Sindhu and others v. Ashraf and others

1 MACA No.2075 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943 MACA NO. 2075 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1105/2010 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** 1 SINDHU, AGED 32 YEARS. W/O.(LATE) BABURAJAN 2 AKSHAY (MINOR),S/O.(LATE) BABURAJAN, AGED 11 YEARS,, DATE OF BIRTH 23.5.1999. 3 MANYA (MINOR) S/O.(LATE) BABURAJAN, AGED 8 YEARS,, DATE OF BIRTH 18.7.2002., (MINORS REPRESENTED BY THEIR MOTHER AND LEGAL GUARDIAN SINDHU). 4 THANKAM, W/O.KUNHUTTAN, AGED 57 YEARS. (ALL ARE RESIDING AT PANDIKASHALA HOUSE,, P.O.FEROKE COLLEGE, RAMANATTUKARA, KOZHIKODE). BY ADV SRI.V.S.CHANDRASEKHARAN ## **RESPONDENT/S:** 1 ASHRAF, S/O.AMMED AGE NOT KNOWN, RESIDING AT THEKKEDATHIL HOUSE,, P.O.THIRUVALLUR, VATAKARA, KOZHIKODE-679013. 2 FAIZAL, S/O AMMED AGED 29 YEARS, ARATTERI HOUSE,, EDACHERI KOZHIKODE, PIN 679009. 3 THE IFFCO TOKIO GENERAL INSURANCE CO.LTD XL/1485, 1ST FLOOR, SATGAMAYA,, M.G.ROAD, ERNAKULAM, COCHIN-682018. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.2075 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.2075 of 2011** ## **====================== Dated this the 7[th] day of January, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP(MV) 1105/2010 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Baburajan (deceased), the husband of the first appellant, father of appellants of 2 and 3 and son of the fourth appellant. It was their case that, on 27.1.2010, while the deceased was riding his motor cycle bearing registration No.KL-11/AB-751 from Kozhikode to Ramanattukara along the National Highway, a jeep 3 MACA No.2075 of 2011 bearing registration No.KL-10/U-5077 (jeep), driven by the second respondent in a rash and negligent manner, hit the motor cycle of the deceased. The jeep was owned by the first respondent and insured with the third respondent. The deceased was taken to the Medical College Hospital and was treated as an inpatient for a period of 11 days. Unfortunately, he lost his life on 6.2.2010 due to the injuries sustained in the accident. The deceased was a Head-load Worker in Food Corporation of India, West Hill and was earning a monthly income of Rs.13,000/-. The appellants were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.8,85,000/- from the respondents, which claim was limited to Rs.8,00,000/-. 3. The respondents did not contest the proceedings and were set ex parte. 4. The appellants produced and marked Exts A1 4 MACA No.2075 of 2011 to A5 in evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to recover from the third respondent an amount of Rs.5,92,650/- with interest and cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 7. Heard: Sri.V.S Chandrasekaran, the learned Counsel appearing for the appellants/ petitioners and Sri.Lal K.Joseph, the learned counsel appearing for the third respondent/insurer. 8. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 5 MACA No.2075 of 2011 ## **Negligence and liability** 9. Ext A4 charge-sheet filed by the Police proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the jeep. The respondents have not let in any evidence to discredit Ext A4 charge-sheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 10. The appellants had claimed that the deceased was a Head-load Worker in Food Corporation of India, West Hill and was earning a monthly income of Rs.13,000/-. For the want of materials, the Tribunal 6 MACA No.2075 of 2011 fixed the notional monthly income of the deceased at Rs.4,000/-. 11. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 12. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2010, I refix the notional monthly income of the deceased at Rs.7,500/-. ## **Multiplier** 13. The deceased was aged 40 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier has to be adopted is '15'. 7 MACA No.2075 of 2011 ## **Personal living expenses of the deceased** 14. As per Ext A3 family membership certificate, it is proved that the appellants are the wife, children and mother of the deceased. They were four in number. Therefore, in the light of the law laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** one- fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 15. Following the ratio in **Sarla Verma** (supra) and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 40 years at the time of the accident, I hold that the appellants are entitled to future prospects @ 25%. 8 MACA No.2075 of 2011 ## **Loss of dependency** 16. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.7,500/-, the multiplier at '15', future prospects @ 25% and after deducting one-fourth of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at **Rs.12,65,625/** -, instead of Rs.5,40,000/awarded by the Tribunal. ## **Conventional heads of claim** 17. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **Pranay Sethi (supra)** has held that the dependents of the deceased are entitled for compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. It is also observed that the conventional heads of 9 MACA No.2075 of 2011 compensation have to be enhanced every three years by 10%. 18. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accident. Thus, it is to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, I hold that the appellants are entitled to an amount of Rs.16,500/- 10 MACA No.2075 of 2011 towards funeral expenses, Rs.16,500/- towards loss of estate and Rs.44,000/- towards loss of consortium. Accordingly, I award the appellants a further amount of Rs.13,500/- towards funeral expenses, a further amount of Rs.6,500/- towards loss of estate and a further amount of Rs.1,66,000/- towards loss of consortium, i.e., Rs.44,000/- each for the appellants 1 to 4. ## **Loss of love and affection** 19. The Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection'. In **New India Assurance Co. v. Somwati and others** **[(2020) 9 SCC 644]** the Hon'ble Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount awarded under the head 'loss of love and affection'. 11 MACA No.2075 of 2011 ## **Other heads of compensation** 20. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 21. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants/petitioner are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport to hospital|2,000/-|2,000/-| |2|Damage to clothing|1,000/-|1000/-| |3|Treatment expenses|5,000/-|5,000/-| |4|Bystanders expenses|1,650/-|1,650/-| |5|Funeral expenses|3,000/-|16,500/-| |6|Loss of consortium|10,000/-|1,76,000/-| |7|Loss of estate|10,000/-|16,500/-| |8|Loss of love and|10,000/-|Nil| 12 MACA No.2075 of 2011 ||affection||| |---|---|---|---| |9|Loss of dependency|5,40,000/-|Rs.12,65,625/-| |10|Pain and suffering|10,000/-|10,000/-| ||Total|5,92,650/-|14,94,275/-| ## 22. Even though the appellants had claimed only an amount of Rs.8,00,000/- as compensation, in view of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), I have awarded the appellants future prospects as well as compensation under the conventional heads. Therefore, the compensation has exceeded the amount claimed in the claim petition. This course is permissible in the light of the law laid down in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC) and Rajesh vs. Rajbir Singh [ 2013** ## **(3) KLT 89 (SC)].** In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.9,01,625/-** (Rupees Nine Lakh One Thousand Six 13 MACA No.2075 of 2011 Hundred and Twenty Five only) with interest on the enhanced compensation at the rate of 7% per annum from the date of claim petition till the date of deposit and proportionate costs. The third respondent 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 of the on the copy judgment. Immediately compensation amount being deposited, the Tribunal shall, after deducting liability of the appellants, if any, towards balance court-fee, disburse the compensation amount to the appellants in the ratio of 30: 30: 30:10 and in accordance with law. SD/- sks/7.1.22 **C.S.DIAS, JUDGE**