Veeran and Others v. The New India Assurance Company Ltd.

MACA NO. 1252 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943** **MACA NO. 1252 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 753/2007 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/S:** 1 VEERAN AND OTHERS, AGED 64 YEARS, S/O.MUTHU, NORTH STREET, WARD 3/4, VARADARAJAPURAM P.O,, NAMAKKAL, KASTHOORPETTY,PIN 637 013,, TAMILNADU, (FATHER OF DECEASED) 2 VIJAYAAGED 29 YEARS W/O.LATE MANIVASANGAM,, -DO3 AKHILA (MINOR) 12 YEARS D/O.LATE MANIVASANGAM,, REP.BY HER MOTHER VIJAYA,, -DO4 ABHILASH (MINOR) 11 YEARS S/O. LATE MANIVASANGAM,, REP. BY HER MOTHER VIJAYA. 5 ELAVARASI (MINOR) 8 YEARS D/O.LATE MANIVASANGAM,, REP.BY HER MOTHER VIJAYA,, -DOBY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN 1 SURESH , S/O.DAMODARAN ARIPPINNI HOUSE,VALAPPAD BEACH,, VALAPPAD, THRISSUR, 680567(DRIVER OF GOODS AUTO RICKSHAW NO. KL-8- AF-2960) 2 N.G.SURESH, S/O.GANGADHARAN NELLIKKAL HOUSE, NANNAMUKKU,, NEDUPUZHA P.O, THRISSUR,680015, (OWNER OFGOODS AUTO RICKSHAW NO. KL-8AF-2960) 3 THE NEW INDIA ASSURANCE COMPANY LTD PERINCHERY BUILDING, ROUND NORTH,, THRISSUR, 680601 (POLICY NO.760301/31/06/01/00005402 ## **RESPONDENT/S:** MACA NO. 1252 OF 2011 **==> picture [7 x 9] intentionally omitted <==** VALID FROM 30.7.06 TO 29.7.07) BY ADV SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1252 OF 2011 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.753/2007 on the file of the Motor Accidents Claims Tribunal, Ottappalam. 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 Mani Vasangan (deceased), son of the 1[st] appellant, husband of the 2[nd] appellant and father of the appellants 3 to 5. It was their case that, on 16.02.2007, while the deceased was riding his motor cycle bearing registration No.KL 8E/6637 through Thrissur – Irinjalakkuda public road, when he reached near Urakam Health Centre, a goods autorikshaw bearing registration No.KL8-AF 2960 (autorikshaw) driven by the 1[st] respondent in a rash and negligent manner, came from the opposite direction and hit the motor cycle. The deceased fell on the ground and sustained serious injuries. He was treated as an inpatient in the Medical College Hospital, Thrissur for a period of 42 days. But, unfortunately, he lost his life on 27.03.2007. The deceased was a coolie worker by profession MACA NO. 1252 OF 2011 4 and earning a monthly income of Rs.4,000/-. The autorikshaw was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellants were dependents of the deceased. Hence, the appellants claimed a total compensation of Rs.13,19,750/- from the respondents, which was limited to Rs.7,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement admitting that the autorikshaw had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the deceased. It was contended that since there was a collision between two vehicles, atleast contributory negligence had to be fixed on the deceased. The 3[rd] respondent also disputed the age, income and occupation of the deceased. 5. The 2[nd] appellant was examined as PW1 and Exts.A1 to A12 were marked through her in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analyzing the pleadings and the materials on record, by the impugned award allowed the MACA NO. 1252 OF 2011 5 claim petition in part, by permitting the appellants to realize an amount of Rs.4,43,650/- from the 3[rd] respondent with interest @ 7% per annum from the date of petition till the date of realization and a cost of Rs.5,000/- 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners/appellants are in appeal. 8. Heard; Sri.Sheji P.Abraham, the learned counsel appearing for the appellants/petitioners and Sri.VPK. Panicker, the learned counsel appearing for the 3[rd] respondent/insurer. 9. 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** 10. Ext.A4 charge sheet filed by the Police in Crime No.74/2007 of Cherppu Police Station substantiates that the accident occurred due to the negligence of the 1[st] respondent. Undisputedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the autorikshaw. The 3[rd] respondent admitted that the autorikshaw had a valid MACA NO. 1252 OF 2011 6 insurance coverage and had not alleged that the 2[nd] respondent had violated the policy conditions. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## **Notional Income** 11. The appellants had claimed that the deceased was a coolie worker by profession and earning a monthly income of Rs.4,000/-. Nevertheless, the Tribunal fixed the notional income of the deceased at Rs.3,000/- per month. 12. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the bench mark fixed in the aforesaid decision and taking into account the fact that the accident occurred in the year 2007, I am of the opinion that the notional income of the deceased can safely be fixed at Rs.4,000/- per month. ## **Multiplier** 14. As the deceased was aged 31 years on the date of his MACA NO. 1252 OF 2011 7 death, the relevant multiplier to be adopted to is ‘16’ following the ratio in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802]. ## **Dependents of the deceased** 15. Undisputedly, the appellants were father, wife and children of the deceased, who are five in number. Going by the law laid down in **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 16. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 31 years at the time of accident, I hold that the appellants are entitled to future prospects at 40% on the compensation for loss of dependency. ## **Loss due to Dependency** 17. Taking into account the above mentioned factors i.e., the monthly income of the deceased at Rs.4,000/-, multiplier at 16, future prospects at 40% and deducting one fourth of the compensation for loss due to dependency towards the MACA NO. 1252 OF 2011 8 personal living expenses of the deceased, I refix the compensation for loss of dependency for the appellants/petitioners at Rs.8,06,400/-, instead of Rs.3,84,000/- fixed by the Tribunal. ## **Conventional Heads of Compensation** 18. 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 i.e., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 19. In the instant case, the Tribunal has fixed an amount of Rs.5,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. In view of the law laid down in **Pranay Sethi** (supra), I enhance the compensation under the aforesaid heads by a further amount of Rs.10,000/- each, i.e.15,000/- under the aforesaid heads. 20. The Tribunal has awarded only an amount of Rs.15,000/- as compensation towards loss of consortium. 21. During the pendency of the claim petition, it is seen that the 1[st] appellant had expired. Therefore, it is only the MACA NO. 1252 OF 2011 9 appellants 2 to 5, who are entitled for compensation for loss of consortium at Rs.40,000/- each, totaling to an amount of Rs.1,60,000/-. ## **Pain and sufferings** 22. The appellants had claimed an amount of Rs.1,50,000/- towards compensation for pain and sufferings. The Tribunal did not award any amount under the said head. Keeping in mind the fact that the deceased had lost his life only after 42 days after the accident, I am of the opinion that an amount of Rs.20,000/- has to be awarded as compensation for pain and sufferings. ## **Loss of love and affection** 23. The Tribunal has awarded an amount of Rs.15,000/under the head loss of love and affection. 24. In **New India Assurance Co. Ltd. Vs. Somwathy and others** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount can be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. 25. In the above circumstances, I set aside the amount MACA NO. 1252 OF 2011 10 of Rs.15,000/- awarded under the said head. ## **Bystander expenses** 26. It is on record that the deceased was treated as an inpatient for a period of 42 days. The Tribunal has awarded only an amount of Rs.2,000/-, which according to me is on the lower side. Therefore, I refix the compensation at Rs.200/per day for a period of 42 days, which comes to Rs.8,400/-. 27. With respect to the other heads of compensation, namely, transportation expenses, medical expenses and extra nourishment, 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 referred to in the aforecited decisions, I am of the definite opinion that the appellants 2 to 5/petitioners 2 to 5 are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [441 x 117] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>awarded by modified and<br>No the Tribunal recalculated<br>(in rupees) by this Court<br>. (in Rupees)<br>1 Transportation 2,000/- 2,000/-<br>2 Bystander expense 2,000/- 8,400/-<br>**----- End of picture text -----**<br> MACA NO. 1252 OF 2011 11 **==> picture [441 x 169] intentionally omitted <==** **----- Start of picture text -----**<br> 3 Extra nourishment 2,000/- 2,000/-<br>4 Medical expenses 13,650/- 13,650/-<br>5 Loss of consortium 15,000/- 1,60,000/-<br>6 Loss of love and 15,000/- 0<br>affection<br>7 Loss of estate 5,000/- 15,000/-<br>8 Funeral expenses 5,000/- 15,000/-<br>9 Loss of dependency 3,84,000/- 8,06,400<br>Total 4,43,650/- 10,22,450<br>**----- End of picture text -----**<br> 29. Even though the appellants had claimed only an amount of Rs.7,00,000/- as compensation, following the ratio in **Sarla Varma** and **Pranay Sethi** (supra), the dependents of the deceased are also entitled to future prospects and compensation under the conventional heads, the compensation now awarded is more than the amount claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)], wherein the Honourable 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 in part, by enhancing the compensation by a further amount of Rs.5,78,800/- with MACA NO. 1252 OF 2011 12 interest at the rate of 7% per annum from the date of petition till the date of realisation and a cost of Rs.4,000/-. The 3[rd] respondent/insurer is ordered to deposit the enhanced compensation with interest and costs before the Tribunal 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 to the appellants 2 to 5/petitioners 2 to 5 in the ratio of 40:20:20:20 and in accordance with law, after deducting the liability of the appellants, if any, towards payment of court fee. All pending interlocutory applications will stand closed. Sd/- **C.S.DIAS, JUDGE** rkc