Suseela and others v. Sonthosh Kumar and others

MACA NO. 2644 OF 2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943** **MACA NO. 2644 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1665/2000 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/S:** 1. SUSEELA, W/O.HARIDDAS, AGED 50 YEARS, SMITHABHAVAN HOUSE, PUNNAPARA P.O., ALAPPUZHA, 2. SMITHA D/O. HARIDAS AGED 28 OF DO .....DO... 3. SARITHA D/O. HARIDAS AGED 26 OF DO.....DO... 4. HAREESH S/O.HARIDAS AGED 24 OF DO.....DO... BY ADVS. SRI.T.B.SARASAN SRI.M.V.BAIJU ## **RESPONDENT/S:** 1. SONTHOSH KUMAR, S/O. GUPTAN, AGED ABOUT 35, MATTAPPALLI VEEDU, VARANAM PO, CHERTHALA 688555 2. C.V. CHANDROLBHVAN, CHANDRA BHVANAM, VARANAM PO, CHERTHALA 68855 3. THE UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, CHERTHALA 688524 BY ADV SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2644 OF 2012 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1665/2000 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 Haridas (deceased) - husband of the 1[st] appellant and father of the appellants 2 to 4. 3. It was their case that, on 22.05.2000, while the deceased was riding his scooter along the Amabalappuzha – Alappuha National Highway, a car bearing Registration No.KLM 3761, driven by the 1[st] respondent in a negligent manner, hit the scooter of the deceased. The deceased sustained fatal injuries and lost his life at the Medical College Hospital, Alappuzha on 24.05.2000. The deceased was doing a Chitti business and he was earning a monthly income of Rs.6,000/-. He was the sole bread winner of the family. The appellants were the dependents of the deceased. The car was MACA NO. 2644 OF 2012 3 owned by the 2[nd] respondent and insured with the 3[rd] respondent. Hence, the appellants claimed a compensation of Rs.12,93,000/- from the respondents, which claim was limited to Rs.7,00,000/-. 4. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 5. The 3[rd] respondent had filed a written statement admitting that the car had a valid insurance coverage. The 3[rd] respondent disputed the age, income and occupation of the deceased, and contended that the compensation claimed was excessive. 6. The 1[st] appellant was examined as PW1 and Exts.A1 to A9 were marked in evidence. The 3[rd] respondent had produced the insurance policy certificate, which was marked as Ext.B1. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.2,50,000/- with interest and cost of MACA NO. 2644 OF 2012 4 Rs.4,000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri. A.R. George, the learned counsel appearing for the 3[rd] respondent/insurer. 10. The point that arises for consideration in the appeal is whether the quantum compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 11. Ext.A1 FIR and FIS and Ext.A2 inquest report prepared by the Punnapra Police in Crime No.82/2000 proves that the accident occurred due to the negligence of the 1[st] respondent. Indisputably, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the car. The respondents have not let in any evidence to controvert the oral testimony of PW1 or discredit Exts.A1 to A4. The 3[rd] respondent has also 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 MACA NO. 2644 OF 2012 5 ## arising out of the accident. ## **Income** 12. The appellants had claimed that the deceased was doing Chitti business and he was earning a monthly income of Rs.6,000/-. For want of materials, the Tribunal fixed the monthly income of the deceased notionally at Rs.2,000/-. 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance 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 occurred in the year 2000, I refix the notional monthly income of the deceased at Rs.2,500/-. ## **Multiplier** 15. The deceased was aged 50 years at the time of the accident. 16. In the light of the law laid down in **Sarla Varma vs.** MACA NO. 2644 OF 2012 6 **Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘13’. ## **Personal living expenses of the deceased** 17. The appellants were the wife and children of the deceased. They are four in number. In the light of the law laid down in **Sarla Verma** (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** 18. Following the principles laid down in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 50 years at the time of accidents, the appellants are entitled to future prospects at 10%. ## **Loss due to dependency** 19. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.2,500/-, the multiplier at 13, future prospects at 10% and after deducting MACA NO. 2644 OF 2012 7 one fourth of the compensation towards the personal living expenses of the deceased, I hold that the appellants/petitioners are entitled to compensation for 'loss of dependency' at Rs.3,21,750/-, instead of Rs.2,08,000/awarded by the Tribunal. ## **Conventional heads of compensation/Traditional heads of compensation** 20. In paragraph 59.8 of **Pranay Sethi** (supra) it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 21. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another** [2021 SCC Online SC 1193], the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has MACA NO. 2644 OF 2012 8 granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 22. In the instant case, the Tribunal has awarded an amount of Rs.3,000/- towards ‘funeral expenses’ and an amount of Rs.10,000/- towards ‘loss of consortium’. 23. In the light of the law referred to above, I award the appellants a further amount of Rs.13,500/- under the head ‘funeral expenses' and an amount of Rs.16,500/- under the head 'loss of estate'. Likewise, I award the appellants an amount of Rs.44,000/- each under the head ‘loss of consortium’, that is a further amount of Rs.1,66,000/-. MACA NO. 2644 OF 2012 9 ## **Loss of love and affection** 24. The Tribunal has awarded an amount of Rs.15,000/under the head 'loss of love and affection'. 25. In **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.15,000/- awarded under the head 'loss of love and affection'. ## **Pain and sufferings** 26. The Tribunal has awarded an amount of Rs.10,000/as compensation under the head ‘pain and sufferings’. As the deceased lost his life two days after the accident, I find the amount to be reasonable and just. 27. With respect to the other heads of compensation, namely, transportation expenses and medical expenses, I find the same to be reasonable and just. 28. On a comprehensive re-appreciation of the pleadings MACA NO. 2644 OF 2012 10 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 [460 x 432] intentionally omitted <==** **----- Start of picture text -----**<br> Amounts<br>Sl. Amount modified and<br>awarded by the recalculated<br>Head of claim<br>N Tribunal(in by this<br>o rupees) Court(in<br>rupees)<br>Transportation<br>1 2,000 2,000<br>expenses<br>2 Medical expenses 2,000 2,000<br>3 Funeral expenses 3,000 16,500<br>4 Pain and sufferings 10,000 10,000<br>Loss of love and<br>5 15,000 0<br>affection<br>6 Loss of estate 0 16,500<br>7 Loss of consortium 10,000 1,76,000<br>8 Loss of dependency 2,08,000 3,21,750<br>Total 2,50,000 5,44,750<br>**----- End of picture text -----**<br> 29. In the result, the appeal is allowed by enhancing the MACA NO. 2644 OF 2012 11 compensation by a further amount of Rs.2,94,750/- with interest at the rate of 6% per annum from the date of the claim petition till the date of deposit, after deducting interest for a period of 371 days i.e. the period of delay in representing the appeal and as ordered by this Court on 28.10.2021 in CM.Appln.No.2/2012, and a cost of Rs.20,000/-. The 3[rd] respondent is ordered to deposit the enhanced compensation with interest and cost as stated above 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 same shall be disbursed to the appellants, in the ratio of 50:10:10:30 and in accordance with law. Even though the appellants were represented by counsel, there was repeatedly no representation for them, despite the order of this Court on 09.02.2022 and today. Hence, I direct the Tribunal to inform the appellants by issuing notice to them directly and also through the District Legal Services Authority, Alappuzha informing them regarding allowing of the appeal and that they have the right to claim the enhanced compensation from the 3[rd] respondent. The Registry shall MACA NO. 2644 OF 2012 **==> picture [13 x 9] intentionally omitted <==** forthwith forward a copy of this judgment directly to the Tribunal for further action. Post for compliance report of the Registry on 14.03.2022. sd/- **C.S.DIAS, JUDGE** rkc/17.02.22