Smt. Vasantha and others v. United India Insurance Co. Ltd. and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943 ``` ``` MACA NO. 2490 OF 2012 ``` ``` AGAINST THE AWARD DATED 06.02.2012 IN OP(MV)NO.178/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR. ``` ## `APPELLANTS/PETITIONERS:` ``` 1SMT.VASANTHA, W/O LATE ARUMUGHAN, ERIKULAMPARAMBU, KOODALLOOR PALLASSANA, CHITTUR TALUK. ``` ``` 2ASWAN, S/O LATE ARUMUGHAN, REP. BY MOTHER, SMT. VASANTHA, W/O LATE ARUMUGHAN, ERIKULAMPARAMBU, KOODALLOOR PALLASSANA, CHITTUR TALUK. ``` ``` 3VISWAN, S/O LATE ARUMUGHAN, REP. BY MOTHER, SMT. VASANTHA, W/O LATE ARUMUGHAN, ERIKULAMPARAMBU, KOODALLOOR PALLASSANA, CHITTUR TALUK. ``` ``` 4SMT. NAGUNNI, W/O KRISHNAN, ERIKULAMPARAMBU, KOODALLOOR PALLASSANA, CHITTUR TALUK. 5KRISHNAN, S/O KUTTAN @ CHENTHI, ERIKULAMPARAMBU, KOODALLOOR PAILASSANA, CHITTUR TALUK. (DIED BUT REPRESENTED BY LRS APPELLANTS 1 TO 4) ``` ``` BY ADV SRI.DILIP J. AKKARA ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SRI.M.S. NAGARAJAN, S/O SRI. SANDHYA BAKTAR, DOOR NO.118-A, GOUNDAPATTHI, VADAKKER STREET, EDAPPADY TALUK, SALEM DISTRICT. 2SRI. RAMAKRISHANA, S/O SELLAPPAN, 13/993, CHAVADI, PALAYAM, CHITTOOR POST, ``` M.A.C.A.No.2490/2012 -:2:- ``` EDAPPADI TALUK. ``` ``` 3THE UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE PARK HOUSE, BUILDING, ROUND NORTH, THRISSUR. ``` ``` BY ADVS. SRI.P.JAYASANKAR SM.RAJI T.BHASKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2490/2012 -:3:- Dated this the 15[th] day of March,2022 ## **J U D G M E N T** The appellants were the petitioners in OP (MV) No.178/2004 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 'Arumughan'(deceased), the husband of the first appellant, the father of the appellants 2 and 3 and the son of the appellants 4 and 5. It was their case that, on 10.07.2002, while the deceased was driving a lorry bearing registration No.TN-41/E-4233, from Karur to Madurai, another lorry bearing registration No. M.A.C.A.No.2490/2012 -:4:- TN-27/E 1075(offending lorry), driven by the second respondent in a negligent manner, hit the lorry of the deceased. The deceased had suffered fatal injuries and lost his life instantaneously. The deceased was a professional driver and was earning a monthly a income of Rs.8,000/-. The offending lorry was owned by the first respondent and insured with the third respondent. The appellants were the dependants of the deceased. Hence, they claimed a compensation of Rs.13,81,500/- from the respondents, which claim was limited to Rs.10,00,000/- 3. The respondent Nos.1 and 2 did not contest the proceeding and were set ex parte. 4. Even though the third respondent entered appearance, the third respondent also did not file any written statement. 5. The appellants had produced and marked Exts.A1 to A7 in evidence. The respondents did not let M.A.C.A.No.2490/2012 -:5:- in any evidence. 6. 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-insurer an amount of Rs.4,39,500/with interest and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri.Dilip J. Akkara, the learned counsel appearing for the appellants/petitioners and Smt. Raji T.Bhaskar, the learned counsel appearing for the third respondent-insurer. 9. The sole point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?. ## **Negligence and liability** 10. Ext.A2 Final Report laid by the police proves M.A.C.A.No.2490/2012 -:6:- 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 offending lorry. The respondents have not let in any evidence to discredit Ext.A2 Final Report. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income** 11. The appellants had claimed that the deceased was a professional driver and was earning a monthly income of Rs.5,000/-. To prove their pleading, they had produced Ext.A7 salary certificate issued by the employer of the deceased. It is stated in Ext.A7 that, the deceased was drawing a monthly salary of Rs.5,000/- and a daily food allowance of Rs.200/-. However, the Tribunal for the reason that Ext.A7 was not properly proved, fixed the notional monthly income M.A.C.A.No.2490/2012 -:7:- of the deceased at Rs.2,500/-. 12. It is remembered that, even though the third respondent had entered appearance, they did not file any written statement to refute the allegations in the claim petition. The respondents have also not let in any evidence to controvert the pleadings in the claim petition or discredit the materials on record. Ext.A7 was marked in evidence without any objection or protest from the respondents. As per Ext.A7, it is proved that the deceased was drawing a monthly salary of Rs.5,000/-. 13. In addition to the same, the Hon’ble Supreme Court in **Chameli Devi and Ors. v. Jivrail Mian & Ors.** [2019 KHC 5352], has fixed the notional income of a carpenter in the year 2001, at Rs.5,000/-. 14. Therefore, in view of the law laid down in **Chameli Devi** (supra) read with Ext.A7 salary certificate, I have no hesitation to fix the notional M.A.C.A.No.2490/2012 -:8:- monthly income of the deceased at Rs.5,000/-. ## **Multiplier** 15. The appellants had produced Ext.A5 certificate of School Education, to prove that the deceased was born on 25.05.1969. As the accident occurred on 10.07.2002, as on the date of death of the deceased, he was aged 32 years. However, the Tribunal fixed the age of the deceased at 34. The course adopted by the Tribunal is erroneous and wrong. 16. In view of Ext.A5, I hold that the deceased was aged 32 years at the time of the accident/death. In the light of the law laid down in **Sarla Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)], the relevant multiplier to be adopted is ‘16’. ## **Future prospects:** 17. Following the ratio in **Sarla Varma** (supra) M.A.C.A.No.2490/2012 -:9:- and **National Insurance Company Ltd. v. Pranay Sethi** [(2017), I hold that the appellants are entitled to ‘future prospects’ at 40%, as the deceased was aged 32 years at the time of the accident. ## **Personal living expenses of the deceased:** 18. In view of the law in **Sarla Verma** and **Pranay Sethi** (supra), and taking into account the fact that the appellants were the wife, children and parents of the deceased, who are five in number, I hold that one-fourth of the compensation has to be deducted towards the ‘personal living expenses’ of the deceased. ## **Loss due to dependency :** 19. Taking into account the above-mentioned factors, namely; the notional monthly income of the deceased at Rs.5,000/-, the multiplier at ‘16’, ‘future prospects’ at 40%, and after deducting one-fourth of the compensation towards ‘personal living expense’ of the deceased, I hold that the appellants/petitioners are M.A.C.A.No.2490/2012 -:10:- entitled to an amount of **Rs.10,08,000/-** towards 'loss of dependency', instead of Rs.3,37,500/- awarded by the Tribunal. ## **Conventional heads of compensation** 20. In paragraph 59.8 of **Pranay Sethi (supra)** it is 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/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 21. 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, for the accidents that happened in the M.A.C.A.No.2490/2012 -:11:- years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10% escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 22. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- each under the heads ‘funeral expenses’ and ‘loss of estate’. - 23. Going by the law laid down in the afore cited decisions, I hold that the appellants are entitled to a further amount of Rs.11,500/- each under the above M.A.C.A.No.2490/2012 -:12:- said heads. ## **Loss of consortium:** 24. The appellants 1 to 4 are the wife, children and mother of the deceased. Therefore, I hold that each of them are entitled to Rs.44,000/- under the head ‘loss of consortium’ i.e., a total amount of Rs.1,76,000/-. However, I decline to award ‘loss of consortium’ to the fifth appellant – father of the deceased, who was leading an independent life. ## **Pain and sufferings and Loss of love and affection** 25. The Tribunal has awarded an amount of Rs.6,000/- under the head ‘pain and sufferings’ and Rs.50.000/- under the head ‘loss of love and affection’. 26. In paragraph No.19 of **Sarla Verma** (supra), the Hon'ble Supreme Court has held that in the case of instantaneous death, no amount shall be awarded under the head 'pain and sufferings'. Therefore, I set aside the amount awarded under the said head. M.A.C.A.No.2490/2012 -:13:- 27. Likewise, in **New India Assurance Company Ltd. v. Somwati & Ors.** [2020(9)SCC 644], the Hon'ble Supreme Court has held that once compensation under the head 'loss of consortium' is awarded, no amount can be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. Hence, I set aside the amount awarded under the head ‘loss of love and affection’. 28. With respect to the compensation awarded under the head 'transportation expenses’, I find the same to be reasonable and just. 29. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellants 1 to 4 are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. M.A.C.A.No.2490/2012 -:14:- |Sl.No|Head of claim|Amount<br>awarded<br>by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Transportation<br>expenses|1,000|1,000| |2|Funeral expenses|5,000|16,500| |3|Loss of love and<br>affection|50,000|Nil| |4|Pain and sufferings|6,000|Nil| |5|Loss of estate|5,000|16,500| |6|Loss of consortium|35,000|1,76,000| |7|Loss<br>of<br>dependency|3,37,500|10,08,000| |**Total**||**4,39,500 **|**12,18,000**| 30. Even though the appellants had restricted the claim to Rs.10,00,000/-, I have awarded them more compensation than what is claimed in the claim petition, following the principles in **Sarla Verma** and **Pranay Sethi** (supra), by awarding them ‘future prospects’ as well as the compensation under the conventional heads. The said course is permissible in M.A.C.A.No.2490/2012 -:15:- view of the law laid down in **Nagappa v. Gurudayal Singh** [2003(1) KLT 115 (SC)] and **Rajesh v. Rajbir Singh** [2013(3) KLT 89 (SC)]. In the result, the appeal is allowed by enhancing the compensation by an amount of **Rs.7,78,500/-** with interest on the said amount at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 165 days (i.e., the period of delay in preferring this appeal and as ordered by this Court on 22.10.2021 in C.M.Appln.No.1/2012), and proportionate cost. The third respondent is ordered to deposit the said amount with interest and cost before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the above amount to the appellants 1 to 4, in the ratio of 30:30:30:10, after deducting their liability towards M.A.C.A.No.2490/2012 -:16:- court fee, and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/15.03.22 //True copy/ P.A.To Judge