Remavathi Bhaskaran and others v. Rajeevan and K.J. Mathew and The Branch Manager, New India Assurance Company Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943 ``` ``` MACA NO. 420 OF 2012 ``` ``` AGAINST THE AWARD DATED 18.03.20211 IN OP(MV)NO.1290/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY ``` ## `APPELLANTS/PETITIONERS:` ``` 1REMAVATHI BHASKARAN, W/O.P.K.BHASKARAN, AGED 48 YEARS, PARAKKADAVIL HOUSE, THADIKKADAVU P.O., THIMIRI AMSOM,THADIKKADAVU DESOM, TALIPARAMBU TALUK, KANNUR DISTRICT. 2BIBIN P.B., S/O.P.K.BHASKARAN, AGED 24 YEARS, PARAKKADAVIL HOUSE, THADIKKADAVU P.O., THIMIRI AMSOM, THADIKKADAVU DESOM, TALIPARAMBU TALUK, KANNUR DISTRICT. 3BINITHA P.B., D/O.P.K.BHASKARAN, AGED 22 YARS, PARAKKADAVIL HOUSE, THADIKKADAVU P.O., THIMIRI P.O., THADIKKADAVUDESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 4CHEEYAYI, W/O.LATE KANNAN, AGED 71 YEARS, C/O.MOHANAN, P.K.PARAKKADAVIL HOUSE, P.O.KARUVANCHAL, ALAKODE (VIA), KANNUR DISTRICT - 670 571. ``` ``` BY ADVS.SRI.V.T.MADHAVANUNNI SRI.J.ABHILASH SRI.V.A.SATHEESH ``` M.A.C.A.No.420/2012 -:2:- ## `RESPONDENTS/RESPONDENTS:` ``` 1RAJEEVAN, S/O.CHINDAN NAIR, KADANMAR VEETTIL HOUSE, NARIKODE, KOTTILA P.O., EZHOME AMSOM,KANNUR DT. 670334. 2K.J.MATHEW, S/O.JOSEPH, KAKKATTIL HOUSE, ALAKODE P.O.TALIPARAMBA TALUK, KANNUR DT – 670571. 3THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD, BRANCH OFFICE,PAYYANNUR – 670303. ``` ## `BY ADV SRI.JOY JOSEPH MANAYATHU` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.420/2012 -:3:- Dated this the 6[th] day of January,2022 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV) No.1290/2005 on the file of the Motor Accidents Claims Tribunal, Thalassery. 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 Bhaskaran (deceased) – the husband of the first appellant, the father of the appellants 2 and 3 and son of the fourth appellant. It was their case that, on 14.05.2005, while the deceased was travelling in a lorry bearing registration No.KL/13-G-2250 from Thadikadavu-Karimkayam, due to the rash and negligent driving of the lorry by the first respondent, the deceased was thrown out of the lorry. He was M.A.C.A.No.420/2012 -:4:- taken to the Thaliparamba Co-operative Hospital, then to the Pariyaram Medical College Hospital and then to the Unity Health Complex, Mangalore, where he breathed his last on 16.05.2005. The lorry was owned by the second respondent and insured with the third respondent. The deceased was doing business in granite stones and earning a monthly income of Rs.8,000/-. The appellants were the dependents of the deceased. Hence, the appellants claimed a total compensation of Rs.6,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings. 4. The third respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the deceased was a gratuitous passenger. It was also contended that the second respondent had violated the insurance policy conditions. Therefore, the third respondent prayed that the claim petition be dismissed. M.A.C.A.No.420/2012 -:5:- 5. The first appellant was examined as PW1 and Exts. A1 to A9 were marked in evidence. The respondents did not let in any contra evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the third respondent an amount of Rs.3,23,000/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri.V.T.Madhavanunni, the learned counsel appearing for the appellants/petitioners and Sri.Joy Joseph Manayathu, the learned counsel appearing for the third respondent-insurer. 9. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?. ## **Negligence and liability** 10. Exhibits A9 chargesheet filed by the Alakode M.A.C.A.No.420/2012 -:6:- Police in Crime No.122/2005 proves that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the lorry. The respondents have not let in any evidence to discredit Ext.A9 chargesheet. 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. ## **Income of the deceased** 11. The appellants had claimed that the deceased was doing business in granite stones and earning a monthly income of Rs.8,000/-. For want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.3,000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon’ble Supreme Court has M.A.C.A.No.420/2012 -:7:- fixed the notional income of a coolie worker in the year 2004, at Rs. 4500/- per month. 13. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the deceased at Rs.5,000/- per month. ## **Multiplier** 14. It is undisputed that the deceased was aged 51 years at the time of accident. In the light of the law laid down in **Sarla Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier to be adopted is ‘11’. ## **P ersonal living expenses of the deceased** 15. It is proved that the appellants were the wife, children and mother of the deceased. They are four in number. In the light of the law laid down in **Sarla Verma** (Supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** one fourth of the compensation has to be deducted towards the M.A.C.A.No.420/2012 -:8:- ## personal living expenses of the deceased. ## **Future prospects.** 16. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) **,** and considering the fact that deceased was aged 51 years at the time of the accident/death, the appellants are entitled to future prospects at 10%. ## **Loss due to dependency** 17. Taking into account the above mentioned factors, namely; the notional monthly income of the deceased at 5,000/-, the multiplier at ‘11’, ‘future prospects’ at 10% and deducting one fourth of the compensation towards ‘personal living expense’ of the deceased, I award the appellants an amount of Rs.5,44,500/- towards 'loss of dependency', instead of Rs.2,64,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 18. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held M.A.C.A.No.420/2012 -:9:- that the 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. It is also observed that the said amount has to be enhanced by 10% in every three years. 19. In **N. and others v. Jayasree Cholamandalam M/s General Insurance Company Ltd.** [LL 2021 SC 588] and **Rashmitha Biswal and others v. Divisional Manager National Insurance Company Ltd and another** [LL 2021 SC 717], the Hon’ble Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accident. Thus, it is only to be interpreted and inferred that the escalation of 10% is awarded after three years from the pronouncement of **Pranay sethi** , which was rendered in the year 2017, and not for accidents that occurred three years M.A.C.A.No.420/2012 -:10:- after 2017. Therefore, I hold that the appellants are entitled to a further amount of Rs.13,500/- under the head ‘loss of estate’, a further amount of Rs.7,500/under the head ‘funeral expenses’ and a further amount of Rs.1,66,000/- under the head ‘loss of consortium’ . ## **Loss of love and affection** 20. The Tribunal has awarded an amount of Rs.25,000/- under the head ‘loss of love and affection’ to the appellants 2 to 4. 21. In **New India Assurance Co. Ltd. v. Somwati and others** [(2020) 9 SCC 644], the Hon'ble Supreme Court has held that once the 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 awarded under the head ‘loss of love and affection.’ 22. With respect to the other heads of M.A.C.A.No.420/2012 -:11:- compensation, I find that the Tribunal has awarded reasonable and just compensation. 23. On a overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transportation<br>expenses|1,000|1,000| |2|Funeral expenses|9,000|16,500| |3|Pain and<br>sufferings|10,000|10,000| |4|Loss of estate|3,000|16,500| |5|Damage to<br>clothing|1,000|1,000| |6|Loss of<br>consortium|10,000|1,76,000| |7|Loss of love and<br>affection|25,000|Nil| |8|Loss of<br>dependency|2,64,000|5,44,500| M.A.C.A.No.420/2012 -:12:- **Total 3,23,000 7,65,500** 24. Even though the appellants had claimed only an amount of Rs.6,00,000/- as compensation, following ratio in **Sarla Verma** and **Pranay Sethi** (supra), I have awarded the appellants ‘future prospects’ as well as compensation under the ‘conventional heads’. Thus, the compensation awarded has exceeded the amount claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 SC] and **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 SC], In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.4,42,500/-** with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and proportionate cost. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the M.A.C.A.No.420/2012 -:13:- Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants in the ratio of 40:25:25:10 and in accordance with law, after deducting their liability, if any, towards court fee. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/06.01.22 //True copy/ P.A.To Judge