Sijo Jose, Dijo Jose, Reji Jose, Joy Sebastian and Aliyamma Scaria v. Rejender Kumar Saini and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** **MACA.No.2137 OF 2009** **(AGAINST THE AWARD DATED 30.07.2008 IN O.P(MV)No.2976/2001 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM)** ## **APPELLANTS/PETITIONERS IN O.P.(MV):** |**1**|**SIJO JOSE,**| |---|---| ||**S/O.LATE N.J.JOSE,**| ||**NEELAMKAVIL HOUSE,**| ||**35/1224, INDIRA ROAD,**| ||**PALARIVATTOM P.O.,**| ||**EDAPPALLY NORTH VILLAGE,**| ||**ERNAKULAM DISTRICT.**| |**2**|**DIJO JOSE,**| ||**S/O.LATE N.J.JOSE,**| ||**NEELAMKAVIL HOUSE,**| ||**35/1224, INDIRA ROAD,**| ||**PALARIVATTOM P.O.,**| ||**EDAPPALLY NORTH VILLAGE,**| ||**ERNAKULAM DISTRICT.**| |**3**|**REJI JOSE,**| ||**S/O.LATE N.J.JOSE,**| ||**NEELAMKAVIL HOUSE,**| ||**35/1224, INDIRA ROAD,**| ||**PALARIVATTOM P.O.,**| ||**EDAPPALLY NORTH VILLAGE,**| ||**ERNAKULAM DISTRICT.**| |**4**|**JOY SEBASTIAN,**| ||**S/O.SEBASTIAN,**| ||**NEELAMKAVIL HOUSE,**| ||**35/1224, INDIRA ROAD,**| ||**PALARIVATTOM P.O.,**| ||**EDAPPALLY NORTH VILLAGE,**| ||**ERNAKULAM DISTRICT.**| |**5**|**ALIYAMMA SCARIA,**| ||**W/O.JOY SEBASTIAN,**| ||**NEELAMKAVIL HOUSE,**| ||**35/1224, INDIRA ROAD,**| ||**PALARIVATTOM P.O.,**| ||**EDAPPALLY NORTH VILLAGE,**| ||**ERNAKULAM DISTRICT.**| MACA No.2137 of 2009 -2- **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS IN O.P.(MV):** **1 REJENDER KUMAR SAINI, 39, BHAGWAN NAGAR, NEAR JEVAN HOSPITAL, NEW DELHI. 2 THE UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, ERNAKULAM, COCHIN-16. R2 BY ADV. SMT.T.C.SOWMIAVATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2137 of 2009 -3- **“CR”** ## **JUDGMENT** Appellants 1 to 3 are the claimants in O.P(MV)No.2976 of 2001 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 163A of the Motor Vehicles Act, 1988, claiming compensation on account of the death of their mother Santa Jose, in a motor accident which occurred on 04.08.2001, while she was travelling in a maruti car bearing registration No.KL-7/8827. At the place of accident, the maruti car was hit by a mini lorry bearing registration No.HR-38/B-493, owned by the 1[st] respondent, insured with the 2[nd] respondent and driven by one Nasseer Muhammed @ Nasseer, causing fatal injuries to all the occupants in the car, resulting in their instantaneous death. The maruti car was driven by one Saji Jose, brother of appellants 1 to 3/claimants 1 to 3. Saji Jose and his wife, Nice Mary Ann Joy died in the very same accident. Alleging that Santa Jose died on account of the injuries sustained in a motor accident involving mini lorry bearing registration No.HR-38/B-493, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various MACA No.2137 of 2009 -4- heads. The parents of Nice Mary Ann Joy, appellants 4 and 5 were impleaded as additional claimants 4 and 5 before the Tribunal. 2. Before the Tribunal, the 1[st] respondent owner filed written statement denying negligence alleged against the driver of the mini lorry. The 1[st] respondent contended that the accident occurred due to rash and negligent driving of maruti car by its driver. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the mini lorry involved in the accident; however, denying negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and negligent driving of maruti car by its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with connected matters. On the side of the claimants, Exts.A1 to A20A were marked. The respondents have not chosen to adduce any oral or documentary evidence. 5. After considering the pleadings and materials on MACA No.2137 of 2009 -5- record, the Tribunal arrived at a conclusion that the deceased died on account of the injuries sustained in a motor accident involving mini lorry bearing registration No.HR-38/B-493 and as such, appellants 1 to 3/claimants 1 to 3, who are the children of the deceased, are entitled for compensation under Section 163A of the Motor Vehicles Act. Under various heads, he Tribunal awarded a total compensation of Rs.1,05,100/together with interest at the rate of 7% per annum from the date of petition till the date of award and thereafter, at the rate of 8% per annum till realisation, with proportionate cost, and the 2[nd] respondent insurer was directed to satisfy the award. The amount of compensation was ordered to be apportioned among appellants 1 to 3/claimants 1 to 3, equally. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/claimants are before this Court in this appeal. 7. Heard the learned counsel for the appellants/claimants and also the learned Standing Counsel for the 2[nd] respondent insurer. 8. The compensation awarded by the Tribunal under MACA No.2137 of 2009 -6- ## various heads reads thus; |SI.<br>No|Head of claim|Amount claimed<br>(in Rs.)|Amount awarded<br>(in Rs.)| |---|---|---|---| |1|Loss of dependency|1,20,000|1,00,000| |2|Funeral expenses|2000|2600| |3|Loss of estate|2500|2500| ||Total|1,24,500|1,05,100| 9. The claim petition is one filed under Section 163A of the Motor Vehicles Act. The accident occurred on 04.08.2001. At the time of accident, the deceased was a housewife aged 52 years. In the claim petition, the monthly income of the deceased is shown as Rs.1,250/- (notional income). In the claim petition it is averred that, since the deceased had no income prior to accident, her notional monthly income is taken as Rs.1,250/-. The Tribunal awarded a sum of Rs.1,00,000/- towards loss of dependency. 10. Clause 6 of the Second Schedule to the Motor Vehicles Act, which deals with notional income for compensation to those who had no income prior to accident, reads thus; ## " **6. Notional income for compensation to those who had no income prior to accident:-** Fatal and disability in non-fatal accidents: - (a) Non-earning persons – Rs.15,000/- per annum. MACA No.2137 of 2009 -7- - (b) Spouse - 1/3 of income of the earning/ surviving spouse. In case of other injuries only 'general damage' as applicable." 11. As per sub-clause (a) of Clause 6 of the Second Schedule to the Motor Vehicles Act, in a claim petition filed under Section 163A of the said Act, claiming compensation in the case of fatal or non-fatal accidents, the notional income of a non-earning person has to be taken as Rs.15,000/- per annum. However, as per sub-clause (b) of Clause 6, in the case of a non-earning spouse, 1/3 of the income of the earning/surviving spouse can be taken as his/her notional income, for claiming compensation in the case of fatal or nonfatal accidents. 12. In view of the law laid down by a Three-Judge Bench of the Apex Court in **Deepal Girishbhai Soni v. United India Insurance Company Ltd. [(2004) 5 SCC** **385]** the proceeding under Section 163A of the Motor Vehicles Act, being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- can take the benefit thereof. 13. In view of the law laid down by the Apex Court in MACA No.2137 of 2009 -8- **Deepal Girishbhai Soni** , the notional income of a nonearning spouse arrived at, in a claim petition filed under Section 163A of the Motor Vehicles Act, claiming compensation in the case of fatal or non-fatal accidents, by drawing presumption under sub-clause (b) of Clause 6 of the Second Schedule to the said Act, shall not exceed Rs.40,000/- per annum. 14. In the instant case, at the time of accident, the husband of the deceased, who was aged 54 years, was working as Head Clerk in the Integrated Fisheries Project, Kochi (presently known as National Institute of Fisheries Post Harvest Technology and Training), under the Ministry of Agriculture, Government of India, drawing a monthly salary of Rs.10,051/-. The document marked as Ext.A20 is the salary certificate of her husband. 1/3 of the said amount comes to Rs.3,350/- (i.e. Rs.40,200/- per annum). Since the notional income of a non-earning spouse arrived at, in a claim petition filed under Section 163A of the Motor Vehicles Act, claiming compensation in the case of fatal or non-fatal accidents, by drawing presumption under sub-clause (b) of Clause 6 of the Second Schedule to the said Act, shall not exceed MACA No.2137 of 2009 -9- Rs.40,000/- per annum, the notional income of the deceased is taken as Rs.40,000/- per annum, for the purpose of refixing the compensation under the head loss of dependency, payable to appellants 1 to 3/claimants 1 to 3, who are the children of the deceased. 15. As per the Second Schedule to the Motor Vehicles Act, in case the deceased was aged above 50 years but not exceeding 55 years, with an annual income of Rs.40,000/-, the dependency compensation comes to Rs.4,00,000/-. As per the 'Note' to Clause 1 of the Second Schedule, the amount of compensation so arrived at, in the case of fatal accidents claims, shall be reduced by 1/3 in consideration of the expenses which the victim would have incurred towards maintaining himself/herself had he/she been alive. Therefore, the compensation under the head loss of dependency is refixed as Rs.2,66,666/- (4,00,000 x 2/3). Deducting Rs.1,00,000/- awarded by the Tribunal towards loss of dependency, appellants 1 to 3/claimants 1 to 3 are entitled for an additional compensation of **Rs.1,66,666/-** (2,66,666 – 1,00,000). 16. The injuries sustained in the accident had resulted MACA No.2137 of 2009 -10- in the instantaneous death of the deceased. As per the Second Schedule to the Motor Vehicles Act, in addition to dependency compensation, the appellants 1 to 3, who are the children of the deceased, are entitled for Rs.2,000/- towards funeral expenses and a further sum of Rs,2,500/- towards loss of estate. The Tribunal awarded a sum of Rs.2,600/under the head funeral expenses, which is scaled down to Rs.2,000/-, resulting an **excess payment** of **Rs.600/-** (2,600 -2,000), which has to be deducted from the additional compensation granted in this appeal. 17. In the result, the appellants 1 to 3/claimants 1 to 3 are entitled for an additional compensation of **Rs.1,66,066/-** (Rupees one lakh sixty six thousand and sixty six only) [1,66,666 - 600], in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation granted in this appeal shall be apportioned among the appellants 1 to 3/claimants 1 to 3, equally. The 2[nd ] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after MACA No.2137 of 2009 -11- deducting the liability, if any, of the claimants towards Balance Court Fee and Legal Benefit Fund. Payment of additional compensation granted in this appeal shall be made to appellants 1 to 3/claimants 1 to 3 as per the 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. Appellants 1 to 3/claimants 1 to 3 shall submit 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, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr