Subaida and others v. T.T. Jaison and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943 MACA NO. 1940 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 1613/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA, ALAPPUZHA** ## **APPELLANTS/CLAIMANTS:** - **1 SUBAIDA, AGED 48 YEARS, W/O.LATE MUHAMMED KOYA, KOCHUKALATHIL HOUSE,, NEERKUNNAM, VANDANAM, ALAPPUZHA.** - **2 SAJEENA, AGED 29 YEARS D/O.LATE MUHAMMED KOYA, KOCHUKALATHIL HOUSE,, NEERKUNNAM, VANDANAM, ALAPPUZHA.** - **3 SAJEER, AGED 26 YEARS S/O.LATE MUHAMMED KOYA, KOCHUKALATHIL HOUSE,, NEERKUNNAM, VANDANAM, ALAPPUZHA.** **BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU** ## **RESPONDENTS:** - **1 T.T.JAISON, S/O.THOMAS THATTAYIL HOUSE, POLAYAPARAMBU, CHANDALLOOR (PO).** - **2 PROPRIETOR KADICHERI ENTERPRISES ANCHUMURI, THAMMANAM, ERNAKULAM.** **3 THE BRANCH MANAGER** MACA.No.1940 of 2009 _2_ **ORIENTAL INSURANCE COMPANY LTD., ANGAMALY BRANCH,, ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1940 of 2009 _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No. 1940 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of July, 2021 ## **JUDGMENT** The appellants were the petitioners in OP(MV)No.1613 of 2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha. 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 Muhammed Koya (deceased) - 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, relevant for the determination of the MACA.No.1940 of 2009 _4_ appeal is : on 26.07.2002 while the deceased was riding his motorcycle bearing registration No.KL 14 H/241 through Kollam – Alappuzha National Highway, when he reached Punnapra, a Mini Lorry bearing registration No.KL 7 AF 7262 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner hit the motorcycle of the deceased. The deceased was rushed to the Medical College Hospital, Alappuzha, but his life could not be saved. The offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The deceased was a marine food exporter and an industrialist and the Managing Director of company named Premier Marine Goods. He was earning a monthly income of Rs.18,000/-. The appellants claimed an amount of Rs.20,36,500/-, which was limited to Rs.15,00,000/- MACA.No.1940 of 2009 _5_ 4. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 5. The 3[rd] respondent filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred on solely account of the negligence of the deceased. Therefore, the appellants were not entitled for any amount of compensation. Nevertheless, the 3[rd] respondent admitted that the offending vehicle had a valid insurance policy. 6. The 1[st] appellant and two other witnesses were examined as PWs 1 to 3 and Exts.A1 to A34 were marked through them in evidence. The 3[rd] respondent produced Ext.B1 copy of the insurance police in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, MACA.No.1940 of 2009 _6_ in part, by permitting the appellants to realise an amount of Rs.13,50,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.13,500/-. The 3[rd] respondent was directed to pay the compensation amount. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard Smt.S.Indu, the learned Counsel appearing for the appellants and Sri. Mathews Jacob, the learned Senior Counsel appearing for the 3[rd] respondent. 10. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? MACA.No.1940 of 2009 _7_ 11. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. 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.A2 FIR filed by the police after investigation clearly substantiates that the accident occurred solely on account of the negligence of the 1[st] respondent. Undisputedly, the 2[nd] respondent was the owner of the offending vehicle and the 3[rd] respondent was the insurer Therefore, it is the 3[rd] respondent, MACA.No.1940 of 2009 _8_ who is liable to indemnify the liability of the 2[nd] respondent caused on account of the accident. ## **Notional income** 13. The appellants had contended that the deceased was a marine food exporter and an industrialist. Although, the appellants had claimed that the deceased was earning a monthly income of Rs.80,000/-, no sufficient materials were produced to substantiates the income of the deceased. The Tribunal on the basis of the available materials on record, fixed the notional income of the deceased at Rs.15,000/- per month. 14. On a re-appreciation of the materials on record, particularly Ext.A15 Income Tax Return and Ext.A29 certificate, I am of the firm opinion that there is no error in the fixation of the notional income of the deceased by the Tribunal. Therefore, I confirm the MACA.No.1940 of 2009 _9_ notional income of the deceased at Rs.15,000/- ## **Personal living expenses** 15. It is undisputed that the appellants were the wife and the children of the deceased. They were depending for the livelihood on the income of the deceased. Therefore, 1/3[rd] of the compensation for 'loss due to dependency' has to be deducted towards the personal living expenses of the deceased, as laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802]. ## **Multiplier** 16. On a perusal of the impugned award, it is seen that the Tribunal has fixed the multiplier as '11'. In the light of the law laid down in **Sarala Varma** and **Pranay Sethi** (supra) and as the deceased was aged 50 years on the date of his death (he was born on MACA.No.1940 of 2009 _10_ 30.06.1952), the relevant multiplier is '13'. Hence, I re-fix the multiplier at '13'. ## **Future prospects** 17. In **Sarala Varma** and **Pranay Sethi** (supra), the Honourable Supreme Court has held that the dependants of the deceased are also entitled for future prospects. Since the deceased was aged 50 years, the appellants are entitled for an additional amount of 25% on the compensation for loss 'due to dependency' towards 'future prospects'. ## **Loss of dependency** 18. Taking into consideration the above-cited parameters ie., the income of the deceased at Rs.15,000/-, the multiplier at '13', deduction of 1/3[rd] of the amount towards personal living expenses of the deceased and 25% as future prospects, I hold that the appellants are entitled for compensation under the MACA.No.1940 of 2009 _11_ head 'loss due to dependency' at Rs.19,50,000/instead of Rs.13,20,000/- fixed by the Tribunal. ## **Conventional Heads of compensation** 20. In Clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable 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. 21. In view of the above ratio, I re-fix the compensation under the head 'funeral expenses', at Rs.15,000/- instead of Rs.3,000/- awarded by the Tribunal, and Rs.15,000/- under the head 'loss of estate. As the appellants were the wife and children of the deceased, they are entitled to loss of consortium at Rs.40,000/- each i.e. toward spousal consortium MACA.No.1940 of 2009 _12_ and parental consortium, totalling to an amount of Rs.1,20,000/- ## **Love and affection & Pain and suffering** 22. In the light of the decision in **United India Insurance Company Ltd. v Satinder Kaur @ Satwinder Kaur and others** [2020 (3) KHC 760], I hold that the appellants are not entitled for compensation under the head 'pain and suffering'. Therefore, I set aside the said amount. 23. Similarly, in **Kunjandy v. Rajendran and others** [2020(2) KLT 315], this Court has held that once compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head 'loss of love and affection' as it would tantamount to overlapping of compensation. Therefore, I set aside the amount awarded under the head 'loss of love and affection'. MACA.No.1940 of 2009 _13_ 24. The compensation awarded with respect to transportation charges is found to be reasonable and just. 25. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the afore-cited decisions, I am of the firm opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by the<br>Tribunal (in rupees)|Amounts modified<br>and recalculated<br>by this Court| |---|---|---|---| |1|Transport to hospital|2,000/-|2,000/-| |2|Funeral expenses|3,000/-|15,000/-| |3|Pain and sufferings|5,000/-|nil| |4|Love and affection|10,000/-|nil| |5|Loss of estate|nil|15,000/-| |6|Loss of consortium|nil|1,20,000/-| |7|Loss of dependency with<br>future prospects|13,20,000/-|19,50,000/-| |||13,50,000/-|21,02,000/-| MACA.No.1940 of 2009 _14_ In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.7,52,000/- with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit, after deducting 210 days, that is the period of delay in preferring the appeal, as ordered by this Court on 31.03.2021 in C.M.Appl.No.2233 of 2009, and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation with interest and proportionate before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the deposited amount in equal shares to the appellants, in accordance with law. **Sd/- C.S.DIAS,JUDGE** dlk 08.07.2021