I set aside Rs.10,000/- each awarded under the aforesaid heads. ## **Other heads of compensation** 24. With respect to the other heads of claim, namely, transportation and clothing, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants/petitioner are entitled for enhancement of compensation as modified and recalculated above, and given in the table below for easy reference. **MACA NO. 1831 OF 2011** **14** **==> picture [463 x 402] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts<br>the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Transport Expenses 1,000 1,000<br>2. Clothing 5,00 500<br>2. Funeral Expenses 3,000 16,500<br>3. Pain and suffering 10,000 ---<br>4. Loss of love and affection 10,000 ...<br>5. Loss of estate 5,000 16,500<br>5. Loss of consortium 10,000 1,32,000<br>Loss due to dependency 8,9,667 15,92,240<br>Total 8,59,967 17,58,740<br>======= =======<br>**----- End of picture text -----**<br> In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.8,98,773/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 228 days , i.e. the period of delay in filing the appeal and as ordered by this Court on 18.11.2011 in **MACA NO. 1831 OF 2011** **15** C.M.Appli. No.2748/2011, and proportionate costs. The 2[nd] respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited compensation to the appellants/petitioners in the ratio of 50:40:10 respectively and in accordance with law ma/13.01.2022 Sd/- **C.S.DIAS, JUDGE**