SANTHAMMA, K.KUTTAPPAN and RENJINY v. NATIONAL INSURANCE CO. LTD.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 ``` ## `MACA NO. 2799 OF 2012` ``` AGAINST THE AWARD DATED 06.03.2012 IN OP(MV) NO.112/2003 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA ``` ## `APPELLANTS/ PETITIONERS 1,2 & 3:` ``` 1SANTHAMMA, RATHEESH BHAVAN, THOTTAPPALLY P.O., THOTTAPPALLY. ``` ``` 2K.KUTTAPPAN, RATHEESH BHAVAN, THOTTAPPALLY P.O., THOTTAPPALLY. ``` ``` 3RENJINY, RATHEESH BHAVAN, THOTTAPPALLY P.O., THOTTAPPALLY. ``` ``` BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1RAJENDRAN (DELETED) 30/3029, VIRUTHA NAGAR, FATHIMA NAGAR, KRISHNAMCHERI ROAD, KAMRAJ DISTRICT, TAMIL NADU - 600 071. ``` ``` 2T.THIRUPATHI (DELETED), SRI.THIRUPATHI VENKITACHALAPATHY LORRY SERVICE,239-B/1,ETTAYAPURAM ROAD, KOVILPATTI - 628 501. ``` ``` (RESPONDENT NO 1 AND 2 ARE DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 09/04/2021 IN IA 2927/2017 IN MACA 2799/2012) ``` ``` 3NATIONAL INSURANCE CO. LTD. REP. BY ITS DIVISIONAL MANAGER, ``` M.A.C.A.No.2799/2012 -:2:- ``` DIVISIONAL OFFICE, KAYAMKULAM - 690 502. ``` ``` BY ADVS.SMT.SARAH SALVY SRI.RAJESH THOMAS ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2799/2012 -:3:- Dated this the 26[th] day of November,2021 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV) No.112/2003 on the file of the Motor Accidents Claims Tribunal,Mavelikkara. The respondents 1 and 2 in the appeal were deleted from the party array at the instance of the appellants. The present sole respondent was the third respondent-insurer before the Tribunal. Thus, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 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 'Ratheesh'(deceased)-the son of the petitioners 1 and 2 and the brother of the third petitioner. It was their case that, on 13.09.2002, while the deceased was pedalling his bicycle through the Kollam-Alappuzha National a Highway, lorry bearing registration M.A.C.A.No.2799/2012 -:4:- No.TN-69-Y-3776(lorry), driven by the first respondent in a rash and negligent manner, hit the bicycle of the deceased. The deceased sustained serious injuries and lost his life at the Medical College Hospital, Alappuzha, on the same day. The deceased was a construction worker by profession and was earning a monthly income of Rs.5,000/-. The petitioners were dependants of the deceased. The lorry was owned by the second respondent and insured with the third respondent. Hence, the petitioners claimed a compensation of Rs.6,33,000/- from the respondents, which claim was limited to Rs.6,00,000/-. 3. The respondent Nos.1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement, refuting the allegations in the claim petition. However, the third respondent admitted that the lorry had a valid insurance coverage. 5. The first petitioner was examined as PW1 and M.A.C.A.No.2799/2012 -:5:- Exts.A1 to A9 were marked through her in evidence. The respondents did not let it any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the third respondent an amount of Rs.2,88,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.3,000/- 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. George Varghese, the learned counsel appearing for the appellants/petitioners and Smt. Sarah Salvy, the learned counsel appearing for the third respondent-insurer. 9. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable M.A.C.A.No.2799/2012 -:6:- and just. ## **Negligence and liability** 10. Ext.A6 chargesheet filed by the Ambalappuzha police in Crime No.230/2002 establishes that the accident was caused 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 respondent have not let in any evidence to the contrary to discredit the 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. ## **Notional income:** 11. The petitioners had claimed that the deceased was a construction worker by profession, aged 21 years and was earning a monthly income of M.A.C.A.No.2799/2012 -:7:- Rs.5,000/-. 12. The Tribunal, for want of materials, fixed the notional income of the deceased at Rs.3,000/per month. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2002, I re-fix the notional income of the deceased at Rs.3,500/- per month. ## **Multiplier** 15. The deceased was aged 21 years at the time of accident/death. Following the ratio in **Sarala Verma and others v. Delhi Transport Corporation** **and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier to be adopted is ‘18’. M.A.C.A.No.2799/2012 -:8:- ## **Personal living expenses of the deceased** 16. Undisputedly, the deceased was a bachelor. Therefore, in view of the law in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay** **Sethi** [(2017) 16 SCC 680], one-half of the compensation for 'loss of dependency' has to be deducted towards the ‘personal living expenses’ of the deceased. ## **Future prospects:** 17. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 21 years at the time of the accident/death, I hold that the petitioners are entitled to 'future prospects' at 40%. ## **Loss due to dependency:** 18. Taking into account the above factors, i.e, the notional income of the deceased at Rs.3,500, the multiplier at ‘18’, ‘future prospects’ at 40% and after deducting one-half of the compensation under the M.A.C.A.No.2799/2012 -:9:- head 'loss of dependency' towards the personal living expenses of the deceased, I re-fix the compensation under the head 'loss of dependency' at Rs.5,29,200/-, instead of Rs.2,40,000/- awarded by the Tribunal. ## **Conventional heads of compensation:** 19. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependants 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. 20. It is seen that the Tribunal has awarded only an amount of Rs.5,000/- towards ‘loss of estate’ and Rs.5,000/- towards ‘funeral expenses’, but no amount towards ‘loss of consortium’. 21. In view of the law laid down in **Pranay Sethi** (supra), I enhance the compensation under the heads ‘loss of estate’ and ‘funeral expenses’ by a M.A.C.A.No.2799/2012 -:10:- further amount of Rs.10,000/- each. 22. Likewise, as the petitioners were the parents and sister of the deceased, I award an amount of Rs.40,000/- to each of them under the head ‘loss of consortium’, totalling to an amount of Rs.1,20,000/-. **P ain and sufferings and loss of love and affection:** 23. In **United India Insurance Company Ltd. v. Satinder Kaur and others** [2020(3)KHC 760], the Hon'ble Supreme Court has held that the dependants of the deceased are not entitled for compensation under the head 'pain and sufferings' in the case of instantaneous death. Accordingly, I set aside the amount of Rs.10,000/- awarded under the said head. 24. In **New India Assurance Company Ltd. v. Somwati & 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 of compensation shall be awarded under the M.A.C.A.No.2799/2012 -:11:- head 'loss of love and affection', as it would amount to duplication of payment of compensation. Thus, I set aside the amount of Rs.27,000/- awarded under the head 'loss of love and affection'. 25. The Tribunal has awarded an amount of Rs.1,000/- towards 'transportation expenses', which I find to be reasonable and just. 26. On an comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, 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. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Transport|1,000|1,000| |2|Funeral expenses|5,000|15,000| |3|Loss of estate|5,000|15,000| |4|Pain and sufferings|10,000|Nil| M.A.C.A.No.2799/2012 -:12:- |5|Loss of love and<br>affection|27,000|Nil| |---|---|---|---| |6|Loss<br>due<br>to<br>dependency|2,40,000|5,29,200| |7|Loss of consortium|Nil|1,20,000| ||**Total**|**2,88,000**|**6,80,200**| 26. Even though the petitioners had claimed only amount of Rs.6,00,000/- as compensation, following the ratio in **Sarla Verma** and **Pranay Sethi** (supra), wherein the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for future prospects and also compensation under the conventional heads, I have awarded more compensation than what is claimed in the claim petition. The above 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. **3,92,200** /- with interest at the rate of 7.5% per M.A.C.A.No.2799/2012 -:13:- annum from the date of petition till the date of deposit, after deducting the interest for a period of 144 days, i.e, the period of delay in preferring this appeal and as directed by this Court on 09.04.2021 in C.M.Appln.No.3278/2012, and proportionate cost. The third respondent-insurer is ordered to deposit the enhanced compensation with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellants/petitioners in the ratio of 40:40:20, after deducting their liability, if any, towards payment of court fee, and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/26.11.21 //True copy/ P.A.To Judge