Radhamani and others v. Lalitha Gopinath and others

**MACA NO. 1884 OF 2009** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 30[TH] DAY OF JULY 2021 / 8TH SRAVANA, 1943 MACA NO. 1884 OF 2009** **AGAINST THE JUDGMENT IN OP(MV) 562/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR, ERNAKULAM** ## **APPELLANTS/ORIGINAL PETITIONERS:** 1 RADHAMANI, W/O.SIVADAS, KAKKANATTUPARAMBIL HOUSE, KETAMANGALAM,, N.PARAVUR P.O., PARAVUR TALUK,, ERNAKULAM DISTRICT. 2 ANUMOL D/O. SIVADAS -DO- -DO3 BENCY SAGARHAN S/O.SIVADAS -DO- -DO4 AMBUJAKSHI WO.LATE GOPALAN KAKKANATTUPARAMBIL HOUSE, MANJALI, MANNAM P.O., PARAVUR TALUK. BY ADVS. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.N.T.NANDAKUMAR PARAVUR ## **RESPONDENTS/ RESPONDENTS:** 1 LALITHA GOPINATH, W/O.GOPINATH, LAIJU NIVAS, SANATHANAM WARD, ALAPPUZHA.P.O. 2 BABU @ BABURAJ S/O.CHANDRASEKHARAN THAMPI, SIVA VILAS VADAKKUMBHAGOM, EZHIKKARA P.O.,, PARAVUR TALUK, ERNAKULAM DISTRICT. **MACA NO. 1884 OF 2009** **2** 3 NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, NORTH OF IRON BRIDGE,, ALAPPUZHA P.O., ALAPPUZHA DISTRICT. BY ADVS. SRI.R.AZAD BABU SRI.E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1884 OF 2009** **3** ## **JUDGMENT** The appellants were the petitioners in O.P (MV) No.562/2004 on the file of the Motor Accidents Claims Tribunal, North Paravur. 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 .Sivadas (deceased) - the husband of the 1[st] appellant, the father of the appellants 2 and 3 and the son of the 4[th] appellant. The petitioners had averred in the claim petition that: on 6.5.2004, while the deceased was pedelling his bicycle through the Paravur -Varapuzha road, a car bearing Reg. No.KL-4/A-3458 (car) hit the bicycle of the deceased. The deceased was thrown on the road and succumbed to the **MACA NO. 1884 OF 2009** **4** fatal injuries. The appellants were the dependents of the deceased, who was a construction worker by profession and earning a monthly income of Rs.3,000/-. The accident occurred solely on account of the the negligence of the 2[nd] respondent. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. Accordingly, the petitioners claimed a total compensation of Rs.4,00,000/from the respondents. 3. The 1[st] respondent did not contest the proceedings and was set ex parte. 4. The 2[nd] respondent filed a written statement contending that since the accident occurred on account of the negligence of the deceased and that the amount of compensation claimed was on the higher side. 5. The 3[rd] respondent - the Insurance Company – filed a written statement, inter alia, admitting that the car had a valid insurance coverage. However, the age, occupation and income of the deceased was disputed, and it **MACA NO. 1884 OF 2009** **5** was contended that the accident occurred on account of the negligence of the deceased. 6. The 1[st] appellant was examined as PW1 and Exts.A1 to A3 were marked in evidence. The respondents did not let in any evidence. . 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to realise an amount of Rs.2,72,620/- from the 3[rd] respondent with interest at the rate of 7% per annum from 17.6.2004 till the date of deposit. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard Sri.G.Balamuraleedharan, the learned counsel appearing for the appellant/petitioners and Sri.E.M.Joseph, the learned counsel appearing for the 3[rd] respondent/insurance company. **MACA NO. 1884 OF 2009** **6** 10. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. Ext.A1 charge-sheet filed by the North Paravur Police proves that the accident occurred due to the negligence of the 2[nd] respondent in driving the car. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the car. Therefore, the 3[rd] respondent is liable to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Notional Income** 12. The appellants had claimed that the deceased was a construction worker by profession and earning a monthly income of Rs.3,000/-. Nonetheless, the Tribunal fixed the notional income of the deceased at Rs.2,000/- per month. 13. The Hon'ble Supreme Court has in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC **MACA NO. 1884 OF 2009** **7** 236] fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 14. Following the ratio in the aforecited decision and the considering the fact that the accident occurred in the year 2004, I re-fix the notional income of the deceased as claimed in the claim petition at Rs.3,000/- per month. ## **Multiplier** 15. As the deceased was aged 43 years as on the date of his death, the relevant multiplier is '14', in view of the law laid down in in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121]. ## **Future prospects** 16. In **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], the Hon'ble Supreme Court has held that the dependents of the deceased are also entitled for future prospects. Keeping in mind that the deceased was aged 43 years, the appellants are entitled for future prospects at 25%. **MACA NO. 1884 OF 2009** **8** ## **Personal living expenses** 17. As the appellants, who are four in number were the dependents of the deceased, 1/4th of the total compensation under the head' loss of dependency' has to be deducted towards personal living expenses of the deceased, as held in **Sarla Verma** and **Pranay Sethi** (supra). ## **Compensation for loss due to dependency** 18. Taking into account the above mentioned factors, namely, the age of the deceased at 43, his monthly income at Rs.3,000/- , the multiplier at '14', future prospects at 25% and 1/4th to be deducted towards personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.4,72,000/- instead of Rs.2,40,120/awarded by the Tribunal. ## **Conventional heads of compensation** 19 **.** In clause (viii) of paragraph 61 of the **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the **MACA NO. 1884 OF 2009** **9** 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. In such circumstances, I enhance the compensation under the head 'funeral expenses' by an amount of Rs.10,000, award an amount of Rs.15,000/- under the head 'loss of estate' and an amount of Rs.40,000/- each to the appellants towards 'spousal consortium', 'parental consortium' and 'filal consortium', totalling to an amount of Rs.1,60,000/-. ## **Compensation for love and affection** 20. The Tribunal had awarded an amount of Rs.10,000/- under the head 'loss of love and affection'. In **Kunjandy.L and others v. Rajendran and others** [ 2020 (2) KLT 315], this Court has held that once compensation is awarded under loss of consortium, no amount can be awarded for 'loss of love and affection.' Hence, I set aside the compensation awarded under the head 'loss of love and **MACA NO. 1884 OF 2009** **10** affection', otherwise it will amount to duplication of compensation. 21. Although the appellants had claimed compensation for transportation expenses and clothing, the Tribunal did not award any amount under the said heads. Therefore, I award an amount of Rs.1,000/- towards transportation expenses and Rs.500/- towards damage to clothing. 22. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion 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. **MACA NO. 1884 OF 2009** **11** |SI<br>.No|Head of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transport to Hospital|...|1,000| |2.|Damage to clothing and articles|...|500| |3.|Funeral expenses|5,000|15,000| |4.|Loss of love and affection|10,000|….| |5.|Compensation for loss of consortium|10,000|1,60,000| |6.|Loss of dependency|2,40120|4,72,500| |7.|Loss of estate|7,500|15,000| ||Total|2,72,620<br>=========|6,64,000<br>==========| 23. Although the appellants had claimed only a total compensation of Rs.4,00,000/-, in view of the law laid down by the Hon'ble Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 SC] I hold that there is no restriction in the Courts awarding more compensation than what is claimed in the claim petition because just compensation is to be awarded. Accordingly, I proceed to award compensation as calculated **MACA NO. 1884 OF 2009** **12** above which is more than claimed in the claim petition. The above view has been reiterated in **Rajesh v Rajbir Singh [** 2013 (3) KLT 89 SC]. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.3,91,380/-with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till the date of deposit and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of reeceipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants 1 to 3 in equal share and in accordance with law. ma/2.8.2021 Sd/- **C.S.DIAS, JUDGE**