P. Kadeeja and others v. Prasanth K., Raveendran M. and National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** ## **MACA.No.4183 OF 2019** **AGAINST THE AWARD IN OPMV 97/2016 DATED 30-11-2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANTS:** |**1**|**P.KADEEJA,**| |---|---| ||**W/O.LATE BASHEER M., RESIDING AT RAJEENA**| ||**MANZIL, KALROAD, MATTANNUR - 670 702.**| |**2**|**MUHAMMED BILAL M. (MINOR),**| ||**AGED 5 YEARS, S/O.LATE BASHEER M.,**| ||**REPRESENTED BY MOTHER AND NEXT FRIEND 1ST**| ||**APPELLANT P.KADEEJA, W/O.LATE BASHEER M.,**| ||**RESIDING AT RAJEENA MANZIL, KALROAD,**| ||**MATTANNUR - 670 702.**| |**3**|**LAMIYA BASHEER (MINOR),**| ||**AGED 4 YEARS, S/O.LATE BASHEER M.,**| ||**REPRESENTED BY MOTHER AND NEXT FRIEND 1ST**| ||**APPELLANT, P.KADEEJA, W/O.LATE BASHEER M.,**| ||**RESIDING AT RAJEENA MANZIL, KALROAD,**| ||**MATTANNUR -670 702.**| ||**BY ADV. SRI.DOMSON J.VATTAKUZHY**| ## **RESPONDENTS:** |**1**|**PRASANTH K., S/O.KRISHNAN NAMBIAR,**| |---|---| ||**RESIDING AT PRADEEP HOUSE, VADUVANKULAM P.O.,**| ||**KUTTIYATUR - 670 602.**| |**2**|**RAVEENDRAN M., S/O.KUNHIRAMAN,**| ||**RESIDING AT RANJINI SADANAM, P.O. PORORA,**| ||**MANNUR, MATTANNUR - 670 702.**| |**3**|**NATIONAL INSURANCE COMPANY LTD.,**| ||**REPRESENTED BY ITS DIVISIONAL MANAGER, NSS**| ||**BUILDING, THALASSERY - 670 101.**| M.A.C.A.No.4183 of 2019 2 - **4 K.C.KHADER, S/O.KAMAL, RESIDING AT RAJEENA MANZIL, KALROAD, MATTANNUR - 670 702.** - **5 M.NABEESSU, W/O.KHADER, RESIDING AT RAJEENA MANZIL, KALROAD, MATTANNUR - 670 702.** ## **BY ADV. SRI.N.S.NAJEEB, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.4183 of 2019 3 ## **JUDGMENT** The appellants are the claimants in O.P.(MV)No.97 of 2016 on the file of the Motor Accidents Claims Tribunal, Thalassery, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Basheer, husband of 1[st] appellant, father of appellants 2 and 3, and son of respondents 4 and 5 (who are claimants 4 and 5 before the Tribunal), in a motor accident which occurred on 15.10.2015, while he was driving an autorickshaw bearing registration No. KL-58/J-2773. At the place of accident, the autorickshaw was hit by a bus bearing registration No.KL-58/G-3342, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries on the date of accident itself. Alleging that the accident occurred due to rash and negligent driving of the bus by the 1[st] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.51,30,000/- under various heads, which was limited to Rs.50,00,000/-, for the purpose of payment of Court Fee. M.A.C.A.No.4183 of 2019 4 2. Before the Tribunal, the 1[st] respondent driver of the bus and the 2[nd] respondent owner filed joint written statement, admitting the accident; however denying the negligence alleged against the 1[st] respondent driver. The 3[rd] respondent insurer filed written statement admitting the policy coverage of the bus involved in the accident; however, denying negligence alleged against the 1[st] respondent driver of that vehicle. The insurer contended that the accident occurred due to the rash and negligent driving of the autorickshaw by the deceased. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A7 were marked and PW1 was examined on the side of the appellants/claimants. The respondents have not chosen to adduce any oral or documentary evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the bus by the 1[st] respondent driver. Since insurance coverage of the said M.A.C.A.No.4183 of 2019 5 vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.19,44,500/- together with interest at the rate 8% per annum from the date of petition, i.e., from 12.01.2016, till the date of deposit, with proportionate cost and directed the 3[rd] respondent insurer to satisfy the award. The amount of compensation was ordered to be apportioned among the appellants/claimants 1 to 3 and respondents 4 and 5/claimants 4 and 5, equally. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/ claimants 1 to 3 are before this Court in this appeal. 6. Heard the learned counsel for the appellants/ claimants 1 to 3 and also the learned Standing Counsel for the 3[rd] respondent insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1, 2, 4 and 5 was dispensed with, by the order dated 02.12.2019 in C.M.Appl.No.1 of 2019. 7. The learned counsel for the appellants would confine to the challenge made in this appeal against the compensation M.A.C.A.No.4183 of 2019 6 awarded by the Tribunal under the head loss of dependency. 8. The issue that arises for consideration in this appeal is as to whether the appellants/claimants 1 to 3 and also respondents 4 and 5/claimants 4 and 5 are entitled for enhancement of the compensation awarded by the Tribunal under the head loss of dependency. 9. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Apex Court laid down the principles governing determination of quantum of compensation in the case of death in a motor accident. The Apex Court held that, the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by following the well settled steps, namely, M.A.C.A.No.4183 of 2019 7 ascertaining the multiplicand (annual contribution to the family), the multiplier and calculation of loss of dependency by multiplying the multiplicand by such multiplier. 10. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court 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 standard because such determination can never be in arithmetical exactitude. It can never be perfect. 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 conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the Tribunal is quite wide, yet it is obligatory on the part of the M.A.C.A.No.4183 of 2019 8 Tribunal to be guided by the expression, i.e., just compensation. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|Nil|Nil|| |2|Extra nourishment|3,000/-|Nil|| |3|Transportation|Nil|2,500/-|| |4|Damage to clothing<br>and articles|Nil|1,000/-|| |5|Medical expenses|40,27,000/-|Nil|| |6|Funeral expenses|Nil|15,000/-|| |7|Pain and suffering|Nil|10,000/-|| |8|Loss of dependency|Nil|17,01,000/-|9,450 x x<br>12 x 15| |9|Loss of estate|Nil|15,000/-|| |10|Loss of love and<br>affection|11,00,000/-|1,60,000/-|40,000 x 4| |11|Loss of consortium|9,00,000/-|40,000/-|1stpetitioner| ||Total|51,30,000/-<br>(limited to<br>50,00,000/-)|19,44,500/-|| 12. The accident occurred on 15.10.2015. At the time of accident, the deceased was aged 36 years. It was claimed that, at the time of accident, the deceased was earning a monthly income of Rs.15,000/- as an autorickshaw driver. The driving licence of the deceased was marked as Ext.A6. The accident was occurred while the deceased was driving the autorickshaw in question. The Tribunal fixed the monthly M.A.C.A.No.4183 of 2019 9 income of the deceased notionally as Rs.9,000/-. ## 13. In **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 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. M.A.C.A.No.4183 of 2019 10 14. 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 unorganised 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. 15. The accident is of the year 2015. At the time of accident, the deceased was driving the autorickshaw in question. The driving licence of the deceased was marked as Ext.A6. In the impugned award, the Tribunal noticed that, as evident from Ext.A7 loan account statement, the deceased was M.A.C.A.No.4183 of 2019 11 remitting a sum of Rs.5,850/- per month towards the monthly instalment. Considering the economic condition prevailing at the time of accident, i.e., during the year 2015 and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and also the repayments made in Ext.A7 loan account, this Court deem it appropriate to re-fix the monthly income of the deceased as Rs.11,000/-, for the purpose of awarding compensation under the head loss of dependency. 16. In **Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, the determination of 'just compensation' has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in **Sarla Verma [(2009) 6 SCC 121]** and it has been approved in **Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65]** . The age and income, as stated earlier, have to be established by adducing evidence. The Tribunal and the Courts have to bear in mind that the basic principle lies in M.A.C.A.No.4183 of 2019 12 pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the Tribunal and the Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. In **Pranay Sethi** the Apex Court approved the principle of 'standardisation' so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age. 17. In **Rajesh v. Rajbir Singh [(2013) 9 SCC 54]** , a Three-Judge Bench of the Apex Court held that, in case of self-employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. In **Munna Lal** M.A.C.A.No.4183 of 2019 13 **Jain v. Vipin Kumar Sharma [(2015) 6 SCC 347]** another Three-Judge Bench followed the principle stated in **Rajesh** . In **Pranay Sethi** , after expressing the opinion that the dicta laid down in **Reshma Kumari** being earlier in point of time would be a binding precedent and not the decision in **Rajesh** , the Constitution Bench observed that, in **Munna Lal Jain** , the Three-Judge Bench should have been guided by the principle stated in **Reshma Kumari** which has concurred with the view expressed in **Sarla Devi** or in case of disagreement, it should have been well advised to refer the case to a Larger Bench. 18. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the deceased towards future prospects, where the deceased had a **permanent job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased was between the age of **50 to 60 years** , the addition should be **15%** . Actual salary should be read as actual salary less tax. M.A.C.A.No.4183 of 2019 14 The Apex Court held further that, in case the deceased was **self-employed** or on a **fixed salary** , an addition of **40%** of the established income should be the warrant where the deceased was **below the age of 40 years** . An addition of **25%** where the deceased was **between the age of 40 to 50 years** and **10%** where the deceased was **between the age of 50 to 60 years** should be regarded as the necessary method of computation. The established income means the income minus the tax component. 19. In the instant case, at the time of accident, the deceased was aged 36 years. It was claimed that, at the time of accident, the deceased was earning monthly income as autorickshaw driver. The Tribunal fixed the monthly income of the deceased notionally as Rs.9,000/-. In the impugned award, relying on the decision of the Apex Court in **Pranay Sethi** , the Tribunal rightly added **40%** of the notional monthly income of the deceased towards future prospects. 20. As already noticed, no reliable materials were placed before the Tribunal to show that, at the time of accident, the deceased had a permanent job. Therefore, the M.A.C.A.No.4183 of 2019 15 deceased can only be treated as self-employed. In view of the law laid down by the Apex Court in **Pranay Sethi,** an addition of **40%** of the notional monthly income of the deceased, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be made towards future prospects, since the deceased was **aged below 40 years** . 21. Therefore, for the purpose of re-fixing the compensation under the head loss of dependency, **40%** of the monthly income of the deceased notionally re-fixed in this appeal as Rs.11,000/-, i.e., a sum of Rs.4,400/- (11,000 x 40/100) has to be added towards future prospects. In the result, the monthly income of the deceased, for the purpose of re-fixing the compensation under the head loss of dependency, is reckoned as Rs.15,400/- (11,000 + 4,400). 22. In **Sarla Verma [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas** M.A.C.A.No.4183 of 2019 16 **[(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC** **720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. 23. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds a place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. M.A.C.A.No.4183 of 2019 17 24. In the instant case, as on the date of accident, the deceased was aged 36 years. In the light of the decisions of the Apex Court in **Sarla Verma's case** and **Pranay Sethi's case** referred to supra, the multiplier of **15** applied by the Tribunal is correct and proper. 25. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** the Apex Court, on the question of deduction towards the personal and living expenses of the deceased held that, the personal and living expenses of the deceased should be deducted from his monthly income, to arrive at the contribution to the dependents. Where the deceased was **married** , the deduction towards personal and living expenses of the deceased should be **one-third** where the number of dependent family members is **2 to 3** ; **onefourth** where the number of dependent family members is **4 to 6** ; and **one-fifth** where the number of dependent family members **exceeds 6** . In regard to **bachelors** , normally, **50%** is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting M.A.C.A.No.4183 of 2019 18 married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is **large and dependent on the income of the deceased** , as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to **one-third** and contribution to the family will be taken as **two-third** . 26. In **Reshma Kumari [(2013) 9 SCC 65]** a ThreeJudge Bench of the Apex Court reproduced paragraphs 30, 31 M.A.C.A.No.4183 of 2019 19 and 32 of **Sarla Verma** and approved the same, in paragraph 38 of the decision, by stating that, the standards fixed in **Sarla Verma** provide guidance for the appropriate deduction for personal and living expenses. 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 dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. Therefore, the standards fixed in **Sarla Verma** on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out. In paragraph 43.6 the Apex Court directed that, insofar as deduction for personal and living expenses is concerned, the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in **Sarla Verma** , subject to the observations made M.A.C.A.No.4183 of 2019 20 ## in para 38 of **Reshma Kumari** . 27. In **Pranay Sethi [(2017) 16 SCC 680]** , the Constitution Bench of the Apex Court, after considering the analysis made in **Sarla Verma** , which was reconsidered in **Reshma Kumari** , approved the method provided therein by stating that, as far as the guidance provided for appropriate deduction for personal and living expenses is concerned, the Tribunals and Courts should be guided by the conclusion in paragraph 43.6 of **Reshma Kumari** . 28. In the instant case, at the time of accident, the deceased was aged 36 years with a family consisting of 4 dependants. The father of the deceased cannot be treated as his dependant. In the light of the decisions of the Apex Court in **Sarla Verma, Reshma Kumari** and **Pranay Sethi** referred to supra, deduction of 1/4[th] of the notional monthly income of the deceased towards his personal and living expenses is perfectly legal. 29. Towards loss of dependency, the Tribunal awarded a sum of Rs.17,01,000/- (12,600 x 12 x 15 x 3/4). In this appeal, the monthly income of the deceased has already been M.A.C.A.No.4183 of 2019 21 re-fixed as Rs.11,000/-. Adding 40% of the notional monthly income of the deceased towards future prospects (11,000 + 4,400 = 15,400); deducting 1/4[th] towards the personal and living expenses of the deceased; and applying the multiplier of 15, the compensation under the head loss of dependency is refixed as Rs.20,79,000/- (15,400 x 12 x 15 x 3/4), resulting an additional compensation of **Rs.3,78,000/-** (20,79,000 – 17,01,000). 30. In the result, the appellants/claimants 1 to 3 and also respondents 3 and 4/claimants 3 and 4 are entitled for payment of an additional compensation of **Rs.3,78,000/-** (Rupees Three Lakhs Seventy Eight Thousand only) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation granted in this appeal shall be apportioned among the appellants/claimants 1 to 3 and respondents 4 and 5/claimants 4 and 5, equally. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after M.A.C.A.No.4183 of 2019 22 deducting the liability, if any, of the appellants/claimants 1 to 3 and also respondents 3 and 4/claimants 3 and 4 towards Balance Court Fee and Legal Benefit Fund. The insurer shall also deduct the liability of the claimants towards additional Court Fee in this appeal, in view of the amendment made to sub-rule (3) of Rule 397 of the Kerala Motor Vehicles Rules, 1989, with effect from 16.01.2015, and the same shall be deposited before this Court. Registry shall calculate the additional Court Fee payable in this appeal and a statement to that effect shall also be enclosed along with certified copy of the judgment. The disbursement of additional compensation to the claimants shall be made taking note of the law on the point and 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. The additional compensation payable to appellants 2 and 3/ claimants 2 and 3, who are minors, shall be deposited in fixed deposit in any Nationalised Bank till they attain majority. Claimants 1, 4 and 5 shall provide their Bank account details (attested copy of the relevant page of the Bank Passbook M.A.C.A.No.4183 of 2019 23 having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN** **JUDGE** yd