Rabiya Moideen & Ramla d/o Late Moideen v. United India Insurance Co. Ltd. (and others deleted) MACA No. 2110 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944** ## **MACA NO. 2110 OF 2012** **AGAINST THE AWARD DATED 03.07.2009 IN OPMV 3776/2003 OF MOTOR** ## **ACCIDENTS CLAIMS TRIBUNAL, TRISSUR** ## **APPELLANTS/PETITIONERS:** - **1 RABIYA MOIDEEN, W/O. LATE MOIDEEN.** - **2 RAMLA D/O. LATE MOIDEEN, BOTH ARE RESIDING AT NOCHIPARAMBIL HOUSE, P.O.MULLOORKARA, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD** ## **RESPONDENT/S:** - **1 R. RAJENDRAN(DELETED) S/O. RAMASWAMY CHETTIYAR, RESIDING AT HOUSE NO. 6/56-A, PERUMATTI, CHITTUR, PALAKKAD-678101.** - **2 RAMESH(DELETED) S/O. CHINNAPPA GOWDA, RESIDING AT MAHALI AMMAN KOVIL, STREET NO. 43, DIVANSA PUTHUR, POLLACHI, TAMILNADU STATE.** - **3 THE UNITED INDIA INSURANCE COMPANY LIMITED SIMIS COMPLEX, KURUPPAM ROAD, THRISSUR-680 001. RESPONDENTS 1 AND 2 AE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 4/4/2017 IN I.A.915/2017** ## **SRI.K. SANDESH RAJA-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2110 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.3779/2005 on the file of Motor Accidents Claims Tribunal, Thrissur (In short ‘Tribunal’). The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) out of the death of Moideen (herein after be referred as deceased) in a motor vehicle accident occurred on 12.11.2003 due to hit with Tempo Van bearing Registration No. KL-10/F-4767 at Mangalam Bridge, vadakkanchery driven by the 2[nd] respondent through Palakkad-Thrissur National Highway. Claimants are the wife and daughter of the deceased. Total compensation of Rs.5,00,000/- has been claimed. It is alleged that the accident happened due to the rash and negligent driving of the Tempovan by the 2[nd] respondent. The 1[st] respondent is the registered owner of the offending vehicle and 3[rd] respondent is the insurer. 2. Before the Tribunal, 3[rd] respondent only contest the claim by filing written statement. Policy coverage with respect to the offending vehicle is admitted. The rashness and negligence on the part of the 2[nd] respondent is denied. It is also contended that 2[nd] respondent was not having valid driving license and badge to drive tempo van. The age income and occupation of the deceased was disputed. M.A.C.A No. 2110 of 2012 **3** 3. PW1, the wife of the deceased was examined. Exts.A1 to A7 were marked from the side of the claimants and B1 to B3 were marked from the side of the 3[rd] respondent. 4. On evaluating the evidence, the Tribunal came to a conclusion that the accident happened due to the negligence of the 2[nd] respondent. 3[rd] respondent is held liable to indemnify the 1[st] respondent insured as per the contract of insurance. The Tribunal awarded a total compensation of Rs.3,00,900/- (inclusive of Rs.50,000/- awarded under Section 140 of the Act) under various heads together with interest at the rate of 8% per annum. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants/claimants (hereinafter be referred as claimants) are before this Court in appeal for the various grounds stated in the memorandum of appeal. Respondents 1 and 2 were deleted from the party array as order dated 04.04.2017 in IA No.915/2017. 3[rd] respondent insurer appeared through Adv. Sri.K.Sandesh Raja. 6. Heard the learned counsel for the claimants and the learned counsel for the 3[rd] respondent. Lower court records was called for and perused. 7. According to the learned counsel for the claimants, the M.A.C.A No. 2110 of 2012 **4** deceased was doing the work of cleaning and dressing of dead bodies and his monthly income was Rs.6,000/-. But the Tribunal fixed his monthly income as Rs.2,500/-, it is very low. It is also contended that the amount awarded under funeral expenses, loss of estate and loss of consortium etc. are very low. Hence he seeks for enhancement of compensation on all heads. 8. The learned counsel for the 3[rd] respondent on the other hand contended that no evidence has been adduced to prove the actual income of the of the deceased and hence Tribunal rightly fixed the monthly income of the deceased as Rs.2,500/- since the accident was in the year 2003. It is also contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 9. Though an amount of Rs.6,000/- was claimed as monthly income of the deceased, claimants could not produce any convincing evidence to establish the actual income of the deceased. 10. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the Apex Court reckoned the monthly income of a coolie M.A.C.A No. 2110 of 2012 **5** (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. 11. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. 12. In the present case, the accident was in the year 2003. Deceased was aged 50 years at the time of accident and claimed that he was a funeral worker. Hence his income as per settled position, can be taken as **Rs.4,000/-** per month. 13. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency M.A.C.A No. 2110 of 2012 **6** and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 14. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 15. In Sarla Verma, the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was limited to 30% if the age M.A.C.A No. 2110 of 2012 **7** of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years. 16. In Pranay Sethi, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 17. The proper multiplier to be applied as held in **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '13'. 18. In the present case, the deceased was 50 years old at the time of accident. So claimants are entitled for 10% enhancement towards future prospects. The monthly income of the deceased has already been fixed as Rs.4,000/-. Total monthly earning would be 4,000+400(10% of 4,000)=4,400. The annual income of the deceased is Rs.52,800/- (4,400x12). M.A.C.A No. 2110 of 2012 **8** 19. On the question of deduction towards personal expenses in Sarla Verma, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65), approved in Pranay Sethi. 20. In Reshma Kumari's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of M.A.C.A No. 2110 of 2012 **9** the deceased need not exactly correspond to the number of dependants. 21. In the present case, claimants are two and hence 1/3 has to be deducted towards personal and living expenses. That will come to Rs.35,200/- (17,600=52,800x1/3, 52,800-17,600). So loss towards dependency would be 35,200x13=4,57,600/-. From that the amount already awarded by the Tribunal to be deducted ie 4,57,6002,59,896= **Rs.1,97,704/-.** 22. The next contention of the learned counsel is with regard to the enhancement of compensation on conventional heads. Claimants are wife and daughter of the deceased. In the claim petition it has been specifically alleged that the claimants are legal heirs and dependents of the deceased. The counsel for insurer on the other hand contended that 2[nd] claimant is married daughter of the deceased and hence she is not entitled to get parental consortium. In the written statement of the 3[rd] respondent, it is admitted that 2[nd] claimant is a legal heir of the deceased. She was only 25 years at the time of filing the claim petition. Hence she is also entitled for parental consortium. 23. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited on percentage M.A.C.A No. 2110 of 2012 **10** basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in Pranay Sethi was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 24. In this context, Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no M.A.C.A No. 2110 of 2012 **11** reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 25. Tribunal awarded Rs.5,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. So, claimants are further entitled to get Rs.11,500/- towards funeral expenses and Rs.6,500/- towards loss of estate. In the present case, claimants are wife and daughter of the deceased. So claimants 1 and 2 are entitled to get Rs.44,000/- each towards spousal and parental consortium, amounting to Rs.88,000/(44,000x2). Once compensation is awarded under consortium, claimants are not entitled to get any compensation towards love and affection. (See **New India Assurance Co. Ltd v. Somwati and Others** [2020 9 SCC 644]). So amount of Rs.10,000/- awarded by the Tribunal towards loss of love and affection has to be deducted and Rs.10,000/towards loss of consortium has to be given credit to. So the balance would be Rs.68,000/- (88,000-20,000). So under the conventional heads, claimants are entitled to get **Rs.86,000/-** (68,000+18,000(11,500+6,500). 26. Learned counsel for the appellant placed reliance on **Jeena v. Satheesh Babu K. and others 2011 (3) KLT 943** and **ICICI** M.A.C.A No. 2110 of 2012 **12** **Lombard General Insurance Co. v. M.D. Devasia @ Jose and another [2019 4 KHC 157:2019 3 KLT 652]** pressing for awarding cost. In that decision, it has been laid down that MACT are empowered to award proportionate cost. The award in this case would show that proportionate cost has not been awarded by the Tribunal. Hence, appellants/claimants are found to be entitled for the proportionate cost before the Tribunal. They are given an option to file statement of cost before the Tribunal within 3 months from this day and if it is so filed, Tribunal shall certify the costs legally payable. 26. So in total the claimants are entitled to get total enhanced compensation of **Rs.2,83,704/- (** 1,97,704+86,000). 28. In the result, the appellants are allowed to realize enhanced compensation of **Rs.2,83,704/-** which will carry interest at the rate of 6.5% per annum from the date of petition, till realization. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, deducting the liability of the appellants/claimants towards balance court fee. 29. The disbursement of the amount to the appellants shall be M.A.C.A No. 2110 of 2012 **13** in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. **SD/-** rps/ **M.R.ANITHA, JUDGE**