T.K. Prabhakaran and others v. Shaji P.K and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 14[TH] DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943** **MACA NO. 1571 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 237/2004 OF THE MOTOR** **ACCIDENT CLAIMS TRIBUNAL , ERNAKULAM** ## **APPELLANT/S:** 1 T.K.PRABHAKARAN ,S/O.KUNJAPPAN THAKADIYIL HOUSE, XV/627, SNDP ROAD,, NATTAKOM VILLAGE, PALLAM P.O., KOTTAYAM. 2 T.P.RAJENDRAPRASAD, S/O. PRABHAKARAN 3 T.P.AMBILI, D/O. PRABHAKARAN -DO- -DOBY ADV SRI.G.BALAMURALEEDHARAN (PARAVUR) ## **RESPONDENT/S:** - 1 SHAJI P.K, S/O.KARUPPAN PANDANAD HOUSE, CHERANELLUR P.O.,, ERNAKULAM DISTRICT-682 034. - 2 VIJAYAN, S/O. RAMAN THANNIKKAPARAMBU HOUSE, CHERANELLUR P.O.,, PIN-682 034. - 3 UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, PMS BUILDING, ELOOR ROAD,, KALAMASERY P.O., ERNAKULAM DISTRICT-683 104. BY ADV SMT.R.REMA ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1571 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.1571 of 2011** ## **====================== Dated this the 14[th] day of September, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.237/2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam. 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 one Ratnamma (deceased), the wife of the first appellant and the mother of the appellants 2 and 3. 3. It was their case that, on 26.1.2003, while the deceased was walking through the Vyttila – Aroor Bypass road, a bus bearing registration No.KER-6240 (bus) driven by the second respondent in a negligent manner skidded off the road and fell turtle on the deceased. She lost her 3 MACA No.1571 of 2011 life instantaneously. The deceased was a casual worker and earning a monthly income of Rs.3,000/-. The appellants were the dependents of the deceased. The bus belonged to the first respondent and insured with the third respondent. The appellants claimed a compensation of Rs.4,00,000/- from the respondents, which was limited to Rs.3,00,000/-. 4. In the very same incident, the daughter (Praseetha) of the deceased also lost her life and the appellants had filed OP(MV) 238/2004 before the same Tribunal, claiming compensation on account of the death of Praseetha. 5. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 6. The third respondent filed a written statement denying negligence on the part of the second respondent. It was contended that the accident occurred due to the negligence of the deceased. Nevertheless, the third 4 MACA No.1571 of 2011 respondent admitted that the bus had a valid insurance coverage. It was also stated the compensation claimed was excessive and exorbitant. Hence, the third respondent prayed that the claim petition be dismissed. 7. The Tribunal consolidated and jointly tried the original petitions. The appellants produced and marked Exts A1 to A4 in evidence. 8. The Tribunal, by a common award, allowed the captioned original petition by permitting the appellants to realise from the third respondent an amount of Rs.2,55,499/- with interest at the rate of 7.5% per annum and proportionate costs. 9. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 10. Heard; Sri.G.Balamuraleedharan, the learned counsel appearing for the appellants/petitioners and Smt.R.Rema, the learned counsel appearing for the third respondent – insurer. 5 MACA No.1571 of 2011 11. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 12. Ext A2 charge-sheet filed by the City Traffic Police in crime No.357/2003 substantiates that the accident occurred solely due to the negligence of the second respondent. Undisputedly, the first respondent was the owner and the second respondent was the servant of the first respondent. Therefore, the first respondent is vicariously liable to pay the compensation amount. However, as the third respondent had insured the offending bus, the third respondent is to indemnify the liability of the first respondent. ## **Notional Income** 13. The appellants had claimed that the deceased was a casual worker and earning a monthly income of Rs.3,000/-. Nevertheless, the Tribunal fixed the notional 6 MACA No.1571 of 2011 income of the deceased at Rs.2,500/- per month. 14. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 15. Following the principles in the aforecited decision and taking into account the fact that the accident occurred in the year 2003, I am of the opinion that the deceased's notional income can safely be fixed at Rs.3,000/- as claimed in the claim petition. ## **Multiplier** 16. As the deceased was aged 55 years at the time of the accident/her death, the relevant multiplier is '11' in view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121].** ## **Dependents of the deceased** 17. It is on record that the appellants are the 7 MACA No.1571 of 2011 husband and children of the deceased. As they are three in number, one-third of the compensation has to be deducted towards the personal living expenses of the deceased as laid down in **Sarla Verma** (supra) **and National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680].** ## **Future prospects** 18. In **Sarla Verma** and **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are entitled for future prospects. As the deceased was aged 55 years at the time of her death and the multiplier is '11', the appellants are entitled for future prospects at 15%. ## **Loss of dependency** 19. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.3,000/-, the multiplier at 11, future prospects at 15% and deducting one-third of the income of the deceased towards her 8 MACA No.1571 of 2011 personal living expenses, I refix the compensation for loss of dependency of the appellants at Rs.3,03,600/- instead of Rs.2,19,999/- awarded by the Tribunal. ## **Conventional heads of claim** 20. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** has 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/- respectively. 21. In the instant case, the Tribunal has awarded an amount of Rs.3,000/- towards funeral expenses and Rs.5,000/- towards loss of estate. In view of the principles laid down in **Pranay Sethi** (supra), I enhance the amount of compensation under the heads 'loss of estate' and 'funeral expenses' by a further amount of Rs.10,000/- and 12,000/- respectively. I also enhance the amount of 9 ## MACA No.1571 of 2011 compensation under the head 'loss of consortium' to the first appellant alone by a further amount of Rs.30,000/-. Since the appellants 2 and 3 were the major sons of the deceased, I am of the opinion that they are not entitled to compensation loss of consortium. ## **Loss of love and affection and compensation for pain and sufferings** 22. It is seen that the Tribunal has awarded an amount of Rs.10,000/- towards compensation for love and affection and Rs.5,000/- towards compensation for pain and sufferings. 23. In **New India Assurance Co. Ltd v. Somavathy and Ors [(2020) 9 SCC 644]** , the Hon'ble Supreme Court has held that once compensation under the head loss of consortium is awarded, no amount can be awarded under the head loss of love and affection as it is amounted to duplication of compensation. 24. Similarly, in **United India Insurance Co. Ltd v.** 10 MACA No.1571 of 2011 **Satinder Kaur @ Satwinder Kaur and others[(2020(3)KHC 760],** the Hon'ble Supreme Court has held that in the case of instantaneous death, no amount can be awarded under the head pain and sufferings to the dependents of the deceased. 25. In the said circumstances, I set aside the amount of Rs.10,000/- awarded under the head 'loss of love and affection' and Rs.5,000/- awarded under the head 'pain and sufferings' . ## **Other heads of claim** 26. With respect to the compensation awarded under the heads 'transportation expenses' and 'damage to clothing', I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I am of the firm opinion that the appellants/petitioners are entitled for enhancement of 11 MACA No.1571 of 2011 compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|2,000/-|2,000/-| |2|Damage to clothing|500/-|500/-| |3|Pain and sufferings|5,000/-|nil| |4|Loss of consortium|10,000/-|40,000/-| |5|Loss of love and<br>affection|10,000/-|nil| |6|Funeral expenses|3,000/-|15,000/-| |7|Loss of estate|5,000/-|15,000/-| |8|Loss of dependency|2,19,999/-|3,03,600/-| ||Total|2,55,499/-|3,76,100/-| 28. Even though the appellants had limited their claim to Rs.3,00,000/-, following the ratio in **Sarla Verma** and **Pranay Sethi** (supra), wherein it has been held that the dependents of the deceased are entitled for future prospects, the amount of compensation awarded in this judgment has exceeded the amount claimed in the claim 12 MACA No.1571 of 2011 petition. The said course is permissible in view of the law laid down in **Nagappa vs. Gurudayal Singh [2003 (1) KLT 115(SC)]** and **Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)],** wherein the Hon'ble Supreme Court has held that there is no restriction in awarding more compensation than what is claimed in the claim petition. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.1,20,601/(Rupees One Lakh Twenty Thousand Six Hundred and One only) with interest on the enhanced compensation at the rate of 7.5% per annum from the date of claim petition till the date of deposit, after deducting the interest for the period of 243 days, i.e., the period of delay in preferring the appeal and as ordered by this Court on 25.10.2011 in C.M Appln 2405/2011, and cost of Rs.4,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal together with interest and 13 MACA No.1571 of 2011 costs within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants/ petitioners in the ratio of 50:25:25 and in accordance with law, after deducting their liability if any, towards payment of court-fee. All pending interlocutory applications will stand closed. sd/- sks/14.9.2021 **C.S.DIAS, JUDGE**