Sarojini, Reni, Archana, Anil Krishnan and Reeja v. Thaha S/O YOOSEF and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944** ## **MACA NO. 2646 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OPMV 465/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **IRINJALAKUDA** ## **APPELLANTS/PETITIONERS:** |**1**|**SAROJINI**| |---|---| ||**W/O.LATE RAVEENDRAN, ATTUVAPARAMBIL HOUSE,NEAR RAILWAY GATE, ALOOR**| ||**P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.**| |**2**|**RENI**| ||**S/O.LATE RAVEENDRAN, -DO- -DO-**| |**3**|**ARCHANA**| ||**W/O.LATE RAJEESH (S/O.LATE RAVEENDRAN),-DO- -DO-**| |**4**|**ANIL KRISHNAN**| ||**AGED 6 YEARS**| ||**S/O.LATE RAJEESH, -DO- -DO-(MINOR REPRESENTED BY HER NEXT FRIEND**| ||**GUARDIAN MOTHER 3RD APPELLANT)**| |**5**|**REEJA**| ||**D/O.LATE RAVEENDRAN, -DO- -DO-**| ||**BY ADV SRI.P.V.BABY**| ## **RESPONDENTS/RESPONDENTS 1 AND 3:** **1 THAHA S/O.YOOSEF, MADATHIL HOUSE, IX/171, CHALAKKA NORTH KUTHIYATHODU P.O. KUNNUKARA, NORTH PARAVUR - 683 524. 2 THE ORIENTAL INSURANCE CO.LTD MAGNA CELI, 4TH FLOOR, DELTA HOUSE, 4, GOVERNMENT PLACE NORTH, KOLKATTA - 700001. BY ADV SRI.M.JACOB MURICKAN** ## **OTHER PRESENT:** ## **ADV.M. JACOB MURICKAN - R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2646 of 2014 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.465/2009 on the file of Motor Accidents Claims Tribunal, Irinjalakuda (in short, Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming total compensation of Rs.10,72,000/, out of the death of Raveendran (hereinafter be referred as deceased), first appellant is the wife of the deceased. Appellants 2 and 5 are the daughters of the deceased; 3[rd] and 4[th] appellants are wife and son of the predeceased son of the deceased Raveendran. 2. It is alleged that on 20.01.2009 while the deceased was walking through Aloor – Kodakara public road, a tipper lorry bearing Reg.No.KL-42/B 6149 driven by the 2[nd] respondent before the Tribunal hit the deceased Raveendran, resulting in fatal injuries to him and he succumbed to the injuries on 23.01.2009. First respondent is the owner of the offending vehicle and third respondent is the insurer. 3. Before the Tribunal, respondents 1 and 2 remained MACA No.2646 of 2014 3 exparte. Third respondent alone contested the matter. The policy coverage with respect to the offending vehicle is admitted. It is also contended that the driver of Tipper Lorry was not having driving licence and badge and hence liability of insurer is denied. 4. PW1 examined and Exts.A1 to A5 marked from the side of the appellants. Ext.B1 copy of the policy was marked from the side of the respondents. 5. Tribunal on evaluating the evidence and facts and circumstances found that second respondent is responsible for the accident and first respondent is held liable for the acts of the second respondent and third respondent is held liable to indemnify the first respondent, insured. The Tribunal awarded a total compensation of Rs.4,36,480/- with interest at the rate of 7.5% per annum from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants came up in appeal before this Court for the various grounds stated in the memorandum of appeal. MACA No.2646 of 2014 4 7. Adv.Sri.M.Jacob Muricken appeared for the 2[nd] respondent/3[rd] respondent. Service of notice as against first respondent/owner is dispensed with. Driver of the offending vehicle, 2[nd] respondent before the Tribunal is not arraigned as party in the appeal. 8. Heard the learned counsel for the appellants as well as the learned counsel for the second respondent, insurer. Lower court records were called for and perused. 9. First contention of the learned counsel for the appellants is that the deceased was a stonesmith, aged 58 years. His wife has been examined as PW1. FIS given by the deceased and FIR has also been produced as Ext.A1. In the FIS deceased had stated his occupation as stonesmith and hence the monthly income of Rs.9,000/- claimed ought to have been accepted. He would also contend that the compensation awarded on various heads are very low and seeks for enhancement of compensation on all heads. 10. The learned counsel for the insurer on the other hand would contend that a just and reasonable compensation MACA No.2646 of 2014 5 has already been awarded and hence no enhancement is required in this appeal. 11. Appellant claimed Rs.9,000/- as the monthly income of the deceased in the claim petition. They have also pleaded his occupation as Stonesmith. Wife of the deceased/first appellant was examined as PW1. Moreover, the FIS given by the deceased is produced and marked as Ext.A1, in which deceased categorically stated that he is a stone worker. It is on the third day of the accident that he died. The wage of a stone worker normally is higher than that of a coolie. The accident was in the year 2009. So taking all those factors into account the monthly income of the deceased can reasonably be taken as Rs.8,500/-. 12. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just MACA No.2646 of 2014 6 compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 13. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of MACA No.2646 of 2014 7 fairness, reasonableness and non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 14. The learned counsel for the claimants further claims for 10% enhancement towards future prospects. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was below 40 years and the said addition was reduced by 30% if the age of the deceased was 40 – 50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons having permanent job. But in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] the Apex Court though accepted the findings in Sarla Verma in fixing the multiplier made some variance with regard to the grant of future prospects in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not MACA No.2646 of 2014 8 to apply the said principle to the self-employed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust and the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. 15. It is laid down in Pranay Sethi that with respect to self-employed or persons with fixed salary when the deceased was below 40 years an addition of 40% can be granted and in the case of between 40 – 50, an addition of 25% and with respect to persons between 50 – 60 years, the addition has been fixed as 10%. The established income also provided as the income minus tax component. 16. So, in the present case, the claim of the counsel for 10% enhancement towards future prospects of the deceased is in compliance of the law laid down in Pranay Sethi. So the MACA No.2646 of 2014 9 monthly income of the deceased can be computed as Rs.9,350/- [Rs.8,500+850 (10% of Rs.8,500/-). 17. On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants and where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six. 18. Here appellants are five in number. So towards personal and living expenses of the deceased 1/4[th] to be deducted to calculate the contribution to the family and the amount would be Rs.7,012.50 [9,350-2,337.50 (1/4[th] of Rs.9,350)]. Suitable multiplier as per Sarla Verma, approved by Constitution Bench in Pranay Sethi is '9'. Applying the multiplier of '9', the compensation under the head of loss of MACA No.2646 of 2014 10 dependency would be Rs.7,57,350/- [7,012.50x12x9]. Deducting the amount awarded by the Tribunal, the compensation under the head of loss of dependency would be Rs.4,67,370/- [7,57,350-2,89,980]. 19. The next contention of the learned counsel is with regard to the enhancement of compensation under conventional heads as per the directions in Pranay Sethi, Rs.25,000/- has been awarded towards funeral expenses and Rs.1,00,000/- was awarded towards loss of consortium by the Tribunal. In Pranay Sethi, the Apex Court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/towards funeral expenses. 20. Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. So the appellants are entitled for 10% enhancement on the said amounts. (See Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ MACA No.2646 of 2014 11 2021 SC 1024]). In Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram and Ors. [(2018) 18 SCC 130] , classified the consortium as spousal consortium, ‘parental consortium’, and ‘filial consortium’. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse and parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. 21. Hence under the head of funeral expense Rs.8,500/is in excess [25,000-16,500]. Towards loss of estate, no amount has been awarded. So appellants are entitled to get Rs.16,500/- towards loss of estate. From that Rs.8,500/- in excess awarded towards funeral expenses can be deducted. So the balance amount would be Rs.8,000/-. First appellant MACA No.2646 of 2014 12 alone is entitled to get compensation towards consortium being the wife of the deceased(2[nd] and 5[th] appellants are married daughters and 3[rd] and 4[th] appellants are widow and son respectively of a predeceased son of the deceased). So Rs.44,000/- is awarded towards loss of consortium. The Tribunal already awarded Rs.1,00,000/- under that head, the excess amount is Rs.56,000/- has to be deducted. 22. In the result, the appellants are allowed to realise enhanced compensation of Rs.4,75,370/- [4,67,370+8,000]. From that Rs.56,000/- in excess awarded under the head of consortium to be deducted, ie 4,75,370-56,000=4,19,370 which is rounded to Rs.4,19,400/- (Rupees four lakhs nineteen thousand four hundred only) which will carry interest at the rate of 6% per annum from the date of petition till realisation. The second respondent-insurer is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 23. The disbursement of enhanced compensation shall MACA No.2646 of 2014 13 be made taking note of the law on the point and in terms of directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. As far as the share of 3[rd] appellant is concerned, the amount will be deposited in a nationalized bank and fixed deposit receipt shall be produced before the Tribunal and it shall be kept in safe custody till he attains majority. 24. Parties shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. **Sd/-** **M.R.ANITHA** shg/4 **JUDGE**