Nandini and Surya (minor) v. M. Muruganantam Vanchipalayam; Alphonse So. Arputhaswamy; Cholamandalam M.S. General Insurance Co. Ltd.

MACA NO. 2367 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943 MACA NO. 2367 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1130/2004 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,PALAKKAD, PALAKKAD** **APPELLANT/S:** 1 NANDINI, W/O.RAMESH,OMANALAYAM,PARISSIKKAL P.O., KALLIYAMPARA,, KOZHINJAMPARA, CHITTUR, PALAKKAD. 2 SURYA MINOR AGED 11 YEARS, D/O. RAMESH DO.........DO., REP. BY GUARDIAN NANDINI,, (MOTHER) IST APELLANT. BY ADV SRI.LIJU. M.P ## **RESPONDENT/S:** 1 M.MURUGANANTHAM VANCHIPALAYAM, ANDIPALAYAM,, POLLACHI, TAMILNADU. 2 ALPHONSE SO. ARPUTHASWAMY, RAMANDICHALLA, VADAKARAPATHY,, CHITTUR TALUK, PALAKKAD. 3 CHOLAMANDALAM M.S. GENERAL INSURANCE CO. LTD., 2ND FLOOR, ALANKAR BUILDING, 55/DBB ROAD,, R.S. PURAM, COIMBATORE, TAMILNADU. BY ADVS. MATHEWS JACOB (SR.) P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2367 OF 2009 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1130/2004 on the file of the 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 Ramesh (deceased), husband of the 1[st] appellant and father of the 2[nd] appellant. It was their case that, on 21.07.2004, while the deceased was riding his motor cycle bearing registration No.TN 41/M 5982 through the Menonpara - Ozhalapathi public road, another motor cycle bearing registration No.TN-41/J 3742 (offending motor cycle), driven by the 2[nd] respondent in a rash and negligent manner, hit the motor cycle of the deceased. The deceased sustained grievous injuries and was rushed to the Unity Hospital, Kozhinjampara and the Medical College Hospital, Coimbatore. However, his life could not be saved and he succumbed to the fatal injuries on 22.07.2004. The deceased was 38 years of age. He was working as the Site in Charge in Star Electricals, Palakkad, and drawing a monthly MACA NO. 2367 OF 2009 3 salary of Rs.9,319/-. The offending motor cycle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellants were the dependents of the deceased. Hence, the appellants claimed a total compensation of Rs.8,39,000/- from the respondents, which was limited to Rs.6,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent had filed a written statement, inter alia, contending that the accident occurred due to the negligence of the deceased. The 3[rd] respondent contended that the claim petition was bad for non-joinder of necessary parties. The 3[rd] respondent also disputed the age, income and occupation of the deceased. Nevertheless, the 3[rd] respondent admitted that the offending motor cycle had a valid insurance coverage. 5. The 1[st] appellant and the employer of the deceased were examined as PWs 1 and 2 and Exts.A1 to A9 were marked in evidence. The respondents did not let in any evidence. 4 MACA NO. 2367 OF 2009 6. The Tribunal, after analysing the pleadings and materials on record, disbelieved the oral testimony of PW2 and Ext.A9 certificate and fixed the notional monthly income of the deceased at Rs.3,000/-. The Tribunal the claim petition in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.4,00,500/- with interest @ 7.5% per annum from the date of petition till the date of realisation and cost of Rs.1,000/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri.Liju M.P., the learned counsel appearing for the appellants/petitioners, Sri. P. Jacob Mathew, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 10. Ext.A4 charge sheet filed by the Police substantiates that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the offending motor 5 MACA NO. 2367 OF 2009 cycle. The 3[rd] respondent has not proved that the 1[st] respondent had violated the insurance policy conditions. The respondents have not let in any evidence to discredit the charge sheet. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income** 11. The appellants had averred in the claim petition that deceased was the Site in charge in a private concern named Star Electricals, Kanjikode West, Palakkad. They claimed that the deceased was earning a monthly salary of Rs.9,319/-. The appellants examined PW2 to prove Ext.A9. 12. On a re-appreciation of the oral testimony of PW2 and Ext.A9, it is seen that the income of the deceased has been certified only for the month of January 2004. PW2 has admitted in his cross examination that he does not have any supporting material to substantiate that the deceased was his permanent employee. PW2 has also admitted that he has not maintained any register to establish the period of employment of the deceased. Due to absence of any cogent material or explanation from PW2 on the above aspect, I am constrained to perceive that the deceased was not a regular employee of MACA NO. 2367 OF 2009 6 PW2. Therefore, the income certified in Ext.A9 cannot be taken on its face value to fix the income of the deceased. 13. It is averred and proved by PW1 that the deceased was a Site in Charge. Hence, necessarily, he was a skilled labourer. 14. In **Chameli Devi & Ors. vs. Jivrail Mian & Ors.** [(2019) KHC 5352], the Honourable Supreme Court has fixed the notional monthly income of a carpenter in the year 2001 at Rs.5,000/-. In **Chandra @ Chanda @ Chandraram & Anr.** **Vs. Mukesh Kumar Yadav & Ors.** [LL 2021 SC 531], the Honourable Supreme Court has fixed the notional monthly income of a driver in the year 2004 at Rs.6,000/-. 15. Following the yardsticks in the afore cited decisions and considering the fact that the accident occurred and the deceased lost his life in the year 2004, I fix the notional monthly income of the deceased at Rs.6,000/- per month. 16. The learned counsel for the 3[rd] respondent has vociferously argued that there is absolutely no material on record to prove that the deceased was a skilled labourer. It is to be remembered that, the respondents have not let in any evidence to the contrary to discredit the oral testimony of MACA NO. 2367 OF 2009 7 PW1 read with the averments in the claim petition. Mere assertion in the pleadings is not proof. The Tribunal had heavily relied on the inquest report, wherein one of the relatives of the deceased had stated that he was conducting chitti business. It will only have to be assumed that was an additional avocation of the deceased. In view of the overwhelming evidence on record, and moved by the touchstone of preponderance of probability, I hold that the deceased was a skilled labourer, in the status of a Site in Charge. Thus, I fix the notional monthly income of the deceased at Rs.6,000/-. ## **Multiplier** 17. The deceased was aged 38 years on the date of accident. 18. 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 '15'. ## **Dependents of the deceased** 19. It is proved by Ext.A8 relationship certificate, that the appellants were the wife and daughter of the deceased. 20. As the appellants are two in number, one third of the MACA NO. 2367 OF 2009 8 compensation has to be deducted towards personal living expenses of the deceased as laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680. ## **Future Prospects** 21. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the age of the deceased at 38 years at the time of his death, I hold that the appellants are entitled to future prospects at 40% on the compensation for loss due to dependency. ## **Loss due to Dependency** 22. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.6,000/-, the multiplier at 15, future prospects at 40% and after deducting one third of the compensation towards the personal living expenses of the deceased, I refix the compensation for 'loss due to dependency' at Rs.10,08,000/-, instead of Rs.3,84,000/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 23. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable Supreme Court has held that the MACA NO. 2367 OF 2009 9 dependents of the deceased are entitled to compensation under the conventional heads namely, funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/and Rs.40,000/- respectively. 24. In the instant case, the Tribunal has awarded only an amount of Rs.2,000/- towards 'funeral expenses', Rs.2,500/towards 'loss of estate' and Rs.10,000/- towards 'loss of consortium'. 25. In the light of the law laid down in **Pranay Sethi** (supra), I enhance the compensation under the aforesaid heads i.e., a further amount of Rs.13,000/- towards 'funeral expenses', Rs.12,500/- towards 'loss of estate' and Rs.70,000/towards 'loss of consortium' viz. Rs.40,000/- each to the appellants towards 'loss of consortium. 26. With respect to the compensation awarded under the head 'transportation expenses', I find that the Tribunal has awarded reasonable and just compensation. 27. 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 MACA NO. 2367 OF 2009 10 ## recalculated above and given in the table below for easy ## reference: **==> picture [416 x 366] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>modified<br>awarded by<br>N and<br>the<br>recalculated<br>o Tribunal(in<br>by this<br>rupees) Court(in<br>rupees)<br>1. Transportation 2,000 2,000<br>expenses<br>2. Funeral expenses 2,000/- 15,000<br>3. loss of estate 2,500/- 15,000<br>6. Loss of consortium 10,000 80,000<br>7. Loss due to 3,84,000 1008000<br>dependency<br>Total 400500 1120000<br>**----- End of picture text -----**<br> 28. Even though the appellants had claimed only an amount of Rs.6,00,000/- as compensation, following the ratio 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 more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid MACA NO. 2367 OF 2009 11 down 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 an amount of Rs.7,19,500/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit and proportionate cost. The 3[rd ] respondent is ordered to deposit the enhanced compensation 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. The Tribunal shall, after deducting the liability of the appellants, if any, towards court fee, disburse the enhanced compensation amount to the appellants/petitioners in the ratio of 60:40 and in accordance with law. Sd/- **C.S.DIAS JUDGE** **C.S.DIAS** rkc