Kerala High Court

Shanmughan vs Mohammed Ismail on 2 August, 2021

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                    THE HONOURABLE MR.JUSTICE C.S.DIAS
          MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                           MACA NO. 2249 OF 2010
AGAINST THE ORDER/JUDGMENT IN OP(MV) 144/2006 DATED 7.4.2010 ON THE FILE OF
            THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA,
APPELLANTS/PETITIONERS IN OP(MV):

      (1) SHANMUGHAN, S/O.KANJIRAPARAMBIL VELU,       P.O.KAZHIMBRAM,
      EDAMUTTAM, THRISSUR DISTRICT.

      (2) SULOCHANA, W/O.KANJIRAPARAMBIL VELU, P.O.KAZHIMBRAM, EDAMUTTAM,
      THRISSUR DISTRICT.

      (3) UMADEVI, D/O.KANJIRAPARAMBIL VELU, P.O.KAZHIMBRAM, EDAMUTTAM,
      THRISSUR DISTRICT.




      BY ADVS.
      SRI.P.V.BABY
      SRI.A.N.SANTHOSH


RESPONDENTS/RESPONDENTS IN OP(MV):

   (1) MOHAMMED ISMAIL, S/O.HYDROSE, PONNAMPADIKKAL HOUSE, SANTHIPURAM
 P.O., KODUNGALLUR, THRISSUR DISTRICT, PIN-680 668

   (2) UNNIKRISHNAN, S/O.VIJAYAN, CHEMMANDAMPARAMBIL HOUSE, METHALA P.O.,
 KANDAMKULAM, KODUNGALLUR, THRISSUR DISTRICT, PIN-680 669.

   (3) NATIONAL INSURANCE CO.LTD., NORTH PARUR, ERNAKULAM DISTRICT, PIN-
 683 513.

   (4) E.N.MOHANAN, ESWARAMANGALATH HOUSE, KONATHUKUNNU P.O., THRISSUR
 DISTRICT, PIN-680 123.

            BY ADV SMT.P.A.REZIYA


     THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 2249 OF 2010           2



                        JUDGMENT

The appellants were the petitioners in OP(MV)

No.144 of 2006 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 a claim petition u/s.166

of the Motor Vehicles Act, 1988 claiming compensation on

account of the death of Sivan @ Siva Kumar (deceased),

the son of the appellants 1 and 2 and the brother of the 3 rd

appellant. The appellants had averred in the claim petition

that: on 14.12.2005 while the deceased was riding in his

motorcycle through the Edamuttam-Thriprayar road, a bus

bearing Reg.No.KL-8/F 4257 (bus) driven by the 2 nd

respondent in a rash and negligent manner hit the

motorcycle. The appellant sustained fatal injuries and lost

his life of the same day. The bus was driven by the 2 nd

respondent in a rash and negligent manner. The 1 st

respondent was the owner and the 4th respondent was the

insured of the bus. The deceased was a driver by

profession and earning a monthly income of Rs.6,000/-.

He was the bread winner of the family and the appellants

were dependent on him. Hence, the appellants claimed a

total compensation of Rs.8,00,000/- from the respondents.

3. The respondents 1, 2 and 4 did not contest the

proceeding and were set ex parte.

4. The 3rd respondent filed a written statement

admitting that the bus had a valid insurance coverage.

Nevertheless, it was contended that the accident occurred

on account of the negligence of the deceased.

5. The appellants produced and marked Exts.A1 to

A5 in evidence. The 3rd respondent produced Ext.B1

insurance policy and marked it in evidence.

6. The Tribunal, after analysing the pleadings and

materials on record, allowed the claim petition in part, by

permitting the appellants to realise an amount of

Rs.2,03,000/- with interest and cost from the 3 rd

respondent.

7. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioners are in appeal.

8. Heard, Sri.P.V.Baby, the learned counsel

appearing for the appellants/petitioners and

Smt.P.A.Raziya, the learned counsel appearing for the 3 rd

respondent/ Insurer.

9. The sole question that emerges for consideration

in this appeal is whether the quantum of compensation

awarded by the Tribunal is reasonable and just.

10. Ext.A2 charge sheet filed by the Valappad Police

in Crime No.443 of 2005 proves that the accident

occurred on account of the negligence of the 2 nd

respondent. Admittedly, the 1st respondent was the owner,

4th respondent was the insured and the 3 rd respondent

was the insurer of the bus. Therefore, it is the 3 rd

respondent, who is liable to indemnify the liability of the

the respondents 2 and 4.

11. The appellants had claimed that the deceased

was a driver by profession and earning a monthly income

of Rs.6,000/-. The Tribunal fixed the notional income of

the deceased at Rs.2,500/- per month.

12. In Ramachandrappa vs. Manager, Royal

Sundaram Alliance Insurance Company Ltd., [(2011) 13

SCC 236], the Hon'ble Supreme Court has fixed the

notional income of a Coolie Worker in the year 2004 at

Rs.4,500/- per month.

Notional Income

13. Following the ratio in the aforecited decision and

considering the fact that the accident occurred in the year

2005, I fix the notional income of the deceased at

Rs.5,000/- per month.

Multiplier

14. The deceased was aged 31 years on the date of

the accident/date of his death. Therefore, in view of the

law laid down in Sarala Verma v. Delhi Transport

Corporation [(2010) 2 KLT 802 SC], the relevant

multiplier is '16'.

Personal living expenses

15. It is an undisputed fact that the deceased was a

bachelor. In light of the law laid down in Sarala Verma

(supra), one half of the total compensation towards loss of

dependency has to be deducted towards the personal

living expenses of the deceased.

Future prospects

16. In Sarala Verma and National Insurance

Company Ltd., v. Pranay Sethi [(2017) 16 SCC 680],

the Hon'ble Supreme Court has held that the dependents

of the deceased are entitled for future prospect at 40% if

the deceased is aged 31 years. Accordingly, I hold that

the appellants are entitled for future prospects at 40%.

Loss due to dependency

17. Taking into account the above factors, namely

the notional income of the deceased at Rs.5,000/- per

month, the multiplier at '16', future prospects at 40% and

after deducting 50% of the total compensation for loss of

dependency towards personal living expenses of the

deceased, I hold that the appellants are entitled for

compensation for loss of dependency at Rs.6,72,000/-

instead of Rs.1,65,000/- awarded by the Tribunal.

Conventional heads of compensation

18. In Clause (viii) of paragraph 61 of Pranay Sethi

(supra), the Hon'ble Supreme Court has held that the

dependents of the deceased are entitled for compensation

under the conventional heads namely; loss of estate, loss

of consortium and funeral expenses at Rs. 15,000/-,

40,000/- and 15,000/-, respectively. In the said

circumstances, I enhance the compensation under the

head 'funeral expenses' by a further amount of Rs.11,000/-

and award an amount of Rs.15,000/- as compensation for

'loss of estate'. With respect to compensation for loss of

consortium, taking into account that the appellants 1 and

2 were the parents of the deceased, I award an amount of

Rs.80,000/- towards loss of consortium.

Loss of Love and affection and Pain and Sufferings

19. It is seen that the Tribunal has awarded an

amount of Rs.25,000/- under the head loss of love and

affection. In view of the law laid down by this Court in

Kunjandy.L and others v. Rajendran and others

[(2020) 2 KLT 315] and by the Hon'ble Supreme Court

in New India Assurance Company Ltd., v. Somvati

and others [(2020) 9 SCC 644], wherein it is held that

once compensation is awarded under the head 'loss of

consortium', no compensation can be awarded under the

head loss of 'love and affection', I set aside the amount of

Rs.25,000/- awarded under the head 'loss of love and

affection'.

20. Similarly, it is seen that the Tribunal has

awarded an amount of Rs.7,000/- for compensation under

the head pain and sufferings. In light of the law laid down

by the Hon'ble Supreme Court in United India

Insurance Company Ltd. v. Satinder Kaur @

Satwinder Kaur and others [(2020) 3 KHC 760], I

hold that the appellants are disentitled for compensation

under the head 'pain and sufferings'. Hence, I set aside

the amount of Rs.7,000/- awarded under the head 'pain

and sufferings.

21. With respect to the compensation awarded under

the head transportation, I find that the Tribunal has

awarded reasonable and just compensation.

22. On an overall re-appreciation of the pleadings

and materials on record and the law laid down in the

aforecited decisions, I am of the definite opinion that the

appellants/petitioners are entitled for enhancement of

compensation as modified and recalculated above and

given in the table below for easy reference.

Head of claim           Amount          Amounts
                        Awarded by      modified and
                        the Tribunal    recalculated
                        (in Rs.)        by this Court

Transportation          2,000/-         2,000/-
expenses

Pain and sufferings 7,000/-             -

Funeral expenses        4,000/-         15,000/-

Loss of estate          -               15,000/-

Love and affection      25,000/-        -

Loss of consortium -                    80,000/-

Loss of dependency 1,65,000/-           6,72,000/-

Total                   2,03,000/-      7,84,000/-

In the result, the appeal is allowed, by enhancing the

compensation by a further amount of Rs.5,81,000/- with

interest at the rate of Rs.7% per annum from the date of

petition till the date of deposit with proportionate costs.

The 3rd respondent is ordered to deposit the enhanced

compensation with interest and proportionate costs before

the Tribunal within a period of two months from the date

of receipt of a certified copy of this judgment. The

Tribunal shall disburse the enhanced compensation in

equal shares other than for the loss of consortium which

shall disburse equally to the appellants 1 and 2 and in

accordance with law.