Ratnabhai (W/o Late M. George Abee) and Filbert George (deceased) by legal heirs v Omana Varghese, Madhulal, and The Manager, National Insurance Co. Ltd.

1 MACA No.1032 of 2010 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943 MACA NO. 1032 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1982/2003 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** 1 RATNABHAI,W/O.LATE M.GEORGE ABEE VIHAR,PALLIYARA,MULAVANA P.O,KUNDARA. 2 FILBERT GEORGE (DIED),S/O.LATE M.GEORGE PALLIYARA,MULAVANA P.O,KUNDARA.(FIRST APPELLANT IS RECORDED AS THE LEGAL HEIR OF THE DECEASED SECOND APPELLANT VIDE ORDER DATED 31.8.2021 IN MEMO DATED 24.1.2020 IN MACA 1032/2010) BY ADV SMT.M.MEENA JOHN ## **RESPONDENT/S:** 1 OMANA VARGHESE, W/O.VARGHESE, THEKKATTU VEEDU,EAST KALLADA P.O,KUNDARA,KOLLAM. 2 MADHULAL,S/O.MADHAVAN,PADINJATTUMKARA MELATHIL,THEVALAPURAM,PAVITHRESWARAM P.O,KOLLAM. 3 THE MANAGER,NATIONAL INSURANCE CO.LTD DIVISIONAL OFFICE,PB NO.157,IST FLOOR,, PARAMESWARAM PILLAI BHAVAN,HOSPITAL ROAD,KOLLAM. BY ADV SRI.P.JACOB MATHEW **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1032 of 2010 ## **C.S.DIAS, J. ====================== MACA No.1032 of 2010** **====================== Dated this the 11[th] day of November, 2021.** ## **JUDGMENT** The appellant was the second petitioner in OP (MV) No.1982/2003 on the file of the Motor Accidents Claims Tribunal, Kollam. During the pendency of the appeal, the second appellant died and the first appellant has been recorded as legal representative of the second appellant. The respondents in the appeal were the respondents 2 to 4 before the Tribunal. 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 Gilbert George (deceased), the son of the petitioners 1 and 2 and brother of the third petitioner. It was their 3 MACA No.1032 of 2010 case that on 28.10.2003, while the deceased was travelling in an auto-rickshaw bearing registration No.KL-2/M 9609 through the Mulavana-Kallada Road, when they reached the Mulavana junction, a private bus bearing registration No.KL-10/D 4401 (Bus), driven by the second respondent in a negligent manner, hit the auto-rickshaw. The deceased sustained fatal injuries and lost his life instantaneously. The deceased was an Instructor in a private institute and was earning a monthly income of Rs.10,000/-. The Bus was owned by the first respondent and insured with the third respondent. During the pendency of the claim petition, the first respondent died and his legal representative was impleaded as the additional fourth respondent. The petitioners had contended that they were the dependents of the deceased. Hence, they claimed a total compensation of Rs.8,00,000/- from the respondents. 3. The respondents 1, 2 and additional fourth 4 MACA No.1032 of 2010 respondent did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement disputing the age, income and occupation of the deceased. Nevertheless, the third respondent admitted that the Bus had a valid insurance coverage. 5. The second petitioner was examined as PW1 and Exts A1 to A11 were marked through her 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 realise from the third respondent an amount of Rs.3,80,000/-, with interest at the rate of 7.5% per annum from the date of petition till the date of realization. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 2 and 3 filed the appeal. 5 MACA No.1032 of 2010 8. Heard; Smt.Meena John.M, the learned counsel appearing for the appellants and Sri.P.Jacob Mathew, the learned counsel appearing for the third respondent/insurer. 9. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A2 final report filed by the Police clearly substantiates that the accident happened due to the negligence of the second respondent. Admittedly, the first respondent was the owner and third respondent was the insurer of the Bus. The third respondent has 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. 6 MACA No.1032 of 2010 ## **Income of the deceased** 11. The petitioners had claimed that the deceased was an Instructor in a private institute and was earning a monthly income of Rs.10,000/-. However, for want of any material, the Tribunal fixed the notional monthly income of the deceased at Rs.3,000/-. 12. The Hon'ble Supreme Court in ## **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13** **SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2003, I re-fix the notional monthly income of the deceased at Rs.4,000/-. ## **Multiplier** 14. The deceased was aged 24 years at the time of the accident/death. In the light of the law laid down in 7 MACA No.1032 of 2010 ## **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier is '18'. ## **Personal living expenses of the deceased** 15. Admittedly, the deceased was a bachelor. In the light of the law laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , one-half of the compensation has to be deducted towards personal living expenses of the deceased. ## **Future Prospects** 16. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 24 years at the time of the accident/death, I hold that the dependents of the deceased are entitled for future prospects at 40% on the compensation for loss of dependency. ## **Loss of dependency** 17. Taking into account the above mentioned 8 MACA No.1032 of 2010 factors, i.e., the monthly income of the deceased at Rs.4,000/-, the multiplier at 18, future prospects at 40%, and deducting one-half of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency of the surviving appellant at Rs.6,04,800/-. ## **Conventional heads of claim** 18. The Hon'ble Supreme Court in clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** has 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/- respectively. 19. In the instant case, the Tribunal has awarded only an amount of Rs.5,000/- under the head 'funeral expenses'. Therefore, I enhance the said amount by a further amount of Rs.10,000/-. Similarly, I award an 9 ## MACA No.1032 of 2010 amount of Rs.15,000/- under the head 'loss of estate' and an amount of Rs.40,000/- to the surviving appellant under the head 'loss of consortium'. ## **Loss of love and affection** 20. The Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection'. 21. In **New India Assurance Co. Ltd v. Somavathy and Ors [(2020) 9 SCC 644]** , the Hon'ble 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. 21. Therefore, I set aside the amount of Rs.10,000/- awarded under the said head. ## **Other heads of claim** 22. With respect to the compensation of Rs.5,000/awarded under the head 'pain and sufferings', I find that the Tribunal has awarded reasonable and just 10 MACA No.1032 of 2010 compensation. 23. 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 sole surviving appellant/second petitioner is 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<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Funeral expenses|5,000/-|15,000/-| |2|Pain and sufferings|5,000/-|5,000/-| |3|Loss of estate|Nil|15,000/-| |4|Loss of consortium|Nil|40,000/-| |5|Loss of dependency|3,60,000/-|6,04,800/-| |6|Loss of love and<br>affection|10,000/-|Nil| ||Total|3,80,000/-|6,79,800/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.2,99,800/-** (rounded off to Rs.3,00,000/-) (Rupees 11 MACA No.1032 of 2010 Three Lakh only) with interest on the said amount at the rate of 7.5% per annum from the date of claim petition till the date of realisation and a cost of Rs.20,000/-. The third respondent-insurer is ordered to deposit the enhanced compensation amount with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation amount to the sole surviving first appellant/second petitioner, in accordance with law. sd/- sks/11.11.2021 **C.S.DIAS, JUDGE**