Prema Raj and others v. Ashraf and Ejas Ahammed P.K. and ICICI Lombard General Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943 ``` ``` MACA NO. 2038 OF 2011 ``` ``` AGAINST THE AWARD DATED 22.06.2010 IN O.P.(MV)NO.1300/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## `APPELLANTS/CLAIMANTS:` ``` 1PREMA RAJ, S/O.(LATE)KRISHNAN, AGED 55 YEARS, THOTTUPOURATH HOUSE, MCR ROAD, P.O.THIRUVANNUR, KOZHIKODE. 2SUJATHA, W/O.PREMA RAJ, AGED 48 YEARS, THOTTUPOURATH HOUSE, MCR ROAD, P.O.THIRUVANNUR, KOZHIKODE. 3PREMACHAND S/O.PREMA RAJ, AGED 21 YEARS, THOTTUPOURATH HOUSE, MCR ROAD, P.O.THIRUVANNUR, KOZHIKODE. ``` ``` BY ADV SMT.K.V.RESHMI ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1ASHRAF S/O.MUHAMMED, 12/253, PERISSERI HOUSE, P.O.PERUVAYAL, KOZHIKODE-673024. 2EJAS AHAMMED P.K. EJAS MANZIL, CHUNGAM, P.O.FEROKE, KOZHIKODE-673631. ``` M.A.C.A.No.2038/2011 -:2:- ``` 3ICICI LOMBARD GENERAL INSURANCE CO.LTD. 6/255/C,2ND FLOOR, CITY PLAZA BUILDING, YMCA CROSS ROAD, KOZHIKODE-673001. ``` ``` BY ADVS.SRI.R.AJITH KUMAR 12884 SRI.K.B.RAMANAND ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2038/2011 -:3:- Dated this the 13[th] day of January,2022 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV) No.1300/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 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 Premjith(deceased) – the son of the appellants 1 and 2 and the brother of the third appellant. It was their case that, on 05.02.2009, while the deceased was riding his motorcycle bearing registration No.KL-11-T-2462, when he reached S.K. Pottakkad road, a bus bearing registration No. KL-06-N-1600, driven by the second respondent in a rash and negligent manner, hit the motorcycle of the deceased. The deceased sustained M.A.C.A.No.2038/2011 -:4:- serious injuries and was treated as an inpatient at the Baby Memorial Hospital, Kozhikode, for a period 53 days. He succumbed to the injuries on 28.03.2009. The deceased was aged only 22 years. He was the sole breadwinner of the family. He was working as a sales executive in ICICI Bank and as a LIC agent. He was earning a monthly income of Rs.13,017/-. The bus was owned by the first respondent and insured with the third respondent. Hence, the appellants claimed a total compensation of Rs.20,64,794/- from the respondents, which claim was limited to Rs.20,00,000/- 3. The respondents 1 and 2 did not contest the proceedings. 4. The third respondent had filed a written statement contending that the accident occurred due to the negligence of the deceased. The third respondent also disputed the age, income and occupation of the deceased. M.A.C.A.No.2038/2011 -:5:- 5. The appellants produced and marked Exts.A1 to A9 in evidence. The respondents did not let in any evidence. 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.2,56,000/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and cost of Rs.1,750/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Smt. Rashmi K.V, the learned counsel appearing for the appellants/petitioners and Sri. K.B. Ramanand, the learned counsel appearing for the third respondent /insurer. 9. The question that emanates for consideration M.A.C.A.No.2038/2011 -:6:- in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. The appellants had categorically averred in the claim petition that the accident occurred due to the negligence of the second respondent. They also produced Ext.A1 First Information Report(FIR) and A4 AMVI report in order to substantiate their assertion. The respondents did not controvert the pleading or discredit Exts. A1 and A4. 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 of the deceased** 11. The appellants had claimed that the deceased was working as a senior sales executive in ICICI Bank and a LIC agent. To prove the above said pleading, M.A.C.A.No.2038/2011 -:7:- they had produced Ext.A6 salary certificate and Ext.A7 statement of transaction. However, they did not examine the authors of the said certificates. The Tribunal, for the above said reason, fixed the notional monthly income of the deceased at Rs.3,500/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2009, I re-fix the notional monthly income of the deceased at Rs.7,000/-. ## **Multiplier** 14. It is undisputed that the deceased was aged 22 years at the time of accident/death and was a bachelor. In the light of the law laid down in **Sarla** M.A.C.A.No.2038/2011 -:8:- **Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier to be adopted is ‘18’. ## **P ersonal living expenses of the deceased** 15. As the deceased was a bachelor and in view of the law in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one-half of the compensation has to be deducted towards the ‘personal living expenses’ of the deceased. ## **Future prospects.** 16. The deceased was aged 22 years at the time of his death. Therefore, following the ratio in **Sarla Verma** and **Pranay Sethi** (supra), I award the appellants an additional 40% of the compensation for ‘loss due to dependency’ towards ‘future prospects’. **Loss of dependency** 17. Taking into account the above-mentioned M.A.C.A.No.2038/2011 -:9:- factors, namely; the notional monthly income of the deceased at Rs.7,000/-, the multiplier at ‘18’, ‘future prospects’ at 40% and after deducting one-half of the compensation towards ‘personal living expense’ of the deceased, I award the appellants an amount of Rs.10,58,400 towards 'loss of dependency', instead of Rs.2,31,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 18. In clause (viii) of paragraph 61 of **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. It is also observed that the said amount has to be enhanced by 10% in every three years. 19. In **N. and others v. Jayasree Cholamandalam M/s General Insurance Company** M.A.C.A.No.2038/2011 -:10:- **Ltd.** [(2021) SCC Online 6967] and **Rashmitha Biswal and others v. Divisional Manager National Insurance Company Ltd and another** [2021 SCC Online SC 1193], the Honourable Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accident. Thus, it is only to be interpreted and inferred that the escalation of 10% is awarded after three years from the pronouncement of **Pranay sethi** , which was rendered in the year 2017, and not for accidents that occurred three years after 2017. The Tribunal has awarded an amount of Rs.5,000/- towards ‘funeral expenses’ and Rs.5,000/- ‘loss of estate’. In view of the above legal position, I award the appellants a further amount of Rs.11,500/- each under the above two heads. 20. As already observed, the appellants are M.A.C.A.No.2038/2011 -:11:- entitled to ‘loss of consortium’ at Rs.44,000/- each. Therefore, I award them an amount of Rs.1,32,000/under the head ‘loss of consortium’. **P ain and sufferings and bystander expenses:** 21. It is proved as per Exts.A1 FIR and A2 postmortem report that the deceased lost his life 53 days after the accident. Therefore, I award the appellants an amount of Rs.1,000/- per day for a period of 53 days towards ‘pain and sufferings’ and ‘bystander expenses‘ which amounts to Rs.53,000/-. ## **Loss of love and affection** 22. The Tribunal has awarded an amount of Rs.10,000/- under the head ‘loss of love and affection’. In **New India Assurance Co. Ltd. v. Somwati and others** [(2020) 9 SCC 644], the Hon'ble Supreme Court has held that once the compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', M.A.C.A.No.2038/2011 -:12:- as it would amount to duplication of compensation. Therefore, I set aside the amount awarded under the head ‘loss of love and affection.’ 23. With respect to the other heads of compensation namely; 'transportation', 'clothing’ and 'medical expenses', I find that the Tribunal has awarded reasonable and just compensation. 24. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transportation<br>expenses|1,500|1,500| |2|Damage to<br>clothing|500|500| |3|Funeral|3,000|16,500| M.A.C.A.No.2038/2011 -:13:- ||expenses||| |---|---|---|---| |4|Loss of estate|5,000|16,500| |5|Pain and<br>sufferings and<br>bystander<br>expenses|Nil|53,000| |6|Loss of love and<br>affection|10,000|Nil| |7|Loss of<br>consortium|Nil|1,32,000| |8|Medical<br>expenses|5,000|5,000| |9|Loss of<br>dependency|2,31,000|10,58,400| ||**Total**|**2,56,000**|**12,83,400**| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.10,27,400/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 307 days i.e., the period of delay in preferring this appeal and as directed by this Court on 28.09.2011 in C.M.Appln.No.2/2011, and proportionate cost. The third respondent is ordered to deposit the enhanced M.A.C.A.No.2038/2011 -:14:- compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants in the ratio of 40:40:20 and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/13.01.22 //True copy/ P.A.To Judge