Ramakrishnan and M. Sudha v. The National Insurance Co. Ltd.

# **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. 3111 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 624/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/S:** 1 RAMAKRISHNAN, AGED 39 YEARS S/O.RAGHAVAN NAIR.K, KIZHAKKEPATTA HOUSE,, P.O.AZHINJILLAM, MALAPPURAM DISTRICT. 2 M.SUDHA, AGED 31 YEARS W/O.RAMAKRISHNAN, KIZHAKKEPATTA HOUSE,, P.O.AZHINJILLAM, MALAPPURAM DISTRICT. BY ADV SRI.P.SAMSUDIN ## **RESPONDENT/S:** THE NATIONAL INSURANCE CO. LTD. BRANCH OFFICE, KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI, MALAPPURAM DISTRICT. BY ADVS. SMT.DEEPA GEORGE **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.3111 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.3111 of 2009** ## **====================== Dated this the 29[th] day of March, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.624/2005 on the file of the Motor Accident Claims Tribunal, Manjeri. The respondent/insurer in the appeal was the third respondent before the Tribunal. The appellants have not impleaded the respondents 1 and 2 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status in the claim petition. 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 their seven year old minor son named Vivek (deceased). It was their case that, on 17.9.2004, while the deceased was walking through the Panthirangavu - Ramanattukara road, a 3 MACA No.3111 of 2009 car bearing registration No.KL-11/S 4931, driven by the first respondent in a negligent manner, hit the deceased. The deceased was rushed to the MIMS Hospital, Kozhikode, but he succumbed to the injuries on 18.9.2004. He was studying in the 2[nd] standard. The car was owned by the second respondent and was insured with the third respondent. The petitioners were the parents of the deceased. Hence, they claimed a compensation of Rs.2,00,000/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The respondents 1 and 2 had filed a joint written statement, inter alia, denying negligence on the part of the first respondent. They contended that the deceased cut across the road in a careless manner. 4. The third respondent had filed a written statement admitting that the car had a valid insurance coverage. The third respondent reiterated the same contentions as of the respondents 1 and 2. The third 4 MACA No.3111 of 2009 respondent also stated that the compensation claimed was excessive. 5. The petitioners produced and marked Exts A1 to A4 series 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 petitioners to realise from the third respondent an amount of Rs.1,22,817/-, with interest and cost of Rs.1,000/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; P.Samsudin, the learned counsel appearing for the appellants/petitioners and Smt.Deepa George, the learned counsel appearing for the respondent/third respondent/insurer. 9. The point that emerges for consideration in the appeal is whether the quantum of compensation awarded 5 MACA No.3111 of 2009 by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A1 FIR and the uncontroverted averments in the claim petition substantiates that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to controvert the pleadings and discredit the Police records. The third respondent has also not proved that the second respondent had violated the insurance policy conditions. Therefore the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Loss of dependency** 11. The deceased was aged 7 years at the time of the accident/death. He was a 2nd standard student. 12. In **Kuruvan Ansari Alias Kuruvan Ali and another v. Shyam Kishore Murmu and another** [2021 6 MACA No.3111 of 2009 SCC Online SC 1060] and **Kishan Gopal and another v. Lala and others** [(2014) 1 SCC 244], the Hon'ble Supreme Court has fixed the notional annual income of minor children at Rs.30,000/- and adopted the multiplier at 15 for calculating the compensation for loss of dependency. 13. In the light of the ratio decidendi in **Kuruvan Ansari** and **Kishan Gopal** (supra), I am of the definite view that the same yardstick has to be followed in the present case. Thus, I award the petitioners an amount of **Rs.4,50,000/-** as consolidated compensation for loss of dependency of their son, instead of Rs.1,00,000/- awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 14. 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, 7 MACA No.3111 of 2009 respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 15. 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' and 'loss of estate', and 8 MACA No.3111 of 2009 Rs.44,000/- under the head 'loss of consortium'. 16. In the instant case, the Tribunal has awarded an amount of Rs.2,000/- under the head ‘funeral expenses’, Rs.2,500/- under the head 'loss of estate'. 17. Following the parameters laid down in the aforecited decisions, I award the petitioners a further amount of **Rs.14,500/-** under the head ‘funeral expenses’, and an amount of **Rs.14,000/-** under the head 'loss of estate'. I also award the petitioners an amount of Rs.44,000/- each, i.e., a total amount of **Rs.88,000/-** under the head 'loss of consortium'. **Loss of love and affection** 18. The Tribunal has awarded an amount of Rs.5,000/- under the head 'loss of love and affection'. 19. 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 9 MACA No.3111 of 2009 under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.5,000/- awarded under the head 'loss of love and affection'. ## **Other heads of compensation** 20. With respect to the compensation awarded under the heads 'transportation expenses', 'medical expenses' and 'pain and sufferings', I find the same to be reasonable and just. 21. 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. |SI.<br>No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport to hospital|1,000/-|1,000/-| |2|Pain and sufferings|6,000/-|6,000/-| 10 MACA No.3111 of 2009 |3|Loss of consortium|Nil|88,000/-| |---|---|---|---| |4|Loss of love and affection|5,000/-|Nil| |5|Funeral expenses|2,000/-|16,500/-| |6|Loss of estate|2,500/-|16,500/-| |7|Loss of dependency|1,00,000/-|4,50,000/-| |8|Medical expenses|6,317/-|6,317/-| ||Total|1,22,817/-|5,84, 317/-| 22. Even though the petitioners had claimed only an amount of Rs.1,50,000/- as compensation, I have awarded them more compensation than what is claimed in the claim petition, following the principles laid down in **Kuruvan Ansari** and **Kishan Gopal** (supra) and also awarded compensation under the conventional heads. The said course is permissible in view of the law laid down in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC)** and **Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)].** In the result, the appeal is allowed, by enhancing the compensation by an amount of **Rs.4,61,500/- (** Rupees Four Lakh Sixty One Thousand Five Hundred only) with interest on the said amount at 11 MACA No.3111 of 2009 the rate of 6% per annum from the date of claim petition till the date of deposit, after deducting interest for a period of 55 days (i.e., the period of delay in filing the appeal and as ordered by this Court on 2.12.2021 in C.M Appln No.1/2009), and proportionate cost. The respondent/third respondent/insurer is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of 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 the liability towards courtfee, in the ratio of 50:50 and in accordance with law. Sd/- sks/29.3.2022 **C.S.DIAS, JUDGE**