Vijayan and Latha Vijayan v. M.S. Salim, Kunjumuhammed So. Thazhathethil Bapputty, Oriental Insurance Co. Ltd., A. Ibrahimkutty Paumoottil House Changaramkulum Ochira, M.B. Pushkaran So., New India Assurance Co. Ltd.

MACA NO. 45 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943** ## **MACA NO. 45 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1976/2004 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR APPELLANT/S:** - **1 VIJAYAN AGED 52, S/O.KANAKKAPARAMBIL BALAKRISHNA KURUP, P.O.KADUPPASSERY,, THRISSUR DISTRICT (FATHER OF THE DECEASED ANEESH)** - **2 LATHA VIJAYAN AGED 47 WO.VIJAYAN KANAKKAPARAMBIL, P.O.KADUPPASSERY,, THRISSUR DISTRICT. (MOTHER OF THE DECEASED ANEESH)** **BY ADV SMT.SADHANA KUMARI ESWARI** **RESPONDENT/S:** - **1 M.S.SALIM , MANAKADATH HOUSE, KANNUR.P.O., MALAPPURAM.** - **2 KUNJUMUHAMMED SO. THAZHATHETHIL BAPPUTTY, CHITTANDA P.O., THRISSUR DISTRICT.** - **3 THE MANAGER ORIENTAL INSURANCE CO. LTD. TIRUR BRANCH, MALAPPURAM DISTRICT.** - **4 A.IBRAHIMKUTTY PAUMOOTTIL HOUSE CHANGARAMKULM OCHIRA, KOLLAM DISTRICT.** - **5 M.B.PUSHKARAN SO. MADABIKKATTIL BALAN PANAMUKKU, P.O.NEDUPUZHA, THRISSUR DISTRICT.** - **6 THE MANAGER NEW INDIA ASSURANCE CO. LTD BRANCH-KUNNAMKULAM.** **BY ADVS.** MACA NO. 45 OF 2010 2 **SRI.N.S.MOHAMMED USMAN SRI.VPK.PANICKER SMT.R.RAJITHA SRI.P.SANTHOSH PODUVAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 45 OF 2010 3 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1976/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. 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, seeking compensation on account of the death of their 15 year old son named Aneesh (deceased). It was their case that, on 10.11.2004, while the deceased was traveling in a bus bearing registration No.KL-2P/583 (bus), through the Thrissur – Wadakkancheri public road and when the bus reached Minaloor, a lorry bearing registration No. KL-10A 5354 (lorry) driven by the 2[nd] respondent in a rash and negligent manner came from the opposite side and hit the bus. The deceased sustained serious injuries and was rushed to the Aswini Hospital, Thrissur. Unfortunately, he succumbed to the injuries on 21.11.2004. The deceased was an intelligent boy with a bright future. The lorry was owned by the 1[st] respondent and insured with the 6[th] respondent. The MACA NO. 45 OF 2010 4 bus was owned by the 4[th] respondent, driven by the 5[th] respondent and insured with the 3[rd] respondent. The appellants claimed a compensation of Rs.4,45,000/- from the respondents, but limited the amount to Rs.3,50,000/- 3. Another injured in the same incident named Sasi, had filed OP(MV) No.834/2005 before the same Tribunal. 4. The respondents 1 to 4 and 5 did not contest the proceedings and were set ex-parte. 5. The 3[rd] respondent had filed a written statement admitting that the bus had a valid insurance coverage. It was contended that the accident occurred due to the negligence of the driver of the lorry. 6. The 6[th] respondent had also filed a written statement admitting that the lorry had a valid insurance coverage. It is contended that the accident happened due to the contributory negligence of drivers of both the vehicles. 7. The Tribunal consolidated and jointly tried the two claim petitions. MACA NO. 45 OF 2010 5 8. The petitioners in the two claim petitions produced and marked Exts.A1 to A17 in evidence. The insurance policies of the two vehicles were produced and marked as Exts.B1 and B2. 9. The Tribunal, after analysing the pleadings and materials on record, by its common award allowed the captioned claim petition in part, by permitting the appellants to recover from the respondents 3 and 6 an amount of Rs.2,66,700/- with interest and cost in equal shares. 10. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 11. Heard; Sri. N. Ajith, the learned counsel appearing for the appellants/petitioners, Sri. VPK. Panicker, the learned counsel appearing for the 3[rd] respondent and Sri. Mohammed Usman, the learned counsel appearing for the 6[th] respondent insurer. 12. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. MACA NO. 45 OF 2010 6 ## **Negligence and Liability** 13. The Police after investigation has filed Annexure A2 final report finding that the drivers of both the vehicles were negligent in causing the accident. As the respondents have not let in any evidence to the contrary to Ext.A2 final report, following the ratio in **New India Assurance Co. Ltd. vs. Pazhaniammal** [2011 (3) KLT 648], I accept the finding of the Tribunal that the drivers of both the vehicles were negligent in causing the accident. 14. The respondents 3 and 6 have admitted that both the vehicles had valid insurance coverage and have not proved that the owners have violated the policy conditions. Thus, I hold that the respondents 3 and 6 are to indemnify the liability of the respective owners of the two vehicles to pay the compensation amount to the appellants. ## **Loss due to Dependency** 15. The Tribunal for the reason that the deceased was aged 15 years, has fixed his notional annual income at Rs.18,000/-, deducted one third of the compensation towards personal living expenses of the deceased and adopted the MACA NO. 45 OF 2010 7 multiplier at '15', to arrive at the compensation for loss of dependency. 16. The Honourable Supreme Court in a recent decision in **Rajendra Sing vs. National Insurance Company Ltd** . [2020 (4) KLT 6 SC] has fixed the notional income of a 12 year old female child at Rs.3,000/- per month, adopted the multiplier at 15 and deducted one half of the compensation towards personal living expenses of the deceased. 17. In view of the law laid down in **Rajendra Sing** (supra), I am of the firm opinion that the yardstick in the said decision has to be adopted in the case at hand. Therefore, I fix the ‘annual income’ of the deceased at Rs.36,000/-, adopt the multiplier of ‘15’ and deduct one half of the compensation towards personal living expenses of the deceased. Accordingly, I re-work the compensation for ‘loss of dependency’ to Rs.2,70,000/-, instead of Rs.1,80,000/awarded by the Tribunal. ## **Conventional Heads of Compensation** 18. In clause (viii) of paragraph 61 of **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC MACA NO. 45 OF 2010 8 680], 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. 19. Following **Pranay Sethi** (supra), I award the appellants an amount of Rs.15,000/- towards ‘funeral expenses’ instead of Rs.3,000/- awarded by the Tribunal; an amount of Rs.15,000/- towards ‘loss of estate’; and an amount of Rs.40,000/- as ‘loss of consortium’ to each of the appellants – parents of the deceased, viz. an amount of Rs.80,000/-. 20. In view of the compensation awarded under the conventional heads, I set aside the amount of Rs.5,000/-, awarded under the head ‘pain and sufferings’, and Rs.10,000/- awarded under the head ‘loss of love and affection’ following the principles in S **arla Varma vs. Delhi Transport Corporation** [(2009) 6 SCC 121] and **New India Assurance Company Ltd. vs. Somvathy and Ors.** [(2020) 9 SCC 644]. 21. With respect to the compensation awarded for MACA NO. 45 OF 2010 9 ‘medical expenses’ at Rs.68,700/-, I find the same to be reasonable and just. 22. 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 are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [441 x 395] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amounts<br>awarded by modified and<br>No the Tribunal recalculated<br>(in rupees) by this Court<br>(in rupees)<br>1. Funeral expenses 3,000 15,000<br>2. Medical expenses 68,700 68,700<br>3. Loss of estate 0 15,000<br>4. Loss of consortium 0 80,000<br>5. Pain and suffering 5,000 0<br>6. Loss of love and 10,000 0<br>affection<br>7. Loss of dependency 1,80,000 2,70,000<br>Total 2,66,700 4,48,700<br>**----- End of picture text -----**<br> MACA NO. 45 OF 2010 10 In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.1,82,000/- with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of realisation, but after deducting interest for a period of 138 days i.e.; the period of delay in filing the appeal and as ordered by this Court in C.M.Appln. No.35/2010 on 15.09.2021, and a cost of Rs.15,000/-. The respondents 3 and 6 are ordered to deposit the enhanced compensation in equal shares 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. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellants/petitioners in equal shares and in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc