Valsala and Anju Sathyan v. National Insurance Company Ltd and Oriental Insurance Company Ltd and others

MACA No. 2296 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** ## **MACA NO. 2296 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 2273/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM APPELLANT/S:** VALSALA,S/O SATHYAN,AGED 52 YEARS 1 PANATHITTAYIL HOUSE, SHANMUGKHAPURAM,, PACHALAM P.O., KOCHI-12. ANJU SATHYAN, DO.SATHYAN, AGED 25 YEARS 2 PANATHITTAYIL HOUSE, SHANMUGKHAPURAM,, PACHALAM P.O.,KOCHI-12. BY ADV SRI.T.K.AJITHKUMAR (VALATH) ELDO P. CHACKO, S/O P.N.CHACKO, 1 POOKKAMPILLY HOUSE, KOMBANAD P.O. THE BRANCH MANAGER, NATIONAL INSURANCE 2 COMPANY, MYDHILI MANDIRAM, JANATHA JUNCTION, PALARIVATTOM. KOCHI-25 THE BRANCH MANAGER, THE ORIENTAL 3 INSURANCE COMPANY, ELIZABETH GARDEN,, EDAPPALLY HIGH SCHOOL JUNCTION, KOCHI-24. ROSY, W/O.LATE JOSEPH AGED 68 YEARS, 4 KACHAPPILLY HOUSE, KIZHAKKAMBALAM,, PERUMBAVOOR P.O. MERCY JOSEPH, DO.LATE JOSEPH 5 AGED 68 YEARS, KACHAPPILLY HOUSE,, KIZHAKKAMBALAM, PERUMBAVOOR P.O. 6 JANCY JOSEPH DO.LATE JOSEPH ## **RESPONDENT/S:** MACA No. 2296 OF 2009 2 AGED 68 YEARS, KACHAPPILLY HOUSE,, KIZHAKKAMBALAM, PERUMBAVOOR P.O. BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.K.SUNILKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 2296 OF 2009 3 ## **JUDGMENT** The appellants were the petitioners 2 and 3 in OP(MV) No.2273/2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents 2 to 7 before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Aneesh (deceased), son of the petitioners 1 and 2 and the brother of the 3[rd] petitioner. It was their case that, on 05.07.2004, while the deceased was riding his motor cycle bearing registration No.KL 7F 9813 through the M.G.Road, Ernakulam from North to South direction, when he reached the Padma Junction, a bus bearing registration No.KL 7AF 5200 (bus) driven by the 2nd respondent in a rash and negligent manner, hit the motor cycle of the deceased. The deceased instantaneously lost MACA No. 2296 OF 2009 4 his life. The bus was owned by the 1[st] respondent and insured with the 3[rd] respondent. The 4[th] respondent was the insurer of the motor cycle ridden by the deceased. The deceased was a Technician and was working in a private concern at Mattancheri. He was earning a monthly income of Rs.4,000/-. The appellants were the dependents of the deceased. They claimed a total compensation of Rs.10,55,000/- from the respondents 1 to 3. 3. During the pendency of the claim petition, the 1[st] petitioner expired. The petitioners 2 and 3 were recorded as the legal representatives of the deceased 1[st] petitioner. Similarly, the 1[st] respondent also expired. His legal representatives were impleaded as respondents 5 to 7. 4. The respondents 3 and 4 contested the proceedings. The 3[rd] respondent had filed a written statement contending that the accident occurred due to the negligence of the deceased. The 3[rd] respondent also disputed the age, income and occupation of the deceased. MACA No. 2296 OF 2009 5 5. The 4[th ] respondent contended that the accident occurred due to the negligence of the 2[nd] respondent. The 4[th] respondent prayed that the 3[rd] respondent may be directed to pay the compensation amount. 6. The petitioners 2 and 3 produced and marked Exts.A1 to A16 in evidence. The respondents did not let in any evidence. 7. The Tribunal after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners 2 and 3 to recover from the 3[rd] respondent an amount of Rs.3,60,000/- with interest @ 7% per annum from the date of petition till expiry of one month and, thereafter, at the rate of 9% per annum till the date of realisation and proportionate cost. The compensation amount was directed to be apportioned between the petitioners 2 and 3 in the ratio of 70:30. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 2 and 3 are in appeal. 9. Heard; Sri.T.K.Ajith Kumar, the learned counsel MACA No. 2296 OF 2009 6 appearing for the appellants/petitioners, Smt.Deepa George, the learned counsel appearing for the 2[nd] respondent and Sri.P. Jacob Mathew, the senior learned counsel appearing for the 3[rd] respondent. 10. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 11. Ext.A2 charge sheet filed by the Kochi City Traffic Police in Crime No.2068/04 proves that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the bus. The 3[rd] respondent admitted that the bus had a valid insurance coverage and has not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Income of the deceased** 12. The petitioners had claimed that the deceased MACA No. 2296 OF 2009 7 was a technician and was employed in a private concern in Mattancheri. Even though they claimed that the deceased was earning a monthly income of Rs.4,000/-, the Tribunal fixed the monthly notional income of the deceased at Rs.5,000/-. I do not find any error in the fixation of the notional income of the deceased at Rs.5,000/-, per month, which I confirm. ## **Multiplier** 13. Ext.A5 SSLC book proves that the deceased was aged 22 years on the date of accident/death. 14. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is '18'. ## **Dependents of the deceased** 15. It is proved that the deceased was a bachelor. 16. In the light of the law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one half of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** MACA No. 2296 OF 2009 8 17. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the age of the deceased at 22 years, I hold that the appellants are entitled to future prospects at 40% on the compensation for loss due to dependency. ## **Loss due to Dependency** 18. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.5,000/-, multiplier at 18, future prospects at 40% and deducting one half of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.7,56,000/-, instead of Rs.3,30,000/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 19. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation under the conventional heads namely, funeral expenses, loss of estate and loss of consortium at Rs.15,000, Rs.15,000 and Rs.40,000 respectively. MACA No. 2296 OF 2009 9 20. In the instant case, the Tribunal has awarded only an amount of Rs.3,000/- under the head funeral expenses and Rs.5,000/- towards loss of estate. 21. In the light of the law laid down in **Pranay Sethi** (supra) I enhance the compensation under the aforesaid heads by a further amount of Rs.12,000/- and 10,000/- respectively. 22. It is seen that the Tribunal has not awarded any amount under the head 'loss of consortium'. In such circumstances, I award an amount of Rs.40,000/- each to the petitioners 2 and 3 - mother and sister of the deceased, totaling to an amount of Rs.80,000/-. ## **Compensation for loss of love and affection and pain and sufferings** 23. The Tribunal has awarded an amount of Rs.10,000/- under the head 'pain and suffering' and Rs.10,000/- under the head 'loss of love and affection'. 24. In paragraph 19 of **Sarla Verma** (supra) the Honourable Supreme Court has held that in the case of instantaneous death, no amount shall be awarded under the head pain and sufferings. MACA No. 2296 OF 2009 10 25. Similarly, in **New India Assurance Company Ltd. vs. Somvathy and others :** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium' is awarded, no amount of compensation shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. 26. Therefore, I set aside the amounts of Rs.10,000/each, awarded under the head 'pain and suffering' and 'loss of love and affection'. 27. With respect to the compensation awarded under the head transportation expenses, I find that the Tribunal has awarded reasonable and just compensation. 28. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the above cited decisions, I hold that the appellants/petitioners 2 and 3 are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: Sl. Head of claim Amount Amounts MACA No. 2296 OF 2009 11 **==> picture [415 x 425] intentionally omitted <==** **----- Start of picture text -----**<br> modified<br>awarded by and<br>N the recalculated<br>o Tribunal(in by this<br>Court(in<br>rupees)<br>rupees)<br>Transportation<br>1. 2,000 2,000<br>expenses<br>2. Funeral expenses 3,000/- 15,000<br>3. loss of estate 5,000/- 15,000<br>4. Pain and sufferings 10,000 0<br>Loss of love and<br>5. 10,000 0<br>affection<br>6. Loss of consortium 0 80,000<br>Loss due to<br>7. dependency 3,30,000 7,50,000<br>Total 3,60,000 8,62,000<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by enhancing the compensation by an amount of Rs.5,02,000/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate cost. The 2[nd] respondent - insurer in the appeal/3[rd] respondent/insurer of the offending bus is ordered to deposit the enhanced compensation awarded MACA No. 2296 OF 2009 12 in the appeal before the Tribunal with interest and cost within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellants/petitioners 2 and 3 in the ratio of 50:50 and in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc