The National Insurance Company Ltd. v. Mohammedkutty and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** ## **MACA NO. 1194 OF 2013** **AGAINST THE AWARD DATED 28.1.2013 IN OPMV 1873/2007 OF THE MOTOR ACCIDENT** **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/3RD RESPONDENT:** **THE NATIONAL INSURANCE COMPANY LTD KOLLANNUR DEVASSY SMARAK BUILDING, ROUND NORTH, THRISSUR-1 REPRESENTED BY ITS MANAGER BY ADVS. SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH** ## **RESPONDENTS/PETITIONERS 1 TO 5 AND RESPONDENTS 1 AND 2:** |**1**|**MOHAMMEDKUTTY, S/O KUNJUMOIDU, PEZHUMCHIRA HOUSE,**| |---|---| ||**VALIYAMAN P.O., ATOOR, THRISSUR DISTRICT**| |**2**|**FATHIMA, W/O MOHAMMEDKUTTY, PEZHUMCHIRA HOUSE,**| ||**VALIYAMAN P.O., ATOOR, THRISSUR DISTRICT**| |**3**|**SUNEERA, D/O MOHAMMEDKUTTY**| ||**VALIYAMAN P.O., ATOOR, THRISSUR DISTRICT**| |**4**|**NIZHAR, S/O MOHAMMEDKUTTY**| ||**VALIYAMAN P.O., ATOOR, THRISSUR DISTRICT**| |**5**|**SALIH, (MINOR AGED 15 YEARS),**| ||**S/O MOHAMMEDKUTTY**| ||**VALIYAMAN P.O., ATOOR, THRISSUR DISTRICT,**| ||**REPRESENTED BY HIS GUARDIAN AND FATHER MOHAMMEDKUTTY,**| ||**PEZHUMCHIRA HOUSE, VALIYAMAN P.O.,**| ||**ATOOR, THRISSUR DISTRICT**| |**6**|**VASU, S/O KUNJAN, THOTTATHIL HOUSE,**| ||**P.O VENGANELLUR, CHELAKKARA, THRISSUR**| |**7**|**RIYASH.K.A., S/O HAMSA, KARIPPAKULAM HOUSE,**| ||**P.O. ELANAD, THRISSUR DISTRICT.**| ||**BY ADVS.**| ||**SRI.A.R.NIMOD**| ||**SRI.P.V.CHANDRA MOHAN**| ||**SRI.T.C.SURESH MENON**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** **CO NO. 59 OF 2014** **AGAINST THE ORDER/JUDGMENT IN MACA 1873/2007 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTORS/RESPONDENTS 1 TO 5:** 1 MOHAMMEDKUTTY, AGED 47 YEARS S/O. KUNJUMOIDU. 2 FATHIMA, AGED 44 YEARS W/O. MOHAMMEDKUTTY. 3 SUNEERA, AGED 24 YEARS D/O. MOHAMMEDKUTTY. 4 NIZAR, AGED 21 YEARS S/O. MOHAMMEDKUTTY. 5 SALIH (MINOR), AGED 17 YEARS S/O. MOHAMMEDKUTTY, (MINOR 5TH CROSS OBJECTOR REPRESENTED HEREIN BY HIS GUARDIAN FATHER THE 1ST CROSS OBJECTOR). ALL ARE RESIDING AT PEZHUMCHIRA HOUSE, VALIYAMAN P.O., ATOOR, THRISSUR DISTRICT, PIN-680592. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ## **RESPONDENT/S:** 1 THE NATIONALINSURANCE COMPANY LIMITED KOLLANNUR, DEVASSY SMARAK BUILDING, ROUND NORTH, THRISSUR-680001, REPRESENTED BY ITS MANAGER. 2 VASU, S/O. KUJAN, RESIDING AT THOTTATHIL HOUSE, P.O.VENGANELLUR, CHELAKKARA, THRISSUR-680586. 3 RIYAS K.A., S/O. HAMSA, RESIDING AT KARIPPAKULAM HOUSE, P.O.ELANAD, THRISSUR DISTRICT, PIN 680586. THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** **CO NO. 102 OF 2014** **AGAINST THE ORDER/JUDGMENT IN MACA 1194/2013 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTOR/6TH RESPONDENT:** VASU, S/O.KUNJAN, THOTTATHIL HOUSE, P O VENGANELLUR, CHELAKKARA, THRISSUR-680586 BY ADV SRI.P.V.CHANDRA MOHAN ## **RESPONDENTS/APPELLANT & r1 TO 5 AND 7 IN APPEAL:** - 1 THE NATIONAL INSURANCE COMPANY LTD. KOLLANNUR DEVASY SMARAK BUILDING ROUND NORTH, THRISSUR-1, REP BY ITS MANAGER - 2 MOHAMMEDKUTTY, S/O.KUNJUMOIDU,PEZHUMCHIRA HOUSE, VALIYAMAN P O, ATOOR, THRISSUR DIST, PIN-680592 - 3 FATHIMA, W/O.MOHAMMEDKUTTY, PEZHUMCHIRA HOUSE, VALIYAMAN P O, ATOOR, THRISSUR DIST, PIN-680592 - 4 SUNEERA, D/O.MOHAMMEDKUTTY,PEZHUMCHIRA HOUSE, VALIYAMAN P O, ATOOR, THRISSUR DIST, PIN-680592 - 5 NIZAR, S/O.MOHAMMEDKUTTY, PEZHUMCHIRA HOUSE, VALIYAMAN P O, ATOOR, THRISSUR DIST, PIN-680592 - 6 SALITH (MINOR AND 15 YEARS) REP BY HIS GUARDIAN AND FATHER, MOHAMMEDKUTTY, PEZHUMCHIRA HOUSE, VALIYAMAN P O, ATOOR, THRISSUR DIST, PIN-680592 - 7 RIYASH K A, S/O.HAMSA, KARIPPAKULAM HOUSE, ELANAD P O, THRISSUR-680586 BY ADVS. SRI.T.C.SURESH MENON- R2 TO R6 SRI.A.A.ZIYAD RAHMAN THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION - ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 **==> picture [19 x 7] intentionally omitted <==** ## **JUDGMENT** This appeal has been filed by the 3[rd] respondent insurer against the award passed in O.P.(MV) No.1873/2007 on the file of Motor Accidents Claims Tribunal, Thrissur. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation due to the death of Mansoor in a motor accident. The respondents are parents and siblings of the deceased. 2. It is alleged that on 25.6.2007 at about 12.30 a.m., deceased Mansoor was travelling in a goods carrier as its cleaner. It is alleged that when the vehicle reached at Kolazhi the driver of the vehicle turned the vehicle to right side and the vehicle hit the compound wall on the western side and toppled down. Mansoor sustained fatal injuries and he succumbed to the injuries. It is alleged that the accident happened due to the rash and negligent driving of lorry by the 2[nd] respondent, which is owned by the 1[st] respondent. Total compensation of Rs.5,28,000/- has been claimed which was limited to Rs.5,00,000/-. Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 5 3. Before the Tribunal respondents 1 and 2 remained exparte. The appellant filed written statement admitting the policy coverage with respect to the offending vehicle. It is contented that the vehicle has no valid fitness certificate at the time of accident. Hence, there is violation of policy conditions. The rashness and negligence on the part of the 2[nd] respondent is denied. 3[rd] respondent is the insurer. It is also contended that the compensation claimed is highly excessive. 4. There was no oral evidence adduced from either side. Exhibits A1 to A8 series were marked from the side of the respondents. Tribunal on evaluating the pleadings and documents found that accident happened due to the rash and negligent driving of the 2[nd] respondent. It is also found that the vehicle has no fitness certificate. Hence, 3[rd] respondent was directed to pay the amount with liberty to recover the amount from the 1[st] respondent, the insured. Tribunal on evaluating the pleadings and other materials, awarded total compensation of Rs.6,98,000/-. 5. Respondents 1 to 5 are the claimants. They filed cross objection No.59/2014. Respondent No.6 also filed separate cross Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 6 objection No.102/2014 against the order of pay and recovery. For convenience parties would be referred as per their rank before the Tribunal. - 1) Whether the claimants are entitled to get any enhanced compensation? - 2) Whether pay and recovery ordered is liable to be interfered with? 6. Aggrieved by the award in granting 30% towards future prospects by the then law existed to the effect that addition in monthly income towards future prospects is permissible only with respect to persons having permanent job and regular income as per the law laid down in **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** as well as for the reason that ¼ of the income alone deducted by the Tribunal towards personal and living expenses inspite of the fact that the deceased was a bachelor appellant/insurer approached this Court. 7. In view of the subsequent development of law as per the Constitutional Bench in **National Insurance Company Ltd. v.** Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 7 **Pranay Sethi [2017 (4) KLT 662 (SC)]** extending the benefit of future prospects to self employed persons or persons with fixed salary, the details would be discussed later, the contention with regard to award of 30% towards future prospects is not challenged. However, the deduction of ¼th towards personal and living expenses in the absence of any evidence adduced from the side of claimants is seems to be against the law laid down in **Sarla Verma** as approved in **Pranay Sethi** , especially because the deceased was only 20 years old. So deduction of ¼th of income by the Tribunal is liable to be interfered with and it has to be altered to ½. 8. In this case, the compensation awarded by the tribunal under various heads are as follows: |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |---|---| |Loss of earning (total)|| |Loss of earning (Partial|| |Medical expenses<br>Miscellaneous expenses|| |Funeral expenses|5,000-00| Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 8 |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |---|---| ||| |Bystander expenses|| |Transportation expenses|3,000-00| |Extra nourishment|| |Damage to clothing|| |Pain and suffering|7,000-00| |Loss on dependency/company<br>Loss of estate<br>Loss of love and affection<br>Loss of earning power<br>Compensation for injury<br>Loss on consortium|6,48,000-00<br>5,000-00<br>30,000-00| |Total|6,98,000-00| 9. According to the learned counsel for the claimants the deceased was a cleaner of the lorry and he was earning monthly income of Rs.5,000/-. But Tribunal taken only Rs.4,000/- towards Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 9 monthly income. 10. In **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if the claim made is so exorbitant or if the claim made is contrary to ground realities the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 11. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-08-2008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end to right femur and left 10 Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in Ramchandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 12. Deceased was 20 years old and the accident occurred in 2007. In view of the above settled position of law amount of Rs.5,000/- claimed as income is found to be just and reasonable and hence, is accepted. 13. 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 11 Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 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. 14. 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 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 nonviolation of the principle of equitability. It is also emphasized that Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 12 the compensation should not be a windfall nor be a pittance. 15. In **Sarla Verma's** case the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years. 16. 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. 17. Since, the deceased was 20 years old 40% of the income can be added towards future prospects. Monthly income of the deceased has already been found as Rs.5,000/-. Hence, monthly income of deceased would be Rs.5,000+2000 (40% of 13 Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 5,000)=Rs.7,000/-. The deceased being a bachelor as per Sarla Varma approved by the constitutional Bench in Pranay Sethi one half to be deducted towards personal and living expenses. The monthly contribution to the family would be Rs.3,500/-. So the amount towards loss of dependency would be Rs.3,500x12x18=Rs.7,56,000/-. Deducting the amount already awarded by the Tribunal the balance would be Rs.1,08,000/(Rs.7,56,000-6,48,000). 18. The next contention of the learned counsel for the claimant is with regard to the enhancement of the conventional heads as per the directions in **Pranay Sethi** 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 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 14 Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 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 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 15 Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 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 ie. Rs.16,500/- each towards loss of estate and funeral expenses. Tribunal already awarded Rs.5,000/- each towards funeral expenses and loss of estate. So deducting that, claimants are entitled to get Rs.11,500/- each towards funeral expenses and loss of estate. 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 16 Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 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 causes great shock and agony to the parents and family 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. Hence, claimants 1 and 2 are the parents of the deceased. Hence, both of them are entitled to get Rs.44,000/- each towards filial consortium. Once compensation is awarded under the head of consortium claimants are further not entitled to get any amount towards loss of love and affection (See **New India Assurance Co.Ltd. v. Somwati and others 2020 (9) SCC 644** ). 17 Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 Hence, Rs.30,000/- awarded by the Tribunal towards love and affection is to be deducted ie. Rs.88,000-30,000=Rs.58,000/-. Hence, under the conventional heads claimants are entitled to get Rs.81,000/- (Rs,11,500+11,500+58,000). 23. In the result, appeal and cross objection No.59/2014 is disposed of enhancing the compensation to Rs.1,89,000/(Rs.1,08,000+81,000) which will carry interest at the rate of **7.5%** per annum from the date of petition till realisation. The 3[rd] respondent is directed to pay the additional 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. The appellant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 18 ## **Cross Objection No.102/2014:** The 6th respondent, owner of the vehicle involved in the accident filed Cross Objection No.102/20214 against the order of pay and recovery by the Tribunal for the reason that the offending vehicle did not have valid fitness certificate at the time of accident. 2. According to the learned counsel, the vehicle was having valid fitness certificate at the time of accident and he produced Annexure A photocopy of the certificate with regard to vehicle bearing Reg.No.KL-05-M-5830 issued by the Joint Regional Transport Officer, Wadakkancherry. 4. The learned Standing Counsel for the appellant/insurer objects in marking the document. According to him, the entries in Annexure A has to be proved by the officer who issued the same. 5. The learned counsel for the owner of the vehicle attempted to convince this Court that Annexure A would show that the vehicle was having valid fitness certificate. On examining the same column of status of Fitness Details contains letter 'N'. Hence in order to give an opportunity to the cross objector/6 th respondent to prove Annexure A, the case is remanded to the Motor Accidents Cross Objection Nos.59 & 102 of 2014 in MACA.No.1194 of 2013 19 Claims Tribunal, Thrissur. 6. The Cross Objection No.102/2014 stands allowed to the extent of permitting the cross objector/owner of the vehicle to produce and prove Annexure A before the Tribunal. 7. The Tribunal shall consider the application to receive the additional document and pass appropriate orders in accordance with law within three months from the date of receipt of copy of this judgment. Right of insurer/appellant to recover the amount awarded as well as the enhanced compensation will be subject to the result of the finding of the Tribunal after the remand. The Registry is directed to forward additional documents, Annexure A along with the records. Sd/- ## **M.R.ANITHA JUDGE** shg/SMF