Kerala High Court
Motor Accident Claims Tribunal vs By Advs on 25 March, 2021
MACA.No.1174 OF 2011
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943
MACA.No.1174 OF 2011
AGAINST THE AWARD IN OP(MV)NO. 1410/2006 DATED 31-10-2010 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI
PETITIONERS/PETITIONERS
1 SREEDEVI, W/O.RAMAN, @ RAMANKUTTY,
POYILIL HOUSE, MELATTUR PO,
MALAPPURAM DISTRICT.
2 ANUPRIYA, D/O.RAMAN @ RAMANKUTTY
POYILIL HOUSE, MELATTUR PO, ,MALAPPURAM DISTRICT.
3 RAJEEVAN,S/O.RAMAN @ RAMANKUTTY
POYILIL HOUSE, MELATTUR PO,
MALAPPURAM DISTRICT.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENTS/RESPONDENTS:
1 HISHABUDHEEN.P, S/O.UMMER,
PULIYANGATTU HOUSE,
MELATTUR PO,, MALAPPURAM DISTRICT.
2 BAIJU, S/O.KAMALAM
VELLATTUKUZHI HOUSE
VALIYAPARAMBA ,MELATTUR PO.
3 UNITED INDIA INSURANCE COMPANY LTD
BRANCH OFFICE, MANNARKKAD PO,
PALAKKAD DISTRICT.
R1 BY ADV. SRI.P.V.JYOTHI PRASAD
SRI. P K MANOJ KUMAR --SC FOR INSURANCE COMPANY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 05-03-2021, THE COURT ON 25-03-2021 DELIVERED THE FOLLOWING:
MACA.No.1174 OF 2011
2
C.S.DIAS,J
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MACA No. 1174 of 2011
------------------------
Dated this the 25th day of March, 2021
JUDGMENT
The appellants were the petitioners in
OP(MV)No.194 of 2013 on the file of the Motor
Accidents Claims Tribunal, Manjeri. The respondents in
the appeal were the petitioners in the claim petition.
2. The appellants had filed the claim petition
under Section 166 of the Motor Vehicles Act, claiming
compensation on account of the death of Sri.Raman @
Ramankutty (deceased), who was the husband of the 1 st
appellant and the father of the appellants 2 and 3.
3. The concise case of the appellants in the claim
petition was that : on 27.08.2005 while the deceased
was walking along the Melattur road, an autorickshaw
bearing registration No.KL 10 J 794 (offending vehicle)
driven by the 1st respondent in a rash and negligent
MACA.No.1174 OF 2011
manner, knocked down the deceased, who sustained
serious injuries. The deceased was treated at Alshifa
Hospital, Perinthalmanna and, thereafter, at the
Primary Health Centre, Melattur. Considerable amount
of money was spent for his treatment but, he
succumbed to the injuries on 24.07.2006. The
offending vehicle was owned by the 2 nd respondent and
insured with the 3rd respondent. The deceased was an
Electrician by profession. He was employed in abroad
and was earning a monthly salary of Rs.15,000/- per
month. The appellants were dependants of the
deceased. Hence, the appellants were entitled for
compensation, which they quantified at Rs.10,00,000/-
4. The respondents 1and 2 filed a written
statement, inter alia, contending that there was no
rashness or negligence on the part of the 1 st
respondent. The vehicle was insured with the 3 rd
respondent. Therefore, even if the respondents were
held liable to pay any compensation, it was the 3 rd
respondent who was liable to indemnify the 2 nd
MACA.No.1174 OF 2011
respondent .
5. The 3rd respondent filed a written statement
admitting that the offending vehicle had a valid
insurance policy. It was contended that the accident
occurred solely due to the negligence on the part of the
deceased.
6. The 1st appellant was examined as PW1 and
Exts.A1 to A8 (jn) series were marked through her in
evidence.
7. The respondents marked Ext.D1 to D4 in
evidence.
8. The Tribunal, after analysing the pleadings
and materials on record, by the impugned award
allowed the claim petition in part, by permitting the
appellants to recover an amount of Rs.5,43,297/- with
interest at the rate of 9% per annum from the date of
petition till the date of realisation from the respondents.
The 3rd respondent was directed to pay the
compensation..
9. Dissatisfied with the quantum of compensation
MACA.No.1174 OF 2011
awarded by the Tribunal, the appellants are in appeal.
10. Heard Sri. Mohanakannan, the learned
counsel appearing for the appellants and Sri. P.K.Manoj
Kumar, the learned Counsel appearing for the 3 rd
respondent - insurance company.
11. A Constitution Bench of the Hon'ble Supreme
Court in National Insurance Company Ltd. v.
Pranay Sethi [(2017) 16 SCC 680], has held that
Section 168 of the Motor Vehicles Act, 1988, deals with
the concept of 'just compensation' and the same has to
be determined on the foundation of fairness,
reasonableness and equitability on acceptable legal
standards. The conception of 'just compensation' has to
be viewed through the prism of fairness,
reasonableness and non-violation of the principle of
equitability.
12. Ext.A4 charge-sheet filed by the police after
investigation substantiates that the accident occurred
solely due to the negligence of the 1 st respondent.
Ext.A3 postmortem certificate proves that the deceased
MACA.No.1174 OF 2011
succumbed to his injuries on 24.07.2006. Exts.A5 and
A6 establishes that the appellants 2 and 3 are the
children born in the wedlock between the deceased and
the 1st appellant. Exts.A7 and A8 discharge summaries
substantiates that deceased had undergone
hospitalisation from the date of accident till the date of
his death.Ext.A8 series medical bills proves the medical
expenses incurred by the appellants for the treatment
of the deceased. The above aspects are not disputed or
challenged by the respondents. Hence, they are treated
as conclusive.
13. The principal area of dispute in the appeal is
with regard to the notional income of the deceased
fixed by the Tribunal.
14. The appellants had pleaded in the claim
petition that the deceased was an Electrician by
profession and was employed in the Gulf and drawing a
salary of Rs.15,000/- per month. No documents other
than for the oral testimony of PW1 is on record to
substantiate the income of the deceased.
MACA.No.1174 OF 2011
15. The Division Bench of this Court in Valsamma
v. Binu Jose [2014(1) KLT 10) has succinctly laid down
the law that if no materials have been produced to
prove that a person was permanently employed abroad,
then his income has to be assessed as per Indian
standards. Similarly, in United India Insurance
Company Ltd. v Satinder Kaur @ Satwinder Kaur
and others [2020 (3)KHC 760] the Hon'ble Supreme
Court has held that even if the documents are produced
to prove the income of a person who is employed
abroad, the same has to be attested by the Indian
Embassy/Consulate of the foreign country.
16. In the case on hand, no such material has been
produced. Hence, following the law laid down in
Valsamma (supra) and taking note of the fact that the
deceased was a skilled labourer namely an Electrician
by profession, I adopt the ratio of the Hon'ble Supreme
Court in Pushkar Mehra v. Brij Mohan Kushwaha
and others [2015(12)SCC 688], wherein the Hon'ble
Supreme Court has fixed the monthly income of the
MACA.No.1174 OF 2011
skilled labourer at Rs.7,000/- per month.
Notional income
17. Following the above parameter, I am of the
opinion that the deceased's notional income can safely
be fixed at Rs.7,000/- per month.
Conventional heads
18. In Pranay Sethi (supra) it has been held that
the dependants of the deceased are entitled for
compensation under the conventional heads namely
'loss of estate', funeral expenses' and 'loss of
consortium' at Rs.15,000/- Rs.15,000/- and Rs.40,000/-,
respectively.
19. The Tribunal has only awarded an amount of
Rs,5,000/- under the head ' loss of estate', Rs.3,000/-
under the head 'funeral expenses' and Rs.10,000/-
under the head 'loss of consortium'. Following Pranay
Sethi (supra), I enhance the compensation under the
head 'loss of estate' at Rs.15,000/, under the head
spousal consortium and parental consortium at
Rs.40,000/- each, totalling to an amount of Rs.1,20,000/-
MACA.No.1174 OF 2011
and under the head 'funeral expenses' at Rs.15,000/-.
20. The Tribunal has awarded an amount of
Rs.10,000/- under the head 'loss of love and affection'.
In view of the law laid down by this Court in Kunjandy
v. Rajendran [2020(2) KLT 315], as compensation has
been awarded under the head 'loss of consortium', I
hold that the appellants are not entitled for any amount
under the head 'loss of love and affection' fixed by the
Tribunal at Rs.10,000/- .
Pain and suffering
21. Eventhough the appellants had claimed an
amount of Rs.35,000/- under the head 'pain and
sufferings', the Tribunal did not award any amount
under the head. Considering the fact that the deceased
was hospitalised for the period of 73 days and that he
finally passed away after treatment, I am of the opinion
that a reasonable amount of Rs.20,000/- can be fixed
under the head pain and sufferings.
Loss of dependency with future prospects
22. As the deceased was 47 years of age, the
MACA.No.1174 OF 2011
relevant multiplier to be adopted is '13'. The appellants
were the dependants of the deceased, who are three in
number. Hence, 1/3rd of the total compensation under
the head 'loss of dependency' has to be deducted
towards the personal living expenses of the deceased.
Similarly, the Tribunal has failed to award any amount
towards future prospects as laid down in Sarala Varma
v. Delhi Transport Corporation [2010 (2) KLT 802
(SC)]. As the deceased was 47 years at the time of his
death, 25% of the total amount of compensation under
the head 'loss of dependency' has to be awarded
towards future prospects. In the light of the aforesaid
parameters, I re-fix the compensation under the head
'loss of dependency with future prospects' at
Rs.9,10,000/- instead of Rs.3,63,948/- fixed by the
Tribunal.
Other heads of claim
23. With respect to the other heads of claim
namely, medical expenses, 'bystander expenses' and
'transport', I find that the Tribunal has awarded
MACA.No.1174 OF 2011
reasonable and just compensation.
24. On an overall re-appreciation of the pleadings
and materials on record and the law laid down by the
Hon'ble Supreme Court in the afore-cited decisions, I
am of the definite opinion that the appellants are
entitled for enhancement of compensations as modified
and recalculated above and given in the table below for
easy reference.
Sl. Heads of claim Amount awarded by Amounts
No the Tribunal (in modified and
rupees) recalculated by
this Court
1 Transport 500/- 500/-
2 Clothing nil 500/-
3 Funeral expenses 3,000/- 15,000/-
4 Medical expenses 1,43,549/- 1,43,549/-
5 Loss of estate 5,000/- 15,000/-
6 Loss of consortium 10,000/- 1,20,000/-
7 Loss of dependency 3,63,948/- 9,10,000/-
with future prospects
8 Loss of love and 10,000/- nil
affection
9 Pain and sufferings nil 20,000/-
10 Bystander expenses 7,300/- nil
5,43,297/- 12,24,549/-
In the result, the appeal is allowed by enhancing
the compensation by a further amount of Rs.6,81,252/-
MACA.No.1174 OF 2011
with interest on the enhanced compensation at the rate
of 9% per annum from the date of petition till the date
of realisation with proportionate costs. The 3 rd
respondent shall deposit the enhanced compensation
awarded in this appeal before the Tribunal along with
interest and costs within a period of two months from
the date of receipt of a certified copy of this judgment.
The Tribunal shall disburse the additional compensation
to the appellants in the proportion fixed in the
impugned award and in accordance with law.
Sd/-C.S.DIAS,JUDGE
dlK 27.03.2021
MACA.No.1174 OF 2011
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE A1: TRUE COPY OF THE MEDICAL CERTIFICATE.
