P. Karthiyani Amma, P. Sasidharan, P. Jaychandran, Smt. Vijayalakshmy, P. Suseela v. Kabeer K.A, Aneesh P.S, The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943** **MACA NO. 540 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 3448/2003 OF THE MOTOR** **ACCIDENT CLAIMS TRIBUNAL , THRISSUR** ## **APPELLANT/S:** 1 P. KARTHIYANI AMMA W/O. LATE V. RAMAN MENON. 2 P. SASIDHARAN, S/O. LATE V. RAMAN MENON. 3 P. JAYCHANDRAN, S/O. LATE V. RAMAN MENON, APPELLANTS 1 TO 3 ARE RESIDING AT, PALAZHI HOUSE, VIJAYA BHAVAN, CHIRAKKAL.P.O,, PAZHUVIL, THRISSUR - 680 564. 4 SMT. VIJAYALAKSHMY W/O. LATE SETHUMADHAVAN,, RESIDING AT KONCHATH HOUSE,, P.O. CHAMAKKALA, CHENTRAPPINNI,, THRISSUR DISTRICT. 5 P. SUSEELA W/O.DR.P.R. SUNIL KUMAR,, P.O. MANNUTHY, THRISSUR DISTRICT. BY ADV SRI.T.C.SURESH MENON ## **RESPONDENT/S:** 1 KABEER.K.A,S/O.ABDUL RAHMAN RESIDING AT KALATHIPARAMBIL HOUSE,, P.O. PERINGOTTUKARA, THRISSUR DISTRICT. 2 ANEESH.P.S ,S/O. SULAIMAN, RESIDING AT PUTHENVEETTIL HOUSE,, KOOLIMUTTAM DESOM, PAPPINIVATTOM VILLAGE,, THRISSUR DISTRICT. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, NATTIKA.P.O,, SSN SHOPPING COMPLEX, TEMPLE ROAD,, TRIPRAYAR. BY ADVS. SRI.V.S.SHIRAZ BAVA SRI.LAL K.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.540 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.540 of 2009** ## **====================== Dated this the 22[nd] day of October, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP(MV) 3448/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents in the claim petition. 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 Sri.V.Raman Menon (deceased), the husband of the first appellant and the father of the appellants 2 to 5. 3. The appellants had averred in the claim petition that, on 14.3.2003, while the deceased was walking through the Triprayar-Thrissur public road, when he reached in front of Ayodhya restaurant, a motor cycle bearing registration No.KL-8/V 1467 (motor cycle) driven 3 MACA No.540 of 2009 by the second respondent in a rash and negligent manner, hit the deceased. The deceased sustained serious injuries and was treated at the Elite Mission Hospital, Thrissur where he lost his life on 2.8.2003. The deceased was a retired Headmaster and was also taking tuitions for school and college going students in the Hindi Prachar Vidyalaya, Calicut. He was drawing a monthly income of Rs.10,000/-. The motor cycle belonged to the first respondent and was insured with the third respondent. The appellants were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.5,11,000/- from the respondents, which was limited to Rs.4,00,000/-. 4. The respondents 1 and 2 had filed a joint written statement, inter alia, contending that the accident occurred due to the negligence of the deceased. It is also stated that the amount of compensation claimed was excessive. The said respondents also contended that the 4 MACA No.540 of 2009 motor cycle had a valid insurance coverage with the third respondent. Therefore, the third respondent is liable to pay compensation to the appellants. 5. The third respondent had filed a written statement reiterating the very same contentions of the respondents 1 and 2. Hence, the third respondent prayed for dismissal of the claim petition. 6. The appellants produced and marked Exts A1 to A12 in evidence. The third respondent marked Ext B1 copy of policy certificate in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellants to realise from the third respondent an amount of Rs.2,50,050/-, with interest at the rate of 7% per annum from the date of petition till the date of payment and proportionate costs. 8. Dissatisfied with the quantum of compensation 5 MACA No.540 of 2009 awarded by the Tribunal, the petitioners are in the appeal. 9. Heard; Sri.T.C Suresh Menon, the learned counsel appearing for the appellants/petitioners and Sri.Lal K.Joseph, the learned counsel appearing for the additional third respondent-insurer. 10. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A5 charge-sheet filed by the Valappad Police in crime No.154/2003 proves that the accident occurred solely due to the negligence of the second respondent. Admittedly, the first respondent was the owner and third respondent was the insurer of the motor cycle. The third respondent admitted that the motor cycle had a valid insurance policy and had not proved that the first respondent violated the policy conditions. Therefore, the third respondent is to indemnify the liability of the first 6 MACA No.540 of 2009 respondent arising out of the accident. ## **Income of the deceased** 12. The appellants had claimed that the deceased was a retired Headmaster and he was also taking tuitions for School and College going students. They claimed that he was earning a monthly income of Rs.10,000/-. In order to substantiate their assertion, they produced Ext A12 salary certificate issued by the Hindi Prachar Vidyalaya, wherein it is stated that the deceased was employed for a period of five years prior to the accident for the purpose of taking regular courses and also entrance coaching classes. It is certified that the deceased was paid a monthly salary of Rs.10,000/-. 13. In view of the assertions in the claim petition corroborated with Ext A12 certificate and no contra evidence being let in by the respondents, I do not find any reason to discredit Ext A12. Thus, I accept Ext A12 and fix the monthly income of the deceased at Rs.10,000/-. 7 MACA No.540 of 2009 ## **Multiplier** 14. The deceased was aged 74 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 is '5'. ## **Dependents of the deceased** 15. Even though the appellants had produced Ext A6 family membership certificate to prove that they were all family members of the deceased, it is seen that the appellants 2 to 5 were aged 46 to 40 years and were all leading independent lives. Therefore, I hold that only the first appellant – the wife of the deceased - was a dependent of the deceased. In such circumstances, I deduct one-half of the compensation towards the personal living expenses of the deceased as per the law laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680].** 8 MACA No.540 of 2009 ## **Loss of dependency** 16. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.10,000/-, the multiplier at '5' and after deducting one half of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency of the first appellant at Rs.3,00,000/instead of Rs.1,20,000/- awarded by the Tribunal. ## **Conventional heads of claim** 17. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** 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. 18. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- towards funeral expenses and 9 ## MACA No.540 of 2009 Rs.15,000/- towards loss of estate. Therefore, I enhance the compensation under the head 'funeral expenses' by a further amount of Rs.10,000/-. Similarly, the Tribunal has awarded an amount of Rs.10,000/- towards loss of consortium. In view of my finding that only the first appellant is the dependent of the deceased, I hold that only she is entitled for compensation for 'loss of consortium' at Rs.40,000/-, i.e., an enhancement by Rs.30,000/-. ## **Loss of love and affection and pain and sufferings** 19. It is seen that the Tribunal has awarded an amount of Rs.15,000/- under the head 'pain and sufferings' and Rs.10,000/- under the head 'loss of love and affection'. 20. In paragraph 19 of **Sarla Verma** (supra), the Hon'ble Supreme Court has categorically held that no amount shall be awarded under the head 'pain and sufferings' in the case of death to the legal representatives of the deceased. Therefore, I set aside the 10 MACA No.540 of 2009 amount of Rs.15,000/- awarded by the Tribunal under the head 'pain and sufferings'. 21. Likewise, in **New India Assurance Co. Ltd v. Somavathy and Ors [(2020) 9 SCC 644]** , the Hon'ble Supreme Court has held that once compensation under the head loss of consortium is awarded, no amount shall be awarded under the head 'loss of love and affection' as it is amounted to duplication of compensation. Therefore, I set aside the amount of Rs.10,000/- awarded by the Tribunal under the head 'loss of love and affection'. ## **Other heads of compensation** 22. With respect to other heads of compensation, namely, transportation expenses, damage to clothing, medical expenses and bystander expenses, I find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the first appellant is entitled 11 MACA No.540 of 2009 for enhancement of compensation as modified and recalculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|1,500/-|1,500/-| |2|Damage to clothing|500/-|500/-| |3|Funeral expenses|5,000/-|15,000/-| |4|Pain and sufferings|15,000/-|nil| |5|Loss of love and affection|10,000/-|nil| |6|Loss of dependency|1,20,000/-|3,00,000/-| |7|Loss of estate|15,000/-|15,000/-| |8|Loss of consortium|10,000/-|40,000/-| |9|Expenses for treatment|71,250/-|71,250/-| |10|Expenses for bystander|1800/-|1800/-| ||Total|2,50,050/-|4,45,050/-| 24. Even though the appellants had claimed a compensation of Rs.4,00,000/-, in view of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), the dependents of the deceased are entitled for just and reasonable compensation and also compensation under 12 MACA No.540 of 2009 the 'conventional heads', I award more compensation than what is claimed in the clam petition. The above course is permissible in view of the law laid down in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC)** and **Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)]** . In the result, the appeal is allowed by enhancing the compensation by an amount of Rs.1,95,000/- (Rupees One Lakh Ninety Five Thousand only) with interest at the rate of 7% per annum from the date of claim petition till the date of realisation, after deducting interest for a period of 206 days, i.e., the period of delay in filing the appeal as ordered by this Court on 9.9.2021 in C.M Appln 1/2009, and proportionate costs. The third respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced 13 MACA No.540 of 2009 compensation amount to the first appellant, in accordance with law, after deducting her liability, if any, towards the payment of court-fee. sd/- sks/22.10.2021 **C.S.DIAS, JUDGE**