V.K. Premalatha and others v. Safiya and Surendran M.M and National Insurance Company Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943 ``` ``` MACA NO. 962 OF 2011 ``` ``` AGAINST THE AWARD DATED 27.07.2010 IN OP(MV)NO.887/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## `APPELLANTS/PETITIONERS:` ``` 1V.K.PREMALATHA, W/O. (LATE)VIJAYAN, RESIDING AT ‘AISWARYA’, T.P.KUMARAN NAIR ROAD, THONDAYAD, CHEVAYUR AMSOM DESOM, P.O., CHEVAYUR, KOZHIKODE-673 017. 2ASWATHI K., AGED 19/09, NOW 21, (DATE OF BIRTH 30/05/1990) D/O. (LATE) VIJAYAN, RESIDING AT ‘AISWARYA’, T.P.KUMARAN NAIR ROAD, THONDAYAD, CHEVAYUR AMSOM DESOM, P.O.,CHEVAYUR, KOZHIKODE-673 017. 3NITHIN K., MINOR, AGED 16/09, NOW 17 (DATE OF BIRTH 30/06/1993), S/O.(LATE) VIJAYAN, RESIDING AT AISWARYA, T.P.KUMARAN NAIR ROAD, THONDAYAD, CHEVAYUR AMSOM DESOM, P.O.,CHEVAYUR, KOZHIKODE-673 017. REPRESENTED BY HIS MOTHER AND GUARDIAN, THE 1ST PETITIONER. 4JANAKI AMMA, AGED 86, W/O.LATE GOVINDAN NAMBIAR, RESIDING AT KAPPADA, AISWARYA, T.P.KUMARAN NAIR ROAD, THONDAYAD, CHEVAYUR AMSOM DESOM, P.O.,CHEVAYUR, KOZHIKODE-673 017. ``` M.A.C.A.No.962/2011 -:2:- ``` BY ADVS.SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SAFIYA, AGED 51, W/O. MUHAMMED, RESIDING AT MEKKA MANZIL, P.O.ANIYARAM, CHOKLI, THALASSERY, KANNUR DISTRICT, PIN-670 672.(OWNER OF THE VEHICLE BEARING, NO.KL-13 J-7465 TOYOTA QUALIS). 2SURENDRAN M.M, AGED 53 YEARS, S/O.KUNHHIKUTTY M.M, KOMMACHENTAVIDA HOUSE, MENAPRAM, P.O.CHOKLI, VIA THALASSERY, KANNUR, DISTRICT-670 672 (DRIVER OF THE VEHICLE BEARING, NO.KL-13 J-7465 TOYOTA QUALIS). 3NATIONAL INSURANCE COMPANY LTD DIVISIONAL OFFICE, NOOR COMPLEX, INDIRA GANDHI ROAD, CALICUT (POLICY ISSUED BRANCH KEYI'S, SHOPPING COMPLEX, NARANGAPURAEIN, THALASSERY,, PIN-670101)(POLICY NO 571102/31/08/630 ``` ``` BY ADV R.AJITH KUMAR (128/84) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.962/2011 -:3:- Dated this the 22[nd] day of November, 2021 ## **J U D G M E N T** The appellants were the petitioners in O.P.(MV) No.887/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 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 ‘Vijayan K.’(deceased), the husband of the first appellant, the father of the appellants 2 and 3 and the son of the fourth appellant. It was their case that, on 24.11.2008, while the deceased was crossing the Bypass road, at Thondayad junction, a Toyota Qualis jeep bearing registration No.KL-13-J-7465(jeep), driven by the second respondent in a rash negligent manner, hit the deceased. The deceased sustained M.A.C.A.No.962/2011 -:4:- serious injuries and was rushed to the Medical College Hospital, but he lost his life. The deceased was an Assistant Foreman in the Kerala Kaumudi Daily, and was drawing a monthly salary of Rs.16,031.65/-. The jeep was owned by the first respondent and insured with the third respondent. The appellants were the dependants of the deceased. Hence, the appellants claimed a compensation of Rs.20,49,000/- from the respondents; but limited the claim to Rs.20,00,000/-. 3. The first respondent did not contest the proceedings. 4. The second respondent had filed a written statement, denying negligence on his part. He contended that the accident occurred due to the negligence of the deceased. The second respondent also disputed the age, income and occupation of the deceased. 5. The third respondent-insurer had filed a M.A.C.A.No.962/2011 -:5:- written statement and an additional written statement, reiterating the very same assertions of the second respondent. However, the third respondent admitted that the jeep had a valid insurance coverage. 6. The appellants produced and marked Exts.A1 to A10 in evidence. The third respondent produced and marked Exts.B1 to B5 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the third respondent an amount of Rs.11,99,755/-; but deducted 30% of the compensation amount on the finding that there was contributory negligence on the part of the deceased. The third respondent was also directed to pay interest and a cost of Rs.3,000/-. 8. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners M.A.C.A.No.962/2011 -:6:- are in appeal. 9. Heard; Sri. A. Ranjith Narayan, the learned counsel for the appellants/petitioner and Sri.R. Ajith Kumar Varma, the learned counsel for the third respondent-insurer. 10. The questions that arise for consideration in the appeal are; - (i) whether the finding of the contributory negligence on the deceased is sustainable in law? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.(i)** 11. The definite case of the appellants was that, while the deceased was crossing the road, he was knocked down by the jeep due to the negligence of the second respondent. 12. The appellants had produced Ext.A1 First M.A.C.A.No.962/2011 -:7:- Information Report(FIR) and Ext.A2 scene mahazar to substantiate their assertions. On the other hand, the third respondent produced Ext.B2 AMVI report to prove its defence. 13. The Tribunal, after taking note of the rival contentions and the materials on record, arrived at the conclusion that the accident occurred while the deceased was attempting to cross the road that he was knocked down by the jeep. It was held that, as the road had a width of 12 meters at the place of occurrence and a visible length of 220 meters, any prudent driver could from the reasonable distance see a person crossing the road. Despite the above aspects, as the jeep had hit the deceased, there was contributory negligence on the part of the deceased. Accordingly, the Tribunal fixed 30% contributory negligence on the deceased and directed the third respondent to pay 70% of the compensation amount. M.A.C.A.No.962/2011 -:8:- 14. On a re-appreciation of the materials on record, it can be gathered from Ext.A2 scene mahazar that, the accident occurred when the deceased had almost crossed the road. The fact that the road had a visible length of 220 meters proves that the second respondent could have averted the accident, if he had exercised due diligence and caution while driving the vehicle. Moreover, it is to be borne in mind that the deceased was a pedestrian, and the second respondent ought to have exercised more care and stopped the vehicle on seeing the deceased crossing the road, which was not been done. It was only because the second respondent could not stop the vehicle on seeing the deceased, the accident occurred. Therefore, the finding of the Tribunal, based on Ext.A2 scene mahazar, is erroneous and wrong. Hence, I set aside the said finding and hold that the accident happened solely due to the negligence of the second respondent. M.A.C.A.No.962/2011 -:9:- 15. The first respondent was the owner and the third respondent was the insurer of the jeep. The third respondent has not let in any evidence to discredit the assertions in the claim petition and also has not proved that the first respondent had violated the insurance policy conditions. Hence, I hold that the third respondent is to indemnify the liability of the first respondent arising out of the accident. I answer Question No.(i) in favour of the appellants. **Question No.(ii)** ## **Income:** 16. The appellants had claimed that the deceased was working as an Assistant Foreman in the Kerala Kaumudi Daily, Alappuzha. In order to prove the contention, they produced Ext.A5 salary certificate issued by the employer of the deceased. 17. The Tribunal, after deducting allowances, has rightly fixed the income of the deceased at Rs.11,745/-, M.A.C.A.No.962/2011 -:10:- that is taking into account the Basic Pay and Dearness Allowance. I confirm the finding of the Tribunal with regard to the fixation of the income of the deceased. Accordingly, I hold that the deceased was having a monthly net income of Rs.11,745/- ## **Multiplier** 18. The deceased was aged 52 years on the date of the accident/death. In the light of the law laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)], the relevant multiplier to be adopted is ‘11’. ## **Dependants of the deceased:** 19. It is to be proved by Ext.A7 Family Membership Certificate that the appellants were the wife, children and mother of the deceased, who are four in number. Going by the law laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)], ¼[th] of M.A.C.A.No.962/2011 -:11:- the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects:** 20. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) and considering that the deceased was aged 52 years on the date of his death and that he was a permanent employee, I hold that the appellants are also entitled to future prospects at 15% on the compensation for 'loss of dependency'. ## **Loss due to dependency:** 21. Taking into account the above-mentioned factors, that is the monthly income of the deceased at Rs.11,745/-, the 'multiplier' at '11', 'future prospects' at Rs.15% and after deducting ¼[th] of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' at Rs.13,37,168/-, instead of Rs.11,62,755/- fixed by the Tribunal. M.A.C.A.No.962/2011 -:12:- ## **Conventional heads of compensation:** 22. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for 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. 23. In the instant case, the Tribunal has only awarded an amount of Rs.3,000/- towards 'funeral expenses' and Rs.5,000/- towards 'loss of estate'. Going by the principles in **Pranay Sethi** (supra), I enhance the compensation under the aforesaid heads by further amounts of Rs.12,000/- and Rs.10,000/-, respectively. 24. The Tribunal has awarded only an amount of Rs.5,000/- towards ‘loss of consortium’. It is on record that the fourth appellant is no more. Therefore, only the appellants 1 to 3 – the wife and children of the M.A.C.A.No.962/2011 -:13:- deceased are entitled to ‘loss of consortium’ at Rs.40,000/- each i.e., a total amount of Rs.1,20,000/-. **Loss of love and affection and pain and sufferings:** 25. The Tribunal has awarded an amount of Rs.10,000/- each under the heads ‘loss of love and affection and pain and sufferings’. 26. In **New India Assurance Company Ltd. v. Somwati & Ors.** [2020(9)SCC 644], the Hon'ble Supreme Court has held that once compensation under the head 'loss of consortium' is awarded, no amount can be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. Hence, I set aside the amount of Rs.10,000/- under the head ‘loss of love and affection’. 27. In paragraph No.19 of **Sarla Verma** (supra), the Hon'ble Supreme Court has held that no amount shall be awarded under the head 'pain and sufferings' M.A.C.A.No.962/2011 -:14:- in the case of instantaneous death. In the case at hand, the deceased lost his life on the same day. Therefore, I set aside the amount of Rs.10,000/- awarded under the said head. 28. With respect to the compensation awarded under the head 'transportation', 'damage to clothing' and ‘treatment expenses’, I find the same to be reasonable and just. 29. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellants 1 to 3 are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Transportation<br>expenses|1,500|1,500| M.A.C.A.No.962/2011 -:15:- |2|Damage<br>to<br>clothing|500|500| |---|---|---|---| |3|Funeral expenses|3,000|15,000| |4|Treatment<br>expenses|2,000|2,000| |5|Loss of love and<br>affection|10,000|Nil| |6|Pain and sufferings|10,000|Nil| |7|Loss of estate|5,000|15,000| |8|Loss of consortium|5,000|1,20,000| |6|Loss<br>of<br>dependency|11,62,755|13,37,168| |||**11,99,755**<br>**Minus 30%=**<br>**3,59,927/-**|| ||||| |**Total**||**8,39,828**|**14,91,168**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.2,91,413/-** and also holding that the appellants 1 to 3 are entitled to Rs.3,59,927/- which was deducted 30% contributory negligence, totalling to an amount of **Rs.6,49,340/-** with interest on the above amount at the rate of 7% per annum from the date of petition till the date of deposit and proportionate cost. The third M.A.C.A.No.962/2011 -:16:- respondent/insurer is ordered to deposit the above amount of **Rs.6,49,340/-** with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the deposited amount to the appellants 1 to 3 in the ratio of 60:20:20 and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/22.11.21 //True copy/ P.A.To Judge