Vimala Joseph, Shiny Joseph and Shinil Joseph v. Selvaraj @ Maniyan, Sabu Rajan Puthethupadeetthil and National Insurance Co. Ltd.

1 MACA No.1573 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943** **MACA NO. 1573 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1871/2000 OF THE MOTOR** **ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/S:** 1 VIMALA JOSEPH , W/O.LATE K.J JOSEPH KARIKKATTUTHARAYIL HOUSE, MATTOM NORTH,, KANNAMANGALAM, MAVELIKKARA-3. 2 SHINY JOSEPH, D/O. LATE K.J.JOSEPH KARIKKATTUTHARAYIL HOUSE, MATTOM NORTH,, KANNAMANGALAM, MAVELIKKARA-3. 3 SHINIL JOSEPH , S/O. LATE K.J.JOSEPH KARIKKATTUTHARAYIL HOUSE, MATTOM NORTH,, KANNAMANGALAM, MAVELIKKARA-3. BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI ## **RESPONDENT/S:** 1 SELVARAJ @ MANIYAN,S/O.NARAYANACHARI KOCHUTHUNDIL HOUSE, KALLELI BHAGOM,, KARUNAGAPPALLY, PIN-690 518. 2 SABU RAJAN PUTHETHUPADEETTATHIL, KALLELI BHAGOM P.O.,, THODIYOOR, KARUNAGAPPALLY, PIN-690 518. 3 NATIONAL INSURANCE CO. LTD. KOLLAM P.O., P.B.NO.157, PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM-691 001. BY ADV SRI.LAL GEORGE R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.1573 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.1573 of 2011 ====================== Dated this the 29[th] day of November, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP(MV) 1871/2000 on the file of the Motor Accidents Claims Tribunal, Mavelikkara. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of K.J Joseph (deceased), the husband of the first appellant and father of the appellants 2 and 3. It was their case that, on 14.1.2000, while the deceased was riding his motor cycle bearing registration No.KL-4C/2573, when he reached in front of an hotel named Sixer at Mavelikkara, the first respondent – who was the driver of the car bearing registration No.KL-5/1260 (car), negligently opened the 3 MACA No.1573 of 2011 right door of the car, which hit the motor cycle ridden by the deceased. The deceased fell on the road and was run over by a lorry. The deceased lost his life instantaneously. He was the finance partner in a firm named 'Ominicious Finance', Thattarambalam. The deceased was earning a monthly income of Rs.8,000/-. The car was owned by the second respondent and insured with the third respondent. The appellants were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.9,78,000/- from the respondents, which claim was limited to Rs.6,00,000/-. 3. The first respondent did not contest the proceeding. 4. The second respondent had filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the driver of the lorry. However, the second respondent pleaded that the car was duly insured with the 4 MACA No.1573 of 2011 third respondent. Hence, it was stated that, even if the second respondent is found liable to pay compensation, it is the third respondent who is to indemnify the liability of the second respondent . 5. The third respondent had filed a written statement contending that the first respondent did not hold a valid driving licence. Therefore, the second respondent had violated the insurance policy conditions. Hence, the third respondent was to be exonerated of its liability. The third respondent also disputed the age, income and occupation of the deceased and prayed that the claim petition be dismissed. 6. The first appellant was examined as PW1 and Exts A1 to A7 were marked through her in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, and after finding that the second respondent had violated the insurance policy conditions, 5 MACA No.1573 of 2011 allowed the claim petition, by permitting the appellants to recover from the third respondent an amount of Rs.3,14,500/- with interest and granted the third respondent the right to recover the compensation amount from the second respondent. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in the appeal. 9. Heard: Sri.T.K Koshy, the learned Counsel appearing for the appellants/petitioners and Sri.Lal George, the learned counsel appearing for the third respondent/insurer. 10. The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A5 charge-sheet filed by the Mavelikkara Police in crime No.11/2000 substantiates that the accident occurred due to the negligence of the first respondent. 6 MACA No.1573 of 2011 Admittedly, the second respondent was the owner and the third respondent was the insurer of the car. The respondents have not let in any evidence to discredit Ext A5 charge-sheet. The third respondent had specifically contended in the written statement, that the first respondent did not hold a valid driving licence. The respondents 2 and 3 did not produce the driving licence of the first respondent. Therefore, the Tribunal has rightly arrived at the conclusion that the second respondent had violated the insurance policy conditions. Hence, the findings of the Tribunal that the accident occurred due to the negligence of the first respondent, that the second respondent had violated the policy conditions and permitting the third respondent to pay the compensation amount and recover the same from the second respondent is correct and in accordance with law, which I do confirm. ## **Income** 12. The appellants had claimed that the deceased 7 MACA No.1573 of 2011 was working as a finance partner in Ominicious Finance and he was earning a monthly income of Rs.8,000/-. The appellants had not produced any material to substantiate the income of the deceased. Ext A6 office order produced by the appellants only shows that the deceased was doing field work for the firm and does not reflect the monthly income of the deceased. Accordingly, the Tribunal fixed the notional monthly income of the deceased at 2,500/-. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2000, I find that the notional monthly income of the deceased fixed by the Tribunal at Rs.2,500/- is reasonable and just, which I confirm. 8 MACA No.1573 of 2011 ## **Multiplier** 15. The deceased was aged 45 years at the time of the accident/death. In the light of the law laid down in ## **Sarla Verma v. Delhi Transport Corporation [(2009) 6** **SCC 121]** , the relevant multiplier is '14'. ## **Future prospects** 16. Following the ratio in **Sarla Verma** (supra) and ## **National Insurance Co.Ltd v Pranay Sethi [(2017) 16** **SCC 680],** I hold that the appellants are entitled to future prospects @ 25%, as the deceased was aged 45 years at the time of the accident. ## **Personal living expenses of the deceased** 17. In the light of the law laid down in **Sarla Varma** and **Pranay Sethi** (supra), and considering the fact that the appellants were three in number, one-third of the compensation has to be deducted towards the personal living expenses of the deceased. 9 MACA No.1573 of 2011 ## **Loss of dependency** 18. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.2,500/-, the multiplier at 14, future prospects at 25% and after deducting one third of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.3,50,000/-, instead of Rs.3,36,000/- awarded by the Tribunal. ## **Conventional heads of claim** 19. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** has held that the dependents of the deceased are entitled for compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 20. In the instant case, the Tribunal has awarded an amount of Rs.5000/- towards funeral expenses and 10 MACA No.1573 of 2011 Rs.10,000/- towards loss of consortium. The Tribunal has not awarded any amount under the head 'loss of estate'. 21. In the light of the law down in **Pranay Sethi** (supra), I enhance the compensation under the head 'funeral expenses' by a further amount of Rs.10,000/- and award an amount of Rs.15,000/- under the head 'loss of estate' . I also enhance the compensation under the head 'loss of consortium' by a further amount of Rs.1,10,000/-, i.e., Rs.40,000/- each to the appellants. ## **Loss of love and affection** 22. The Tribunal has awarded an amount of Rs.10,000/- as compensation under the head 'loss of love and affection'. 23. In **New India Assurance Co. Ltd v. Somavathy** **and Ors [(2020) 9 SCC 644]** , the Hon'ble Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it is amount 11 MACA No.1573 of 2011 to duplication of compensation. Therefore, I set aside the amount of Rs.10,000/- awarded by the Tribunal under the head 'loss of love and affection'. ## **Other heads of compensation** 24. With respect to the compensation awarded under the heads, namely, transportation expenses and damage to clothing, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|3,000/-|3,000/-| |2|Damage to clothing|500/-|500/-| 12 MACA No.1573 of 2011 |3|Loss of love and<br>affection|10,000/-|Nil| |---|---|---|---| |4|Loss of estate|Nil|15,000/-| |5|Funeral expenses|5,000/-|15,000/-| |6|Loss of consortium|10,000/-|1,20,000/-| |7|Loss of dependency|3,36,000/-|3,50,000/-| ||Total|3,64,500/-|5,03,500/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.1,39,000/-** (Rupees One Lakh Thirty Nine Thousand only) with interest at the rate of 7.5% per annum from the date of claim petition till the date of realisation, after deducting interest for a period of 277 days, i.e. the period of delay in filing the appeal and as ordered by this Court on 28.10.2021 in C.M Appln 1/2011, and proportionate costs. The third respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. After the compensation amount is paid by the third respondent, the 13 MACA No.1573 of 2011 third respondent is permitted to recover the compensation amount from the second respondent in accordance with law. The Tribunal shall disburse the enhanced compensation with interest and cost to the appellants/petitioners in the ratio of 50:25:25 and in accordance with law. Sd/- sks/29.11.2021 **C.S.DIAS, JUDGE**