Rajan Varghese and others v P. Manikkam and others (MACA No. 2638 of 2010)

MACA NO. 2638 OF 2010 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **MACA NO. 2638 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 447/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/S:** 1 RAJAN VARGHESE, B/15, JRV BUILDINGS KURIAN UTHUP NAGAR, MOOLAVATTOM P.O.,, KOTTAYAM. 2 SMT.ELIZABETH RAJAN, B15 JRV BUILDINGS, KURIAN UTHUP NAGAR,, MOOLAVATTOM P.O., KOTTAYAM. 3 JOSEPH RAJAN, B15 JRV BUILDINGS KURIAN UTHUP NAGAR, MOOLAVATTOM P.O.,, KOTTAYAM. BY ADVS. SRI.ALEX GEORGE SRI.GEORGE ZACHARIAH ERUTHICKEL ## **RESPONDENT/S:** 1 P.MANIKKAM, S/O.PERUMAL GOUNDER, KUTTAYITHOTTAM, SANKARI ROAD,, SEETHARAMAPALAYAM P.O., THIRUCHENGODU,, SALEM, TAMILNADU-799278. 2 S.THESINGURAJAN SO.SELLAMUTHU VADAKKUKADU, MULLAVADI P.O., ATTUR TALUK,, B/15, JRV BUILDINGS, SALEM DISTRICT,, TAMIL NADU-799278. 3 UNITED INDIAN INSURANCE CO. LTD. BRANCH OFFICE, 9/23, NEW IDAPPADI ROAD,, SANKARI 631301, SALEM DISTRICT, TAMIL NADU. 4 JOHN MATHAI, XL, VIII/2498 A 26, CHOICE PARK, PERANDOOR ROAD, ELAMAKKARA,, KOCHI-682026. 5 ELIAS KURIAN DEN PAYIKKATTIL HOUSE OORAKAM, VELIYANADU P.O., ARAKKUNNAM,, ERNAKULAM- MACA NO. 2638 OF 2010 2 686319. 6 THE NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE, PADINJAREKARA CHAMBERS,, COLLECTORATE P.O., KOTTAYAM-686002. BY ADVS. P.K.MANOJKUMAR P.K.BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2638 OF 2010 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.447/2002 on the file of the Motor Accidents Claims Tribunal, Kottayam. 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 Remani Rajan (deceased) - wife of the 1[st] appellant and mother of the appellants 2 and 3. 3. It was their case that, on 01.12.2001, while the deceased was travelling in a car bearing Registration No.KL-01-3177 from Palakkd side to Coimbatore, a truck bearing registration No.TN/28-W-5299, driven by the 2[nd] respondent in a negligent manner, hit against the car. The deceased sustained multiple injuries and lost her life before she was taken to the Government Hospital, Coimbatore. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The car was owned, MACA NO. 2638 OF 2010 4 driven and insured by the respondents 4 to 6, respectively. The deceased was looking after to the family coconut and cardamom plantation, and was also engaged in Home Science classes. She was earning a monthly income of Rs.10,000/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.13,46,500/- from the respondents. 4. The respondents 1, 2, 4 and 5 did not contest the proceedings. 5. The respondents 3 and 6 had filed separate written statements, interalia, denying the pleadings in the claim petition. The 3[rd] respondent contended that, even though the lorry had a valid insurance coverage, the lorry did not have a valid permit and fitness certificate. It was also stated that the accident occurred due to the negligence of the 5[th] respondent – driver of the car, and the compensation claimed was excessive. The 6[th] respondent disputed the age, income and occupation of the deceased. The 6[th] respondent stated that the accident MACA NO. 2638 OF 2010 5 occurred due to the negligence of the 2[nd] respondent – driver of the lorry. Hence, the 6[th] respondent prayed for exoneration of its liability. 6. The appellants had produced and marked Exts.A1 to A11 in evidence. The respondents 3 and 6 produced and marked Exts.B1 to B3 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.3,48,000/- with interest and cost of Rs.9,000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri. George Zachariah, the learned counsel appearing for the appellants/petitioners, Sri. P.K. Manojkumar, the learned counsel appearing for the 3[rd] respondent/insurer of the lorry and Sri. P.K. Babu, the learned counsel appearing for the 6[th] respondent – insurer of the car. MACA NO. 2638 OF 2010 6 10. The sole point that emanates for consideration in the appeal is whether the quantum compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 11. Ext.A4 final report filed by the Madhukkari Police in Crime No.522/2001 substantiates that the accident occurred due to the negligence of the 2[nd] respondent. Indisputably, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Ext.A4 final report. The 3[rd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is 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 looking after to the family coconut and cardamom plantations, and was also engaged in Home Science classes. They stated that the deceased was earning a MACA NO. 2638 OF 2010 7 monthly income of Rs.10,000/-. However, they had not produced any material to substantiate the income of the deceased. Accordingly, the Tribunal fixed the notional monthly income of the deceased at Rs.3,500/-. 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2001, I find that the notional monthly income of the deceased fixed at Rs.3,500/- to be just and reasonable. Thus I confirm the said finding. ## **Multiplier** 15. The deceased was aged 50 years at the time of the accident. 16. In the light of the law laid down in **Sarla Varma** **vs. Delhi Transport Corporation** [2010 (2) KLT 802], the MACA NO. 2638 OF 2010 8 relevant multiplier to be adopted is ‘13’ instead of 11 adopted by the Tribunal. ## **Personal living expenses of the deceased** 17. The appellants were the husband and two children of the deceased. They are three in number. In view of the ratio decidendi in **Sarla Verma** (supra) and **National Insurance Company 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** 18. Following the principles laid down in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 50 years at the time of accident, I hold that the appellants are entitled to future prospects at 10%. ## **Loss due to dependency** ## 19. Taking into account the above mentioned factors, MACA NO. 2638 OF 2010 9 namely, the monthly income of the deceased at Rs.3,500/-, the multiplier at 13, future prospects at 10% and after deducting one-third of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' of the appellants at Rs.4,00,400/-, instead of Rs.3,08,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 20. 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. 21. 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** MACA NO. 2638 OF 2010 10 [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' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 22. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- towards ‘funeral expenses’. In the light of the law referred to above, I award the appellants a further amount of Rs.11,500/- under the said head. 23. I also award the appellants an amount of Rs.16,500/- under the head 'loss of estate' and Rs.44,000/each to the appellants 1 to 3 under the head 'loss of MACA NO. 2638 OF 2010 11 consortium', totalling to an amount of Rs.1,32,000/-. **Pain and sufferings & Loss of love and affection** 24. The Tribunal has awarded an amount of Rs.10,000/- and 20,000/- respectively under the heads 'pain and sufferings and 'loss of love and affection'. 25. In paragraph 19 of **Sarla Verma** (supra), the Honourable Supreme Court has held that in the case of instantaneous death, the dependents of the deceased are not entitled to compensation for 'pain and sufferings. Thus I set aside the amount of Rs.10,000/- awarded under the said head. 26. In **New India Assurance Co. Ltd. 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.20,000/- awarded under the head 'loss of love and affection'. 27. With respect to the compensation awarded under MACA NO. 2638 OF 2010 12 the heads, namely, transportation expenses and clothing, I find the same to be reasonable and just. 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [452 x 371] intentionally omitted <==** **----- Start of picture text -----**<br> Amounts<br>Amount<br>Sl. modified and<br>awarded by<br>Head of claim recalculated<br>the Tribunal<br>No. by this Court<br>(in rupees)<br>(in rupees)<br>Transportation<br>1 4,000 4,000<br>expenses<br>2 Clothing 1,000 1,000<br>3 Funeral expenses 5,000 16,500<br>4 Pain and sufferings 10,000 0<br>Loss of love and<br>5 20,000 0<br>affection<br>6 Loss of estate 0 16,500<br>7 Loss of consortium 0 1,32,000<br>**----- End of picture text -----**<br> MACA NO. 2638 OF 2010 13 **==> picture [452 x 81] intentionally omitted <==** **----- Start of picture text -----**<br> 8 Loss of dependency 3,08,000 4,00,400<br>Total 3,48,000 5,70,400<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by an amount of **Rs.2,22,400/** - with interest at the rate of 6% per annum from the date of the claim petition till the date of deposit, after deducting interest for a period of 818 days (i.e. the period of delay in filing the appeal and as ordered by this Court on 24.11.2021 in CM.Appln.No.1/2010) with proportionate cost. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants, in the ratio of 40:30:30 and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/29.03.22