Nafeera v. R.V. Sahakeer & Ors.

## **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. 2526 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 469/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL** ## **KALPETTA** ## **APPELLANTS/PETITIONERS:** - **1 NAFEERA V., AGED 25 YEARS, W/O.ANWAR D/O.NAJEEB, NAJEER HOUSE, KOLATHARA POST, KOZHIKODE DISTRICT** - **2 AFIN ANWAR AGED 5 YEARS AND 8 MONTHS S/O.LATE ANWAR, NAJEER HOUSE, KOLATHARA POST, KOZHIKODE DISTRICT (DATE OF BIRTH 29-03-2007)** - **3 SAINABA, AGED 57 YEARS,** - **W/O.IBRAHIM EDAVETTUR HOUSE, KELLOOR POST, 5TH MILE, MANANTHAVADY TALUK, WAYANAD DISTRICT** - **PETITIONER NO 2 BEING MINOR REPRESENTED BY NEXT FRIEND, GUARDIAN AND MOTHER NAFEERA, AGED 25 YEARS W/O.ANWAR D/O.NAJEEB, NAJEER HOUSE KOLATHARA POST, KOZHIKODE DISTRICT)** - **BY ADV SRI.N.J.ANTONY** ## **RESPONDENTS/RESPONDENTS:** - **1 R.V.SAHAKEER AGE NOT KNOWN S/O.KUNHAMMED, RAYAN MARACKAR VEEDU, VALLIYOORKAVU ROAD MANANTHAVADY POST WAYANAD DISTRICT (DRIVER CUM OWNER OF THE CAR NO KL-12C/2745 D.L NO. NOT KNOWN)** - **2 UNITED INDIA INSURANCE CO.LTD., KALPETTA (POLICY NO NOT KNOWN)** - **3 IBRAHIM AGED 63 YEARS** - **FATHERS NAME NOT KNOWN, EDAVETTAN HOUSE, POST KELLOOR 5TH MILE MANANTHAVADY TALUK** **BY ADV SRI.A.R.GEORGE** ## **OTHER PRESENT:** **SRI.A.R GEORGE,R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2526/2012 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.469/2007 on the file of Motor Accidents Claims Tribunal, Kalpetta (in short, Tribunal). The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming total compensation of Rs.7,00,000/, out of the death of Anwar, husband of the first appellant, father of second appellant and the son of third appellant. 2. It is alleged that on 28.04.2007 when the deceased was travelling in a car bearing Reg.No.KL 12/C 2745 it hit on the backside of a parked Tata Hitachi No.30 in front of Dossahonnur Gate, Karnataka, resulting in fatal injuries to him and immediately he succumbed to the injuries. It is alleged that the accident occurred due to the rash and negligent driving of the car by the first respondent, owner cum driver. Second respondent is the insurer of the offending vehicle. MACA No.2526/2012 3 Third respondent is the father of the deceased. 3. Before the Tribunal, first respondent entered appearance and filed written statement denying negligence on his part. It is also contended that the vehicle is covered by valid policy of insurance issued by the second respondent. Second respondent filed separate written statement admitting the policy coverage with respect to the vehicle and it is also contended that the appellant was a gratuitous passenger. Rashness and negligence on the part of the first respondent is also denied. Supplemental third respondent, father of the deceased, remained ex parte. 4. PW 1 examined and Exts.A1 to A7 marked from the side of the appellants/claimants. 5. Tribunal on evaluating the evidence and facts and circumstances of the case, found that first respondent is responsible for the accident and second respondent was held liable to pay the amount to the appellants. The Tribunal awarded a total compensation of Rs.5,01,500/- with interest at the rate of 7.5% per annum from the date of petition till MACA No.2526/2012 4 realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants/claimants (hereinafter be referred as the claimants) came up in appeal before this Court for the various grounds stated in the memorandum of appeal. 7. Adv. Sri.A.R. George appeared on behalf of the second respondent. Though first respondent was duly served there was no appearance on behalf of him. Service of notice as against third respondent is dispensed with at the risk of the claimants. 8. Heard the learned counsel for the claimants and also the learned Counsel for the 2[nd] respondent, insurer. Lower court records were called for and perused. 9. First appellant, the wife of the deceased, married pending the proceedings before the Tribunal. Third appellant, the mother was examined as PW1 and deposed about the income of the deceased and also about the accident and death of the deceased. 10. According to the learned counsel for the claimants, MACA No.2526/2012 5 the deceased was a businessman and monthly income of Rs.10,000/- was claimed. But the Tribunal taken only Rs.3,500/- as the monthly income of the deceased, which, according to the learned counsel, is very low. 11. Though PW1, the mother of the deceased, gave evidence to the effect that deceased was conducting coffee business and his monthly income was Rs.10,000/-, no convincing materials have been produced from the side of the claimants to prove that deceased is conducting coffee business. So as rightly found by the Tribunal there is no evidence as such to prove the actual income of the deceased. 12. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the Hon'ble 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/-. Following that principle, in Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], the Apex Court took the monthly income of a vegetable vendor, who met MACA No.2526/2012 6 with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. 13. The accident in this case was occurred on 28.04.2007. So in view of the settled position of law as well as the evidence of PW1 and the facts and circumstances, the income of the deceased can notionally be taken as Rs.6,000/since the death was in the year 2007 and the deceased was 34 years old at the time of accident. 14. The learned counsel for the claimants further claims for 40% enhancement towards future prospects as has been held in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121] the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was below 40 years and the said addition was reduced by 30% if the age of the deceased was 40 – 50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons MACA No.2526/2012 7 ## having permanent job. 15. But in Pranay Sethi the Apex Court though accepted the findings in Sarla Verma in fixing the multiplier made some variance with regard to the grant of future prospects in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust and the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. 16. It is laid down in Pranay Sethi that with respect to self-employed or persons with fixed salary when the deceased was below 40 years an addition of 40% can be granted and in the case of between 40 – 50, an addition of 25% and with MACA No.2526/2012 8 respect to persons between 50 – 60 years, the addition has been fixed as 10%. The established income also provided as the income minus tax component. 17. So, in the present case, the claim of the counsel for 40% enhancement towards future prospects of the deceased is in compliance of the law laid down in Pranay Sethi. So the monthly income of the deceased can be computed as Rs.8,400/-[Rs.6,000+2,400 (40% of Rs.6,000/-). 18. Suitable multiplier as per Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121], approved by Constitution Bench in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] is '16'. 19. 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 and where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number MACA No.2526/2012 9 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. 20. Hence towards personal and living expenses of the deceased 1/3[rd] to be deducted and the amount would be Rs.5,600/- [8,400-2,800 (1/3[rd] of Rs.8,400)]. Applying the multiplier of '16', the compensation under the head of loss of dependency would be Rs.10,75,200/- [5,600x12x16]. Deducting Rs.4,76,000/- awarded by the Tribunal, the compensation under the head of loss of dependency would be Rs.5,99,200/- [10,75,200–4,76,000]. 21. 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. 22. According to the learned counsel, only Rs.5,000/was awarded towards funeral expenses and no amount was awarded towards consortium as well as loss of estate. In Pranay Sethi, the Apex Court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards MACA No.2526/2012 10 loss of consortium and Rs.15,000/- towards funeral expenses. 23. 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. So the appellants are entitled for 10% enhancement on the said amounts. So according 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 for funeral expenses. Towards consortium, wife and son as well as the mother is entitled for the same. 24. Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] 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 MACA No.2526/2012 11 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 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. So, Rs.1,32,000/[Rs.44,000x3] is awarded towards loss of consortium. 25. Once compensation is awarded under the head consortium, the claimants are not entitled to get compensation for love and affection. [See: New India Assurance Co. Ltd. v. Somwati & Ors. [(2020) 9 SCC 644]. So from Rs.1,32,000/-, the amount of Rs.10,000/- awarded towards loss of love and affection to be deducted. Then the balance would be - Rs.1,22,000/ [1,32,000-10,000]. Deducting the amount awarded by the Tribunal under the head funeral expenses (Rs.5,000/-), the balance would be Rs.11,500/- [16,500-5,000]. Towards loss of estate no amount has been awarded by the MACA No.2526/2012 12 Tribunal. Claimants are entitled to get Rs.16,500/ - on that head. 26. In the result, the appellants/claimants are allowed to realise enhanced compensation of Rs.7,49,200/- [5,99,200+ 1,22,000+11,500+16,500] (Rupees seven lakhs forty nine thousand two hundred only), which will carry interest at the rate of 6% per annum from the date of petition till realisation (excluding the period of 736 days delay caused in filing the appeal). The second respondent-insurer is directed to pay the 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, after deducting the liability towards balance Court Fee. 27. The disbursement of enhanced compensation 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.D1-62475/2016 dated 07.11.2019. 28. Disbursement of the enhanced compensation among MACA No.2526/2012 13 the appellants/claimants 1 to 3 would be in the ratio 10:60:30. As far as the share of 2[nd] appellant/2[nd] claimant is concerned, the amount will be deposited in a nationalized bank till he attain majority and on attaining majority he is free to withdraw the amount. 29. Parties 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, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. Sd/- **M.R.ANITHA** shg **JUDGE**