Simla Davis and others v. Suresh Babu, Rathish Kumar and The Oriental Insurance Company Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 ``` ## `MACA NO. 1952 OF 2009` ``` AGAINST THE AWARD DATED 28.05.2008 IN OP(MV)NO.3643/2002 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR ``` ## `APPELLANTS/ PETITIONERS:` ``` 1SIMLA DAVIS, W/O. LATE DAVIS. 2NIKHIL DAVIS(MINOR), SO.LATE DAVIS. 3NIRMAL DAVIS (MINOR), S/O.LATE DAVIS 4NIDHIN DAVIS (MINOR), S/O.LATE DAVIS, ``` ``` (MINOR APPELLANTS 3 AND 4 ARE REP.BY THEIR GUARDIAN, MOTHER THE 1ST APPELLANT HEREIN) ALL ARE RESIDING AT, MELEDATH HOUSE, MARATHAKKARA PO,THRISSUR DISTRICT. ``` ``` BY ADVS.SRI.P.S.APPU SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.A.R.NIMOD SRI.T.C.SURESH MENON ``` ## `RESPONDENTS/ RESPONDENTS:` ``` 1SURESH BABU, RESIDING AT KHANNA CHAWL, G.B.ROAD, KAJUPADA, THANE DIST, THANE, MAHARASHTRA STATE. 2RATHISH KUMAR, S/O.PURUSHOTHAN, RESIDING AT KALATHIL KAROTTU HOUSE, CHENIYERKKARA, ELANTHOOR, PATHANAMTHITTA. ``` M.A.C.A.No.1952/2009 -:2:- ``` 3THE ORIENTAL INSURANCE COMPANY LTD, THANE, DIVISIONAL OFFICE, 3RD FLOOR, ARJUN TOWERS, GOKHALE ROAD, NAUPADA, THANE-400 602, MAHARASHTRA. ``` ``` BY ADVS.K.S.SANTHI SRI.E.M.MURUGAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1952/2009 -:3:- Dated this the 29[th] day of October, 2021 ## **J U D G M E N T** The appellants were the petitioners in O.P.(MV) No.3643/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Sri. Davis(deceased), the husband of the first appellant and the father of the appellants 2 to 4. It was their case that, on 22.11.2002, while the deceased was driving his tempo traveller bearing registration No.KL-9/J-5823, from Mannuthy to Paliyekkara, while he was entering Marathakkara road, a tanker lorry bearing registration No.MH 04/AL 396(lorry) driven by the second respondent in a rash and negligent manner, hit the tempo traveller of the deceased. The deceased M.A.C.A.No.1952/2009 -:4:- sustained serious injuries and was rushed to the Elite Mission Hospital, Thrissur, where he was treated as an inpatient. But, on 30.11.2002 he lost his life. The lorry was owned by the first respondent and insured with the third respondent. The deceased was self employed and was earning a monthly income of Rs.6,000/-. The appellants were the dependants of the deceased. They claimed an amount of Rs.9,51,000/- as compensation from the respondents, which was limited to Rs.8,00,000/-. 3. In the very same accident, other persons who also sustained injuries had filed O.P. (MV)Nos.3641/2002, 3642/2002 and 3646/2002 before the same Tribunal. 4. The first respondent did not contest the proceedings and was set ex parte. Even though the second respondent entered appearance, he did not file any written statement. 5. The third respondent-insurer had filed M.A.C.A.No.1952/2009 -:5:- separate written statements in all the claim petitions contending that the accident occurred due to the negligence of the deceased. The third respondent also disputed the age, occupation and income of the deceased and the petitioners in the other claim petitions. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The petitioners in all the claim petitions produced and marked Exts.A1 to A17 in evidence. The third respondent marked Exts.B1 and B2 in evidence. 8. The Tribunal by its common award, allowed the captioned claim petition in part, by permitting the appellants to realise from the third respondent an amount of Rs.2,99,000/-. However, since there was violation of policy conditions, the Tribunal permitted the third respondent to pay the compensation amount and recover it from the first respondent. 9. Dissatisfied with the quantum of M.A.C.A.No.1952/2009 -:6:- compensation awarded by the Tribunal, the petitioners are in appeal. 10. Heard; Sri. Nimod A.R., the learned counsel appearing for the appellants/petitioners and Smt. K.S. Santhi, the learned counsel appearing for the third respondent-insurer. 11. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 12. Ext.A5 final report filed by the Ollur Police in Crime No.524/2002 proves that the accident occurred due to the negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was the insurer of the lorry. As the second respondent did not produce his driving licence before the Tribunal, it was inferred that the second respondent did not hold a valid driving licence on the M.A.C.A.No.1952/2009 -:7:- date of the accident. Accordingly, the Tribunal has rightly permitted the third respondent to pay the compensation amount and recover it from the first respondent. I confirm the said finding. ## **Multiplier** 13. Even though the appellants had claimed that the deceased was only aged 40 years at the time of the accident/death, they did not produce any material to prove his age. The Tribunal, on the basis of Ext.A2 postmortem certificate, has fixed the age of the deceased at 46. I confirm the age of the deceased at 46 as reflected in Ext.A2. 14. In the light of the law laid down in **Sarla Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)], I fix the multiplier at '13'. ## **Notional Income of the deceased:** 15. The appellants had claimed that the deceased was a running a tempo traveller service and he was M.A.C.A.No.1952/2009 -:8:- earning a monthly income of Rs.6,000/-. Nevertheless, they did not produce any material to substantiate their assertion. 16. 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. 17. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2002, I re-fix the notional income of the deceased at Rs.3,500/- per month. ## **Dependants of the deceased:** 18. As per Ext.A6 legal heirship certificate, it is proved that the appellants are the wife and children of the deceased, who are four in number. 19. In the light of the law laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one-fourth M.A.C.A.No.1952/2009 -:9:- of the compensation towards 'loss of dependency' has to be deducted towards the 'personal living expenses' of the deceased, as the appellants are four in number. ## **Future prospects:** 20. Going by the ratio in **Sarla Verma** and **Pranay Sethi** (supra), and considering that the deceased was aged 46 years at the time of the accident/death, the appellants are entitled for 'future prospects' at the rate of 25% on the compensation for 'loss due to dependency'. ## **Loss due to dependency:** 21. Taking into account the above-mentioned factors, i.e, the notional income of the deceased at Rs.3,500/- per month, the multiplier at '13', future prospects at 25% and after deducting one-fourth of the compensation towards the 'personal living expenses' of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.5,11,875/-, instead of Rs.2,08,000/awarded by the Tribunal. M.A.C.A.No.1952/2009 -:10:- ## **Conventional heads of compensation:** 22. 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. 23. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- towards 'funeral expenses' and Rs.10,000/- towards 'loss of estate' and Rs.15,000/towards 'loss of consortium'. In view of the ratio in **Pranay Sethi** (supra), I enhance the compensation under the head 'funeral expenses' by a further amount of Rs.10,000/-, under the head 'loss of estate' by a further amount of Rs.5,000/- and under the head 'loss of consortium' by a further amount of Rs.1,45,000/(i.e., Rs.40,000/- each to each of the appellants, totalling to an amount of Rs.1,60,000/-). M.A.C.A.No.1952/2009 -:11:- ## **Loss of love and affection** 24. The Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection'. 25. In **New India Assurance Company Ltd. v. Somwati & Ors.** [2020(9)SCC 644] the Hon'ble Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount of compensation shall not be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. Therefore, I set aside the amount of Rs.10,000/- awarded under the head 'loss of love and affection'. ## **Pain and sufferings** 26. As the deceased expired eight days after the accident, I confirm the amount of Rs.15,000/- awarded under the afore-said head. 27. With respect to the other heads of compensation awarded by the Tribunal, namely; Rs.1,000/towards 'transportation expenses', M.A.C.A.No.1952/2009 -:12:- Rs.1,000/- 'extra nourishment', Rs.500/- towards 'damage to clothing', Rs.37,600/- towards 'medical expenses' and Rs.900/- towards 'bystander expenses', I find the same to be reasonable and just. 28. On a comprehensive re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are 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|1,000|1,000| |2|Funeral expenses|5,000|15,000| |3|Pain and sufferings|15,000|15,000| |4|Loss of estate|10,000|15,000| |5|Loss of love and<br>affection|10,000|Nil| |6|Loss of consortium|15,000|1,60,000| |7|Extra nourishment|1,000|1,000| |8|Damage<br>to|500|500| M.A.C.A.No.1952/2009 -:13:- ||clothing||| |---|---|---|---| |9|Medical expenses|37,600|37,600| |10|Bystander<br>expenses|900|900| |11|Compensation for<br>dependency|2,08,000|2,08,000| ||**Total**|**3,04,000/-**<br>but mistakenly<br>awarded only<br>**Rs.2,99,000/-**|**4,54,000/-**| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.1,50,000/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of realisation, after deducting interest for a period of 257 days i.e., the period of delay in preferring this appeal and as directed by this Court on 08.09.2021 in C.M.Appln.No.1/2009, and a consolidated cost of Rs.40,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this M.A.C.A.No.1952/2009 -:14:- judgment. After payment, the third respondent is permitted to recover the compensation amount with interest and cost from the first respondent, due to the violation of the policy conditions. Immediately on the compensation amount being deposited by the third respondent, the Tribunal shall disburse the enhanced compensation to the appellants in the ratio of 40:20:20:20 and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/29.10.2021 //True copy/ P.A.To Judge The Judgment dated 29/10/2021 in MACA 1952/2009 stands corrected as follows as per order dated 21/12/2021 in I.A.No.3/2021 in MACA 1952/2009. The figure shown on the right side of Serial No.11 in the column in paragraph No.28 is corrected as M.A.C.A.No.1952/2009 -:15:- Rs.5,11,875/- and correspondingly, the figure of Rs.7,57,875/-, instead of Rs.4,54,000/- at bottom of the column, and the figure of Rs.4,53,875/-, instead of Rs.1,50,000/- in the operative portion of the judgment in MACA 1952/2009. Sd/- **JOINT REGISTRAR**