Sreedevi v. Hishabudheen P., Baiju & United India Insurance Company Ltd. (MACA No. 1174 of 2011)

**MACA.No.1174 OF 2011** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **MACA.No.1174 OF 2011** **AGAINST THE AWARD IN OP(MV)NO. 1410/2006 DATED 31-10-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **PETITIONERS/PETITIONERS** **1 SREEDEVI, W/O.RAMAN, @ RAMANKUTTY, POYILIL HOUSE, MELATTUR PO, MALAPPURAM DISTRICT.** - **2 ANUPRIYA, D/O.RAMAN @ RAMANKUTTY POYILIL HOUSE, MELATTUR PO, ,MALAPPURAM DISTRICT.** - **3 RAJEEVAN,S/O.RAMAN @ RAMANKUTTY POYILIL HOUSE, MELATTUR PO, MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENTS/RESPONDENTS:** - **1 HISHABUDHEEN.P, S/O.UMMER, PULIYANGATTU HOUSE, MELATTUR PO,, MALAPPURAM DISTRICT.** - **2 BAIJU, S/O.KAMALAM VELLATTUKUZHI HOUSE VALIYAPARAMBA ,MELATTUR PO.** - **3 UNITED INDIA INSURANCE COMPANY LTD BRANCH OFFICE, MANNARKKAD PO, PALAKKAD DISTRICT.** **R1 BY ADV. SRI.P.V.JYOTHI PRASAD** ## **SRI. P K MANOJ KUMAR --SC FOR INSURANCE COMPANY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, THE COURT ON 25-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.1174 OF 2011** 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1174 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of March, 2021 ## **JUDGMENT** The appellants were the petitioners in OP(MV)No.194 of 2013 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the petitioners in the claim petition. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, claiming compensation on account of the death of Sri.Raman @ Ramankutty (deceased), who was the husband of the 1[st] appellant and the father of the appellants 2 and 3. 3. The concise case of the appellants in the claim petition was that : on 27.08.2005 while the deceased was walking along the Melattur road, an autorickshaw bearing registration No.KL 10 J 794 (offending vehicle) driven by the 1[st] respondent in a rash and negligent **MACA.No.1174 OF 2011** 3 manner, knocked down the deceased, who sustained serious injuries. The deceased was treated at Alshifa Hospital, Perinthalmanna and, thereafter, at the Primary Health Centre, Melattur. Considerable amount of money was spent for his treatment but, he succumbed to the injuries on 24.07.2006. The offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The deceased was an Electrician by profession. He was employed in abroad and was earning a monthly salary of Rs.15,000/- per month. The appellants were dependants of the deceased. Hence, the appellants were entitled for compensation, which they quantified at Rs.10,00,000/- 4. The respondents 1and 2 filed a written statement, inter alia, contending that there was no rashness or negligence on the part of the 1[st] respondent. The vehicle was insured with the 3[rd] respondent. Therefore, even if the respondents were held liable to pay any compensation, it was the 3[rd] respondent who was liable to indemnify the 2[nd] **MACA.No.1174 OF 2011** 4 ## respondent . 5. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy. It was contended that the accident occurred solely due to the negligence on the part of the deceased. 6. The 1[st] appellant was examined as PW1 and Exts.A1 to A8 (jn) series were marked through her in evidence. 7. The respondents marked Ext.D1 to D4 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by permitting the appellants to recover an amount of Rs.5,43,297/- with interest at the rate of 9% per annum from the date of petition till the date of realisation from the respondents. The 3[rd] respondent was directed to pay the compensation.. 9. Dissatisfied with the quantum of compensation **MACA.No.1174 OF 2011** 5 awarded by the Tribunal, the appellants are in appeal. 10. Heard Sri. Mohanakannan, the learned counsel appearing for the appellants and Sri. P.K.Manoj Kumar, the learned Counsel appearing for the 3[rd] respondent – insurance company. 11. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Ltd. v. Company Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 12. Ext.A4 charge-sheet filed by the police after investigation substantiates that the accident occurred solely due to the negligence of the 1[st] respondent. Ext.A3 postmortem certificate proves that the deceased **MACA.No.1174 OF 2011** 6 succumbed to his injuries on 24.07.2006. Exts.A5 and A6 establishes that the appellants 2 and 3 are the children born in the wedlock between the deceased and the 1[st] appellant. Exts.A7 and A8 discharge summaries substantiates that deceased had undergone hospitalisation from the date of accident till the date of his death.Ext.A8 series medical bills proves the medical expenses incurred by the appellants for the treatment of the deceased. The above aspects are not disputed or challenged by the respondents. Hence, they are treated as conclusive. 13. The principal area of dispute in the appeal is with regard to the notional income of the deceased fixed by the Tribunal. 14. The appellants had pleaded in the claim petition that the deceased was an Electrician by profession and was employed in the Gulf and drawing a salary of Rs.15,000/- per month. No documents other than for the oral testimony of PW1 is on record to substantiate the income of the deceased. **MACA.No.1174 OF 2011** 7 15. The Division Bench of this Court in **Valsamma v. Binu Jose** [2014(1) KLT 10) has succinctly laid down the law that if no materials have been produced to prove that a person was permanently employed abroad, then his income has to be assessed as per Indian standards. Similarly, in **United India Insurance Company Ltd. v Satinder Kaur @ Satwinder Kaur and others** [2020 (3)KHC 760] the Hon'ble Supreme Court has held that even if the documents are produced to prove the income of a person who is employed abroad, the same has to be attested by the Indian Embassy/Consulate of the foreign country. 16. In the case on hand, no such material has been produced. Hence, following the law laid down in **Valsamma** (supra) and taking note of the fact that the deceased was a skilled labourer namely an Electrician by profession, I adopt the ratio of the Hon'ble Supreme Court in **Pushkar Mehra v. Brij Mohan Kushwaha and others** [2015(12)SCC 688], wherein the Hon'ble Supreme Court has fixed the monthly income of the **MACA.No.1174 OF 2011** 8 skilled labourer at Rs.7,000/- per month. ## **Notional income** 17. Following the above parameter, I am of the opinion that the deceased's notional income can safely be fixed at Rs.7,000/- per month. ## **Conventional heads** 18. In **Pranay Sethi** (supra) it has been held that the dependants of the deceased are entitled for compensation under the conventional heads namely 'loss of estate', funeral expenses' and 'loss of consortium' at Rs.15,000/- Rs.15,000/- and Rs.40,000/-, respectively. 19. The Tribunal has only awarded an amount of Rs,5,000/- under the head ' loss of estate', Rs.3,000/under the head 'funeral expenses' and Rs.10,000/under the head 'loss of consortium'. Following **Pranay Sethi** (supra), I enhance the compensation under the head 'loss of estate' at Rs.15,000/, under the head spousal consortium and parental consortium at Rs.40,000/- each, totalling to an amount of Rs.1,20,000/- **MACA.No.1174 OF 2011** 9 and under the head 'funeral expenses' at Rs.15,000/-. 20. The Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection'. In view of the law laid down by this Court in **Kunjandy** **v. Rajendran** [2020(2) KLT 315], as compensation has been awarded under the head 'loss of consortium', I hold that the appellants are not entitled for any amount under the head 'loss of love and affection' fixed by the Tribunal at Rs.10,000/- . ## **Pain and suffering** 21. Eventhough the appellants had claimed an amount of Rs.35,000/- under the head 'pain and sufferings', the Tribunal did not award any amount under the head. Considering the fact that the deceased was hospitalised for the period of 73 days and that he finally passed away after treatment, I am of the opinion that a reasonable amount of Rs.20,000/- can be fixed under the head pain and sufferings. ## **Loss of dependency with future prospects** 22. As the deceased was 47 years of age, the **MACA.No.1174 OF 2011** 10 relevant multiplier to be adopted is '13'. The appellants were the dependants of the deceased, who are three in number. Hence, 1/3[rd] of the total compensation under the head 'loss of dependency' has to be deducted towards the personal living expenses of the deceased. Similarly, the Tribunal has failed to award any amount towards future prospects as laid down in **Sarala Varma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)]. As the deceased was 47 years at the time of his death, 25% of the total amount of compensation under the head 'loss of dependency' has to be awarded towards future prospects. In the light of the aforesaid parameters, I re-fix the compensation under the head 'loss of dependency with future prospects' at Rs.9,10,000/- instead of Rs.3,63,948/- fixed by the Tribunal. ## **Other heads of claim** 23. With respect to the other heads of claim namely, medical expenses, 'bystander expenses' and 'transport', I find that the Tribunal has awarded **MACA.No.1174 OF 2011** 11 ## reasonable and just compensation. 24. On an overall re-appreciation of the pleadings and materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am of the definite opinion that the appellants are entitled for enhancement of compensations as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transport|500/-|500/-| |2|Clothing|nil|500/-| |3|Funeral expenses|3,000/-|15,000/-| |4|Medical expenses|1,43,549/-|1,43,549/-| |5|Loss of estate|5,000/-|15,000/-| |6|Loss of consortium|10,000/-|1,20,000/-| |7|Loss of dependency<br>with future prospects|3,63,948/-|9,10,000/-| |8|Loss of love and<br>affection|10,000/-|nil| |9|Pain and sufferings|nil|20,000/-| |10|Bystander expenses|7,300/-|nil| |||5,43,297/-|12,24,549/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.6,81,252/- **MACA.No.1174 OF 2011** 12 with interest on the enhanced compensation at the rate of 9% per annum from the date of petition till the date of realisation with proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal along with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the additional compensation to the appellants in the proportion fixed in the impugned award and in accordance with law. ## **Sd/-C.S.DIAS,JUDGE** In the first sentence of the judgment dated 25/03/2021 in MACA 1174/2011, the OP(MV)No. stands corrected as OP(MV)1410 of 2006 instead of OP(MV)194/13 as per order dated 27/06/2022 in IA 1/2022 in MACA 1174/2011. **Sd/- DEPUTY REGISTRAR** dlK 27.03.2021 **MACA.No.1174 OF 2011** 13 ## APPENDIX ## PETITIONER'S ANNEXURES: ANNEXURE A1: TRUE COPY OF THE MEDICAL CERTIFICATE.