Kerala High Court
Appu And Others vs M.K.Mani And Others on 1 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
MACA NO. 1950 OF 2010
AGAINST THE ORDER/JUDGMENT IN OPMV 270/2004 OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL , PALAKKAD,
APPELLANT/S:
1 APPU, S/O.KRISHNAN
2 KALYANI, W/O.APPU.
3 SINDHU, D/O.APPU.
4 ANIL KUMAR, S/O.APPU.
5 INDHU (MINOR), D/O.APPU.
(MINOR 5TH APPELLANT REPRESENTED BY HER GUARDIAN,
FATHER THE IST APPELLANT HEREIN)., ALL RE RESIDING AT
THEKKE MANGODE, PALLASSANA.P.O,, CHITTUR TALUK,
PALAKKAD DISTRICT.
BY ADVS.
SRI.P.S.APPU
SRI.C.A.ANOOP
SRI.JIBU P THOMAS
SRI.T.C.SURESH MENON
RESPONDENT/S:
1 M.K.MINI, S/O.KANDHASWAMI
RESIDING AT NO.2C, NATHAMEDU, MAVUREDDY,,
PARAMATHY.P.O., P.VELLUR TALUK,, NAMAKKAL DISTRICT.
637 207.
2 SELVAKUMAR, S/O.MARAPPAN
RESIDING AT UPPUPALLIPUDUR, VALLIPALAYA.P.O.,,
P.VELLUR TALUK, NAMAKKAL DISTRICT. 638 182.
3 NATIONAL INSURANCE CO.LTD.
NAMAKAL BRANCH OFFICE, 74-A, PARAMATTI ROAD,,
NAMAKKAL. 638 182.
4 G.ARTHANARI, S/O.GUMATHAN (DELETED)
RESIDING AT 11-A, KOKKARAYANPETTAI ROAD,, KUMAR
ILLAM, ANIMOOR.P.O., THIRUCHANGODE-637 211.
5 A.MAHADESWARAN, S/O.ARTHANARI(DELETED)
RESIDING AT VELLUR ROAD, THIRUCHANGODE-637 211.
2
MACA No.1950 of 2010
(RESPONDENTS 4 AND 5 ARE DELETED FROM THE PARTY
ARRAY AS PER ORDER DATED 19.3.2021 IN IA 1/2020 )
6 UNITED INDIA INSURANCE CO.LTD.
BRANCH OFFICE, 146/N, KUMAR COMPLEX,, ANNASALAI,
THIRUCHANGODE-637 211.
7 M.K.SAIDU
RESIDING AT MOOSAN PARAMBIL HOUSE,, MUTTOM,
THAIKKATTUKARA.683 103
8 NATIONAL INSURANCE CO.LTD.
ALUVA, DIVISIONAL OFFICE, P.B.NO.89, ALUVA.683 101
BY ADVS.
SRI.P.JACOB MATHEW
SRI.MATHEWS JACOB SR.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 01.07.2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
3
MACA No.1950 of 2010
C.S DIAS,J.
---------------------------
MACA No.1950 of 2010
-----------------------------
Dated this the 1st day of July, 2021.
JUDGMENT
The appellants were the petitioners in OP (MV)
270/2004 on the file of the Motor Accidents Claims
Tribunal, Palakkad. The respondents in the appeal were
the respondents in the claim petition. Pursuant to the
orders of this Court on 19.3.2021 in IA 1/2020, the
respondents 4 and 5 were deleted from the party array.
2. The appellants had filed the claim petition under
Sec.166 of the Motor Vehicles Act, 1988 (in short 'the
Act'), claiming compensation on account of the death of
one Santhosh Kumar (deceased) - the son of appellants 1
and 2 and brother of the appellants 3 to 5.
3. The appellants contended that while the
deceased was driving in a tempo van bearing registration
MACA No.1950 of 2010
No.KL-7/V 4525 from Aluva to Bangalore on 30.10.1999
through the Omallur Dharmapuri public road, a lorry
bearing registration No.TN 28/K 2799 (offending vehicle)
driven by the second respondent in a rash and negligent
manner hit the tempo van of the deceased. The offending
vehicle was owned by the first respondent and insured
with the third respondent. It was further averred that in
the accident the vehicle of the deceased also hit an other
lorry bearing registration No.TN 28/Y 2284, which was
driven by the fifth respondent and owned by the fourth
respondent and insured with the sixth respondent. The
deceased succumbed to his injuries on the spot. The
deceased was a driver by profession and earning a
monthly income of Rs.9,000/- and contributed an amount
of Rs.5,000/- per month to his family. The respondents 7
and 8 were the owner and insurer of the tempo van, which
was driven by the deceased. The appellants contended
that the respondents were jointly and severally liable to
MACA No.1950 of 2010
pay compensation to them, which was quantified at
Rs.10,00,000/-.
4. The respondents 1,2,4, 5 and 7 did not contest
the proceedings and were set ex parte.
5. The respondents 3 and 8 - the National
Insurance Company Ltd - the insurer of both the lorries
filed a written statement, inter alia, contending that there
was no negligence on the part of the drivers of the lorries,
but the drivers of the lorries did not hold valid driving
licences and badges to drive the vehicle. The
compensation claimed by the appellants was excessive and
the claim petition was liable to be dismissed. The sixth
respondent filed a written statement contending that the
accident occurred solely due to the negligence on the part
of the deceased.
6. The appellants produced and marked Exts A1 to
A9 in evidence.
7. The Tribunal, after analysing the pleadings and
MACA No.1950 of 2010
materials on record, by the impugned award allowed the
claim petition, in part, by permitting the appellants to
realise an amount of Rs.2,74,500/- from the third
respondent along with interest at the rate of 7.5% per
annum from the date of petition till the date of realisation
and a cost of Rs.1,000/-.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioners are in appeal.
9. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the
respondents 3 and 8 - the National Insurance Company
Ltd
10. Ext A1 FIR substantiates the fact that the
accident occurred due to the rashness and negligence on
the part of the second respondent who drove the offending
vehicle in a negligent manner and caused the accident.
Undisputedly, the first respondent was the owner and the
third respondent was the insurer of the offending vehicle.
MACA No.1950 of 2010
Therefore, it is the third respondent who is liable to
indemnify the first respondent of his liability to pay the
compensation to the appellants.
11. Ext A8 relationship certificate proves that the
appellants were the parents and siblings of the deceased.
The appellants had claimed that the deceased was a driver
by profession earning a monthly income of Rs.9,000/-. The
Tribunal accepted the version of the appellants, but fixed
the notional income of the deceased at Rs.2,000/- per
month.
12. Ext A7 driving licence of the deceased proves
that the deceased was having a valid driving licence from
2.6.1995. Subsequently, on 3.7.1997 he was issued with a
paper badge authorizing him to drive a transport vehicle.
Therefore, it is proved through Ext A7 that the deceased
was a professional driver.
13. The Hon'ble Supreme Court in Pushkar Mehra
vs. Brij Mohan Kushwala and others [(2015) 12 SCC
MACA No.1950 of 2010
688] has fixed the notional income of a skilled labourer in
the year 2010 at Rs.7,020/- per month. Similarly, in
Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(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. It was held that a daily wage labourer could
earn Rs.150/- per day.
14. The learned counsel appearing for the
respondents 3 and 8 drew the attention of this Court to
Employee's Compensation Act,1923 and contended that as
on 8.12.2000, the minimum wage of a manual labourer
was Rs.4,000/-.
15. Following the parameters in Pushkar Mehra
(supra), Ramachandrappa (supra) and also in
Employee's Compensation Act and taking note of the fact
that the accident took place on 30.10.1999, I am of the
definite opinion that the deceased's notional income can
MACA No.1950 of 2010
safely be fixed at Rs.4,000/-. Hence, I fix the notional
income of the deceased at Rs.4,000/- per month.
Future prospects
16. In Sarla Verma v. Delhi Transport
Corporation [(2009) 6 SCC 121] and a host of
subsequent decisions, the Hon'ble Supreme Court has
categorically held that the dependents of the deceased are
entitled to future prospects @ 40% of the total
compensation to be awarded under the head loss of
dependency.
17. In the case on hand, as the deceased was a self
employed person, the appellants are entitled for future
prospects at 40%.
18. Admittedly, the deceased was a bachelor.
Therefore, going by the law laid down in Sarla Verma
(supra) and National Insurance Company Ltd. v.
Pranay Sethi [(2017) 16 SCC 680], one-half of the
income of the deceased has to be deducted towards his
MACA No.1950 of 2010
personal living expenses.
19. The deceased was aged 22 years at the time of
his death. Hence, the relevant multiplier is 18.
20. Adopting the notional income of the deceased at
Rs.4,000/- , future prospects at 40%, multiplier at 18 and
after deducting one-half of the income towards his
personal living expenses, I refix the compensation under
the head 'loss of dependency' at Rs.6,04,800/-.
Conventional Heads of Compensation
21. In United India Insurance Co. Ltd v. Satinder
Kaur @ Satwinder Kaur and others- [(2020 (3) KHC
760], the Hon'ble Supreme Court has held that the
dependents of the deceased are entitled for compensation
under the conventional heads of funeral expenses, loss of
estate and loss of consortium at Rs.15,000/-, Rs.15,000/-
and Rs.40,000/-. Therefore, I award compensation under
the heads funeral expenses and loss of estate at
Rs.15,000/- each.
MACA No.1950 of 2010
22. As the appellants 1 and 2 are the parents of the
deceased, they alone are entitled for filial consortium at
Rs.40,000/- each totalling to an amount of Rs.80,000/-.
23. It is seen that even though the appellants had
claimed transportation expenses of Rs.5,000/-, no amount
was awarded under the said head. I hold that an amount
of Rs.2,500/- has to be awarded towards transportation
expenses for having brought the body of the deceased
from Tamil Nadu to Kerala. Similarly, I award an amount
of Rs.500/- under the head 'damage to clothing'.
24. The Tribunal had awarded an amount of
Rs.15,000/- under the head loss of love and affection. In
light of the law laid down in Kunjandy. L & Ors v.
Rajendran & Ors [2020 (2) KLT 315], that once
compensation is awarded under the head loss of
consortium, no amount shall be awarded under the head
loss of love and affection, I set aside the amount of
Rs.15,000/- awarded by the Tribunal.
MACA No.1950 of 2010
25. On an overall re-appreciation of the pleadings,
materials on record and the law laid down in the afore-
cited precedents, I am of the firm opinion that the
appellants are entitled for enhancement of compensation
as modified and re-calculated above, and given in the table
below for easy reference.
SI. Head of claim Amount awarded Amounts
No by the Tribunal (in modified
rupees) and
recalculated
by this
Court
1 Transport to Hospital Nil 2,500/-
2 Damage to clothing Nil 500/-
3 Funeral expenses 5,000/- 15,000/-
4 Loss of love and affection 15,000/- Nil
5 Loss of estate 2,500/- 15,000/-
6 Loss of consortium Nil 80,000/-
7 Loss of dependency 2,52,000/- 6,04,800/-
Total 2,74,500/- 7,17,800/-
In the result, the appeal is allowed by enhancing
the compensation by a further amount of Rs.4,43,300/-
(Rupees Four Lakh Forty Three Thousand Three Hundred
only) with interest on the enhanced compensation at the
rate of 7.5% per annum from the date of claim petition
MACA No.1950 of 2010
till the date of realisation, after deducting the period of
411 days, i.e., the period of delay in preferring the appeal
and as ordered by this Court on 19.3.2021 in C.M Appln
2500/2010, and proportionate costs. The third respondent
shall deposit the enhanced compensation awarded in the
appeal before the Tribunal together with interest and
proportionate costs within a period of two months from
the date of receipt of a certified copy of the judgment.
The compensation shall be equally disbursed to the
appellants 1 and 2, in accordance with law.
sd/-
Sks/1.7.2021 C.S.DIAS, JUDGE
