Pisty Kurian and Others v. M.D. Francis and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** ## **MACA NO. 1574 OF 2010** **AGAINST THE AWARD DATED 29.04.2008 IN OPMV 8/2003 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANTS/PETITIONERS 1 TO 3:** - 1 PISTY KURIAN, AGED 35, W/O DECEASED KURIAN KURIAN,THEKKANAT, P.O.VARANDARAPILLY, PULLIKUNNU,, THRISSUR DISTRICT. - 2 PRANAV.T. KURIYAN AGED 11 MINOR REP. BY HIS MOTHER PISTY KURIAN, S/O. DECEASED KURIAN, THEKKANATH HOUSE, P.O.VARANDARAPILLY,, PULLIKUNNU, THRISSUR DISTRICT. REP. BY HIS MOTHER, 1ST APPELLANT. - 3 PRIYAMOL.T.KURIAN AGED 9 D/O. DECEASED KURIAN, THEKKANATH HOUSE,, P.O.VARANDARAPILLY, PULLIKUNNU, THISSUR DISTRICT., REP. BY HER MOTHER- 1ST APPELLANT. BY ADVS. SMT.SADHANA KUMARI ESWARI SRI.N.AJITH ## **RESPONDENTS/RESPONDENTS 1 TO 3 & 5TH PETITIONER:** - 1 M.D.FRANCIS,S/O DEVASSY MENACHERY HOUSE, PADAVARADU ROAD, OLLUR.P.O.,, THRISSUR DISTICT-686306. - 2 P.G.SHAJI, S/O GEORGE PUZHEDATHUPARAMBIL HOUSE, PUTHENKAVU.P.O.,, THRISSUR DISTRICT-680682. - 3 THE MANAGER UNITED INDIA INSURACE CO. LTD., SIMIX COMPLEX, KURUPPAM ROAD, TRICHUR., PIN680566. 2 MACA No.1574 of 2010 4 ROSY KURIYAKOSE AGED 65 YEARS W/O. KURIYAKOSE, THEKKANATH HOUSE,, P.O.VARANDARAPILLY, T.P.PULLIKUNNU,, THRISSUR DISTRICT-680303. BY ADVS. S.K.AJAY KUMAR SRI.P.V.JYOTHI PRASAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 MACA No.1574 of 2010 ## **JUDGMENT** ## **Dated this the 24[th] day of March, 2022** The appellants were the petitioners 1 to 3 in OP (MV) No.8/2003 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents 1 to 3 before the Tribunal. The 4[th] respondent in the appeal was the 5[th] petitioner before the Tribunal- the mother of the deceased. Even though the father of the deceased was impleaded as the 4[th] petitioner before the Tribunal, as evident from paragraph 7 of the impugned award, he had died pending the proceeding. Therefore, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, 4 MACA No.1574 of 2010 claiming compensation on account of the death of T.K.Kurian (deceased) - the husband of the first petitioner, the father of the petitioners 2 and 3 and the son of the petitioners 4 and 5. It was their case that, on 04.12.2002, while the deceased was riding his motorcycle bearing registration No. KL 8 K 4556 through the ThrissurChalakkudy National Highway, when he reached the Chiyyaram junction, he stopped behind a bus bearing registration No.KL-15-4154. Suddenly, another bus bearing registration No. KRR 8856 (offending bus), driven by the second respondent in a negligent manner, attempted to overtake the bus that was parked on the road. In the process, the offending bus hit on the motorcycle of the deceased and ran over him. He lost his life instantaneously. The deceased was 36 years old. He was employed as a Physical Instructor at the CMS Higher Secondary School, Thrissur and was drawing a monthly 5 MACA No.1574 of 2010 income of Rs.8000/-. He was also working as a Referee for the Kerala Football Association and was earning annual income of Rs.10,000/-. The offending bus was owned by the first respondent and insured with the third respondent. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.14,84,000/- from the respondents, which claim was limited to Rs.14,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent/insurer had filed a written statement admitting that the offending bus had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the deceased. It was also stated that the second respondent did not have a valid driving licence. 5. The first petitioner and witness were examined 6 MACA No.1574 of 2010 as Pws1 and 2 and Exts A1 to A14 were marked in evidence. The respondents had produced and marked Exhibits B1 and B2. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by directing the third respondent to pay the petitioners 1 to 3 an amount of Rs.10,68,000/- with interest and proportionate cost. Out of the said amount, an amount of Rs.40,000/- was directed to be paid to the 5[th] petitioner. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 1 to 3 are in appeal. 8. Heard; Sri.N.Ajith, the learned counsel appearing for the appellants/petitioners 1 to 3 and Sri. S.K.Ajay Kumar, the learned counsel appearing for the third respondent/insurer. 9. The point that emanates for consideration in 7 MACA No.1574 of 2010 this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Exhibit A2 charge sheet filed by the Ollur Police in Crime No.535/2002 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the offending bus. The respondents have not let in any evidence to discredit Exhibit A2 charge sheet. Moreover, the first petitioner and a witness were examined as Pws1 and 2, who proved that the accident occurred due to the negligence of the second respondent. Even though, the third respondent contended that the second respondent did not hold a valid driving licence, the second respondent had produced Exhibit B1. Thus, it is proved that the first respondent had not violated the insurance policy 8 MACA No.1574 of 2010 conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income of the deceased** 11. The petitioners had claimed that the deceased was working as a Physical Instructor at the CMS Higher Secondary School, Thrissur and was drawing a monthly salary of Rs.8000/-. To substantiate their contention, they had produced Exhibit A6 salary certificate. They also pleaded that the deceased was working as a Referee for the Kerala Football Association and was earning an annual income of Rs.10,000/-. The Tribunal, after analysing the oral testimonies of Pws1 and 2 and Exhibit A6 salary certificate, fixed the monthly income of the deceased at Rs.7000/-. 12. On a re-appreciation of the pleadings, materials on record and the oral testimonies of Pws1 and 2, I 9 MACA No.1574 of 2010 confirm the fixation of the monthly income of the deceased at Rs.7000/-. ## **Multiplier** 13. The deceased was aged 36 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier to be adopted is '15'. ## **Personal living expenses of the deceased** 14. It is proved and established, as per Exhibit A7 Family membership certificate, that the petitioners 1 to 3 and 5 were the wife, children and mother of the deceased. They are four in number and were dependent on the deceased. 15. Following the principles in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi** **[(2017) 16 SCC 680]** , one - fourth of the compensation has to be deducted towards the personal living expenses 10 MACA No.1574 of 2010 of the deceased. ## **Future prospects** 16. In the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that deceased was aged 36 years at the time of his death and that he was permanently employed, I hold that the petitioners 1 to 3 are entitled to future prospects @ 50%. ## **Loss of dependency** 17. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.7000/-, the multiplier at 15, future prospects at 50% and after deducting one-fourth of the compensation towards the personal living expenses of the deceased, I award the petitioners 1 to 3 an amount of Rs.14,17,500/towards ’loss of dependency,’ instead of Rs.10,08,000/awarded by the Tribunal. 11 MACA No.1574 of 2010 ## **Conventional/Traditional heads of compensation** 18. In paragraph 59.8 of **Pranay Sethi (supra)** it is 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/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 19. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and 12 MACA No.1574 of 2010 inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 20. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- under he head ‘funeral expenses’, Rs.10,000/- under the head 'loss of estate' and Rs.20,000/under the head ‘loss of consortium’. 21. Following the principles laid down in the aforecited decisions, I award the petitioners a further amount of Rs.11,500/- under the head ‘funeral expenses’, a further amount of Rs.6500/- under the head 'loss of 13 MACA No.1574 of 2010 estate' and a further amount of Rs.1,56,000/- under the head 'loss of consortium' i.e., Rs.44,000/- each to the appellants/petitioners 1 to 3 and the 4th respondent/5th petitioner . **Pain and sufferings and Loss of love and affection** 22. The Tribunal has awarded an amount of Rs.5,000/- under the head 'pain and sufferings’ and Rs.20,000/- under the head ‘loss of love and affection'. 23. In paragraph 19 of **Sarla Varma** (supra), the Honourable Supreme Court has held that in the case of instantaneous death, no amount shall be awarded to the dependents of the deceased under the head 'pain and sufferings'. **New India Assurance Co. v.** 24.Similarly, in **Somwati and others [(2020) 9 SCC 644]** the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of 14 MACA No.1574 of 2010 consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amounts awarded under the head ‘pain and sufferings’ and ‘loss of love and affection’. 25. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants /petitioners 1 to 3 and the 4th respondent/5th petitioner are entitled to 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<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modifed and<br>recalculated<br>by this Court<br>(in rupees)| |---|---|---|---| |1|Funeral expenses|5000|16500| |2|Pain and suferings|5000|0| |3|Love and afection|20000|0| |4|Loss of estate|10000|16500| 15 MACA No.1574 of 2010 |5|Loss of consortium|20000|176000| |---|---|---|---| |6|Loss of dependency|108000|14,17,500| ||Total|1068000|16,26,500| 26. Even though the appellants had claimed only an amount of Rs.14,00,000/- as compensation, I have awarded them more compensation than what is claimed in the claim petition, following the principles laid down in **Sarla Verma** and **Pranay Sethi** (supra), by awarding them compensation under the conventional heads as well as future prospects. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC]** , In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.5,58,500/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting 16 MACA No.1574 of 2010 interest for a period of 693 days, (i.e., the period of delay in filing the appeal and as ordered by this Court on 25.11.2021 in C.M Application No.1/2010), and proportionate cost. The third respondent/insurer is directed to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, an amount of Rs.4000/- shall be paid to the 4[th] respondent /5[th] petitioner and the balance amount shall be paid to the appellants/petitioners 1 to 3, after deducting their liability towards court-fee, in the ratio of 40:30:30, and in accordance with law. ## **C.S.DIAS, JUDGE** rmm/24/03/2022