Unneekutty and others v. Ahamedkutty and Balakrishnan K. S. and The Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943** **MACA NO. 989 OF 2013** **AGAINST THE AWARD DATED 16.02.2013 IN OP(MV)NO.717/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM** ## **APPELLANTS/ PETITIONERS:** - **1 UNNEEKUTTY, AGED 49 YEARS, S/O. UNNIPOKKU HAJI.** - **2 ASIYA, AGED 47 YEARS, W/O. UNNENKUTTY** - **3 KUHAMMED KOYA, AGED 29 YEARS, S/O. UNNEENKUTTY** - **4 AYISHAKUTTY, AGED 27 YEARS, D/O. UNNEENKUTTY** - **5 KHADEEJA, AGED 15 YEARS, MINOR.** - **6 TABSEERA AGED 13 YEARS, MINOR.** - **7 FATHIMA FIDHA AGED 3 YEARS, MINOR.** **(MINOR PETITIONERS ARE REPRESENTED BY THEIR FATHER AND LEGAL GUARDIAN UNNEENKUTY AND ALL ARE RESIDING AT PEEDIKAKANDY HOUSE, P.O. MUNDAKKAL, CHERUVAYOOR VIA, MALAPPURAM DISTRICT - 673 645.** ## **BY ADV SRI.K.VIDYASAGAR** ## **RESPONDENTS/ RESPONDENTS:** - **1 AHAMMEDKUTTY, S/O. UNNIMAMMED, MANGATTUPARAMBIL,** M.A.C.A.No.989/2013 -:2:- **PUTHUKUDI, P.O. OMANUR, CHERUVAYOOR, MALAPPURAM DISTRICT - 673 645.** **2 BALAKRISHNAN K. S/O. BICHIKKANDAN, KAYATHIMMAL HOUSE, P.O. OMANUR, MALAPPURAM DISTRICT - 673 645.** **3 THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, MANJERI, JASEELA COMPLEX, BYE PASS JUNCTION, NILAMBUR ROAD, MANJERI, MALAPPURAM DISTRICT - 676 121.** **BY ADV SRI.TITUS MANI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.989/2013 -:3:- _Dated this the 1[st] day of November,2021_ ## **J U D G M E N T** The appellants were the petitioners in O.P.(MV) No.717/2009 on the file of the Motor Accidents Claims Tribunal, Manjeri. 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 Sri. Abdul Ali M.(deceased) – the son of the appellants 1 and 2 and brother of the appellants 3 to 7. It was their case that, on 28.07.2008, while the deceased was riding his motorcycle along the Kondotty-Mundakkal road, when he reached the place named Vattaparamba, a bus bearing registration No.KL-10/P-7177(bus), driven by the second respondent in a rash and M.A.C.A.No.989/2013 -:4:- negligent manner, hit the motorcycle of the deceased. The deceased sustained serious injuries and lost his life on 28.07.2008. The deceased was working in a private firm and earning a monthly income of Rs.7,000/-. The appellants were the dependants of the deceased. The bus was owned by the first respondent and insured with the third respondent. Hence, they claimed an amount of Rs.5,40,000/- as compensation from the respondents, which was limited to Rs.5,00,000/-. 3. The respondent Nos.1 and 2 did not contest the proceedings and were set _ex parte_ . 4. The third respondent-insurer had filed a written statement admitting that the bus had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the deceased. The third respondent also contended that the compensation claimed was on the higher side. 5. The appellants examined the employer of the M.A.C.A.No.989/2013 -:5:- deceased as PW1 and marked Exts.A1 to A10 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to realise from the third respondent an amount of Rs.3,44,214/- with interest at the rate of 9% per annum from the date of petition till the date of realisation and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri. K. Vidyasagar, the learned counsel appearing for the appellants/petitioners and Sri. Titus Mani, the learned counsel appearing for the third respondent-insurer. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable M.A.C.A.No.989/2013 -:6:- and just? 11. This Court had by its earlier judgment dated 03.01.2018 allowed the appeal by enhancing the compensation. However, the appellants filed R.P.No.328/2018, _inter alia,_ contending that there was an error apparent on the face of the judgment. Being convinced of the error, this Court had by its order dated 14.09.2021 allowed the review petition and recalled the above judgment. The appeal was directed to be re-heard. Accordingly, the appellant is re-heard. ## **Negligence and liability:** 12. Ext.A3 chargesheet filed by the police after investigation substantiates that the accident occurred due to the negligence of the second respondent. Undisputedly, the first respondent was the owner and the third respondent was the insurer of the bus. The third respondent had admitted that the bus had a valid insurance coverage and had not proved that the first respondent had violated the insurance policy M.A.C.A.No.989/2013 -:7:- conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. ## **Income of the deceased:** 13. The appellants had claimed that the deceased was employed in a private firm and drawing a monthly salary of Rs.7,000/-. They produced Ext.A1 salary certificate and examined PW1 to prove the document. However, the Tribunal for the reason that no supporting materials was produced, refused to accept Ext.A1 on its face value. Accordingly, the Tribunal fixed the notional monthly income of the deceased at Rs.3,500/-. 14. In _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 15. Following the yardstick in the afore-cited M.A.C.A.No.989/2013 -:8:- decision and considering the fact that the accident occurred in the year 2008, I re-fix the notional income of the deceased at Rs.6,500/- per month. ## **Multiplier** 16. It is proved that the deceased was aged 21 years at the time of the accident/death. In the light of the law laid down in _**Sarla Verma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)],the relevant multiplier is '18'. ## **Dependants of the deceased:** 17. Admittedly, the deceased was a bachelor. Following the ratio in _**Sarla Verma**_ (supra) and ## _**National Insurance Company Ltd. v. Pranay Sethi**_ [(2017) 16 SCC 680], one-half of the compensation towards 'loss of dependency' has to be deducted towards the 'personal living expenses' of the deceased. ## **Future prospects:** 18. Going by the law laid down in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra), and considering that the M.A.C.A.No.989/2013 -:9:- deceased was aged 21 years at the time of the accident, I hold that the appellants are entitled for 'future prospects' at the rate of 40% on the compensation for 'loss due to dependency'. ## **Loss due to dependency:** 19. Taking into account the above-mentioned factors, i.e, the 'notional income' of the deceased at Rs.6,500/- per month, the 'multiplier' at '18', 'future prospects' at 40% and after deducting one-half of the compensation towards the 'personal living expenses' of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.9,82,800/-, instead of Rs.2,73,000/awarded by the Tribunal. ## **Conventional heads of compensation:** 20. In clause (viii) of paragraph 61 of _**Pranay Sethi**_ (supra), the Hon'ble 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 M.A.C.A.No.989/2013 -:10:- 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.5,000/- towards 'loss of estate' and Rs.3,000/- towards 'funeral expenses'. As laid down in _**Pranay Sethi**_ (supra), I enhance the compensation under the above two heads by a further amount of Rs.10,000/- and Rs.12,000/-, respectively. 22. The Tribunal has not awarded any amount under the head 'loss of consortium'. Again, as held in _**Pranay Sethi**_ (supra), I award the appellants 1 and 2 – the parents of the deceased – and the appellants 5 to 7 – the minor sisters of the deceased an amount of Rs.40,000/- each, totalling to an amount of Rs.2,00,000/- towards 'loss of consortium'. I decline to award any amount under the above head to the appellants 3 and 4, as they were majors and older to the deceased, and have not proved that they were dependants of the deceased. M.A.C.A.No.989/2013 -:11:- ## **Loss of love and affection:** 23. The Tribunal has awarded an amount of Rs.10,000/- towards compensation for 'loss of love and affection'. 24. In _**New India Assurance Company Ltd. v. Somwati & Ors.**_ [2020(9)SCC 644] the Hon'ble Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no compensation shall not be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. Therefore, I set aside the amount awarded under the said head. 25. The Tribunal has awarded an amount of Rs.53,214/- towards the 'medical expenses' of the deceased. Considering the fact that it was the actual expenditure that was incurred by the appellants for the treatment of the deceased, I confirm the said finding. M.A.C.A.No.989/2013 -:12:- 26. On a comprehensive re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Medical expenses|53,214|53,214| |2|Loss of love and<br>affection|10,000|Nil| |3|Loss of estate|5,000|15,000| |4|Funeral expenses|3,000|15,000| |5|Loss<br>due<br>to<br>dependancy|2,73,000|9,82,800| |6|Loss of consortium|Nil|2,00,000| ||**Total**|**3,44,214**|**12,66,014**| 27. Even though the appellants had claimed only an amount of Rs.5,00,000/- as compensation, following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra), wherein the Hon'ble Supreme Court has held that the M.A.C.A.No.989/2013 -:13:- dependants of the deceased are entitled for 'future prospects' and compensation under the conventional heads of compensation, I award the appellants more compensation than what is claimed in the claim petition. The above course is permissible in view of the law laid down by the Hon'ble Supreme Court in _**Nagappa v. Gurudayal Singh**_ [2003 (1) KLT 115 SC] and _**Rajesh v. Rajbir Singh**_ [2013 (3) KLT 89 SC]. In the result, the appeal is allowed, by enhancing the compensation by an amount of **Rs.9,21,800/-** with interest on the enhanced compensation at the rate of 8% per annum from the date of petition till the date of realisation and proportionate cost. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation with interest and cost to the appellants 1, 2, 5 to 7 in M.A.C.A.No.989/2013 -:14:- the ratio of 35:35:10:10:10 and in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** DST/01.11.2021 //True copy/ P.A.To Judge