Sandhya S. Dharan and others v. Vinod @ Unni and others

1 MACA No.2015 of 2011 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 14[TH] DAY OF JANUARY 2022 / 24TH POUSHA, 1943 MACA NO. 2015 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1039/2005 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** 1 SANDHYA S.DHARAN AGED 27 YEARS,W/O.LATE ANOOP,THUNDIL VEEDU,MANYIL KULANGARA.P.O. 2 ANUPAMA (MINOR) AGED 8 YEARS,D/O.LATE ANOOP,THUNDIL VEEDU,MANYIL KULANGARA.P.O,REPRESENTED BY THE FIRST APPELLANT. 3 ANANDAVALLY AGED 52 YEARS W/O.ANIRUDHAN,SREESAILAM,KOTTARAKKARA,KOLLAM. BY ADVS. SRI.R.KISHORE SRI.ARUN BABU SRI.G.HARIPRASAD ## **RESPONDENT/S:** 1 VINOD @ UNNI AGED 37 YEARS,S/O.JANARDHANAN,VIJAYA VILASAM,EROOR VILLAGE,KOTTARAKKARA-691506. 2 VARGHEESE,S/O.YOHANNAN EDATHIPARAMPIL VEEDU, ALAMCHERRY,YEROOR,KOTTARAKKARA-691506. 3 THE UNITED INDIA INSURANCE KOLLAM-691001. BY ADV SRI.P.MURALEEDHARAN R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.2015 of 2011 ## **C.S.DIAS, J. ====================== MACA No.2015 of 2011** ## **====================== Dated this the 14[th] day of January, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP(MV) 1039/2005 on the file of the Motor Accident Claims Tribunal, Kollam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Anoop (deceased), the husband of the first appellant, father of the second appellant and son of the third appellant. It was their case that, on 14.2.2005, while the deceased was riding his motor cycle bearing registration No.KL2/L 8561 through Puthoor-Kottarakkara Road, a lorry bearing registration No.KL-2/F 9467 (lorry), driven by the first respondent in a rash and negligent manner, hit the motor cycle of the deceased. The deceased fell 3 MACA No.2015 of 2011 down and succumbed to his injuries instantaneously. The deceased was a Business Executive in Grandix Pharmaceuticals Ltd and was earning a monthly income of Rs.9,000/-. The lorry was owned by the second respondent and insured with the third respondent. The appellants were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.21,30,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement admitting that the lorry had a valid insurance coverage. Nevertheless, the third respondent disputed the age, income and occupation of the deceased. 5. A witness was examined as PW1 and Exts A1 to A9 were marked in evidence. Exts X1 and X2 were marked as Court Exhibits. 6. The Tribunal, after analysing the pleadings and 4 MACA No.2015 of 2011 materials on record, allowed the claim petition, in part, by permitting the appellants to recover from the third respondent an amount of Rs.5,74,100/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard: Sri.Kishore.R, the learned Counsel appearing for the appellants/ petitioners and Sri.P.Muraleedharan, the learned counsel appearing for the third respondent/insurer. 9. The sole 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 A6 charge-sheet filed by the Police proves 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 5 MACA No.2015 of 2011 of the lorry. The respondents have not let in any evidence to discredit Ext A6 charge-sheet. 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** 11. The appellants had contended that the deceased was working as a Business Executive in a Pharmaceuticals Company and was drawing a monthly income of Rs.9,000/-. In order to substantiate their assertion, they produced Ext A9 salary certificate, which shows that the deceased was earning the above said amount. To prove Ext A9, the appellants had examined PW1. As per Ex A9, the deceased was earning a monthly income of Rs.2,250/-, house rent allowance of Rs.1,000/-, educational allowance of Rs.500/-, vehicle 6 MACA No.2015 of 2011 allowance of Rs.500/-, kit allowance of Rs.250/- and conveyance allowance of Rs.4,500/-. However, the Tribunal fixed the notional monthly income of the deceased at Rs.4,000/-. 12. The Hon'ble Supreme Court in **Kalpanaraj** **and others v. Tamil Nadu State Transport Corporation [(2015) 2 SCC 764)** has categorically held that what needs to be looked into while fixing the net income of the deceased/injured is the net income after deduction of income tax and profession tax. 13. Gong by Ext A9, the deceased was earning Rs.9,000/- per month. Taking into account the income tax slab in the assessment year 2005-2006, 10% of the salary above Rs.60,000/- has to be deducted towards the income tax and profession tax of the deceased. Therefore, the gross income of the deceased is Rs.1,08,000/-. After deducting the income tax, the deceased's net monthly income works out to Rs.8,600/-. 7 MACA No.2015 of 2011 Thus, I fix the monthly income of the deceased at Rs.8,600/-. ## **Multiplier** 14. The deceased was aged 27 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier to be adopted is '17'. ## **Personal living expenses of the deceased** 15. Indisputably, the appellants are the mother, wife and daughter of the deceased. They are three in number. Therefore, one-third of the compensation has to be deducted towards the personal living expenses of the deceased as laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680] .** ## **Future prospects** 16. Following the ratio in **Sarla Verma** (supra) 8 MACA No.2015 of 2011 and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 27 years at the time of his death, I hold that the appellants are entitled to future prospects @ 40%. 17. The learned counsel appearing for the appellants strenuously argued that, as the deceased was employed in Grandix Pharmaceuticals Ltd, he should be treated as a permanent employee and the appellants be awarded future prospects @ 50%. 18. I am unable to accept the said argument because, going by the ratio decidendi in **Pranay Sethi** (supra), there is nothing on record to prove that the employment of the deceased was permanent in nature. Undisputedly, the Company is a private one and the deceased's employment was on contract basis governed by the practice of 'hire and fire'. Therefore, the employment of the deceased can never be equated to a regular government or pubic sector employment. 9 MACA No.2015 of 2011 Therefore, I decline to award the appellants future prospects @ 50% as argued by the learned counsel. ## **Loss of dependency** 19. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.8,600/-, the multiplier at '17', future prospects @ 40% and after deducting one-third of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at **Rs.16,37,440/** -, instead of Rs.5,44,068/- awarded by the Tribunal. ## **Conventional heads of claim** 20. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **Pranay Sethi (supra)** 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. It 10 MACA No.2015 of 2011 is also observed that the conventional heads of compensation have to be enhanced every three years by 10%. 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 [2021 SCC Online SC 1193]** , 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 to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, the appellants are entitled to an amount of Rs.16,500/- towards funeral 11 MACA No.2015 of 2011 expenses, Rs.16,500/- towards loss of estate and Rs.44,000/- towards loss of consortium. The Tribunal had awarded an amount of Rs.5,000/- towards funeral expenses. Hence, I award the appellants a further amount of **Rs.11,500/-** towards funeral expenses and an amount of **Rs.16,500/-** towards loss of estate. As the Tribunal has awarded an amount of Rs.10,000/- towards loss of consortium, I award the appellants a further amount of **Rs.1,22,000/-** under the said head, i.e., Rs.44,000/- each to the appellants. ## **Loss of love and affection** 22. The Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection'. In **New India Assurance Co. v. Somwati and others** **[(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 12 MACA No.2015 of 2011 to duplication of compensation. Therefore, I set aside the amount awarded under the head 'loss of love and affection'. ## **Other heads of compensation** 23. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 24. 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/petitioner 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<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Funeral expenses|5,000/-|16,500/-| |2|Pain and sufferings|5,000/-|5,000/-| |3|Loss of estate|Nil|16,500/-| |4|Loss of consortium|10,000/-|1,32,000/-| |5|Loss of love and<br>affection|10,000/-|Nil| 13 MACA No.2015 of 2011 |6|Loss of dependency|5,44,068/-|16,37,440/-| |---|---|---|---| |7|Total|5,74,068/-<br>rounded off to<br>Rs.5,74,100/-|18,07,440/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.12,33,340/-** (Rupees Twelve Lakh Thirty Three Thousand Three Hundred and Forty only) with interest on the enhanced compensation at the rate of 7.5% per annum from the date of claim petition till the date of deposit, after deducting interest for a period of 75 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 12.12.2011 in C.M Appln No.3010/2011, and proportionate cost. The third respondent is ordered to deposit the enhanced compensation 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 14 MACA No.2015 of 2011 deposited, the Tribunal shall disburse the deposited amount to the appellants in the ratio of 45:45:10 and in accordance with law. SD/- sks/14.1.22 **C.S.DIAS, JUDGE**