Sudha w/o Raju and Ebin R Rajesh v. The Manager, Oriental Insurance Company Limited

MACA NO. 2634 OF 2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943** **MACA NO. 2634 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OPMV 108/2012 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL PALA, KOTTAYAM** ## **APPELLANT/S:** 1 SUDHA W/O.RAJU, MAKKAL HOUSE, PANAMATTOM KARA, ELANGULAM VILLAGE, NOW RESIDING AT BLOCK NO.764, KALLAR P.O., THOOKKUPALAM. 2 EBIN R RAJESH S/O.RAJU, MINOR REPRESENTED BY MOTHER AND NEXT FRIEND BINU, SUDHA, W/O.RAJU, MAKKAL HOUSE, PANAMATTOM KARA, ELANGULAM VILLAGE, NOW RESIDING AT BLOCK NO.764, KALLAR P.O., THOOKKUPALAM. BY ADV SRI.THOMAS ABRAHAM (NILACKAPPILLIL) ## **RESPONDENT/3RD RESPONDENT:** THE MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, CHEERANVELI BUILDINGS, KANJIRAPPALLY, KOTTAYAM DISTRICT-686507. BY ADV SRI.N.S.NAJEEB THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2634 OF 2014 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.108/2012 on the file of the Motor Accidents Claims Tribunal, Pala. The respondent in the appeal was the 3[rd] respondent before the Tribunal. Since the respondent had admitted the insurance policy, the appellants have not impleaded the respondents 1 and 2 before the Tribunal. Therefore, the parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Raju (deceased), husband of the 1[st] petitioner and father of the 2[nd] petitioner. It was their case that, on 22.12.2011, while the deceased was walking through Erattupetta – Kanjirappally road, a maruti van (van) bearing registration No.KRM6930 driven by the 1[st] respondent in a negligent manner hit the deceased. The deceased sustained serious injuries and lost his life on the same day. The deceased was a 3 MACA NO. 2634 OF 2014 coconut climber by profession and earning a monthly income of Rs.10,000/-. The van was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The petitioners claimed a total compensation of Rs.15,53,000/from the respondents, which was limited to Rs.12,00,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the van had a valid insurance policy. However, it was contended that the accident occurred due to the negligence of the deceased. It was also stated that the amount of compensation claimed was excessive. 5. The petitioners produced and marked Exts.A1 to A8 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to realise from the 3[rd] 4 MACA NO. 2634 OF 2014 respondent an amount of Rs.7,98,112/- with interest @ 7.5% per annum from the date of petition till the date of realisation and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. Thomas Abraham, the learned counsel appearing for the appellants/petitioners and Sri. N.S. Najeeb, the learned counsel appearing for the respondent/ 3[rd] respondent/insurer. 9. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 10. Ext.A5 final report filed by the Kanjirappilly Police in Crime No.868/2011 proves that the accident occurred due to the negligence of the 1[st] respondent. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the van. The 3[rd] respondent admitted that the van had a valid insurance coverage and MACA NO. 2634 OF 2014 5 had not proved that the 2[nd] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Income of the deceased** 11. The petitioners had claimed that the deceased was a coconut plucker by profession and earning a monthly income of Rs.10,000/-. Even though they have produced Ext.A8 certificate to prove the income of the deceased, the same was not corroborated and, therefore, the Tribunal rightly declined to accept the said certificate. Accordingly, the Tribunal fixed the notional monthly income of the deceased at Rs.5,000/-. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/ per month. 13. Following the yardstick in the afore-cited MACA NO. 2634 OF 2014 6 decision and considering the fact that the accident happened in the year 2011, I re-fix the monthly notional income of the appellant at Rs.8,000/-. ## **Multiplier** 14. The deceased was aged 42 years at the time of the accident. 15. In the light of the law laid down in **Sarla Varma** **vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '14'. ## **Dependents of the deceased** 16. It is proved that the petitioners are wife and son of the deceased. 17. In the light of the law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one third of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 18. Following the ratio in **Sarla Varma** and **Pranay** MACA NO. 2634 OF 2014 7 **Sethi** (supra) and considering the fact that the deceased was aged 42 years at the time of the accident, I hold that the petitioners are entitled for future prospects at 25% on the compensation for loss due to dependency. ## **Loss due to Dependency** 19. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.8,000/-, multiplier at 14, future prospects at 25% and deducting one third of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.11,20,000/-, instead of Rs.7,28,112/- awarded 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 dependents of the deceased are entitled to 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. MACA NO. 2634 OF 2014 8 21. In the instant case, the Tribunal has awarded only an amount of Rs.25,000/- under the head funeral expenses, Rs.5,000/- towards loss of estate and declined to award any amount under the head loss of consortium. 22. In the light of the law laid down in **Pranay Sethi** (supra), I scale down the compensation for 'funeral expenses' to Rs.15,000/- and enhance the compensation under the head 'loss of estate' by a further amount of Rs.10,000/-. 23. Taking into account the fact that the petitioners were the wife and son of the deceased, I hold that both of them are entitled to an amount of Rs.40,000/- each towards 'loss of consortium', totaling to an amount of Rs.80,000/-. ## **Compensation for loss of love and affection** 24. The Tribunal has awarded an amount of Rs.30,000/- under the head 'loss of love and affection'. 25. In **New India Assurance Company Ltd. vs. Somvathy and others :** [(2020) 9 SCC 644], the MACA NO. 2634 OF 2014 9 Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount of compensation shall be awarded under the head loss of love and affection, as it would amount to duplication of compensation. 26. Therefore, I set aside the amount awarded under the head 'loss of love and affection'. 27. With respect to the compensation awarded under the head transportation expenses, I find that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [416 x 103] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>awarded by modified<br>No the and<br>Tribunal(in recalculated<br>rupees) by this<br>Court(in<br>**----- End of picture text -----**<br> MACA NO. 2634 OF 2014 10 **==> picture [416 x 307] intentionally omitted <==** **----- Start of picture text -----**<br> rupees)<br>1. Transportation 10,000 10,000<br>expenses<br>2. Funeral expenses 25,000/- 15,000<br>3. Loss of estate 5,000/- 15,000<br>4. Loss of love and 30,000 0<br>affection<br>5. Loss of consortium 0 80,000<br>6. Loss of dependency 7,28,112 11,20,000<br>Total 7,98,112 12,40,000<br>**----- End of picture text -----**<br> In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.4,41,888/- with interest at the rate of 8% per annum from the date of petition till the date of realisation, after deducting interest for a period of 140 days as ordered by this Court in C.M.Appln. No.1/2014 on 27.09.2021, and proportionate cost. The respondent - insurer of the offending van is ordered to deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and cost MACA NO. 2634 OF 2014 **==> picture [12 x 9] intentionally omitted <==** within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellants/petitioners in the ratio of 60:40 and in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc