Sarojini (and others) v. Manoj K. Mukundan and National Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. SATURDAY, THE 18[TH] DAY OF DECEMBER 2021 / 27TH AGRAHAYANA,** ## **1943** **MACA NO. 753 OF 2017** **AGAINST THE AWARD IN OP(MV)NO.763/2011 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANTS/PETITIONERS 2 TO 5:** 1 SAROJINI AGED 61 YEARS W/O. LATE BALAN, RESIDING AT KANATHEDATH HOUSE, CHOONDAL P.O., THRISSUR-680502. 2 SMITHA AGED 41 YEARS D/O.LATE BALAN, RESIDING AT KIZHAKKUMPULLY HOUSE, P.O.KANNOTH, VENKITANGU, THRISSUR-680510. 3 SINOJ AGED 40 YEARS S/O.LATE BALAN, RESIDING AT KANATHEDATH HOUSE, CHOONDAL P.O., THRISSUR-680502. 4 SIJESH AGED 37 YEARS S/O.LATE BALAN, RESIDING AT KANATHEDATH HOUSE, CHOONDAL P.O., THRISSUR-680502. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## **RESPONDENTS:** 1 MANOJ K. MUKUNDAN S/O.MUKUNDAN, RESIDING AT VATTAMPARAMBIL HOUSE, NAMBAZHIKKADU P.O., THRISSUR-680602. 2 NATIONAL INSURANCE COMPANY LIMITED PALAKKAD BRANCH, 3RD FLOOR, **MACA 753 of 2017** **:: 2 :** KANOOS EAST, FORT RESORT, 18/77, KUNNATHURMEDU P.O., PALAKKAD-678013. R1 BY SRI.C.A.CHACKO R2 BY SMT.SARAH SALVI **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA 753 of 2017** **:: 3 :** ## **JUDGMENT** Dated this the 18[th] day of December, 2021 On 09.02.2010 at about 12.30 p.m., while the original claimant was walking along Guruvayoor – Choondal public road, at Koonammochi the motorcycle bearing registration No.KL-39-B-5241 ridden by the first respondent , who was the owner of the motorcycle came in a rash and negligent manner hit the deceased. Due to the impact of the hit the he sustained serious injuries. He was taken to hospital and after prolonged illness died on 28.04.2015. He preferred a claim petition before the Tribunal under Section 166 of the Motor Vehicles Act. The Tribunal awarded a sum of ₹3,76,900/-. Dissatisfied with the amount awarded by the Tribunal, the claimants have preferred this appeal seeking enhanced compensation. ## 2. Heard the learned counsel on both sides. 3. The learned counsel for the appellants argued that pending the proceedings before the Tribunal, the claimant died and the death was solely due to the injury sustained in the accident mentioned above. The magnitude of the injury is evident from the medical certificate. The Tribunal has not entered into any categoric finding as as to whether the case was considred as one of death or injury. The learned counsel also relies on the judgment in **Venugopal and others v. T.L.Paulson and others** [2008(4) **MACA 753 of 2017** **:: 4 :** KLT 920]. In the instance case since taking it as the death case, the relevant multiplier is '11' going by the principles in **Sarala Varma and** ## **others v. Delhi Transport Corporation and others [(2010) 2 KLT** **802]** . It is also to be noticed that the injury was such that it has resulted in a permanent disability which has almost made the appellant a para plegic. The head injuries were of serious nature that he required support for walking and also needed help for all activities for daily living - eating, dressing, bathing and toilet functions. The injuries sustained are:- 1. Head injury with acute extradural haemorrhage in the right parietal region 2. Acute subdural haemorrhage in the left frontotemperoparietal region 3. Acute subarachanoid haemorrhage 4. Haemorrhagic contusion in the right parietal lobe 5. Fracure of righ temporal bone.” The relevant portion of the medical certificate is extracted:- ## “His present complaints are 1. Impairment of memory and other cognitive functions 2. Irrelevant talking 3. Weakness of both upper and lower limbs 4. Impairment of memory and other cognitive functions 5. Behavioural and personality changes – excessive anger, irritability ## Neurological examination shows the following deficits 1. Conscious, disoriented in time and place 2. Poor attention span with impairment of working memory, recent memory and remote memory 3. Recognizes family members, not able to name persons and objects 4. Speech – fluent, irrelevant, comprehension and naming impaired 5. Hypertoina and weakness of both upper and lower limbs with **MACA 753 of 2017** **:: 5 :** brisk reflexes and bilateral extensor plantar response He requires two persons support for walking and need help for all activities of daily living – eating, dressing, bathing and toilet functions.” 4. The learned counsel for the respondent, however, argued that the petitioners 2 to 5 were impleaded on 24.11.2015 consequent to the death of the claimant and the claim petition was not amended and therefore, the Tribunal had treated the case as an injury case and in appeal also shall be treated as an injury case. Since it has to be treated as an injury case, the learned counsel for the respondent submits that the claim of dependency cannot be made and only the second petitioner, the wife of the injured was the dependant and others were married and settled and therefore, it cannot be taken as the dependants of the injured. The learned counsel also cited the decision in **Sujatha P. and others v. Oriental Insurance Company Ltd.** 2017 (5) KHC 568(DB) for the proposition that since there is only one dependant (wife), 50% of the annual income should be deducted for calculation of the dependency in a death case. 5. On the facts of the case and going by the records, I have no hesitation to hold that the instant case it has to be taken as a case of death due to the injury sustained on 09.02.2010, it was in fact an accelerated case of death. The claim petition was amended to plead that due to the accident, the injured was continuously laid up till his **MACA 753 of 2017** **:: 6 :** death. I have no doubt to hold that in the instant case it has to be taken as one of death particularly in view of the medical certificate and the contents thereof. The injuries were fatal and I am not in a position to uphold the technical arguments made on the side of the respondents 6. The Tribunal has fixed a notional monthly income of the deceased at Rs.4,000/-. Going by the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** [AIR 2011 SC 2951], the notional income is liable to be fixed at Rs.5,000/-. 7. Going by the principles in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802] the multiplier to be adopted is '11' and an increase of 10% of its future prospects has to be going by the judgment in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. 8. The amount to be granted under the head 'loss of dependancy' is recalculated as Rs. **5,44,500** /- (5,000 + 10% - 1/4 x 12 x 11). The Tribunal has awarded an amount of Rs.30,000/- under the head 'pain and sufferings'. I find that the amount granted by the Tribunal is low and hence, I enhance it to Rs.1,00,000/- considering the **MACA 753 of 2017** ## **:: 7 :** duration between the date of accident and death and the sufferings undergone. The appellants are entitled to an additional sum of Rs. **70,000/** - under the head 'pain and sufferings'. I also find that the amount awarded by the Tribunal under the head 'byestander expenses' is low for the same reason mentioned, I enhance the same to Rs.75,000/- instead of Rs.15,000/- awarded by the Tribunal. The appellants are entitled to an additional sum of Rs. **60,000/** - under the head byestander expenses' 9. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held 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. 10. In **N. Jayasree and others v. 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 Honourable 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** **MACA 753 of 2017** ## **:: 8 :** **sethi** , which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, I hold that the appellants are entitled to compensation under the conventional heads at Rs. **16,500** /-, **16,500** /-, and 44,000/-. Accordingly, I award the appellants an amount of each under the heads ‘funeral expenses’ and ‘loss of estate’ and Rs.44,000/- each under the head ‘loss of consortium’ totalling to an amount of Rs. **1,76,000** /-. In the result, the appeal is allowed by enhancing a further amount of (8,83,500-3,626,00) Rs **.5,20,900/** -(Five lakh two thousand and nine hundred only) with interest at the rate of 9% per annum on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. The 2[nd] respondent shall deposit the enhanced compensation within a period of two months from the date of receipt of a certified copy of this judgment after deducting the liability of the petitioners towards balance court fee and legal benefit fund if any. The disbursement of compensation to the respondents / petitioners shall be done by the Tribunal in proportion and as per the conditions in the impugned award and in accordance with law. **Sd/-** ## **MOHAMMED NIAS.C.P.** ## **JUDGE** dlk 21.12.2021