SUJA RANI S.T. MANAVELI AND OTHERS v. UNITED INDIA INSURANCE CO. LTD. & NATIONAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 6[TH] DAY OF JULY 2021 / 15TH ASHADHA, 1943** ## **MACA NO. 693 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 983/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM** ## **APPELLANTS/PETITINERS:** - **1 SUJA RANI.S.T. MANAVELI, MULLUVILA P.O. NEYYATTINKARA.** - **2 ATHUL JO P.S. (MINOR) RESIDING AT -DO- -DO-** - **3 ALEX JO P.S.(MINOR) RESIDING AT -DO- -DO** - **4 THANKAYYAN NADAR RESIDING AT -DO- -DO-** - **5 RAJAMMA RESIDING AT -DO- -DO-** - **(MINOR 2 & 3 REP.BY HIS MOTHER SUJA RANI)** **BY ADVS. SRI.J.ROBINSON SRI.R.T.PRADEEP** ## **RESPONDENTS:** - ***1 MANIBHUSHAN.B.,PANMAMTHALA VEEDU, KANNAMPALLY, VELLANADU P.O. THIRUVANANTHAPURAM.( DELETED)** **RESPONDENT NO. 1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 30/3/2021 IN I.A NO. 1/21 IN THE MACA.** - **2 THE MANAGER UNITED INDIA INSURANCE CO.LTD. HOSPITAL JUNCTION NEYYATTINKARA,, THIRUVANANTHAPURAM.** - **3 THE DIVISIONAL MANAGER,** MACA NO. 693 OF 2009 _2_ **NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE ST.JOSEPH, PRESS BUILDING,VAZHUTHACADU,, THIRUVANANTHAPURAM.** ## **BY ADV SMT.S.JAYASREE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 693 OF 2009 _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No. 693 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of July, 2021 ## **JUDGMENT** The appellants were the petitioners in OP(MV)No.983 of 2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in the appeal were the respondents before the Tribunal. Pursuant to the orders of this Court on 30.03.2021 in I.A.No. 1 of 2021, the 1[st] respondent has been deleted from the party array. 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 Pradeep Kumar (deceased) - the husband of the 1[st] appellant, the father of the appellants 2 and 3 and son of appellants 4 and 5. 3. The concise case of the appellants in the MACA NO. 693 OF 2009 _4_ claim petition, relevant for the determination of the appeal, is : on 22.05.2003 while the deceased was riding his motorcycle bearing registration No.KL 01/Z 6650 with his wife - 1[st] appellant, who was a pillion rider, along the Kanjiramkulam – Vazhimukku public road, when they reached Balaramapuram, an autorickshaw bearing registration No.KL 01/ G 9912 (offending vehicle) driven in a rash and negligent manner hit on the rear portion of the motorcycle. The deceased and his wife were thrown off the road and sustained serious injuries. They were rushed to the Medical College Hospital, Thiruvananthapuram. The deceased succumbed to his on injuries 24.05.2003. The deceased was a Police Constable and drawing a monthly salary of Rs.6449/-. The appellants were the dependants of the deceased. The offending vehicle was owned by the 1[st] respondent and insured with the 2[nd] respondent. The MACA NO. 693 OF 2009 _5_ 3[rd] respondent was the insurer of the motorcycle. The appellants claimed a total compensation of Rs.15,00,000/- 4. The 1[st] respondent did not contest the proceedings and was set ex-parte. 5. The 2[nd] respondent filed a written statement, _inter alia_ , contending that the compensation claimed was excessive. However, the 2[nd] respondent admitted that the offending vehicle had a valid insurance policy. It was also contended that the deceased was riding his motorcycle in a rash and negligent manner. Therefore, the appellants are not entitled for any compensation. 6. The 1[st] appellant also filed OP(MV)No.993 of 2003 before the same Tribunal seeking compensation on account of the injuries sustained by her. The Tribunal consolidated and jointly tried the original petitions. MACA NO. 693 OF 2009 _6_ 7. The appellants marked Exts.A1 to A10 in evidence. The 2[nd] respondent marked Ext.B1 and B2 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by a common award allowed the claim petition filed by the appellants, by directing the 2[nd] respondent to pay the appellants an amount of Rs.8,23,640/- along with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners/appellants are in appeal. 10. Heard the learned Counsel appearing for the appellants and the learned Counsel appearing for the 2[nd] respondent. 11. The sole question that emerges for consideration in this appeal is whether the quantum MACA NO. 693 OF 2009 _7_ of compensation awarded by the Tribunal is reasonable and just? 12. 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. 13. Ext.A4 charge-sheet filed by the Balaramapuram police after investigation substantiates that the accident was caused solely due to negligence on the part of the driver of the offending vehicle. Undisputedly, the offending MACA NO. 693 OF 2009 _8_ vehicle was owned by the 1[st] respondent and insured with the 2[nd] respondent. Therefore, it is the 2[nd] respondent who is liable to indemnify the liability of the 1[st] respondent arising out of the accident. 14. Ext.A3 postmortem certificate proves that the deceased lost his life on 24.05.2003 on account of the accident. The appellants claimed to be the wife, children and parents of the deceased. This aspect is not disputed by the respondents. Therefore, it is only to be accepted that the appellants are the dependants of the deceased. ## **Notional income** 15. The appellants had contended that the deceased was a Police Constable and was drawing a monthly salary of Rs.6,449/-, as reflected in Ext.A5 salary certificate. However, the Tribunal taking into account that an amount Rs.505/- was paid as special allowance, fixed the monthly salary of the deceased _9_ MACA NO. 693 OF 2009 at Rs.5,944/-. The above assessment made by the Tribunal is correct and in accordance with law laid down in **Kalpanaraj and others v. Tamil Nadu Road Transport Corporatio** n [2015 (2) SCC 764]. Hence, I confirm the finding of the Tribunal with respect to the income of the deceased. ## **Multiplier** 16. The Tribunal has fixed the multiplier at '15'. In the light of the law laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802] and the **Pranay Sethi** (spura) the relevant multiplier is '14'. Hence, I re-fix the multiplier at '14'. ## **Personal living expenses** 17. On going through the impugned award it is seen that the Tribunal has deducted 1/3[rd] of the total compensation for 'loss of dependency' as the 'personal living expenses' of the deceased. As the MACA NO. 693 OF 2009 _10_ appellants are five in number and were dependants of the deceased, in the light of the law laid down in **Sarala Varma** (supra), only 1/4[th] of the amount can be deducted towards 'personal living expenses' of the deceased. Hence, I deduct 1/4[th] of the compensation towards 'loss of dependency' as 'personal living expenses' of the deceased. ## **Future prospects** **18** . In the light of the law laid down in **Sarala Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was 41 years at the time of accident, the appellants are entitled for future prospects at 30%. ## **Loss due to dependency with future prospects** 19. Following the above parameters i.e., the age of the deceased at 41, the relevant multiplier at '14', future prospects at 30% and 1/4[th] of the compensation to be deducted towards personal living MACA NO. 693 OF 2009 _11_ expenses of the deceased, I re-fix the compensation under the head 'loss due to dependency' at Rs.9,73,627/-, instead of Rs.7,13,340/- 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 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. Accordingly, I enhance the compensation under the head 'funeral expenses' by a further amount Rs.7,000/-, compensation under the head 'loss of estate' by a further amount of Rs.5,000/-. 22. The Tribunal had only awarded an amount of Rs.20,000/- as compensation to the 1[st] appellant for MACA NO. 693 OF 2009 **==> picture [15 x 9] intentionally omitted <==** 'loss of consortium'. In view of the ratio in **Pranay Sethi** (supra), I award an amount of Rs.40,000/- as spousal consortium to the 1[st] appellant, Rs.80,000/as parental consortium to the the appellants 2 and 3 and Rs.80,000/- as filial consortium to the appellants 4 and 5, totalling to an amount of Rs.2,00,000/-. ## **Pain and suffering** 23. The Tribunal has awarded a total amount of Rs.45,000/- to the appellants under the head 'loss of love and affection'. In the light of the law laid down by this Court in **Kunjandy v. Rajendran and others** [2020(2) KLT 315], holding 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 result in overlapping of compensation. Hence, I set aside the amount of Rs.45,000/- awarded under the head 'loss of love and affection'. MACA NO. 693 OF 2009 _13_ 24. With respect to the other heads of compensation namely, damage to clothing, transport , medical expenses and bye-stander expenses, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings and materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the afore-cited precedents, I am of the definite 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<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transport to hospital|1,000/-|1,000/-| |2|Funeral expenses|8,000/-|15,000/-| |3|Damage to clothing|1,000/-|1,000/-| |4|Love and affection|45,000/-|nil| |5|Loss of estate|10,000/-|15,000/-| |6|Loss of consortium|20,000/-|2,00,000/-| MACA NO. 693 OF 2009 _14_ |7|Loss of dependency with<br>future prospects|7,13,340/-|9,73,627/-| |---|---|---|---| |8|Bye-stander expenses|300|300| |||8,23,640/-|12,05,927| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.3,82,287/- with interest at the rate of 7.5% per annum from the date the admission of the appeal i.e., 30.03.2021 till the date of deposit. I limit the period of interest from the date of admission of the appeal, eventhough, the appeal was presented on 26.02.2009 because the appellants had not taken steps to effect service of notice on the respondents. It was only on 26.03.2021 that the appellants took steps to effect service of notice on the respondents. Therefore, I hold that the appellants are entitled for interest on the enhanced compensation from the above date. Nevertheless, the appellants are also entitled for proportionate costs on the enhanced MACA NO. 693 OF 2009 **==> picture [15 x 9] intentionally omitted <==** compensation. The 2[nd] respondent shall deposit the enhanced compensation before the Tribunal along with interest and proportionate costs 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 enhanced compensation with interest and proportionate costs to the appellants in proportion mentioned in the impugned award and in accordance with law. **Sd/- C.S.DIAS, JUDGE** dlK 06.07.2021