Venkata Bhagyalakshmi and others v. S. D. Mohammed Shaki and others

MACA NO. 2448 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943 MACA NO. 2448 OF 2009 AGAINST THE JUDGMENT DATED 15.12.2005 IN OPMV 25/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR, MALAPPURAM** ## **APPELLANTS/PETITIONERS:** 1 VENKATA BHAGYALAKSHMI W/O.LATE VENKATESWARLU BONTALA,, DOOR NO.C/54, LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE DISTRICT,, ANDHRA PRADESH. 2 VENKATA GOPINATH S/O.LATE VENKATESWARLU BONTALA,, DOOR NO.C/54, LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE DISTRICT,, ANDHRA PRADESH. 3 VENKATA JEEVANKUMAR S/O.LATE VENKATESWARLU BONTALA,, DOOR NO.C/54, LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE DISTRICT,, ANDHRA PRADESH. 4 BONTALA NARAYANA AMMA M/O.LATE VENKATESWARLU BONTALA,, DOOR NO.C/54, LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE DISTRICT,, ANDHRA PRADESH. BY ADV SRI.V.BINOY RAM ## **RESPONDENTS/RESPONDENTS:** 1 S.D.MOHAMMED SHAKI, S/O.MOHAMMED GOUSE, 21/44, JANDA STREET, NELLORE P.O.,, ANDHRA PRADESH. 2 HARI BABU, S/O.VENGIDAYYA POOVADI HOUSE, BAIJI, KAVALA, NELLORE P.O., ANDHRA 2 MACA NO. 2448 OF 2009 PRADESH. 3 UNITED INDIA INSURANCE CO.LTD. 16/2968, ANURAJ COMPLEX,, JAWAHARLAL ROAD, NELLORE P.O.,, ANDHRA PRADESH. 4 M.K.ABDUL LATHEEF S/O.HASSINAR HAJI UMMAR SAHIB,, SAHIB MANZIL, KALLIGUNDI P.O.,, SAMPAGEGATE, SULLIA, KARNATAKA. 5 RAJESH, S/O.KUNJAPPU KULLACHAL HOUSE, MALLOM AMSSOM, P.O.,, KASARGODE. 6 THE NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, 2ND FLOOR, COMPLEX,, DENTOORWELL CIRCLE, KANKANADY,, MANGLORE, KARNATAKA. R3 BY SMT.DEEPA GEORGE SRI.M.A.GEORGE R6 BY SMT.M.MEENA JOHN SRI.VIJU THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2448 OF 2009 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.25/2002 on the file of the Motor Accidents Claims Tribunal, Tirur. 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 Venkateswarlu (deceased), who was aged 35 years at the time of accident. The deceased was the husband of the 1[st] appellant, father of the appellants 2 and 3 and the son of the 4[th] appellant. The appellants had averred in the claim petition that on 23.11.2000, while the deceased was traveling in a passenger tempo van bearing registration No.AP-26-T/9225 (van) through Kuttippuram – Edappal road, when the van reached near Mallur Shiva Temple, a lorry bearing registration No.KA21A/9990, driven by the 5[th] respondent came from the opposite direction and there was a collision between the lorry and the van. The accident occurred due to the negligence of MACA NO. 2448 OF 2009 4 the 2[nd] respondent, who drew the van in a negligent manner and hit on the lorry. As a result of the said accident, that the deceased sustained serious injuries and was taken to the Aswini Hospital, Thrissur, where he lost his life on 02.12.2000. The 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. The deceased was a businessman by profession and earning a monthly income of Rs.5,000/-. The appellants were the dependents of the deceased. They claimed a total compensation of Rs.6,20,000/from the 3[rd] respondent, being the insurer of the van. 3. The other injured and legal heirs of the deceased, who lost their lives in the same accident, filed OP(MV) Nos.751, 752, 753 and 755 of 2001 before the same Tribunal on the very same set of pleadings. 4. The respondents 1, 2, 4 and 5 did not contest the proceedings and were set ex-parte. The 3[rd] respondent filed written statements in all the cases admitting that the van had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence on the part of the driver of the lorry. MACA NO. 2448 OF 2009 5 5. The 6[th] respondent/insurer of the lorry also filed separate written statements in all the claim petitions contending that the accident occurred due to the negligence of the 2[nd] respondent/driver of the van. 6. The Tribunal consolidated and jointly tried all the claim petitions. The petitioners in all the cases produced and marked Exts.A1 to A35 in evidence. The respondents did not let in any evidence. 7. The Tribunal by its common award allowed all the claim petitions. The appellants in the present case were permitted to realise an amount of Rs.3,96,000/- with interest at the rate of 6% per annum from the date of petition till the date of realisation with cost of Rs.4,000/-. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants/petitioners are in appeal. 9. Heard; Sri.Binoy Ram V., learned counsel appearing for the appellants/petitioners and Smt.Deepa George, learned counsel appearing for the 3[rd] respondent/insurer of the van and Sri.Viju Thomas, learned counsel appearing for the 6[th] MACA NO. 2448 OF 2009 6 ## respondent/insurer of the lorry. 10. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 11. Ext.A1 FIR, Ext.A31 scene mahazer and Ext.A32 case diary of the Kuttippuram Police substantiate that the accident occurred due to the negligence on the part of the 2[nd] respondent, who drew the van in a negligent manner. Undisputedly, the 1[st] respondent was the owner and the 3[rd] respondent was the insurer of the van. Thus, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident by the use of the van. ## **Notional Income** 12. The appellants had claimed that the deceased was a businessman by profession and earning a monthly income of Rs.5,000/-. The Tribunal for want of materials, fixed the notional income of the deceased at Rs.3,000/- per month. 13. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 MACA NO. 2448 OF 2009 7 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. 14. Following the bench mark fixed by the Honourable Supreme Court in the afore-cited decision and keeping in mind that the accident occurred in the year 2000, I do not find any reason to differ with the fixation of notional income by the Tribunal at Rs.3,000/- per month. Hence, I confirm the notional income of the deceased fixed by the Tribunal at Rs.3,000/-. ## **Multiplier** 15. Even though the appellants had stated in the claim petition that the deceased was aged 40 years at the time of the accident, they produced Ext.A30 election identity card, which showed that the deceased was aged 30 years as on 01.01.1995. Hence, on the date of his death, he was aged 35 years. 16. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], which was confirmed by the Constitutional Bench of the Honourable MACA NO. 2448 OF 2009 8 Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] the relevant multiplier to be adopted in this case is '16'. ## **Dependents of the deceased** 17. The appellants were the wife, children and mother of the deceased, who are four in number. 18. Going by the principles laid down in **Sarla Varma** and **Pranay Sethi** (supra), 1/4[th] of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 19. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 35 years at the time of the accident, the multiplier being '16', the appellants are also entitled for future prospects at 40% on the compensation for loss of dependency. ## **Loss due to Dependency** 20. Taking into account the above mentioned factors, namely, the notional income of the deceased at Rs.3,000/-, MACA NO. 2448 OF 2009 9 number of dependents at 4, multiplier at 16, future prospects at 40% and deducting 1/4[th] of the total compensation for loss of dependency towards the personal living expenses of the deceased, I hold that the appellants are entitled for compensation for loss due to dependency at Rs.6,04,800/instead of Rs.5,28,000/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 21. In clause (viii) of paragraph 61 of **National Insurance Company Ltd. v. 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. 22. In the instant case, the Tribunal has awarded only an amount of Rs.2,500/- under the head funeral expenses. Therefore, I enhance the compensation under the said head by a further amount of Rs.12,500/-. 23. Likewise the Tribunal has not awarded any amount under the head loss of estate and only an amount of MACA NO. 2448 OF 2009 10 Rs.10,000/- under the head loss of consortium. Therefore, I award the amount of Rs.15,000/- under the head of loss of estate and an amount of Rs.40,000/- each to the appellants towards loss of consortium, totaling to an amount of Rs.1,60,000/-, i.e., an enhancement by Rs.1,50,000/-. ## **Compensation for pain and sufferings** 24. The Tribunal has awarded an amount of Rs.7,500/under the head pain and suffering. 25. In **United India Insurance Company Ltd. Vs. Satinder Kaur @ Satwinder Kaur and others** (2020 (3) KHC 760) the Honourable Supreme Court has held that in the case of death, no amount of compensation can be awarded under the head pain and suffering to the dependents. Accordingly, I set aside the amount awarded under the head pain and suffering. 26. With respect to the other heads of compensation, namely, transportation expenses and medical expenses, I find that the Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings, MACA NO. 2448 OF 2009 11 materials on record, and the law laid down in the above referred decisions, I am of the definite opinion that the appellants are entitled for enhancement of compensation as recalculated above and given in the table below for easy ## reference: **==> picture [450 x 477] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount Amounts<br>awarded by modified<br>No the Tribunal and<br>(in rupees) recalculated<br>by this<br>Court<br>1. Transportation 8,500/- 8,500/-<br>expenses<br>2. Pain and suffering 7,500/- 0<br>3. Funeral expenses 2,500/- 15,000/-<br>4. Loss of estate 0 15,000/-<br>5. Medical expenses 49,500/- 49,500/-<br>6. Loss of consortium 10,000/- 1,60,000/-<br>7. Loss due to 3,18,000/- 6,04,800/-<br>dependency<br>Total 3,96,000/- 8,52,800/-<br>**----- End of picture text -----**<br> MACA NO. 2448 OF 2009 12 28. Even though the appellants had claimed only an amount of Rs.6,20,000/-, in the claim petition, following the ratio in **Pranay Sethi** (supra) the dependents of the deceased are also entitled to future prospects at 40%. Therefore, the compensation now awarded is more than what is 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 by enhancing the compensation by a further amount of Rs.4,56,800/- with interest on the enhanced compensation at the rate of 6% per annum from the date of petition, till the date of realisation and a cost of Rs.3,000/-. The 3[rd] respondent/insurer is ordered to deposit the enhanced compensation awarded in the appeal before the Tribunal with interest within a period 13 MACA NO. 2448 OF 2009 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/petitioners in the ratio of 30:25:25:20 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