T. Velappan (deceased) and others v. M.P. Manoj and National Insurance Co. Ltd. (MACA No. 210 of 2011)

MACA NO. 210 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 3[RD] DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943** ## **MACA NO. 210 OF 2011** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 1545/2003 OF ADDITIONAL** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,EKM, ERNAKULAM** ## **APPELLANT/S:** 1 T.VELAPPAN (DECEASED), S/O.THATHAN, AGED 57 YEARS, SKIPPER, F.S.I MATTANCHERRY, (UNDER MINISTRY OF AGRICULTURE DEPARTMENT OF ANIMAL HUSBANDRY AND DAIRYING) RESIDING AT SRUTHI, TRICHATTUKUALM P.O., 2 VALSALA WO.VELAPPAN AGED 56 YEARS "SRUTHI",TRICHATTUKUALM P.O., 3 SAJAN SO.VELAPPAN AGED 38 YEARS "SRUTHI",TRICHATTUKUALM P.O., 4 SUMESH SO.VELAPPAN AGED 36 YEARS "SRUTHI",TRICHATTUKUALM P.O., BY ADVS. SMT.K.G.SAROJINI SRI.T.ABY JACOB ## **RESPONDENT/S:** 1 M.P.MANOJ,S/O. PARAMESWARAN NAIR, AGED 45 YEARS,MULLACKAL HOUSE,NEAR KOLLAPADY JUNCTION,KANINADU P.O. ERNAKULAM DISTRICT 682311 2 BRANCH MANAGER NATIONAL INSURANCE CO-LTD,KOLENCHERRY BRANCH, P.B.NO-6,, MEDICAL MISSION JUNCTION, KOLENCHERRY P.O.,, PIN-682311 BY ADV SRI.E.M.JOSEPH MACA NO. 210 OF 2011 **==> picture [6 x 9] intentionally omitted <==** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 210 OF 2011 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1545/2003 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The original 1[st] petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 05.11.2002. It was his case that, on the above said date, while he was riding a motor cycle bearing registration No.KRY/4037, along the Arookutty – Cherthala road, when he reached Vaduthala junction, a mini lorry bearing registration No.KCE/7342 (lorry), owned and driven by the 1[st] respondent in a rash negligent manner, hit the motor cycle. The original 1[st] petitioner sustained serious injuries and he was treated at the Ernakulam Medical Centre Hospital for the period from 05.11.2002 to 25.12.2002. Thereafter, he was treated at the Government Ayurvedic 4 MACA NO. 210 OF 2011 Hospital at Cherthala. The original 1[st] petitioner was employed as a Skipper in the Fisheries Survey of India (FSI), Mattancheri and was drawing a monthly income of Rs.21,874/-. The lorry was insured with the 2[nd] respondent. Hence, the original 1[st] petitioner claimed a total compensation of Rs.15,50,000/- from the respondents, which was limited to Rs.10,00,000/-. 3. During the pendency of the claim petition, the original 1[st] petitioner expired on 17.10.2006. His wife and two sons got themselves impleaded as the additional petitioners 2 to 4. They sought leave of the Tribunal and converted the claim petition to a death claim and enhanced the claim to Rs.20,00,000/-. 4. The 1[st] respondent did not contest the proceedings. 5. The 2[nd] respondent had filed a written statement admitting that the lorry had a valid insurance coverage. However, the 2[nd] respondent contended that the quantum of compensation claimed was excessive. MACA NO. 210 OF 2011 5 6. The 2[nd] petitioner and two other witnesses were examined as PWs 1 to 3 and Exts.A1 to A25 were marked through them in evidence. Service record of the deceased 1[st] petitioner was marked as Ext.C1. 7. The Tribunal, after analysing the pleadings and materials on record, arrived at a conclusion that the deceased 1[st] petitioner lost his life due to paraplegia, bedsore septicemia and multi-organ dysfunction, which were as a result of the accident. Accordingly, the Tribunal treated the claim petition as one of death and permitted the petitioners 2 to 4 to realise from the 2[nd] respondent an amount of Rs.7,87,400/- with interest @ 8% per annum from the date of filing the petition till the date of realisation of the amount and a cost of Rs.8,500/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 2 to 4 are in appeal. 9. Heard; Smt. K.G. Sarojini, the learned counsel appearing for the appellants/petitioners 2 to 4 and Sri. E.M. Joseph, the learned counsel appearing for the 2[nd] MACA NO. 210 OF 2011 6 respondent/insurer. 10. The 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** 11. Ext.A2 charge sheet filed by the Poochakkal Police in Crime No.209/02 substantiates that the accident occurred due to the negligence of the 1[st] respondent. The 2[nd] respondent had admitted that the lorry had a valid insurance policy and had 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. ## **Death of the 1st petitioner** 12. The accident occurred on 05.11.2002. Ext.A7 wound certificate establishes the nature of the serious injuries sustained by the deceased 1[st] petitioner. He was aged 54 years at the time of the accident. He had suffered hemorrhagic contusion with oedema of cervical spinal cord, extending from the 2[nd] cervical vertebra to 7[th] cervical MACA NO. 210 OF 2011 7 vertebra. He was discharged on 25.12.2002. Again he was re-admitted in the hospital on 08.04.2003 and discharged on 26.04.2003. As per Ext.A14 disability certificate issued by the Medical Board, it was found that the deceased 1[st] petitioner had suffered 85% permanent disability. He was diagnosed with paraplegia, bedsore septicemia and multiorgan dysfunction. Finally he lost his life on 17.10.2006. PW3 - the Doctor, who treated the deceased 1[st] petitioner, has certified that the deceased lost his life due to the injuries sustained in the accident. Therefore, even though the petition was filed seeking compensation for the injuries in view of the fact that 1[st] petitioner expired on 17.10.2006, the claim was converted and considered as a death claim. ## **Income of the deceased** 13. The deceased 1[st] petitioner was working as a Skipper in the FSI, Mattancheri. Ext.A18 salary certificate proves that the deceased was earning a salary of Rs.21,874/per month. From Ext.A18, it is seen that Rs.2,000/- was being deducted towards his income tax. Therefore, following the ratio in **Kalpana Raj and others vs. Tamilnadu State** MACA NO. 210 OF 2011 8 **Transport Corporation** [2015 (2) SCC 764], that income tax has to be deducted from the gross income, the monthly net income of the deceased 1[st] petitioner can be safely be fixed at Rs.20,000/-, as fixed by the Tribunal. 14. From the materials on record, it is established that the deceased was aged 54 years at the time of accident. He would have been superannuated from service within few months. Moreover, the deceased had taken voluntary retirement from service on 01.10.2003. 15. In the above factual matrix, I find cogent reasons to adopt the split multiplier method, following the law laid down in **Puttamma vs. K.L. Narayana Reddy and another** [2014 (1) KLT 739 (SC)]. Hence, I fix the monthly notional income of the deceased at Rs.10,000/-. ## **Multiplier** 16. The deceased was aged 54 years at the time of the accident. 17. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the MACA NO. 210 OF 2011 9 relevant multiplier to be adopted is '11'. ## **Dependents of the deceased** 18. It is proved by Ext.A5 ration card that the petitioners 2 to 4 -wife and children, were the dependents of the deceased, who are three in number. 19. Going by the law 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** 20. In the light of the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering that the deceased was aged 54 years and was a permanent employee at the time of the accident, I hold that the petitioners 2 to 4 are entitled to future prospects at 15% on the compensation for loss due to dependency. ## **Loss due to Dependency** 21. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at MACA NO. 210 OF 2011 10 Rs.10,000/-, multiplier at 11, future prospects at 15% and after deducting one third of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.10,12,000/instead of Rs.2,40,000/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 22. 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. 23. In the instant case, the Tribunal has awarded only an amount of Rs.5,000/- under the head 'funeral expenses' and Rs.5,000/- under the head 'loss of estate' and Rs.5,000/under the head 'loss of consortium' to the petitioners 2 to 4. 24. In the light of the ratio in **Pranay Sethi** (supra), I enhance compensation by a further amount of Rs.10,000/each under the heads 'funeral expenses' and 'loss of estate', and an amount of Rs.1,10,000/- under the head 'loss of 11 MACA NO. 210 OF 2011 consortium', since the petitioners 2 to 4 are wife and sons of the deceased 1[st] petitioner, who are entitled to Rs.40,000/each as 'loss of consortium', totaling to an amount of Rs.1,20,000/-. 25. The Tribunal has awarded an amount of Rs.10,000/towards transportation expenses, Rs.10,000/- towards bystander expenses, Rs.10,000/- towards pain and sufferings and Rs.1,92,800/- towards medical expenses. Taking into account the fact that the deceased met with an accident on 05.11.2002 and lost his life on 17.10.2006, I hold the said amounts are reasonable and just. 26. The Tribunal has awarded an amount of Rs.1,00,000/- towards loss of income and Rs.3,10,000/towards loss of earnings. 27. As the claim is considered as a death claim, I hold that the above amounts are not sustainable in law because the petitioners 2 to 4 are claiming compensation for loss due to dependency. Hence, I set aside the amounts awarded under the aforesaid heads. 28. On an over all re-appreciation of the pleadings and MACA NO. 210 OF 2011 12 materials on record and the law laid down in the above cited decisions, I hold that the appellants 2 to 4/petitioners 2 to 4 are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy ## reference: **==> picture [415 x 399] 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>rupees)<br>1. Transportation 10,000 10,000<br>expenses<br>2. Bystander expenses 10,000 10,000<br>3. Funeral expenses 5,000 15,000<br>4. Pain and suffering 10,000 10,000<br>5. Loss of estate 5,000 15,000<br>6. Loss of consortium 5,000 1,20,000<br>7. Medical expenses 1,92,800 1,92,800<br>8. Loss of earnings 3,10,000 0<br>9. Loss of dependency 2,40,000 10,12,000<br>Total 7,87,400 13,84,800<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part by enhancing the compensation by an amount of Rs.5,97,400/- with MACA NO. 210 OF 2011 13 interest at the rate of 8% per annum from the date of petition till the date of realisation and proportionate cost. The 2[nd] respondent is ordered to deposit the enhanced compensation amount 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. The Tribunal shall immediately on the deposit being made, disburse the enhanced compensation amount to the appellants 2 to 4/ petitioners 2 to 4 in the ratio of 60:20:20 and in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc