Prabhavathy Devi and Savithri Amma v. D.R.S. Transport Private Limited and Ors

1 MACA No. 2805 of 2012 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943** **MACA NO. 2805 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 905/2006 OF THE MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,TRISSUR** ## **APPELLANT/S:** 1 PRABHAVATHY DEVI W/O. LATE SUKUMARAN P.R., RESIDING AT PALLIPPAMADATHIL HOUSE, MOOTHRATHIKKARA, P.O.PARAPPUKARA, THRISSUR DISTRICT. 2 SAVITHRI AMMA W/O. RAGHAVAN NAIR, RESIDING AT PALLIPPAMADATHIL HOUSE, MOOTHRATHIKKARA, P.O.PARAPPUKARA, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.M.ARAVIND SRI.A.R.NIMOD ## **RESPONDENT/S:** 1 D.R.S.TRANSPORT PRIVATE LIMITED 7575, RAM NAGAR, PAHAR GANG, NEW DELHI.110001 2 KARAMBIR S/O. NANAAL RAM, RESIDING AT P.O.SAGA VAN, (VIA)SAGAVAN, THOSAM TALUK, BHAVANNI DISTRICT, NAGALAND, HARYANA.127040 3 THE ORIENTAL INSURANCE COMPANY LIMITED CHANDIGARH.160017 BY ADV SRI.R.AJITH KUMAR -R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No. 2805 of 2012 ## **C.S.DIAS.J., ====================== MACA No. 2805 of 2012** **====================== nd Dated this the 2 th day of February, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP(MV) 905/2006 on the file of the Motor Accident Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Sukumaran (deceased), the husband of the first appellant and son of the second appellant. It was their case that, on 26.2.2006, while the deceased was riding his motorcycle bearing registration No.KL-8/Y 1714 through PaliyekkaraPudukkad public road, a lorry bearing registration No.HR/38/E/3083, driven by the second respondent in a rash and negligent manner, hit the motorcycle of the 3 MACA No. 2805 of 2012 deceased. The deceased sustained fatal injuries and lost his life on the following day at the Jubilee Mission Hospital, Thrissur. The lorry was owned by the first respondent and insured with the third respondent. The deceased was a painter by profession and earning a monthly income of Rs.7,500/-. The appellants were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.9,50,000/- from the respondents, which claim was limited to Rs.9,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement admitting that the lorry had a valid insurance coverage. The third respondent also disputed the age, income and occupation of the deceased. It was also contended that the accident occurred due to the negligence of the deceased. Hence the third respondent prayed that the claim petition may be dismissed. 4 MACA No. 2805 of 2012 5. The appellants had produced and marked Exts A1 to A13 in evidence. The third respondent produced insurance policy certificate, which was marked as Ext B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to recover from the third respondent an amount of Rs.3,85,950/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard: Sri.T.C Suresh Menon, the learned Counsel appearing for the appellants/petitioners and Sri.R.Ajith Kumar, the learned counsel appearing for the third respondent/insurer. 9. The sole point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 5 MACA No. 2805 of 2012 ## **Negligence and liability** 10. Ext A6 final report filed by the Pudukkad Police in crime No.104/2006 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 lorry. The respondents have not let in any evidence to discredit Ext A6 final report. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellants had claimed that the deceased was a painter by profession and was earning a monthly income of Rs.7,500/- For the want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.3,000/-. 6 MACA No. 2805 of 2012 12.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 the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the deceased at Rs.5,500/-. ## **Multiplier** 14. The deceased was aged 49 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 '13'. ## **Personal living expenses of the deceased** 15. As per Ext A12 legal heir-ship certificate, the appellants are the wife and mother of the deceased, who 7 MACA No. 2805 of 2012 are two in number. Therefore, in the light of the law laid down in **Sarla Verma** (supra) and **National Insurance** **Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** one- third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 16. Following the ratio in **Sarla Verma** (supra) and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 49 years at the time of the accident, I hold that the appellants are entitled to future prospects @ 25%. ## **Loss of dependency** 17. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.5,500/-, the multiplier at '13', future prospects @ 25% and after deducting one-third of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of 8 MACA No. 2805 of 2012 dependency at **Rs.7,15,000/** -, instead of Rs.3,12,000/awarded by the Tribunal. ## **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 9 MACA No. 2805 of 2012 dates of the accident. Thus, it is to be construed and 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/- each under the heads ‘funeral expenses’ and ‘loss of estate’ and Rs.20,000/- under the head ‘loss of consortium’. In the light of the law referred to above, the appellants are entitled to a further amount of **Rs.11,500/-** each under the heads ‘funeral expenses’ and ‘loss of estate’. Similarly, the appellants are also entitled to a further amount of **Rs.68,000/-** towards ‘loss 10 MACA No. 2805 of 2012 of consortium’, i.e., Rs.44,000/- each to the appellants. ## **Loss of love and affection** 21. The Tribunal has awarded an amount of Rs.14,000/- under the head 'loss of love and affection'. In **New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644]** the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of 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 amount of Rs.14,000/- awarded under the head 'loss of love and affection'. ## **Other heads of compensation** 22. With respect to the compensation awarded under the heads, viz., transportation expenses, medical expenses, bystander expenses and pain and sufferings, I find the same to be reasonable and just compensation. 23. On a comprehensive re-appreciation of the 11 MACA No. 2805 of 2012 pleadings, materials on record and the law referred to in the afore-cited precedents, I hold 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. **==> picture [436 x 288] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount awarded by the Amounts modified and<br>Tribunal (in rupees) recalculated by this Court<br>No<br>1 Transport to 2,000/- 2,000/-<br>hospital<br>2 Bystander 200/- 200/-<br>expenses<br>3 Funeral expenses 5,000/- 16,500/-<br>4 Loss of 20,000/- 88,000/-<br>consortium<br>5 Loss of estate 5,000/- 16,500/-<br>6 Loss of love and 14,000/- Nil<br>affection<br>7 Loss of 3,12,000/- 7,15,000/-<br>dependency<br>8 Medical expenses 17,750/- 17,750/-<br>9 Pain and suffering 10,000/- 10,000/-<br> Total 3,85,950/- 8,65,950/-<br>**----- End of picture text -----**<br> **==> picture [36 x 53] intentionally omitted <==** In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.4,80,000/-** (Rupees Four Lakh Eighty Thousand only) with interest on the enhanced compensation at the rate of 7% per 12 MACA No. 2805 of 2012 annum from the date of claim petition till the date of deposit and proportionate cost. The third respondent is ordered 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, the same shall be disbursed to the appellants in the ratio of 70:30 and in accordance with law. SD/sks/2.2.2022 **C.S.DIAS, JUDGE**