Shanmughan and Others v. Mohammed Ismail and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943** **MACA NO. 2249 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 144/2006 DATED 7.4.2010 ON THE FILE OF** ## **THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA,** ## **APPELLANTS/PETITIONERS IN OP(MV):** (1) SHANMUGHAN, S/O.KANJIRAPARAMBIL VELU, P.O.KAZHIMBRAM, EDAMUTTAM, THRISSUR DISTRICT. (2) SULOCHANA, W/O.KANJIRAPARAMBIL VELU, P.O.KAZHIMBRAM, EDAMUTTAM, THRISSUR DISTRICT. (3) UMADEVI, D/O.KANJIRAPARAMBIL VELU, P.O.KAZHIMBRAM, EDAMUTTAM, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS IN OP(MV):** (1) MOHAMMED ISMAIL, S/O.HYDROSE, PONNAMPADIKKAL HOUSE, SANTHIPURAM P.O., KODUNGALLUR, THRISSUR DISTRICT, PIN-680 668 (2) UNNIKRISHNAN, S/O.VIJAYAN, CHEMMANDAMPARAMBIL HOUSE, METHALA P.O., KANDAMKULAM, KODUNGALLUR, THRISSUR DISTRICT, PIN-680 669. (3) NATIONAL INSURANCE CO.LTD., NORTH PARUR, ERNAKULAM DISTRICT, PIN683 513. (4) E.N.MOHANAN, ESWARAMANGALATH HOUSE, KONATHUKUNNU P.O., THRISSUR DISTRICT, PIN-680 123. BY ADV SMT.P.A.REZIYA THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2249 OF 2010 2** ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.144 of 2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed a claim petition u/s.166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of Sivan @ Siva Kumar (deceased), the son of the appellants 1 and 2 and the brother of the 3[rd] appellant. The appellants had averred in the claim petition that: on 14.12.2005 while the deceased was riding in his motorcycle through the Edamuttam-Thriprayar road, a bus bearing Reg.No.KL-8/F 4257 (bus) driven by the 2[nd] respondent in a rash and negligent manner hit the motorcycle. The appellant sustained fatal injuries and lost his life of the same day. The bus was driven by the 2[nd] ## **MACA NO. 2249 OF 2010 3** respondent in a rash and negligent manner. The 1[st] respondent was the owner and the 4[th] respondent was the insured of the bus. The deceased was a driver by profession and earning a monthly income of Rs.6,000/-. He was the bread winner of the family and the appellants were dependent on him. Hence, the appellants claimed a total compensation of Rs.8,00,000/- from the respondents. 3. The respondents 1, 2 and 4 did not contest the proceeding and were set ex parte. 4. The 3[rd] respondent filed a written statement admitting that the bus had a valid insurance coverage. Nevertheless, it was contended that the accident occurred on account of the negligence of the deceased. 5. The appellants produced and marked Exts.A1 to A5 in evidence. The 3[rd] respondent produced Ext.B1 insurance policy and marked it in evidence. ## **MACA NO. 2249 OF 2010 4** 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to realise an amount of Rs.2,03,000/- with interest and cost from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard, Sri.P.V.Baby, the learned counsel appearing for the appellants/petitioners and Smt.P.A.Raziya, the learned counsel appearing for the 3[rd] respondent/ Insurer. 9. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 10. Ext.A2 charge sheet filed by the Valappad Police in Crime No.443 of 2005 proves that the accident **MACA NO. 2249 OF 2010 5** occurred on account of the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner, 4[th] respondent was the insured and the 3[rd] respondent was the insurer of the bus. Therefore, it is the 3[rd] respondent, who is liable to indemnify the liability of the the respondents 2 and 4. 11. The appellants had claimed that the deceased was a driver by profession and earning a monthly income of Rs.6,000/-. The Tribunal fixed the notional income of the deceased at Rs.2,500/- per month. 12. In _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., [(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. **MACA NO. 2249 OF 2010 6** ## **Notional Income** 13. Following the ratio in the aforecited decision and considering the fact that the accident occurred in the year 2005, I fix the notional income of the deceased at Rs.5,000/- per month. ## **Multiplier** 14. The deceased was aged 31 years on the date of the accident/date of his death. Therefore, in view of the law laid down in _**Sarala Verma v. Delhi Transport Corporation [(2010) 2 KLT 802 SC],**_ the relevant multiplier is ‘16’. ## **Personal living expenses** 15. It is an undisputed fact that the deceased was a bachelor. In light of the law laid down in _**Sarala Verma**_ (supra), one half of the total compensation towards loss of dependency has to be deducted towards the personal **MACA NO. 2249 OF 2010 7** living expenses of the deceased. ## **Future prospects** 16. In _**Sarala Verma**_ and _**National Insurance Company Ltd., v. Pranay Sethi [(2017) 16 SCC 680],**_ the Hon’ble Supreme Court has held that the dependents of the deceased are entitled for future prospect at 40% if the deceased is aged 31 years. Accordingly, I hold that the appellants are entitled for future prospects at 40%. ## **Loss due to dependency** 17. Taking into account the above factors, namely the notional income of the deceased at Rs.5,000/- per month, the multiplier at ‘16’, future prospects at 40% and after deducting 50% of the total compensation for loss of dependency towards personal living expenses of the deceased, I hold that the appellants are entitled for compensation for loss of dependency at Rs.6,72,000/- **MACA NO. 2249 OF 2010 8** instead of Rs.1,65,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 18. 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; loss of estate, loss of consortium and funeral expenses at Rs. 15,000/-, 40,000/- and 15,000/-, respectively. In the said circumstances, I enhance the compensation under the head 'funeral expenses' by a further amount of Rs.11,000/and award an amount of Rs.15,000/- as compensation for 'loss of estate'. With respect to compensation for loss of consortium, taking into account that the appellants 1 and 2 were the parents of the deceased, I award an amount of Rs.80,000/- towards loss of consortium. **Loss of Love and affection and Pain and Sufferings** ## **MACA NO. 2249 OF 2010 9** 19. It is seen that the Tribunal has awarded an amount of Rs.25,000/- under the head loss of love and affection. In view of the law laid down by this Court in _**Kunjandy.L and others v. Rajendran and others [(2020) 2 KLT 315]**_ and by the Hon'ble Supreme Court in _**New India Assurance Company Ltd., v. Somvati and others [(2020) 9 SCC 644],**_ wherein it is held that once compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head loss of ‘love and affection’, I set aside the amount of Rs.25,000/- awarded under the head 'loss of love and affection'. 20. Similarly, it is seen that the Tribunal has awarded an amount of Rs.7,000/- for compensation under the head pain and sufferings. In light of the law laid down by the Hon’ble Supreme Court in _**United India**_ **MACA NO. 2249 OF 2010 10** _**Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and others [(2020) 3 KHC 760],**_ I hold that the appellants are disentitled for compensation under the head ‘pain and sufferings’. Hence, I set aside the amount of Rs.7,000/- awarded under the head ‘pain and sufferings. 21. With respect to the compensation awarded under the head transportation, I find that the Tribunal has awarded reasonable and just compensation. 22. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the aforecited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. ## **MACA NO. 2249 OF 2010 11** |Head of claim|Amount<br>Awarded by<br>the Tribunal<br>(in Rs.)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---| |Transportation<br>expenses|2,000/-|2,000/-| |Pain and sufferings|7,000/-|-| |Funeral expenses|4,000/-|15,000/-| |Loss of estate|-|15,000/-| |Love and affection|25,000/-|-| |Loss of consortium|-|80,000/-| |Loss of dependency|1,65,000/-|6,72,000/-| |Total|2,03,000/-|7,84,000/-| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.5,81,000/- with interest at the rate of Rs.7% per annum from the date of petition till the date of deposit with proportionate costs. The 3[rd] respondent is ordered to deposit the enhanced **MACA NO. 2249 OF 2010 12** compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation in equal shares other than for the loss of consortium which shall disburse equally to the appellants 1 and 2 and in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm