VELAYUDHAN & Others v. Abdul Jabbar & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943** ## **MACA NO. 1075 OF 2013** **AGAINST THE AWARD DATED 09.8.2012 MADE IN OPMV 2276/2005 OF SPECIAL COURT** **FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS/PETITIONERS:** 1 VELAYUDHAN, S/O. KUNJAN, RESIDING AT NETTISSERY HOUSE, POLOOKARA P.O., ERAVIMANGALAM, THRISSUR DISTRICT. 2 THANKAMANI, W/O. VELAYUDHAN, RESIDING AT NETTISSERY HOUSE, POLOOKARA P.O., ERAVIMANGALAM, THRISSUR DISTRICT. 3 SURESH, S/O. VELAYUDHAN, RESIDING AT NETTISSERY HOUSE, POLOOKARA P.O., ERAVIMANGALAM, THRISSUR DISTRICT. 4 SMT. LATHA CHANDRAN, D/O. VELAYUDHAN, RESIDING AT NETTISSERY HOUSE, POLOOKARA P.O., ERAVIMANGALAM, THRISSUR DISTRICT. 5 SUDHEESH, S/O. VELAYUDHAN, RESIDING AT NETTISSERY HOUSE, POLOOKARA P.O., ERAVIMANGALAM, THRISSUR DISTRICT. 6 SUSHA, D/O. VELAYUDHAN, RESIDING AT NETTISSERY HOUSE, POLOOKARA P.O., ERAVIMANGALAM, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD ## **RESPONDENTS/RESPONDENTS:** - 1 ABDUL JABBAR RESIDING AT CHUNGATH HOUSE, ANAMANGAD, PERINTHALMANNA, MALAPPURAM DISTRICT-679 357. - 2 CHACKO, S/O. ANTHONY, RESIDING AT MADHATHUPADY HOUSE, ERAVIMANGALAM, NADATHARA, THRISSUR DISTRICT-680 751. - 3 THE UNITED INSURANCE COMPANY LIMITED PEECHI COMPLEX, CALICUT ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT-679 322. BY ADV SRI.T.V.AJAYAKUMAR T.V AJAYA KUMAR ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** ## **23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1075 of 2013 2 ## **JUDGMENT** This appeal has been filed against the award in O.P.(MV) No.2276/2005 on the file of the Principal Motor Accidents Claims Tribunal, Thrissur. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation due to the death of M.V.Subash, son of appellants 1 and 2 and sibling of appellants 3 to 6. It is the case of the appellants that on 17.08.2005, while the deceased was travelling as pillion rider on motorcycle bearing registration No.KL8/J 8468, through Poochatty-Kachery public road, a jeep bearing registration No. KLL-4680 driven by the 2[nd] respondent hit the motorcycle, resulting in fatal injuries to the deceased. He was taken to Jubilee Mission Hospital, Thrissur. He undergone inpatient treatment there for 11 days and succumbed to injuries on 28.8.2005. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent-driver of the offending vehicle, jeep. 1[st] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. The appellants claimed a total compensation of Rs.7,62,000/- which was limited to Rs.7,50,000/-. MACA.No.1075 of 2013 3 2. Before the Tribunal, respondent Nos.1 and 2 the owner and driver of the offending vehicle respectively remained ex-parte. 3. The 3[rd] respondent insurer filed written statement, admitting the policy coverage of the offending vehicle. The accident and injury sustained by the deceased was not disputed. But according to the 3[rd] respondent, the accident was not happened due to rashness and negligence on the part of the 2[nd] respondent. It is also contended that the accident happened due to the negligence of the rider of the motorcycle. It is also further contended that the vehicle has no valid fitness certificate at the time of accident. The claims under the various heads are also challenged. 4. First claimant was examined as PW1 and Exts.A1 to A11 series were marked from the side of the appellants/claimants. Ext.B1 and B2 marked from the side of the respondents. Tribunal on evaluating the evidence adduced from both sides, allowed the claim petition and awarded compensation of Rs.3,41,000/-. It is also found that 2[nd] respondent did not have any valid driving license and 3[rd] respondent was directed to pay the amount and permitted to recover the amount from the 1[st] respondent. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/claimants (herein after be referred MACA.No.1075 of 2013 4 as claimants) came up before this Court in appeal under various grounds stated in the Memorandum of appeal. 6. Notice was issued to the 1[st] and 2[nd] respondents and notice was duly served upon them, but there was no appearance on behalf of 1[st] and 2[nd] respondents. Adv.Ajayakumar, the learned Standing Counsel, takes notice on behalf of the third respondent. 7. Heard the learned Counsel for the appellants as well as the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 8. According to the learned counsel for the claimants, the deceased was conducting printing press and he was earning Rs.8,000/- per month. Exhibit A11 partnership deed has been produced and PW1, father of the deceased, was examined and he depose about occupation and the income of the deceased. But the Tribunal fixed the notional income as Rs.3,500/- which according to him is very low. He also would contend that the compensation awarded under various heads are also very low and hence, seeks for enhancement on other heads also. 9. The learned Standing Counsel for the insurer/3rd respondent would contend that a just and reasonable compensation has already been awarded by the Tribunal under various heads. No MACA.No.1075 of 2013 5 interference whatsoever is called for in this appeal. He would also contend that though the deceased was alleged to be conducting a printing press, no documents were produced to prove the same apart from the copy of partnership deed. No income tax return or any other documents also produced. 10. It is true that no documents as such could be produced by the claimant to prove the actual income of the deceased. But the father of the claimant has been examined as PW1 and deposed that deceased was conducting a printing press and was earning of Rs.8,000/- per month. According to him, deceased used to meet the expenses of family. However, no convincing materials have been produced to prove the actual income of the deceased. 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have MACA.No.1075 of 2013 6 accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 12. In **Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** taking note of the earlier decision in Ramachandrappa's case, the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a MACA.No.1075 of 2013 7 vegetable vendor is reasonably capable of earning 6,500/- per month. 13. It has come out from evidence that the deceased was a graduate. The accident in this case was in the year 2005. So taking into account the totality of the facts and circumstances and the settled position of law above stated the monthly income of the deceased can reasonably be fixed as Rs.5,500/- per month. 14. In **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802),** the Apex Court laid down the principles to be followed in determining the quantum of compensation in a case of death out of Motor Vehicle accident. It is held that just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make good the loss sustained by the victim of accident as far as money can do. 15. In **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** constitution Bench of the Apex Court held that Section 168 of the Act deals with the concept of “just compensation” and that has to be determined on the foundation of fairness, reasonableness and equitable on acceptable legal standard because such determination can never be with arithmetical exactitude. The aim is to achieve an acceptable degree MACA.No.1075 of 2013 8 of proximity to arithmetical precision on the basis of materials brought on record in an individual case. 16. In **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was below 40 years and the said addition was reduced by 30% if the age of the deceased was 40 – 50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons having permanent job. 17. But in **Pranay Sethi's** case the Apex Court though accepted the findings in **Sarla Verma's** case in fixing the multiplier made some variance with regard to the grant of future prospects in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of muliplicand would be unjust and the determination of income while computing compensation has to include future MACA.No.1075 of 2013 9 prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. It is also laid down in **Pranay Sethi's** case that with respect to selfemployed or persons with fixed salary when the deceased was below 40 years an addition of 40% can be granted and in the case of between 40 – 50, an addition of 25% and with respect to persons between 50 – 60 years, the addition has been fixed as 10%. The established income also provided as the income minus tax component. 18. The deceased in this case was 34 years old. Hence, towards future prospects 40% to be added. So the monthly income would be Rs.5,500+2200 (40% of 5,500)=Rs.7,700/-. 19. On the question of deduction towards personal expenses 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 and 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** MACA.No.1075 of 2013 10 **Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65]** as made out in the facts and circumstances of the case. 20. 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 correspond to the number of dependants. 21. In **Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram and Ors. [(2018) 18 SCC 130]** , with respect to deduction of personal expenses in the case of the death of a bachelor son in that case was made as one-third instead of ½ taking into account the fact that deceased was living in a village where he was residing with his aged father who was 65 years of old and unmarried sister and both of them were considered as dependants of the deceased. 22. In the present case, the deceased was 34 years old at the time of death and the Tribunal gave a deduction of 1/3 MACA.No.1075 of 2013 11 discussing the evidence and materials and that fact is not further challenged by the respondents also. It has come out in evidence that deceased was a bachelor, meeting the requirements of the family including the treatment expenses of one of his brothers. So, 1/3 deducted towards personal and living expenses by the Tribunal is seems to be reasonable and can very well be approved. Since, he was 34 years old at the time of death, the multiplier would be applied '16'. Hence the amount towards loss of dependency would be Rs.7,700 x 12 x 16 x 2/3 = Rs.9,85,600/-. Deducting the amount already awarded by the Tribunal the balance would be Rs.7,33,600/- (Rs.9,85,600-2,52,000). 23. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in **Pranay Sethi** followed by **Magma General Insurance Co. Ltd.** **v. Nanu Ram Alias Chuhru Ram & Ors. [2018 (18) SCC 130].** In that decision, the Apex court has 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. 24. The learned counsel would contend that the Apex Court has also held that the above amounts should be revised on percentage basis in every three years and enhancement should be MACA.No.1075 of 2013 12 at the rate of 10% in a span of three years. The learned counsel would contend that the 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 according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- towards loss of consortium. 25. In this context, **Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024]** is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In **Pranay Sethi's** case, while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered MACA.No.1075 of 2013 13 view that claimants are entitled for 10% increase on conventional heads. 26. Next is with regard to the consortium to be awarded. The law laid down by the Apex Court in **Magma General Insurance Co.'s** case is relevant to be taken note of. In that decision, the Apex Court ,while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5th ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lost their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made MACA.No.1075 of 2013 14 therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 27. In **Chandra and another v. Mukesh Kumar Yadav and others (2021 ACJ 2554)** , the Apex court in an appeal filed by the parents in the case of death of a truck driver aged 32 years granted consortium to both the parents in view of the dictum laid ## down in **Magma General Insurance Co.Ltd.** 28. In the present case, 1st and 2nd claimants are the parents and they are entitled for filial consortium @ Rs.44,000/- each, loss of estate and funeral expense @ Rs.16,500/- each, (Total Rs.33,000/-). So, under the conventional heads the claimants are entitled to get Rs.1,21,000/- (Rs.88,000+33,000). Once compensation is awarded under the head of consortium, no amount shall be awarded under the head loss of love and affection, since loss of love and affection is comprehended in loss of consortium (See **New India Assurance Co. Ltd. v. Somwati and others [2020 (9) SCC 644])** . The Tribunal already awarded Rs.30,000/- towards love and affection, Rs.5000/- towards loss of MACA.No.1075 of 2013 15 estate and another Rs.5,000/- towards funeral expenses. So deducting the above amount of Rs.40,000/- the balance would be **Rs.81,000/-** (Rs.1,21,000 - 40,000) **.** So the claimants are entitled to get enhanced compensation of Rs.8,14,600/(7,33,600 + 81,000 ). 30. In the result, appeal allowed and appellants/claimants are allowed to realise enhanced compensation of **Rs.8,14,600/** - in this appeal, which will carry interest at the rate of 7.5 **%** per annum from the date of petition till the date of realisation excluding 106 days, the period of delay caused in filing the appeal. 50% of the enhanced compensation shall be allotted to the 2[nd] appellant/2[nd] claimant, the mother and 30% to 1[st] appellant/1[st] claimant, father and the balance shall be distributed equally among the other claimants. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. Appellants/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 MACA.No.1075 of 2013 16 certified copy of this judgment. Parties shall bear their respective costs. The learned Standing Counsel also would contend that the 2nd respondent, the driver of the jeep was not having valid driving license. There was an order of pay and recovery by the Tribunal and that has to be maintained. In para No.9 of the award there is specific finding by the Tribunal that in spite of steps being taken, driving license was not produced and as such adverse inference of non existence of driving license is recorded and 3rd respondent is permitted to recover the amount from 1st respondent as there is violation of terms of policy conditions. Exhibit B2 copy of the driving license marked from the side of the respondent also would show that Road Transport Driving License has been issued in favour of the 2nd respondent from 11.3.2010 to 10.3.2015 and transport 11.3.2010 to 10.3.2013. The accident in this case was on 17.8.2005. So the pay and recovery ordered by the Tribunal is hereby confirmed. Sd/- ## **M.R.ANITHA JUDGE** SMF