Savithri v. Sasidhara Kurup Panavila Veedu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943** **MACA NO. 2679 OF 2010** **AGAINST THE AWARD DATED 19.04.2010 IN OP(MV)NO.1299/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL, THIRUVANANTHAPURAM** ## **APPELLANT/APPLICANT:** **SAVITHRI, JAYACHANDRA BHAVAN, AYILAM DESOM, MUDAKKAL VILLAGE, AYILOM P.O., ATTINGAL.** **BY ADV SRI.D.KISHORE** ## **RESPONDENTS/RESPONDENTS:** - **1 SASIDHARA KURUP PANAVILA VEEDU, ELAMPA P.O., ELAMAPA DESOM, ELAMPA VILAGE, ATTINGAL - 695 101.** - **2 RAJENDRA KURUP, INDIRA VILASOM, NEAR ELAMPA BRIDGE, ELAMPA VILLAGE, ATTINGAL, PIN - 695 101.** - **3 THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, ATTINGAL - 695 101.** - **4 SMITHA LEKSHMI W/O. BABU KUTTAN @ BABU, JAYACHANDRA BHAVAN, AYILAM DESOM, MUDAKKAL VILLAGE, AYILOM P.O., ATTINGAL - 695 101.** ## **BY ADV SRI.M.RAJAGOPALAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2679/2010 -:2:- Dated this the 28[th] day of July,2021 ## **J U D G M E N T** The appellant was the applicant in O.P (MV) No.1299/2003 on the file of the Motor Accidents Claims Tribunal,Attingal. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant and the fourth respondent had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 'Babukuttan @ Babu'(deceased), the son of the appellant and the husband of the fourth respondent. The appellants had averred in the claim petition that on 07.06.2003, while the deceased was riding his motorcycle from Memom to Attingal, a lorry bearing registration No.KL-01H-5513(lorry) driven by the second respondent in a rash and negligent manner came from the opposite side and hit the motorcycle of the deceased. The deceased sustained grievous M.A.C.A.No.2679/2010 -:3:- injuries and succumbed to the same at the Medical College Hospital, Thiruvananthapuram. The deceased was a Foreman in a construction company in Sharjah in U.A.E. and was earning a monthly income of Rs.25,000/-. The appellants were dependant on the deceased. The lorry was owned by the first respondent and insured with the third respondent. The appellants claimed an amount of Rs.18,00,000/-as compensation from the respondents. During the pendency of the proceeding, the second appellant got re-married and she was transposed as the additional fourth respondent in the claim petition. 3. The respondent Nos.1 and 2 did not contest the proceeding and were set _ex parte_ . 4. The third respondent filed a written statement admitting that the lorry had a valid insurance coverage. It was also contended that the deceased rode the motorcycle in a rash and negligent M.A.C.A.No.2679/2010 -:4:- manner. Furthermore, as the additional fourth respondent got re-married during the pendency of the proceeding, she was not entitled for compensation. 5. The additional fourth respondent filed a written statement, admitting that she got re-married on 10.11.2006. She prayed that her compensation be limited to Rs.5,00,000/- and that she is ready to pay the court fee for the said amount. 6. The appellant produced and marked Exts.A1 to A8 in evidence. The third respondent produced and marked Exts.B1 to B3 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellant to realise an amount of Rs.2,52,000/- from the third respondent with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and cost of Rs.10,000/-. The additional fourth respondent's claim M.A.C.A.No.2679/2010 -:5:- for compensation was rejected, on the ground that she had sought for divorce on mutual consent during the subsistence of her marriage and subsequently got re-married. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the applicant is in appeal. 9. Heard; Adv.Sri. D. Kishore, the learned counsel appearing for the appellant and Adv.Sri. M. Rajagopalan, the learned counsel appearing for the third respondent. 10. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. Ext.A5 copy of charge-sheet filed by the Attingal Police in Crime No.265/2003 proves that the accident occurred on account of the negligence of the second respondent, who drove the lorry in a negligent M.A.C.A.No.2679/2010 -:6:- manner. The first respondent was the owner and the third respondent was the insurer of the lorry. Therefore, the third respondent is liable to indemnify the first respondent of his liability to pay compensation. 12. The deceased was aged 33 years of age and was stated to be employed in Sharjah, U.A.E. and drawing a monthly income of Rs.25,000/-. However, the appellant did not produce any materials to prove the income of the deceased. The Tribunal fixed the notional income of the deceased at Rs.2,500/- per month. ## **Notional Income:** 13. Other than for the bald assertion in the claim petition, that the deceased was getting an income of Rs.25,000/- per month, no material was produced before the Tribunal to fix his income. Therefore, the Tribunal fixed the income of the deceased at M.A.C.A.No.2679/2010 -:7:- Rs.2,500/- per month. 14. 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. 15. Following the ratio in the afore-cited decision and considering the fact that the accident occurred in the year 2003, I re-fix the notional income of the deceased at Rs.4,000/- per month ## **Multiplier** 16. The deceased was 33 years on the date of his death. In _**Sarala Varma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)] and _**National Insurance Company Ltd. v. Pranay Sethi**_ [(2017) 16 SCC 680], the Hon'ble Supreme Court has fixed the multiplier of a person aged 33 at '16'. Hence, I fix the multiplier at '16'. M.A.C.A.No.2679/2010 -:8:- ## **Future prospects:** 17. In _**Sarla Verma**_ as well as _**Pranay Sethi**_ (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for future prospects at 40%, if the multiplier is '16'. Therefore, I hold that the appellant is entitled for future prospects at 40%. ## **Personal living expenses:** 18. Admittedly, the deceased was separated from the additional fourth respondent and it is only the appellant-his mother, who was a dependant on him. Therefore, one-half of the total compensation has to be deducted towards the personal living expenses of the deceased, as laid down in _**Sarla Verma**_ (supra). ## **Loss due to dependency:** 19. In view of the above mentioned multiplicant and multiplier namely; the notional income of the deceased fixed at Rs.4,000/-, the multiplier at '16', M.A.C.A.No.2679/2010 -:9:- future prospects at 40% and one-half of the total compensation for 'loss of dependency' to be deducted towards personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.5,37,600/- ## **Conventional heads of compensation:** 20. 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. Therefore, I award an amount of Rs.15,000 under the head 'funeral expenses', Rs.15,000/- under the head 'loss of estate' and Rs.40,000/- under the head 'loss of consortium'. ## **Other heads of compensation:** 21. The Tribunal has awarded Rs.2,000/- under M.A.C.A.No.2679/2010 -:10:- the head 'transport expenses' and Rs.500/- under the head 'clothing' , which I find to be reasonable and just. 22. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellant/applicant is 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|2,000|2,000| |2|Clothing|500|500| |3|Funeral expenses|5,000|15,000| |4|Loss of love and<br>affection|15,000|Nil| |5|Loss of estate|10,000|15,000| |6|Loss of consortium|Nil|40,000| |7|Loss<br>of<br>dependency|2,20,000|5,37,600| ||**Total**|**2,52,500**|**6,10,100**| In the result, the appeal is allowed by enhancing M.A.C.A.No.2679/2010 -:11:- the compensation by a further amount of **Rs.3,57,600/-** with interest at the rate of 7.5% per annum on the enhanced compensation from the date of petition till the date of deposit, after excluding the period of 89 days, i.e, the period of delay in preferring this appeal and as directed by this Court on 17.03.2021 in C.M.Appln.No.3512/2010, and proportionate costs. The third respondent shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/applicant in accordance with law. All pending interlocutory applications will stand closed. Sd/- DST ## **C.S.DIAS,JUDGE** **//True copy// P.A.To Judge**