Suhra K.V. and Others v. Saidalavi Puthan PeediyeKKal and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944** ## **MACA NO. 2692 OF 2012** ## **AGAINST THE AWARD IN OPMV 535/2009 OF MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL, MANJERI.** ## **APPELLANTS/PETITIONERS IN THE OP(MV):** - **1 SUHRA K.V. 25 YEARS, W/O.LATE ANWARSADATH** - **2 ANSHIFA THASNI V MINOR 6 YEARS D/O.LATE ANWARSADATH 3 MOHAMMED ANSID MINOR 7 YEARS SO.LATE ANWARSADATH 4 SAINABA 58 YEARS MOTHER OF LATE ANWARSADATH (MINOR APPELLANTS 2 & 3 REPRESENTED BY FIRST APPELLANT) ALL ARE RESIDING AT VADAKKANGARA HOUSE,PAYYANADU P.O., THOTTUPOYIL, MALAPPURAM DISTRICT. * (DECEASED) * ADDL. APPELLANTS NO. 5 TO 7 IMPLEADED** - **5 ADDL. MUJEEB RAHMAN, AGED 40 YEARS S/O. LATE SAINABA, RESIDING AT VADAKKANGARA HOUSE, PAYYANAD P.O., THOTTUPOYIL, MALAPPURAM DISTRICT - 676 122.** - **6 HASEENA , AGED 35 YEARS D/O. LATE SAINABA, AGED 35 YEARS, RESIDING AT VADAKKANGARA HOUSE, PAYYANAD P.O., THOTTUPOYIL, MALAPPURAM DISTRICT - 676 122.** - **7 ABDUSSAMAD, AGED 27 YEARS S/O. LATE SAINABA, RESIDING AT VADAKKANGARA HOUSE, PAYYANAD P.O., THOTTUPOYIL, MALAPPURAM DISTRICT - 676 122.** *** ADDITIONAL APPELLANTS NO. 5 TO 7 ( LEGAL HEIRS OF DECEASED 4TH APPELLANT) ARE IMPLEADED , AS PER ORDER DATED 28/03/2022 IN I.A NO. 1/2022 IN MACA 2692/2012. BY ADVS.** **SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** - **1 SAIDALAVI PUTHAN PEEDIYEKKAL S/O.KUNHU MOIDEEN KUTTY, PUTHAN PEEDIYEKKAL HOUSE, KADAMPUZHA P.O., MALAPPURAM DISTRICT – 676 553 (DRIVER)** - **2 MUHAMMED KUTTY, KOONATH PARAKKATTIL HOUSE,** M.A.C.A No. 2692 of 2012 **2** ## **THIRUVEGAPPURA,** **PALAKKAD DISTRICT – 679 304 (OWNER)** **3 UNITED INDIA INSURANCE CO.LTD., FAIZAL BUILDING, MAIN ROAD, OTTAPALAM P.O., PALAKKAD DISTRICT - 679101 (INSURER)** **SMT.RAJI.T.BHASKAR-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2692 of 2012 **3** ## **JUDGMENT** This appeal has been filed against the award in O.P.M.V No.535/2009 on the file of Motor Accidents Claims Tribunal, Manjeri. The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) claiming compensation on account of the death of Anwarsadath (herein after be referred as deceased), husband of the 1[st] appellant, father of the appellants 2 and 3 and son of the 4[th] appellant out of a motor vehicle accident occurred on 10.12.2008. Total compensation of Rs.8,88,000/- has been claimed which was limited to Rs.5,00,000/-. It is alleged that while the deceased was travelling in an autorickshaw through Kalpetta-Bathery road it was hit by a jeep bearing Registration No. KL10D/9414 driven by the 1[st] respondent. It is alleged that the accident happened due to the rash and negligent driving of the jeep by the 1[st] respondent. The 2[nd] respondent is the owner of the offending vehicle and 3[rd] respondent is the insurer. 2. Before the Tribunal, only 3[rd] respondent contested the matter by filing written statement admitting the insurance coverage with respect to the offending vehicle. 3. Exts. A1 to A7 have been marked from the side of the appellants/claimants. On evaluation of pleadings as well as documents M.A.C.A No. 2692 of 2012 **4** produced from the side of the appellants/claimants, the Tribunal found that the accident happened due to the rash and negligent driving of the jeep by the 1[st] respondent and awarded a total compensation of Rs.4,36,000/- under various heads together with interest at the rate of 9% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants (hereinafter be referred as claimants) approach this Court in appeal for the various grounds stated in the memorandum of appeal. 4[Th] appellant died during the pendency of the appeal. I.A No.1/2022 has been filed to implead the legal heirs of the 4[th] appellant, which was allowed and additional appellants 5 to 7 were impleaded as per order dated 28.03.2022. Notice to respondents 1 and 2 has been dispensed with at the risk of the appellant. Adv.Raji T. Baskar, Standing Counsel appeared on behalf of the 3[rd] respondent. 5. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. Accident, death and liability of the 3[rd] respondent is not disputed and the dispute between the parties is only with respect to the quantum of compensation awarded under various heads by the M.A.C.A No. 2692 of 2012 **5** Tribunal. 7. According to the learned counsel for the claimants, deceased was 28 years old Coolie cum driver and earning Rs.6,500 as monthly income, but the Tribunal fixed his monthly income as Rs.3,000/which is very low. It is also contended that the amount awarded under conventional heads are also low. Hence he seeks for enhancement of compensation on the above heads. 8. The learned Standing Counsel for the 3[rd] respondent on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal and no interference is called for in this appeal. 9. In this case, deceased was 28 years old coolie cum driver. But no evidence was adduced by the claimants to prove the actual income o the deceased. In **Ramachandrappa (supra),** the Apex Court fixed the monthly income of a coolie, who met with a road accident in the year 2004, notionally as Rs.4,500/-. In **Syed Sadiq (supra)** , the Apex Court fixed the monthly income of a vegetable vendor, who met with a road accident in the year 2008, notionally as Rs.6,500/-. In view of the facts and circumstances, and the dictum laid down in above decisions, I am of the view that income of the deceased can reasonably M.A.C.A No. 2692 of 2012 **6** be fixed as Rs.6,500/- per month. 10. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 11. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an M.A.C.A No. 2692 of 2012 **7** acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 12. In Pranay Sethi's case, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 13. In the present case, the deceased was 28 years old at the time of accident and his monthly income has already been fixed as Rs.6,500/-. So claimants are entitled for 40% enhancement towards future prospects. Then monthly income of the deceased would be **Rs.9,100/-** (6,500+2,600(40% of 6,500)). 14. On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that personal and living M.A.C.A No. 2692 of 2012 **8** expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65). 15. In Reshma Kumari's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 16. The proper multiplier to be applied as held in **Sarla** M.A.C.A No. 2692 of 2012 **9** **Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '17'. So the annual dependency would be 9,100x12x17=18,56,400/-. 17. Here, there were four claimants including the 4[th] appellant, the mother of the deceased who died pending the proceedings. Subsequent death of the dependent of the deceased ought not to be reason for reduction of motor accident compensation and claims (See **Kirti & Another v. Oriental Insurance Co. Ltd. [2021 2 SCC 166]** ). So ¼ has to be deducted towards personal and living expenses. Hence contribution to the family would be Rs.13,92,300/- (18,56,4004,64,100(18,56,400x1/4)). From that the amount already awarded by the Tribunal to be deducted, the balance would **Rs.9,84,300/-** (13,92,3004,08,000). 18. The next contention of the learned counsel is with regard to the enhancement under the conventional heads as per the directions in Pranay Sethi's case followed by Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130) In that decision, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and M.A.C.A No. 2692 of 2012 **10** Rs.15,000/- towards funeral expenses. 19. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in Pranay Sethi's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 20. In this context, Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this M.A.C.A No. 2692 of 2012 **11** Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 21. Next is with regard to the consortium to be awarded, the law laid down by the Apex Court in Magma General Insurance Co.'s case is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5[th] ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child which cause great shock and agony to the parents and family M.A.C.A No. 2692 of 2012 **12** of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 22. In the present case, 4[th] claimant, the mother of the deceased died during pending the proceedings. Additional appellants 5 to 7 were impleaded as her legal representatives. So towards loss of consortium, claimants are entitled to get Rs.44,000/- each, amounting to Rs.1,76,000/-(44,000x4). Once compensation is awarded under consortium, claimants are not entitled to get any compensation towards love and affection (See **New India Assurance Co. Ltd v. Somwati and Others** [2020 9 SCC 644]). So amount of Rs.10,000/- awarded by the Tribunal towards loss of love and affection has to be deducted. Rs.10,000/- awarded towards loss of consortium has also to be deducted. So the claimants are entitled to get Rs.1,56,000/- towards loss of consortium. Tribunal had already awarded Rs.5,000/- towards M.A.C.A No. 2692 of 2012 **13** loss of estate. Deducting the above amount, claimants are entitled to get Rs.11,500/- (16,500-5000) under the head of loss of estate. Tribunal had already awarded Rs.3,000/- towards funeral expenses. Deducting the amount already awarded, claimants are entitled to get **Rs.13,500/-** (16,500-3,000) towards funeral expenses. 23. So under the conventional heads, claimants are entitled to get Rs.1,81,000/-. (1,56,000+13,500+11,500). 24. So in total the claimants are entitled to get enhanced compensation of **Rs.11,65,300/-** (9,84,300+1,81,000). 25. In the result, the appellants are allowed to realize enhanced compensation of **Rs.11,65,300/-** which will carry interest at the rate of 6% per annum from the date of petition, till realization. The enhanced compensation except the consortium towards the deceased 4[th] respondent shall be apportioned among the claimants in the ratio of 50:25:25. The third respondent insurer shall satisfy the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 26. The appeal has been filed with a petition to condone delay of 135 days. While condoning the delay by order dated 17.12.2021 in M.A.C.A No. 2692 of 2012 **14** CMA.No.1/2012 (CMA.No.3166/2012), it was made clear that, in case any enhancement of compensation is granted, the claimants will not be entitled to claim interest for the above said period. Hence, interest for the period of 135 days is excluded. 27. The disbursement of the amount to the claimants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. The share of appellants/claimants 2 and 3 shall be deposited in a nationalised Bank and Deposit Receipt shall be produced before the Tribunal and that shall be kept in a safe custody till they attains majority. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. rps/ ## **M.R.ANITHA, JUDGE**