Usain and Ayisha v Abdul Nazar and Biju James and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 1[ST] DAY OF JULY 2021 / 10TH ASHADHA, 1943** **MACA NO. 1280 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV)NO.440/2004 OF PRINCIPAL MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE** ## **APPELLANTS/PETITIONERS IN THE OP(MV):** 1 USSAIN, S/O.ABU, AGED 49 YEARS, RESIDING AT PULLORAKAVIL HOUSE,P.O.PADANILAM,, KOZHIKODE DISTRICT. 2 AYISHA, W/O. USSAIN, AGED 43 YEARS, RESIDING AT PULLORAKAVIL HOUSE, P.O.PADANILAM,, KOZHIKODE DIST. BY ADV SMT.LATHA PRABHAKARAN ## **RESPONDENTS/RESPONDENTS IN THE OP(MV):** 1 ABDUL NAZAR, S/O.MARIYA, AGE NOT KNOWN, RESIDING AT EDATHANATHKAVU.P.O., ALANALLOOR, MANNARKKAD. 2 BIJU JAMES, S/O. CHACKO AGED 43 YEARS, RESIDING AT PLANKATTU HOUSE, KODENCHERY AMSOM DESOM, P.O., KODENCHERY, KOZHIKODE. 3 THE UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, MANARKKAD. BY ADV SRI.A.A.MOHAMMED NAZIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1280 OF 2009 2** ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.440 of 2004 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal by the respondents before the Tribunal. 2. The appellants had filed a claim petition u/s.166 of the Motor Vehicles, 1988 claiming compensation on account of the death of their son Shijan (deceased), who 27.10.2003 while riding as a pillion rider on a motor cycle bearing Reg.No.KL-10/H-8871, travelling from Padanilam to Kodanchery, when the vehicle reached a place named Collegepadi, a jeep bearing Reg.No.KLU-4668 (offending vehicle) coming from the opposite direction hit the motor cycle. The deceased lost his life on the spot. The driver of the motor cycle also sustained serious injuries. The **MACA NO. 1280 OF 2009 3** offending vehicle was driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant had claimed that the deceased was a painter by profession and earning a monthly income of Rs.5,000/-. The appellants contended that the respondents 1 to 3 were jointly and severally liable to pay compensation to them, which they quantified at Rs.4,76,000/-, but limited to Rs.4,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings. However, the 2[nd] respondent had filed a written statement, inter alia, contending that the accident occurred solely due to the negligence on the part of the deceased. 4. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy, but denied the assertion in the claim petition. ## **MACA NO. 1280 OF 2009 4** 6. The Tribunal consolidated and jointly tried the claim petition filed by the appellants along with the claim petition – OP(MV) No.402 of 2004 - filed by the rider of the motor cycle. The appellants produced and marked Exts.A1 to A4 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by a common award allowed the claim petition in part, by permitting the appellants to realise an amount of Rs.1,70,000/- with interest @ 7% per annum from the date of filing of the claim petition till the date of deposit along with costs. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard, the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the 2nd respondent/ Insurance Company. ## **MACA NO. 1280 OF 2009 5** 10. The question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. A constitution Bench of the Hon'ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680)**_ , has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 12. Ext.A1 Final Report filed by the police substantiates that the accident occurred solely on account of the negligence of the 2[nd] respondent, who drew the **MACA NO. 1280 OF 2009 6** vehicle in a rash and manner. offending negligent Admittedly, the 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the vehicle. Therefore, it is the 3[rd] respondent, who is liable to indemnify the 1[st] respondent of his liability to pay the compensation. 13. Ext.A4 legal heir ship certificate proves that the appellants are the legal heirs of the deceased. Ext.A2 wound certificate and Ext.A3 postmortem certificate substantiates that the deceased passed away on 27.10.2003 due to the accident. Although, the appellants had claimed that the deceased was 20 years of age, it was found, as per Ext.A3 postmortem certificate, for want of other materials, that the deceased was 17 years of age. Even though the appellants had claimed that the deceased was a painter by profession and earning a monthly income of Rs.5,000/-, they did not substantiate their assertion. **MACA NO. 1280 OF 2009 7** Therefore, the Tribunal fixed the notional income of the deceased at Rs. 15,000/- per annum, i.e Rs.1,250/- per month. ## **Notional Income** 14. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)**_ has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/per month. It is held that the notional income had to be enhanced by Rs.5,00/- every year. 15. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decision, I am of the firm opinion that as the accident occurred in the year 2003 and the deceased was a painter by profession, his notional income can safely be fixed at Rs.4,000/- per month. Hence, I refix the notional income of the deceased **MACA NO. 1280 OF 2009 8** at Rs.4000/- per month. ## **Future prospects** 16. In _**Sarala Verma v. Delhi Transport Corporation (2009) 6 SCC 121)**_ and host of subsequent decisions, the Hon'ble Supreme Court has categorically held that the dependents of the deceased are entitled for future prospects 40% of the total compensation to be awarded under the head 'loss of dependency'. 17. In the case on hand, as the deceased was a self employed, the appellants are entitled for future prospects at 40%. ## **Personal living expenses** 18. Again in _**Sarala Verma**_ and _**Pranay Sethi**_ (supra) it is held that ½ of the compensation under the head 'loss due dependency' has to be deducted towards personal living expenses of the deceased in the case of ## **MACA NO. 1280 OF 2009 9** bachelors. ## **Multiplier** 19. Going by the law laid down in _**Sarala Verma**_ and _**Pranay Sethi**_ (supra), as the deceased found to be 17 years of age, the relevant multiplier is '18'. ## **Compensation for loss due to dependency** 20. Following the above parameters, i.e fixing he notional income of the deceased at Rs.4,000/-, future prospects at 40%, the relevant multiplier as 18, and after deducting one half of the amount towards personal living expenses, I fix the compensation under the head loss due to dependency along with future prospects at Rs.6,04,800/instead of 1,50,000/- fixed by the Tribunal. ## **Conventional heads of compensation** 21. In _**Pranay Sethi**_ (supra), the Hon'ble Supreme Court in Clause (viii) of paragraph 61 has held that the **MACA NO. 1280 OF 2009 10** dependents of the deceased are entitled for compensation under the conventional heads namely; funeral expenses, loss of estate, loss of consortium at Rs. 15,000/-, 15,000/and 40,000/- respectively. Hence, I refix compensation under the head 'loss of estate' at Rs.15,000/-, 'funeral expenses' at Rs.15,000/- and 'loss of consortium' at Rs.80,000/-. ## **Love and affection and Pain and Sufferings** 22. The Hon'ble Supreme Court in _**United India Insurance Company Ltd. v. Sachindar Kaur @ Satindar Kaur and others (2020 (3) KHC 760)**_ has held that the dependents of the deceased are not entitled for compensation under the head 'pain and sufferings'. Therefore, I set aside the amount of Rs.7,000/- awarded by the Tribunal under the said head. 23. This Court in _**and others v. Kunjandy**_ **MACA NO. 1280 OF 2009 11** _**Rajendran (2020(2) KLT 315)**_ has held that once compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head 'loss of love and affection', as it would be a duplication of compensation. In view of the said law, I set aside the amount of compensation granted under the two heads. 24. With respect to the compensation awarded under the head transportation, I find that the Tribunal has awarded reasonable and just compensation. 25. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforesaid decisions, I am of the firm opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **MACA NO. 1280 OF 2009 12** |Head of claim|Amount<br>Awarded by<br>the Tribunal<br>(in Rs.)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---| |Transportation<br>expenses|1,000/-|1,000/-| |Funeral expenses|2,000/-|15,000/-| |Loss of estate|-|15,000/-| |Love and affection|10,000/-|-| |Pain and suffering|7,000/-|-| |Loss of consortium|-|80,000/-| |Loss of dependency<br>with<br>future<br>prospects|1,50,000/-|6,04,800/-| |Total|1,70,000/-|7,15,800/-| 24 **.** The appellants had claimed total compensation of Rs.4,76,000/- which was limited to 4,00,000/-. Following the law laid down in the authorative precedents of the **MACA NO. 1280 OF 2009 13** Hon’ble Supreme Court, I have refixed the compensation, which is now Rs.7,15,800/-, which is much above the compensation claimed by the appellants in the claim petition. 27. In _**Nagappa v. Gurudwara Singh (2003) 1 KLT 115) and in Rajesh v. Rajbir Singh (2013) 3 KLT 89 SC)**_ the Hon'ble Supreme Court has held that the court can award compensation in excess of what is claimed in the claim petition because the compensation to be awarded is just compensation and the same can be awarded irrespective of the claim made in the claim petition. In the said circumstances, I fix the compensation as recalculated above at Rs.7,15,800/-. In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.5,45,800/- with interest at the rate of Rs.6% per annum on the enhanced **MACA NO. 1280 OF 2009 14** compensation from the date of admission of this appeal i.e., 19.03.2021 till the date of deposit and proportionate costs. The 3[rd] respondent shall deposit the additional compensation amount awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellants/petitioners in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm