Pushpavally and others v. The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943** ## **MACA NO. 2324 OF 2012** ## **AGAINST THE AWARD DATED 14.10.2011 IN OPMV 1686/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/PETITIONERS:** - 1 PUSHPAVALLLY AGED 59, W/O.LATE MOORTHY, THEVARKKAD HOUSE, PALLURUTHY P.O. - 2 ANITHA AGED 32, D/O.LATE MOORTHY, DO. DO. - 3 AMITHA AGED 29, D/O.LATE MOOTHY, DO. DO. BY ADV SRI.V.A.OMANAKUTTAN ## **RESPONDENTS/RESPONDENTS:** - *1 ANAND S/O.BELLIE, SALES EXECUTIVE, WEP PERIPHERALS LTD., REGIONAL OFFICE, G-164, PANAMPALLY NAGAR P.O., KOCHI-682036. OR 4/18, HALAKARI VILLAGE, VADAPALI POST, CONOOR, THE NILGRIS. - *2 S.RAJASEKAR S/O.SAMUTHIRI, HOUSE KEEPING ASSISTANT, TRADENT HILTEN HOTEL, W.ISLAND, KOCHI-682002. OR42/A, EZHERKARUPPILAKATTALAI, ARIYALUR, PERUMABALUR, TAMIL NADU-621 704. RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 10.03.2020 in IA NO.1/2019 OF MACA NO.2324/2012 - 3 THE NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE-7, 50-NAMPATH, NEW DELHI-110001. BY ADV SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 2324 OF 2012 2** ## **JUDGMENT** **Dated this the 16[th] day of February, 2022** The appellants were the petitioners in O.P (MV) No.1686/2007 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The original respondents in the appeal were the respondents before the Tribunal. At the instance of the appellants, the respondents 1 and 2 in the appeal have been deleted from the party array. Therefore, for the sake of convenience, the parties are, 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 claiming compensation on account of the death of Moorthy (deceased) – the husband of the first petitioner and the father of petitioners 2 and 3. It was their case that, on 26.06.2007, while the deceased was walking through the ## **MACA NO. 2324 OF 2012 3** Ernakulam Willingdon Island Bristow road, a motorcycle bearing registration No. KL 7 BE 474, driven by the second respondent in a negligent manner, hit the deceased. The deceased fell down and hit a concrete slab, and he sustained a head injury. Although he was taken to the Government Hospital, Ernakulam, he succumbed to the on the same injuries day. The motorcycle was owned by the first respondent and insured with the third respondent The deceased was a driver of container lorries and was earning a monthly income of Rs.8000/-. The petitioners were the dependents of the deceased. Hence, the petitioners claimed a compensation of Rs.8,10,000/- from the respondents, which claim was limited to Rs.5,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings. 4. The third respondent had filed a written statement denying the allegations in the claim petition. ## **MACA NO. 2324 OF 2012 4** The third respondent also disputed the age, income and occupation of the deceased. 5. The petitioners examined the employer of the deceased as PW1 and marked Exhibits A1 to A12 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the third respondent an amount of Rs.2,80,500/- with interest and proportionate cost. - 7.Dissatisfied with the quantum of compensation - awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri.V.A.Omanakuttan, the learned counsel appearing for the appellants/petitioners and Sri.PMM Najeeb Khan, the learned counsel appearing for the respondent /insurer. ## **MACA NO. 2324 OF 2012 5** 9. The point that arises for consideration in 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 Kochi City Traffic Police in Crime No.4238/2007 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 motorcycle. The respondents have not let in any evidence to discredit Exhibit A2 charge sheet. 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 petitioners had claimed that the deceased was employed as a container lorry driver at the ## **MACA NO. 2324 OF 2012 6** Willingdon Island and was earning a monthly income of Rs.8000/-. In order to prove the pleading, they produced Exhibit A12 salary certificate and examined PW1. It is stated in Exhibit A12 that the deceased was employed with Popular Transport for a period of nine years between 1998-2007 and he was paid a daily wage of Rs.350/-. However, the Tribunal held that the deceased had no fixed earning and fixed his notional monthly income at Rs.4000/-. I disagree with the view of the Tribunal. 12. In view of the uncontroverted oral testimony of PW1 read with Exhibit A12, I am convinced and satisfied that the deceased had a daily wage of at Rs.350/- per day for a period of twenty days in a month because he was a heavy vehicle driver, which works out to Rs.7000/per month. Hence, I re-fix the monthly income of the deceased at Rs.7000/-. ## **MACA NO. 2324 OF 2012 7** ## **Multiplier** 13. The deceased was aged 58 years on the date of the accident/death. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier is ‘9’. ## **Personal living expenses of the deceased** 14. The petitioners are the wife and children of the deceased. They are three in number. Following the principles in **Sarala Verma** (Supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** one third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects.** 15. In the light of the law laid down in **Sarala Verma** and **Pranay Sethi (Supra)** and considering the fact that the deceased was aged 58 years at the time of the ## **MACA NO. 2324 OF 2012 8** accident, I hold that the petitioners are entitled to future prospects at 10% ## **Loss due to dependency** 16. Taking into account the above mentioned factors, namely, the monthly income of the deceased at 7000/-, the multiplier at ‘9’, future prospects at 10% and after deducting one third of the compensation towards personal living expense of the deceased, I hold that the petitioners are entitled to compensation for 'loss of dependency' at Rs.5,54,400/-, instead of Rs.2,56,000/awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 17. 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, ## **MACA NO. 2324 OF 2012 9** respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 18. 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 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' **MACA NO. 2324 OF 2012 10** and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 19. In the instant case, the Tribunal has awarded only an amount of Rs.7500/- under the head ‘funeral expenses’. Therefore, I award, the petitioners a further amount of Rs.9000/- under the head ‘funeral expenses’ Likewise, I award the petitioners an amount of Rs.16,500/- under the head ‘loss of estate’ and an amount of Rs.44,000/-each under the head ‘loss of consortium’ i.e. a total amount of Rs.1,32,000/-. **Loss of love and affection** 20.The Tribunal has awarded an amount of Rs.10,000/- 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 **MACA NO. 2324 OF 2012 11** amount to duplication of compensation. Therefore, I set aside the amount of Rs.10,000/- awarded under the head 'loss of love and affection'. ## **Pain and sufferings** 21. The Tribunal has awarded an amount of Rs.5,000/- under the head ‘pain and sufferings’ to the petitioners. 22. In paragraph 19 of **Sarla Varma** (supra), the Honourable Supreme Court has held that no amount shall be awarded to the dependents of the deceased under the head 'pain and sufferings' in the case of instantaneous death. The said view has been reiterated in **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others- [ ((2020) SCC Online 410].** Hence, I set aside the amount of Rs.5,000/awarded under the head 'pain and sufferings'. **MACA NO. 2324 OF 2012 12** 23. With respect to the compensation awarded under the head transportation expenses, I find the same to be reasonable and just compensation. 24. 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 are entitled for 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>by this Court| |---|---|---|---| |1|Transportation<br>expenses|2000|2000| |2|Funeral expenses|7500|16500| |3|Pain and<br>suffering|5000|0| |4|Love and<br>affection|10000|0| |5|Loss of estate|0|16500| |6|Loss of|0|132000| **MACA NO. 2324 OF 2012 13** ||consortium||| |---|---|---|---| |7|Loss of<br>dependency|256000|554400| ||Total|280500|721400| Even though the petitioners had limited their claim to Rs.5,00,000/-I have awarded more compensation than what is claimed in the claim petition, in the light of the principles laid down in **Sarla Verma** and **Pranay Sethi** (supra), that the dependents of the deceased are entitled to future prospects and compensation under the conventional heads. 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.4,40,900/-** with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest **MACA NO. 2324 OF 2012 14** for a period of 213 days i.e. the period of delay in filing the appeal and as ordered by this Court on 10.03.2020 in C.M.Application No.2759/2012, and proportionate cost. The respondent/third respondent-insurer is ordered to deposit the enhanced 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 same shall be disbursed to the appellants/petitioners, after deducting their liability, towards court fee, in the ratio of 50:25:25, and in accordance with law. Sd/- **C.S.DIAS** rmm/16/02/2022