Shamil A. et al. v. Kuncheria George Proprietor, Prima Fuels, Antony K.M., Oriental Insurance Company 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. 1826 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 191/2007 OF I ADDITIONAL MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL,KOLLAM** ## **APPELLANTS/PETITIONERS:** - **1 SHAMILA, AGED 29 YEARS D/O. KHADEEJA BEEVI, PALAPALLYKIZHAKKE THARAYIL, MARUTHOORKULANGARA SOUTH, ALUMKADAVU.P.O., KARUNAGAPALLY, KOLLAM.** - **2 SHAHINSHA, AGED 9 YEARS S/O. SHAJAHAN, PALAPALLYKIZHAKKE THARAYIL, MARUTHOORKULANGARA SOUTH, ALUMKADAVU.P.O., KARUNAGAPPALLY, KOLLAM.** - **3 SHAMNA, AGED 7 YEARS D/O. SHAJAHAN, PALAPALLYKIZHAKKE THARAYIL, MARUTHOORKULANGARA SOUTH, ALUMKADAVU.P.O., KARUNAGAPALLY, KOLLAM.** - **4 SHEREEFA BEEVI, AGED 59 YEARS M/O. SHAJAHAN, PALAPALLYKIZHAKKE THARAYIL, MARUTHOORKULANGARA SOUTH, ALUMKADAVU.P.O., KARUNAGAPALLY, KOLLAM.** - **5 IBRAHIMKUTTY, AGED 64 YEARS F/O. SHAJAHAN, PALAPALLYKIZHAKKE THARAYIL, MARUTHOORKULANGARA SOUTH, ALUMKADAVU.P.O., KARUNAGAPALLY, KOLLAM.** - **(APPELLANTS 2 & 3 MINORS REPRESENTED BY MOTHER SHAMILA) BY ADVS.** - **SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA** ## **RESPONDENTS/RESPONDENTS:** - **1 KUNCHERIA GEORGE PROPRIETOR, PRIMA FUELS, GAMMON INDIA ROAD, WILLINGTON ISLAND, KOCHI682003.** - **2 ANTONY.K.M. S/O. MARIYAM K KADAWARUGADE, MUNNAR-685612.** - **3 THE BRANCH MANAGER ORIENTAL INSURANCE COMPANY LTD. KOLLAM-691001.** - **BY ADV GEORGE CHERIAN (SR.)** ## **OTHER PRESENT:** **ADV. K.S SANTHI - R3** **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.1826 of 2012 2 ## **JUDGMENT** This appeal has been filed against the Award passed in O.P.(M.V)No.191/2007 on the file of First Additional Motor Accidents Claims Tribunal, Kollam (in short, Tribunal). The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming total compensation of Rs.7,00,000/, out of the death of Shajahan. Appellants are wife, minor children and parents of the deceased. 2. It is alleged that on 29.12.2006 while Sri. Shajahan was driving his petty autorickshaw bearing Reg.No.KL-2F-6573 due to hit by a container lorry bearing Reg.No.KL-43/2975 driven by the second respondent he sustained fatal injuries. Immediately he was taken to District Hospital, Kollam, there he succumbed to the injuries on the same day. It is alleged that the accident occurred due to the rash and negligent driving of MACA No.1826 of 2012 3 the lorry by the second respondent. First respondent is the owner of the offending vehicle, third respondent is insurer. 3. Before the Tribunal, respondents 1 and 2 did not contest the matter. Third respondent filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence on the part of the second respondent is denied. 4. Exts.A1 to A9 marked from the side of the appellants. Ext.B1 marked from the side of the respondents. There was no oral evidence from either side. 5. Tribunal on evaluating the pleadings as well as the materials produced found that the accident happened due to the rash and negligent driving of the second respondent. First respondent is held vicariously liable for the acts of the 2[nd] respondent. Third respondent, insurer, is directed to indemnify the first respondent, insured. The Tribunal awarded a total compensation of Rs.4,58,000/- with interest at the rate of 7.5% per annum from the date of petition till realisation. 6. Dissatisfied with the quantum of compensation MACA No.1826 of 2012 4 awarded by the Tribunal, appellants came up in appeal before this Court for the various grounds stated in the memorandum of appeal. 7. Adv.Smt.K.S.Santhi appeared for the third respondent. Service of notice as against respondents 1 and 2 is dispensed with. 8. Heard the learned counsel for the appellants as well as the learned counsel for the third respondent, insurer. Lower court records were called for and perused. 9. According to the learned counsel for the appellants, the monthly income of the deceased was Rs.4,500/- and deceased was 29 years at the time of accident. But the Tribunal taken only Rs.3,000/- as the monthly income of the deceased, which, according to him, is very low. 10. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court taken the monthly income of a coolie in an accident occurred in the year 2004 as Rs.4,500/-. Following that principles, in Syed Sadiq Etc. v. Divisional Manager, United MACA No.1826 of 2012 5 India Insurance Co. Ltd. [(2014) 2 SCC 735] the Apex Court taken the monthly income of a vegetable vendor in an accident occurred in the year 2008, as Rs.6,500/-. In the present case, the accident was in the year 2006. Hence Rs.4,500/- claimed as monthly income of the deceased can be approved. 11. 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 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 MACA No.1826 of 2012 6 facts should lead to awards in the same range. 12. 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 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. 13. The learned counsel for the claimants further claims for 40% enhancement towards future prospects. In Sarla Verma 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 MACA No.1826 of 2012 **==> picture [9 x 8] intentionally omitted <==** 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. 14. But in Pranay Sethi 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 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 MACA No.1826 of 2012 8 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 40% enhancement towards future prospects of the deceased is in compliance of the law laid down in Pranay Sethi. So the monthly income of the deceased can be computed as Rs.6,300/[Rs.4,500+1,800 (40% of Rs.4,500/-). 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 MACA No.1826 of 2012 **==> picture [9 x 8] intentionally omitted <==** would be ¼ and it would be 1/5 when the number of family members exceeds six. 18. Hence towards personal and living expenses of the deceased 1/4[th] to be deducted and the amount would be Rs.4,725/- [6,300-1,575 (1/4[th] of Rs.6,300)]. Suitable multiplier as per Sarla Verma, approved by Constitution Bench in Pranay Sethi is '17'. Applying the multiplier of '17', the compensation under the head of loss of dependency would be Rs.9,63,900/[4,725x12x17]. Deducting Rs.4,08,000/- awarded by the Tribunal, the compensation under the head of loss of dependency would be Rs.5,55,900/- [9,63,900–4,08,000]. 19. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in Pranay Sethi's case. According to the learned counsel, only Rs.5,000/- was awarded towards funeral expenses and Rs.10,000/- each was awarded towards loss of consortium, loss of estate and love and affection. 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 MACA No.1826 of 2012 10 consortium and Rs.15,000/- towards funeral expenses. In New India Assurance Co. Ltd v. Somwati and Others [2020 9 SCC 644]. It has been held that once compensation is awarded under the head of consortium, claimants are further not entitled to get any compensation under the head of loss of love and affection. Hence Rs.10,000/- awarded towards love and affection has to be deducted. 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. 21. In Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram and Ors. [(2018) 18 SCC 130] , with an expansion of 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 MACA No.1826 of 2012 11 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. 22. In Pranay Sethi , the Apex Court while declaring 10% enhancement in every three years did not make any reference with respect to the date of accident also. Hence appellants are entitled to get 10% escalation of conventional heads (See Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024]. 23. So appellants are entitled to get Rs.16,500/- under the head 'loss of estate' and Rs.44,000/- each under the head 'loss of consortium' as well as Rs.16,500/- towards funeral expenses, thus a total amount of Rs.2,53,000/- [16,500+ 2,20,000 (44,000x5) + Rs.16,500] towards conventional heads. Deducting the amount already awarded by the Tribunal under the head of loss of consortium, funeral expenses, love and MACA No.1826 of 2012 12 affection and loss of estate, the balance amount, under the conventional heads would be Rs.2,18,000/- [2,53,000–35,000 (10,000+5,000+10,000+10,000)]. Though the amount awarded would be in excess of the claim as has been held in Ningamma & Another V. United India Insurance Co.Ltd [2009 13 SCC 710: AIR 2009 SC 3056], duty of the court is to award just, equitable fair and reasonable compensation with reference to settled principles. 24. In the result, the appellants are allowed to realise enhanced compensation of Rs.7,73,900/ - [5,55,900+ 2,18,000], (Rupees seven lakhs seventy three thousand nine hundred only) which will carry interest at the rate of 6% per annum from the date of petition till realisation. The third respondentinsurer 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, after deducting the liability of the appellants towards balance Court Fee. 25. The disbursement of enhanced compensation shall be MACA No.1826 of 2012 13 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 till she attains majority and on attaining majority she is free to withdraw the amount. 26. 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 **JUDGE**