Sajna and Others v. Ajith Kumar and National Insurance Co. Ltd.

M.A.C.A.No.3093 of 2015 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA** **FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 MACA NO. 3093 OF 2015** **AGAINST THE JUDGMENT IN OPMV NO.1459 OF 2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANTS/PETITIONERS:** - **1 SAJNA, AGED 36 YEARS W/O.LATE VINOD KUMAR, ANGAPARAMBATH HOUSE, MAKKADA POST, CHERUKULAM, KAKKODI VIA, KOZHIKODE - 673 611.** - **2 MINOR VISMAYA, AGED 11 YEARS, D/O.LATE VINOD KUMAR, REPRESENTED BY HER MOTHER SAJNA, AGED 36 YEARS, W/O.LATE VINOD KUMAR, ANGAPARAMBATH HOUSE, MAKKADA POST, CHERUKULAM, KAKKODI VIA, KOZHIKODE - 673 611.** - **3 MINOR VEDIKA, AGED 1 YEAR, D/O.LATE VINOD KUMAR, REPRESENTED BY HER MOTHER SAJNA, AGED 36 YEARS, W/O.LATE VINOD KUMAR, ANGAPARAMBATH HOUSE, MAKKADA POST, CHERUKULAM, KAKKODI VIA, KOZHIKODE - 673 611. (DIED)** - **4 NARAYANI, AGED 61 YEARS, W/O.CHERIYAKKAN, ANGAPARAMBATH HOUSE, MAKKADA POST, CHERUKULAM, KAKKODI VIA, KOZHIKODE-673611. (DIED) BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENTS/RESPONDENTS:** - **1 AJITH KUMAR, S/O.KANNAN, VIMALALAYAM, SREE NARAYANA MADOM, PUNNOL POST, THALASSERRY KANNUR DISTRICT - 670 102.** - **2 NATIONAL INSURANCE COMPANY LIMITED NOOR COMPLEX, ARAYADATHUPALAM, MAVOOR ROAD, KOZHIKODE-673004** **BY ADV S.K.AJAY KUMAR -STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 5.07.2024, THE COURT ON 26.7.2024 DELIVERED THE FOLLOWING:** 2 M.A.C.A.No.3093 of 2015 ## **CR** ## **M.B.SNEHALATHA, J.** **------------------------------------------M.A.C.A.No.3093 of 2015 ------------------------------------------Dated, this the 26[th] July, 2024** ## **JUDGMENT** Claimants in OP(MV) No.1459/2014 of Motor Accident Claims Tribunal, Kozhikode [hereinafter referred to as ‘the Tribunal’] have filed this appeal seeking enhancement of compensation awarded by the Tribunal. 2. For the sake of convenience, the parties shall be referred to as per their rank before the Tribunal as claimants and respondents. 3. On 27.4.2014, while the victim Vinod Kumar was riding a motorcycle through the public road at Ambalappadi Junction, Kozhikode, a car bearing registration No.KL-13/S-8825 owned and driven by R1, hit on the motor cycle of the victim causing fatal injuries to the victim. He succumbed to the injuries on 3.5.2014. His widow, two minor children and mother filed the claim petition before the Tribunal seeking compensation against R1 who was the RC owner cum driver and R2 who is the insurer of the offending vehicle. 3 M.A.C.A.No.3093 of 2015 4. By the impugned award, the Tribunal awarded a sum of ₹13,36,790/- as compensation with interest at the rate of 9% per annum. Dissatisfied with the quantum of compensation awarded, claimants have come in appeal. 5. Heard the learned counsel for both sides. Records perused. 6. There is no dispute over the fact that the victim Vinod Kumar met with a motor vehicle accident on 27.4.2014 and due to the injuries sustained in the accident, he succumbed to the injuries on 3.5.2014. There is no challenge over the fact that the accident occurred due to the rash and negligent driving of the offending car by R1. 7. It is contended by the learned counsel for the claimants that the compensation awarded by the Tribunal is meager; that the notional income taken by the Tribunal for assessing the compensation is very low; that the compensation awarded under all heads are on a lower side and it is not a just compensation as mandated by law. 8. Let us see whether the claimants are entitled to any enhanced compensation and if so, what is the quantum. M.A.C.A.No.3093 of 2015 4 9. The Tribunal calculated the compensation by taking notional income as ₹6,000/- per month. The Tribunal added 30% of the notional income towards future prospects and deducted 1/4th of the income towards personal and living expenses. 10. The case of the claimants is that the victim was earning a monthly income of ₹30,000/-. Their case is that he was working as a conductor in a bus and was earning income from that job. Apart from that, he was also running a rental outlet wherein furniture needed for events like wedding were being rented out and thus he was earning a total monthly income of ₹30,000/-. 11. The learned counsel for the claimants contended that even if the income of the victim from the business could not be proved by adducing documentary evidence, the Tribunal ought to have believed the version of PW1 regarding the monthly income. 12. On the side of the claimants PW1 who is the wife of the victim was examined. She testified that her husband viz. the victim was working as a conductor in a bus and he was also running a furniture rental outlet named ‘Simple Store’ at Ukkada, Kozhikode. Her categoric version is that she also used to assist her husband in running the said shop. Thus, according to PW1, her husband Vinod Kumar was earning a total monthly income of ₹30,000/- from his job M.A.C.A.No.3093 of 2015 5 as conductor and from the income from the furniture rental business run by him. Ext.A8 is the conductor licence of deceased Vinod Kumar. 13. This Court find no reason to disbelieve the version of PW1 that her husband Vinod Kumar was running a furniture rental outlet named ‘Simple Store’ at Ukkada, Kozhikode, wherein furniture needed for events like wedding etc. were being rented out. It is in evidence that the deceased was working as a conductor in a bus and he was also running furniture rental outlet at Ukkada, Kozhikode. Though there is no documentary evidence regarding the income which he was earning, it is to be borne in mind that the victim Vinod Kumar was the breadwinner of his family consisting of his wife, two children and mother. 14. In _Syed Sadiq and Others v. Divisional Manager, United India Insurance Co.Ltd. [(2014) 2 SCC 735]_ the Hon’ble Supreme Court fixed the notional income of a vegetable vendor in the year 2006 at the rate of ₹6,500/- per month. 15. In _Rajani v. Oriental Insurance Company Ltd._ [2022(5) KLT Online 1012 (SC)], where the victim of a motor vehicle accident was a self cultivating agriculturist, the Hon’ble Apex Court held that a robust view has to be taken on the quantum of earnings of a self M.A.C.A.No.3093 of 2015 6 cultivating agriculturist since documentary evidence may not be available to specifically prove the quantum of earnings of self skilled worker/self cultivating agriculturist. 16. In _National Insurance Co. Ltd. v. Pranay Sethi [(2017) 16 SCC 680]_ the Hon’ble Supreme Court has recognized the principle that there would be incremental enhancement in the case of even self-employed individuals in the unorganized sector and with respect to an unspecified job of a coolie considering the increase in cost of living and economic advancement over the years, it can be safely assumed that even a coolie worker would be eligible for incremental addition of ₹500/- in every subsequent year. 17. Bearing in mind the above yardsticks regarding fixation of the notional income, this Court is of the view that the notional income of the victim who was a bus conductor and who was running a furniture rental outlet can be reasonably fixed at ₹12,000/- per month for the purpose of assessing the compensation payable in the claim petition filed by his legal heirs under the Motor Vehicles Act, 1988. 18. The victim was 48 years old at the time of accident. Therefore, 25% of the income is to be added towards future prospects ( _Pranay Sethi_ ’s case (supra)). If 25% is thus added to the M.A.C.A.No.3093 of 2015 7 notional monthly income of ₹12,000/-, the income would come to ₹15000/- (12000+3000). The victim had four dependents. Therefore, from the said amount, 1/4th is to be deducted towards the personal and living expenses of the deceased ( _Sarla Verma and others v. Delhi Transport Corporation and another (2009(6)SCC 121)._ After deducting 1/4th of the income towards personal expenses, his monthly contribution to the family would be ₹11,250/-. Since the victim was aged 48, the multiplier applicable to him is 13. Accordingly, an amount of ₹17,55,000/- is awarded under the head loss of dependency. (11,250 x12x13). 19. Under the head damage to clothing and articles, as against the claim of ₹2,000/- the Tribunal has awarded ₹1,000/which is on a lower side. Accordingly an additional sum of ₹1,000/is awarded on that head. 20. Under the head transportation, the Tribunal has awarded only ₹1000/- as against ₹10,000/-. The amount awarded by the Tribunal is found to be on a lower side and accordingly an additional sum of ₹5,000/- is awarded under the said head. 21. Under the head loss of estate, the Tribunal has awarded an amount of ₹8,000/-. Under the said head, claimants are entitled 8 M.A.C.A.No.3093 of 2015 to get ₹15,000/- (See _Pranay Sethi_ ’s case). Accordingly, an additional sum of ₹7,000/- is awarded under the said head. 22. Under the head funeral expenses, the Tribunal has awarded an amount of ₹25,000/-. In view of the guidelines of the Apex Court in _Pranay Sethi_ ’s case (cited supra) claimants are entitled to only ₹15,000/- under the said head. Hence, a reduction of ₹10,000/- has to be made under the said head. 23. The Tribunal has awarded an amount of ₹1,00,000/under the head loss of consortium to 1[st] claimant who is the widow of the victim. Under the head loss of love and affection, the Tribunal awarded an amount of ₹1,00,000/- each to the claimants 2 and 3 who are the minor children of the deceased; and awarded ₹50,000/to the wife and ₹25,000/- to the 4[th] claimant who is the mother of the victim. 24. In _Pranay Sethi's_ case (cited supra) the Hon'ble Apex Court held that in death cases, compensation would be awarded only under three conventional heads viz. loss of estate, loss of consortium and funeral expenses. Hon'ble Apex Court held that reasonable figure on conventional heads viz. loss of estate, loss of consortium and funeral expenses should be ₹15,000/-, ₹40,000/- 9 M.A.C.A.No.3093 of 2015 and ₹15,000/- respectively and the aforesaid amounts should be enhanced at the rate of 10% in every three years. 25. In _New India Assurance Company Ltd. v. Somwati_ (2020(9) SCC 644) Hon’ble Apex Court held that loss of love and affection is comprehended in loss of consortium and therefore there is no justification to award compensation towards loss of love and affection as a separate head. Therefore, the claimants are not entitled to any amount under the head loss of love and affection as a separate head. Claimant No.1 who is the wife of the deceased is entitled to spousal consortium. Claimants 2 and 3 are entitled to parental consortium. Claimant No.4 who is the mother of the victim is entitled to filial consortium. Thus, as per the guidelines of the Hon'ble Apex Court in _Pranay Sethi_ ’s case, claimants 1 to 4 are entitled to consortium of ₹40,000/- each. Accordingly, under the head loss of consortium claimants are entitled to only a sum of ₹1,60,000/- (₹40,000/- x 4) and they are not entitled to get any amount under the head loss of love and affection as a separate head. 26. Award of the Tribunal under the other heads need no interference. 10 M.A.C.A.No.3093 of 2015 27. In the result, M.A.C.A stands allowed. The compensation payable to the claimants is as indicated in the tabular statement here below: |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the Tribunal|Total amount after<br>enhancement in<br>appeal| |---|---|---|---| |1|Loss of dependency|9,12,600|1755000<br>(11250x12x13)| |2|Damage to clothing|1000|2,000<br>[1000+1000]| |3|Transport to hospital|1000|6,000<br>(1000+5000)| |4|Loss of estate|8000|15,000<br>(8000+7000)| |5|Funeral expenses|25000|15000| |6|Loss of love and affection|275000|Notgranted| |6|Loss of consortium|1,00,000|1,60,000<br>(40000x4)| |7|Treatment expenses|4,190|4,190| |8|Pain and suffering|10,000|10,000| ||Total|1336790|1967190| ## Amount enhanced is ₹6,30,400/- (₹1967190-₹1336790) 28. During the pendency of this appeal, the 4[th] claimant who is the mother of the victim and 3[rd] claimant, who is the minor daughter of the victim died and memo to that effect filed. Thus, claimants 1 and 2 alone are the legal heirs of the deceased Vinod 11 M.A.C.A.No.3093 of 2015 Kumar who are entitled to receive the award amount and the award amount shall be shared between claimants 1 and 2 equally. 29. R1 & R2 are jointly and severally liable to pay the award amount as enhanced by this Court with 9% interest per annum from the date of petition till realisation. The 2[nd] respondent/insurance company is directed to deposit the enhanced compensation in the Bank Account of the claimants within a period of two months from the date of receipt of a copy of this judgment. Since there was a delay of 93 days in filing the appeal, the claimants are not entitled to interest on the enhanced amount for the period of 93 days as directed in C.M. Appli.No.1/2015 in M.A.C.A.No.3093/2015. 30. The claimants shall produce the details of the bank account before the Motor Accident Claims Tribunal, Kozhikode within two months from the date of receipt of a certified copy of this judgment. 31. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified in O.M.No.D1/62475/2016 dated 07.11.2019. Sd/- ## **M.B.SNEHALATHA, JUDGE** ab