Valsa w/o Late Jose, Jinson s/o Late Jose, Jiffin s/o Late Jose and Eliakutty w/o Late Kunjuvareed v. Rajeesh K.T., Assis S. and The New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944** ## **MACA NO. 787 OF 2013** **AGAINST THE AWARD DATED 08.10.2012 MADE IN OPMV 2147/2006 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS/PETITIONERS:** 1 VALSA W/O.LATE JOSE. 2 JINSON S/O.LATE JOSE. 3 JIFFIN S/O.LATE JOSE. 4 ELIAKUTTY W/O.LATE KUNJUVAREED. ALL ARE RESIDING AT CHITTILAPPILLY HOUSE, P.O.KOZHUKKULLY, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** 1 RAJEESH.K.T. S/O.THANKAPPAN, RESIDINGA AT KOOTHODIYIL HOUSE, P.O.VEMOM, MANANTHAVADY, WAYANAD, PIN-670 645. 2 ASSIS.S S/O.SAIDUMOHAMMED, RESIDING AT KALLINGALPADAM, PANNIANKARA.P.O., ALATHUR, PALAKKAD DISTRICT. PIN-678 683. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED VARIKKODAN BUILDING, NILAMBUR ROAD, MANJERI, MALAPPURAM DISTRICT, PIN-679 329. BY ADV.SRI.THOMAS MATHEW NELLIMOOTIL - R3. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.787 of 2013 2 ## **JUDGMENT** Dated this the 18[th] day of May, 2022 This appeal has been filed against the award passed in O.P.(MV) No.2147/2006 on the file of the Motor Accidents Claims Tribunal, Thrissur (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the death of husband of 1st appellant and father of appellants 2 and 3. 4th appellant is the mother of the deceased. Accident occurred on 08.7.2006 at about 09.30 p.m., while deceased was travelling in a jeep through Ollur Gramodharanam road, due to hit with mini lorry bearing Reg.No.KL10/E-9270 driven by the 2nd respondent. Immediately he was taken to Elite Mission Hospital, Thrissur. While undergoing treatment he died on the same day. It is alleged that the accident happened due to the rash and negligent driving of the bus by the 2nd respondent. 1st respondent is the owner of mini lorry and 3rd respondent is the insurer of the offending vehicle. The appellants claimed a total compensation of Rs.7,82,500/- which is limited to Rs.7,00,000/-. 2. Before the Tribunal, respondents Nos.1 and 2 remained MACA.No.787 of 2013 3 ex-parte. 3[rd] respondent filed written statement admitting the policy coverage with respect to the offending vehicle. Rashness and negligence on the part of the 2nd respondent is denied. 3. There was no oral evidence from either side. Exts.A1 to A9 series were marked from the side of the appellants/claimants. Ext.B1 marked from the side of the 3[rd] respondent. Tribunal on evaluating the pleadings and documents found that the accident happened due to the rash and negligent driving of the mini lorry by the 2[nd] respondent. 1[st] respondent/owner is held liable for the act of the 2[nd] respondent. The 3[rd] respondent insurance company was held liable to indemnify the 1[st] respondent/owner. A total compensation of Rs.4,19,500/- was awarded. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants (herein after be referred as claimants) came up before this Court in appeal under various grounds stated in the Memorandum of appeal. 5. Notice to 1[st] respondent is dispensed with at the risk of the claimants. Adv.Sri.Thomas Mathew Nellimoottil, entered appearance for the 3[rd] respondent/insurer. Service is complete as against 2[nd] respondent. MACA.No.787 of 2013 4 6. Heard the learned Counsel for the claimants as well as the learned Standing Counsel for the 3[rd] respondent/insurer. Lower court records were called for and perused. 7. According to the learned counsel for the claimants, the deceased was conducting wood business and was earning Rs.10,000/- per month. But, the Tribunal taken the monthly income notionally as Rs.3,500/-, which according to him is very low. He also would contend that the compensation awarded under the conventional heads are also very low and hence, seeks for enhancement under those heads. 8. The learned Standing Counsel for the insurer/3rd respondent would contend that just and reasonable compensation has already been awarded and no interference is called for at the instance of this Court. 9. Monthly income of the deceased has been claimed as Rs.10,000/-. No evidence could be adduced to prove the actual income or occupation of the deceased. Accident in this case was on 08.07.2006. Deceased was 54 years old. Applying the principles in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance** **Company Limited [(2011) 13 SCC 236]** , the monthly income of MACA.No.787 of 2013 5 the deceased can be taken as Rs.5,500/-. 10. 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 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. ## 11. 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 MACA.No.787 of 2013 6 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 the compensation should not be a windfall nor be a pittance. 12. In **Pranay Sethi** , 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. 13. In the present case, the monthly income has already been taken as Rs.5,500/-. So, the claimants are entitled to get 10% addition future prospects, since the deceased was 54 years at the time of accident. Hence monthly income would be Rs.5,500+550 (10% of 5,500)= Rs.6,050/-. 14. On the question of deduction towards personal expenses MACA.No.787 of 2013 7 in Sarla Verma's case, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65)** . 15. In Reshma Kumari's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly MACA.No.787 of 2013 8 ## correspond to the number of dependants. 16. Since, appellants are 4 in number, the deduction towards personal and living expenses would be '¼' as per Sarala Varma, Reshma Kumari and approved by the Constitution Bench in Pranay Sethi. 17. The deceased was 54 years old. The proper multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** is '11'. 18. 1/4th to be deducted towards personal and living expenses. Deducting that annual contribution to the family would be Rs.54,450/- (Rs.72,600-18,150). So the compensation towards dependency would be Rs.5,98,950/- (Rs.54,450x11). From that the amount awarded by the Tribunal to be deducted. Hence, enhanced amount towards loss of dependency would be Rs.2,52,450/(Rs.5,98,950-3,46,500). 19. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions MACA.No.787 of 2013 9 in **Pranay Sethi** where in Apex court 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. 20. Apex Court has also held that the above amounts should be revised on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. 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 claimants are entitled to get Rs.16,500/- each under the head of loss of estate and funeral expenses. 21. Next is with regard to the consortium to be awarded. In **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru** **Ram & Ors. [2018 (18) SCC 130],** the Apex court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. 22. In this case, 1[st] claimant, wife as well as the claimants 2 to 4 are entitled for consortium. So, towards loss of consortium the claimants are entitled to get Rs.44,000x4=Rs.1,76,000/-. Once compensation has been awarded under the head of consortium, the MACA.No.787 of 2013 10 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])** . Tribunal awarded Rs.25,000/- towards loss of consortium and another Rs.25,000/towards love and affection. Those amounts to be deducted from Rs.1,76,000/-, the balance amount would be Rs.1,76,00050,000=Rs.1,26,000/-. Towards loss of estate and funeral expenses only Rs.5,000/- each has been awarded by the Tribunal. It has been found already that the claimants are entitled to get Rs.16,500/towards loss of estate and another Rs.16,500/- towards funeral expenses. Deducting the amount already awarded under the head of funeral expenses as well as loss of estate the claimants are entitled to get Rs.11,500/- each under those heads. So the claimants are entitled to get enhanced compensation of Rs.4,01,450/- (Rs.2,52,450 + 1,26,000 + 11,500 + 11,500). 23. In the result, appeal allowed and claimants are allowed to realise enhanced compensation of **Rs.4,01,450/-** ( **Rupees four lakhs one thousand four hundred and fifty only** ) in this appeal, which will carry interest at the rate of **6%** per annum from the date of petition till date of realization (excluding 46 days delay). MACA.No.787 of 2013 11 Enhanced compensation shall be apportioned among the appellants/claimants in the ratio 40:20:20:20. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, deducting the liability of the claimants towards balance court fee within a period of two months from the date of receipt of certified copy of this judgment. 24. The disbursement of enhanced compensation to appellant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Sd/- ## **M.R.ANITHA JUDGE** SMF