Savitha and Others v. C.K. Reghu and Others

MACA NO. 2968 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943 MACA NO. 2968 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 356/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM APPELLANT/S:** 1 SAVITHA , W/O.LATE MANOJ AGED 20 YEARS, MALIKANADAKKAL HOUSE,, MALEKKAPADY BHAGOM, EDATHALA P.O., ALUVA. 2 NAVEEN MANOJ (MINOR) S/O.LATE MANOJ MALIKANADAKKAL HOUSE, MALEKKAPADY BHAGOM,, EDATHALA P.O., ALUVA, REPRESENTED BY THE MOTHER AND GUARDIAN SAVITHA, IST APPELLANT. 3 KALIKUTTY M/O.LATE MANOJ AGED 58 YEARS, MALIKANADAKKAL HOUSE,, MALEKKAPADY BHAGOM, EDATHALA P.O., ALUVA. BY ADV SRI.T.K.KOSHY ## **RESPONDENT/S:** 1 C.K. REGHU, S/O.KRISHNANKUTTY, CHENNAKKODU HOUSE, KURUMBALAMATTAM BHAGAM,, KARIMANNOOR KARA, KARIMANNOOR VILLAGE,, UDUMBANNOOR P.O. 2 ROY JOSEPH SO.JOSEPH (DELETED) MARUTHUMMOOTTIL HOUSE, KUNDANMUDY,, VANNAPURAM P.O., THODUPUZHA. 3 NEW INDIA ASSURANCE CO.LTD. MUVATTUPUZHA. MACA NO. 2968 OF 2009 2 4 MANJU S/O.LATE MANOJ MALIKANADAKKAL HOUSE, MALEKKAPADY BHAGOM,, EDATHALA P.O., ALUVA. RESPONDENT NO. 2 DELETED RESPONDENT NO. 2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER THE ORDER DATED 26/08/2021IN I.A. NO. 1/2021 IN MACA 2968/2009 BY ADV SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2968 OF 2009 3 ## **JUDGMENT** The appellants were the petitioners 1, 2 and 4 in OP(MV) No.356/2004 before the Motor Accidents Claims Tribunal, Perumbavoor. The respondents 1 to 3 in the appeal were the respondents before the Tribunal. The 5[th] respondent in the appeal was the 5[th] petitioner before the Tribunal. The 3[rd] petitioner, before the Tribunal, passed away during the pendency of the proceedings. He has not been made a party in the appeal. The appellants have deleted the 2[nd] respondent in the appeal as per order dated 26.08.2021 in I.A.No.1/2020. Hence, the parties are, for the sake of convenience, referred to as per the status in the claim petition. 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 Manoj (deceased), husband of the 1[st] petitioner, father of the 2[nd] petitioner, son of the petitioners 4 and 5 and brother of the 5[th] petitioner. It was their case that, on 14.11.2003, while the deceased was riding a scooter bearing registration No.KL 7L/7472 through the Moolamattom - Thodupuzha road, when he reached the MACA NO. 2968 OF 2009 4 place of occurrence, the offending bus bearing registration No. KL 7F/9900 (bus) driven by the 1[st] respondent in a rash and negligent manner hit the scooter of the deceased. The deceased sustained serious injuries and was treated as an inpatient. However, he lost his life on 30.11.2003. The bus was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The deceased was a marble worker by profession earning a monthly income of Rs.6,000/-. The petitioners were dependents of the deceased. Hence, the petitioners claimed a compensation of Rs.11,01,000/- from the respondents, which was limited to Rs.10,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed written statement admitting that the bus had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the deceased. It was also contended that the deceased did not hold a valid driving license. The 3[rd] respondent disputed the age, income and occupation of the deceased. The 3[rd] respondent prayed that the claim petition be dismissed. 5. The petitioners examined the employer of the MACA NO. 2968 OF 2009 5 deceased as PW1 and marked Exts.A1 to A10 series in evidence. The respondents did not let in any evidence. 6. The Tribunal after analyzing the pleadings and materials on record, allowed the claim petition by permitting the petitioners to realise an amount of Rs.3,79,000/- with interest at the rate of 7.5% from the date of petition till 30.09.2008 and thereafter at 8% per annum. 7. Dissatisfied with the quantum of compensation, the petitioners 1, 2 and 4 are in appeal. 8. Heard; Sri. T.K. Koshy, the learned counsel appearing for the appellants/petitioners 1, 2 and 4 and Smt.Raji T. Bhaskar, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The 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.A3 final report filed by the Kanjar Police in Crime No.266/2003 proves that the accident occurred due to the negligence of the 1[st] respondent – the driver of the bus. Admittedly, the 2[nd] respondent was the owner and the MACA NO. 2968 OF 2009 6 3[rd] respondent was the insurer of the bus. The 3[rd] respondent has admitted the insurance policy and has not alleged violation of policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent and pay compensation amount arising out of the accident. ## **Income of the Deceased** 11. The petitioners had claimed that the deceased was a marble worker by profession and earning an income of Rs.6,000/- per month. They produced Ext.A8 salary certificate which was proved through PW1. 12. PW1 has deposed that the deceased was earning a monthly income of Rs.6,000/-. However, it is not proved that the deceased had employment on all days of the year and whether he was a permanent employee and the income shown in Ext.A8 included emoluments and other allowances. 13. Nevertheless, the Tribunal fixed the notional income of the deceased at Rs.2,000/- per month. 14. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the MACA NO. 2968 OF 2009 7 notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 15. Following the ratio in the afore-cited decision and also considering the income certified in Ext.A8, which has been corroborated by PW1, and the accident happened in the year 2003, I am of the opinion that the notional income of the deceased can safely be fixed at Rs.5,000/- per month. ## **Multiplier** 16. The deceased was aged 24 years at the time of accident. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘18’, instead of 17 adopted by the Tribunal. ## **Dependents of the deceased** 17. It is proved that the appellants were wife, son and mother of the deceased. Certainly they were the dependents of the deceased, who are three in number. In the light of the law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], I am of the opinion that one third of the compensation has to be deducted towards the personal living expenses of MACA NO. 2968 OF 2009 8 the deceased. ## **Future Prospects** 18. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 24 years at the time of the accident, I hold that the appellants are entitled for future prospects at 40%. ## **Loss due to Dependency** 19. Taking into account the above mentioned factors i.e. the monthly income of the deceased at Rs.5,000/-, the multiplier at 18, future prospects at 40% and deducting one third of the total compensation for loss due to dependency towards the personal living expenses of the deceased, I refix the compensation for loss due to dependency at Rs.10,08,000/-, instead of Rs.2,72,340/- fixed by the Tribunal. ## **Conventional Heads of Compensation** 20. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra) the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation under the conventional heads i.e., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and MACA NO. 2968 OF 2009 9 ## Rs.40,000/- respectively. 21. In the instant case, the Tribunal has awarded an amount of Rs.2,500/- towards loss of estate and Rs.3,000/towards funeral expenses. In view of the law laid down in **Pranay Sethi** (supra), I enhance the compensation under the aforesaid heads by a further amount of Rs.12,500/- and Rs.12,000, respectively i.e. Rs.15,000/- each. 22. The Tribunal has awarded only an amount of Rs.15,000 towards loss of consortium. It is already found that the appellants were the dependents of the deceased. They being wife, son and mother of the deceased, I hold that all three of them are entitled to loss of consortium at Rs.40,000/- each, totaling to an amount of Rs.1,20,000/- i.e. an enhancement by a further amount of Rs.1,05,000/-. ## **Loss of love and affection** 23. The Tribunal has awarded an amount of Rs.15,000/under the head loss of love and affection. 24. In **New India Assurance Co. Ltd. Vs. Somwathy and others** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount can be awarded MACA NO. 2968 OF 2009 10 under the head 'loss of love and affection', as it would amount to duplication of compensation. 25. In the said circumstances, I set aside the amount of Rs.15,000/- awarded under the said head. 26. Similarly, as the deceased lost his life only after 16 days of the accident, I find that the compensation awarded under the head 'pain and sufferings' at Rs.15,000/- to be reasonable, which I confirm. 27. With respect to the other heads of compensation, namely, transportation expenses, damage to clothing and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners 1, 2 and 4 are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [427 x 101] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by modified and<br>the Tribunal recalculated<br>(in rupees) by this Court<br>(in Rupees)<br>1 Transportation 4,000/- 4,000/-<br>**----- End of picture text -----**<br> MACA NO. 2968 OF 2009 11 **==> picture [427 x 170] intentionally omitted <==** **----- Start of picture text -----**<br> 2 Clothing 250/- 250/-<br>3 Funeral expenses 3,000/- 15,000/-<br>4 Loss of estate 2,500/- 15,000/-<br>5 Pain and suffering 15,000/- 15,000/-<br>6 Loss of love and 15,000/- 0<br>affection<br>7 Medical expenses 51,910/- 51,910/-<br>8 Loss of consortium 15,000/- 1,20,000/-<br>9 Loss of dependency 2,72,340/- 10,08,000/-<br>Total 3,79,000/- 12,29,160/-<br>**----- End of picture text -----**<br> 29. Even though the appellants had claimed only an amount of Rs.10,00,000/- as compensation, following the ratio in **Sarla Varma** and **Pranay Sethi** (supra), the dependents of the deceased are also entitled to future prospects and compensation under the conventional heads, therefore, the compensation now awarded is more than what is claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)], wherein the Honourable Supreme Court has held that there is no restriction in awarding more compensation than what is claimed in the claim petition. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.8,50,160/- with interest at the rate of 7% per annum on the enhanced MACA NO. 2968 OF 2009 12 compensation from the date of petition, till the date of deposit and a cost of Rs.4,000/-. The 3[rd] respondent in the appeal/now the 2[nd] respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants in the ratio of 50:35:15 in accordance with law, after deducting the liability of the appellants, if any, towards payment of court fee. All pending interlocutory applications will stand closed. Sd/- **C.S.DIAS, JUDGE** rkc