Omana and Others v. Shaibu P.S. and Others (MACA No.3165 of 2009)

1 MACA No.3165 of 2009 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` # **`MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943 MACA NO. 3165 OF 2009`** ``` AGAINST THE ORDER/JUDGMENT IN OPMV 362/2005 OF THE MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR`** ## **`APPELLANT/S:`** - `1 OMANA, W/O.LATE VASU, VALUPARAMBIL HOUSE CHENTHURUTHY DESOM, POYYA VILLAGE,, THRISSUR DISTRICT.` - `2 VIBULAL, S/O.LATE VASU, VALUPARAMBIL HOUSE, CHENTHURUTHY DESOM, POYYA VILALGE,, THRISSUR DISTRICT.` - `3 VIVISHA, D/O.LATE VASU, MINOR AGED 17 REP.BY MOTHER OMANA, VALUPARAMBIL HOUSE,, CHENTHURUTHY DESOM, POYYA VILLAGE,, THRISSUR DISTRICT.` - `4 RAMAYI, M/O.LATE VASU, VALUPARAMBIL HOUSE, CHENTHURUTHY DESOM, POYYA VILLAGE, THRISSUR DISTRICT.` ``` BY ADV SRI.V.BINOY RAM ``` ## **`RESPONDENT/S:`** - `1 SHAIBU P.S, S/O.SASANKAN, PANIKKASSERY HOSUE, PUTHENVELIKKARA DESOM, VILLAGE P.O., ERNAKULAM DISTRICT.` - `2 MOHAMMED KUTTY (DELETED) S/O.BAVA PUTHENPURAKKAL HOUSE, PONNANI NAGARAM, P.O.PUDUPONNANI,, MALAPPURAM DISTRICT.` ``` (RESPONDENT NO 2 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 30/03/2021 IN IA 411/2018 IN MACA 3165/2009) ``` - `3 THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD., P.B.NO.75, MAIN ROAD, NORTH PARAVUR.` - `4 VIJU C.G.,S/O.GEORGE, CHANASSERY HOUSE` 2 MACA No.3165 of 2009 ``` MALA, PALLIPURAM P.O. 5ROSILY THOMAS, W/O.THOMAS, KALIYADAN HOUSE, MALA, PALLIPURAM, POYYA, KODUNGALLUR. 6THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD.,ALENGADAN BUILDING,, TANA, IRINJALAKUDA. BY ADVS. SMT.DEEPA GEORGE SRI.K.SANDESH RAJA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 MACA No.3165 of 2009 **C.S DIAS,J. --------------------------MACA No.3165 of 2009** **----------------------------Dated this the 5[th] day of July, 2021.** ## **JUDGMENT** The appellants were the petitioners 1 to 4 in OP (MV)362/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The fifth petitioner in the claim petition had expired during the pendency of the proceeding before the Tribunal. The respondents in the appeal were the respondents in the claim petition. Pursuant to the orders of this Court on 30.3.2021 in IA 411/2018, the second respondent was deleted from the party array. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988 (in short 'the Act'), claiming compensation on account of the death of 4 MACA No.3165 of 2009 Vasu (deceased) – the husband of the first petitioner, father of the petitioners 2 and 3 and son of the fourth petitioner. The deceased fifth petitioner was the father of Vasu. 3. The concise case of the petitioners, relevant for the determination of the appeal, is: on 14.12.2004, while the deceased was travelling in a tempo van bearing registration No.KL-8/M 3670, a mini lorry bearing registration No.KL-7/J 466 (offending vehicle) driven by the first respondent in a rash and negligent manner came from the opposite side and hit the tempo van. The deceased sustained serious injuries and was admitted as inpatient at Amrita Institute of Medical Sciences and, thereafter, at the Medical Trust Hospital, Ernakulam. However, he lost his life on 24.12.2004. The deceased was a construction worker and earning a monthly income of Rs.6,000/-. The petitioners were the dependents of the deceased. The offending vehicle was owned by the second 5 MACA No.3165 of 2009 respondent and insured with the third respondent. The respondents 4 to 6 were the driver, owner and insurer of the tempo van in which the deceased was travelling. The petitioners claimed a compensation of Rs.5,00,000/- from the respondents. 4. The respondents 1, 4 and 6 did not contest the proceedings and were set ex parte. 5. The second respondent filed a written statement admitting that the mini lorry belonged to a partnership firm in which he was a partner and that the vehicle was insured with the third respondent. 6. The third respondent filed a written statement admitting that the offending vehicle had a valid insurance coverage, but contended that the accident occurred on account of the negligence on the part of the fourth respondent, who drove the tempo van in a rash manner. It was also contended that the second respondent did not produce the documents of the vehicle for perusal. 6 MACA No.3165 of 2009 7. Even though the fifth respondent entered appearance, no written statement was filed on her behalf. 8. The petitioners marked Exts A1 to A9 and the third respondent marked Ext B1 in evidence. 9. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the petitioners to realise an amount of Rs.3,32,800/- with interest at the rate of 7% per annum with proportionate costs. The third respondent was directed to pay the compensation amount. 10. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 11. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the third respondent – the Insurance Company. 12. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 7 MACA No.3165 of 2009 13. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has 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 standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 14. Ext A2 charge-sheet filed by the Puthenvelikkara Police, after investigation, substantiates that the accident occurred solely on account of the negligence of the first respondent, who drove the offending vehicle in a rash and negligent manner. The offending vehicle was admittedly owned by the second respondent and insured with the third respondent. Therefore, it is the third respondent, who is liable to indemnify the liability of the second 8 MACA No.3165 of 2009 respondent to pay the compensation to the appellants. 15. Exts A3 wound certificate and A5 postmortem certificate proves that serious injuries were caused to the deceased,who succumbed to the same on 24.12.2004 as evidenced by Ext A6. Ext A7 family membership certificate proves that the petitioners are the dependents of the deceased. Ext A8 admission register extract establishes that the deceased was aged 46 years at the time of his death. ## **Notional Income** 16. The petitioners had claimed that the deceased was a construction worker and earning a monthly income of Rs.6,000/-. However, the Tribunal fixed the notional income of the deceased at Rs.2,250/-. 17. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in 9 MACA No.3165 of 2009 the year 2004 at Rs.4,500/- per month. 18. Considering the ratio in the aforecited decision and the fact that the deceased was a construction worker and the accident occurred in the year 2004, I am of the firm opinion that the deceased's notional income can safely be fixed at Rs.4,500/- per month. Hence, I refix the notional income of the deceased at Rs.4,500/- per month. ## **Multiplier** 19. Admittedly, the deceased was aged 46 at the time of his death as reflected in Ext A8 admission register extract. 20. In light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121],** the relevant multiplier of the deceased is '13'. Hence, I re-fix the multiplier as '13'. ## **Personal living expenses** 21. As per Ext A7 family membership certificate, it is seen that the petitioners are the dependents of the 10 MACA No.3165 of 2009 deceased. Therefore, as they are four in number, I deduct one-fourth of the total compensation under the head loss of dependency towards the personal living expenses of the deceased. ## **Future prospects** 22. In **Sarla Verma** (supra) and **Pranay Sethi** (supra), the Hon'ble Supreme Court has categorically held that the dependents of the deceased are entitled to future prospects @ 25% of the total compensation to be awarded under the head loss of dependency, if the deceased is aged 46 years. Hence, I fix future prospects at 25%. ## **Loss due to dependency** 23. In view of the refixation of the multiplier at '13', the number of dependents at 4, and, therefore, the personal living expenses of the deceased at one-fourth, the notional income at Rs.4,500/- and future prospects at 25%, I fix the compensation under the head loss of dependency at Rs.6,58,125/- instead of Rs.2,70,000/- fixed by the 11 MACA No.3165 of 2009 Tribunal. ## **Pain and suferings and Loss of love and afection** 24. In **United India Insurance Co. Ltd v. Satinder** **Kaur @ Satwinder Kaur and others- [(2020 (3) KHC 760]** , the Hon'ble Supreme Court has held that the dependents of the deceased are not entitled for compensation under the head pain and sufferings. Therefore, I set aside the amount of Rs.10,000/- awarded by the Tribunal under the head 'pain and sufferings'. 25. Similarly, in view of the law laid down by this Court in **Kunjandy. L & Ors v. Rajendran & Ors [2020** **(2) KLT 315]** , I set aside the amount of Rs.15,000/awarded by the Tribunal under the head 'loss of love and affection', as it has held that, once compensation for loss of consortium is granted, no compensation under the head 'love and affection' can be awarded. ## **Conventional Heads of Compensation** 26. In clause (viii) of paragraph 61 of the decision in 12 MACA No.3165 of 2009 **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for 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. 27. Following the above ratio, I refix the compensation under the head 'funeral expenses' at Rs.15,000/- instead of Rs.3000/-, compensation under the head 'loss of estate' at Rs.15,000/- instead of Rs.5,000/and considering that the petitioners are the wife, children and mother of the deceased, I fix the compensation under the head loss of consortium at Rs.40,000/-, Rs.80,000/- and 40,000/-, respectively towards spousal, parental and filial consortium, totalling to an amount of Rs.1,60,000/-. ## **Transportation expenses and damage to clothing** 28. Although the petitioners had claimed compensation for transportation expenses and damage to clothing, the Tribunal had not awarded any amount. 13 MACA No.3165 of 2009 Taking note of the fact that the deceased had to be transported from Manancherikunnu to Ernakulam, I fix the transportation expenses at Rs.1,000/- and damage to clothing at Rs.500/-. 29. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Hon'ble Court in the afore-cited precedents, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount awarded<br>by the Tribunal (in<br>rupees)|Amounts<br>modifed<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|Nil|1,000/-| |2|Damage to clothing|Nil|500/-| |3|Funeral expenses|3,000/-|15,000/-| |4|Loss of estate|5,000/-|15,000/-| |5|Medical expenses|14,800/-|14,800/-| |6|Loss of consortium|5,000/-|1,60,000/-| |7|Pain and suferings|10,000/-|Nil| |8|Loss of love and afection|15,000/-|Nil| |9|Loss of dependency|2,70,000/-|6,58,125/-| ||Total|3,32,800/-|8,64,425/-| 14 MACA No.3165 of 2009 Accordingly, I hold that the appellants are entitled for enhanced compensation of Rs.5,31,625/-. 30. It is trite law, as held by the Hon'ble Supreme Court in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC)** and **Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)],** that the Courts have the power to award compensation in excess on what is claimed in the claim petition because what is awarded by the Court is just compensation. 31. Thus, the compensation is enhanced more than the amount that is claimed in the claim petition, following the ratio in the afore-cited decisions. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.5,31,625/(Rupees Five Lakh Thirty One Thousand Six Hundred and Twenty Five only) with interest on the enhanced compensation at the rate of 7% per annum from the date 15 MACA No.3165 of 2009 the appeal was admitted by this Court, i.e., 30.3.2021, till the date of deposit along with proportionate costs. I am adopting the said course because although the appeal was filed in the year 2009, the same was lying defective for a period of more than a decade, for want of steps. It was only on 30.3.2021, the appellants took steps and the service of notice on the respondents were complete. The third respondent shall deposit the enhanced compensation awarded in this appeal together with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants/petitioners 1 to 4 in proportion and in accordance with law, after deducting the additional court-fee that is to be paid as contemplated under the law on the enhanced compensation. **Sd/-** Sks/5.7.2021 **C.S.DIAS, JUDGE** 16 MACA No.3165 of 2009 The operative portion of the impugned judgment dated 5.7.2021 in MACA 3165/2009, directing that the petitioners are entitled to interest only from 30.3.2021, till the date of deposit is set aside and in supersession of the operative portion of the same, the petitioners are entitled to interest at the rate of 7% per annum on the enhanced compensation from the date of the claim petition till the date of deposit vide order dated 25.10.2022 in RP 526/2021 IN MACA 3165/2009. sd/- ## JOINT REGISTRAR