Suhara T.C. and others v. K.P. Mohammed and The National Insurance Co. Ltd.

MACA NO. 3050 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943** ## **MACA NO. 3050 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1883/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** 1 SUHARA T.C, W/O. LATE ABDUL MAJEED, AGED 39 YEARS 2 SUSHARA.P. D/O.LATE ABDUL MAJEED, AGED 24 YEARS. 3 NAJMUNNEESA D/O.LATE ABDUL MAJEED, AGED 21 YEARS. 4 AMEER ALI D/O.LATE ABDUL MAJEED, AGED 19 YEARS. 5 THARUVAYI.P. , S/OKUNHIKALANTHAN,AGED 81 YEARS. 6 AYISHA.P. WO.THARUVAYI, AGED 71 YEARS, ALL ARE RESIDING AT CHINGANAM POYIL,, CHAMAL POST, THAMARASSERY, KOZHIKODE. BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN ## **RESPONDENT/S:** 1 K.P.MOHAMMED , KALARAKKAL POYIL HOUSE, THAMARASSERY POST, KOZHIKODE. 2 THE NATIONAL INSURANCE CO.LTD.,DIVISIONAL OFFICE, NOOR COMPLEX,, MAVOOR ROAD, KOZHIKODE. BY ADVS. SRI.PMM.NAJEEB KHAN SRI.P.JAYASANKAR SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 3050 OF 2009 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1883/2004 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikkode. 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 Abdul Majeed (deceased), husband of the 1[st] appellant, father of the appellants 2 to 4 and son of the appellants 5 and 6. It was their case that, on 11.07.2004, while the deceased was riding pillion on a motor cycle bearing registration No.KL-11-S-1556 from Chamal to Korangad, a jeep bearing registration No.KL11-J-3088 (jeep) driven by its driver in a rash and negligent manner, hit the motor cycle. The deceased sustained serious injuries and was rushed to the Medical College Hospital, Kozhikode, where he lost his life on 19.07.2004. The jeep was owned by the 1[st] respondent and insured with the 2[nd] respondent. The deceased was a plantation worker and was earning a monthly income of Rs.5,000/-. The appellants were the dependents of the deceased. Hence, the appellants MACA NO. 3050 OF 2009 3 claimed an amount of Rs.6,20,000/- from the respondents, which claim was limited to Rs.4,00,000/- 3. The 1[st] respondent did not contest the proceedings. 4. The 2[nd] respondent had filed a written statement admitting that the jeep had a valid insurance coverage. It was contended that the accident occurred due to the negligence of the rider of the motor cycle. The 2[nd] respondent also contended that there was collusion between the appellants and the 1[st] respondent. Hence, it was prayed that the claim petition be dismissed. 5. The appellants produced and marked Exts.A1 to A4 in 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 2[nd] respondent an amount of Rs.2,39,500/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. V.S. Chandrasekharan, the learned counsel MACA NO. 3050 OF 2009 4 appearing for the appellants/petitioners and Sri. PMM. Najeeb Khan, the learned counsel appearing for the 2[nd] respondent/ insurer. 9. The sole question 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.A4 final report filed by the Police proves that the accident occurred due to the negligence of the driver of the respondent. 11. Indisputably, the 1[st] respondent was the owner and the 2[nd] respondent was the insurer of the jeep. The respondents have not let in any evidence to discredit Ext.A4 final report. The 2[nd] respondent had also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income of the deceased** 12. The appellants had claimed that the deceased was a plantation worker and was earning a monthly income of Rs.5,000/-. For want of materials, the Tribunal fixed the MACA NO. 3050 OF 2009 5 notional monthly income of the deceased at Rs.2,000/-. 13. 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. 14. Following the yardstick in the afore-cited decision and considering the fact that the accident happened in the year 2004, I re-fix the monthly notional income of the appellant at Rs.4,500/-. ## **Multiplier** 15. The deceased was aged 45 years as per Ext.A2 postmortem report. 16. 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'. ## **Personal living expenses of the deceased** 17. It is proved by Ext.A3, that the appellants were the wife, children and parents of the deceased. They are six in number. MACA NO. 3050 OF 2009 6 18. Going by the law laid down in **Sarla Varma** (supra) and **National Insurance Company 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** 19. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 45 years at the time of the accident, I award the appellants future prospects at 25%. ## **Loss due to Dependency** 20. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.4,500/-, multiplier at 14, future prospects at 25% and after deducting one fourth of the compensation towards the personal living expenses of the deceased, I award the appellants an amount of Rs.7,08,750/- towards 'loss of dependency', instead of Rs.2,08,000/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 21. In clause (viii) of paragraph 61 of **Pranay Sethi** 7 MACA NO. 3050 OF 2009 (supra), the Hon'ble Supreme Court has held that the dependents 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. It is also observed that the said amount has to be enhanced by 10% in every three years. 22. In **N. Jayasree and others v. Cholamandalam M/s General Insurance Company Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others v. Divisional Manager National Insurance Company Ltd and another** [2021 SCC Online SC 1193], the Honourable 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 only to be interpreted and inferred that the escalation of 10% is awarded after three years from the pronouncement of the judgment in **Pranay Sethi** , 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 compensation under the conventional heads at Rs.16,500/-, Rs.16500 and Rs.44,000/- each, respectively. MACA NO. 3050 OF 2009 8 23. Accordingly, I award the appellants an additional amount of Rs.13,500/- under the head 'funeral expenses', an amount of Rs.16,500/- under the head 'loss of estate' and Rs.44,000/- each to the appellants 1 to 4 towards ‘loss of consortium’, which amounts to Rs.1,76,000/-. 24. As the deceased had lost his life after ten days after the accident, I confirm the amount of Rs.10,000/- awarded under the head 'pain and sufferings'. I aslo confirm the amounts awarded towards 'medical treatment', 'incidental charges' and 'transportation expenses'. 25. 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 1 to 4/petitioners 1 to 4 are entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [456 x 129] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>awarded by modified and<br>No the Tribunal(in recalculated<br>rupees) by this Court<br>(in rupees)<br>1. Transportation 1,500 1,500<br>expenses<br>**----- End of picture text -----**<br> MACA NO. 3050 OF 2009 9 **==> picture [456 x 297] intentionally omitted <==** **----- Start of picture text -----**<br> 2. Incidental expenses 2,000 2,000<br>3. Medical expenses 5,000 5,000<br>4. Pain and sufferings 10,000 10,000<br>5. Funeral expenses 3,000 16,500<br>6. Loss of estate 0 16,500<br>7. Loss of consortium 10,000 1,76,000<br>8. Loss due to disability 2,08,000 7,08,750<br>Total 2,39,500 9,36,250<br>**----- End of picture text -----**<br> 26. Even though the appellants had claimed only an amount of Rs.4,00,000/-, as compensation, following the ratio in **Sarla Verma** and **Pranay Sethi** (supra), I have awarded the appellants 'future prospects' as well as 'compensation under the conventional heads'. Thus, the compensation awarded has exceeded the amount claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed by enhancing the compensation by an amount of Rs.6,96,750/- (Rupees Six lakhs MACA NO. 3050 OF 2009 10 ninety six thousand seven hundred and fifty only) with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 255 days i.e. the period of delay in filing the appeal and as ordered by this Court in C.M.Appln. No.1/2009 on 08.10.2021, and proportionate cost. The 2[nd] respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellants 1 to 4, after deducting their liability, if any, towards court fee, in the ratio of 40:20:20:20 and in accordance with law. Sd/- ## **JUDGE** rkc