C.C.Wilson vs K.V.James
2021 Latest Caselaw 7014 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

     MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

                              MACA.No.986 OF 2012

  AGAINST THE AWARD IN OPMV 1201/2004 DATED 31-03-2011 OF MOTOR
               ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM

APPELLANT/PETITIONERS 1 AND 2:

      1      C.C.WILSON
             S/O.C.C.CHERU, H.NO.46/906-A, CHEERAN HOUSE, RAJEEV
             LANE, MARKET ROAD, VADUTHALA P.O.
      2      VALSALA WILSON
             W/O.C.C.WILSON H.NO.46/906-A, CHEERAN HOUSE,
             RAJEEV LANE, MARKET ROAD, VADUTHALA P.O.

             BY ADVS.
             SRI.P.V.BABY
             SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS/3RD PETITIONER:
       1     K.V.JAMES
             KACHAPPILLI HOUSE, PALARIVATTOMP.O., KOCHI-68025.

      2      P.S.SUNIL KUMAR
             S/O.SURENDRAN, MANATH THUNDIPARAMBIL HOUSE,
             NEAR MORARJI DESAI GROUND, VAZHAKKALA, KOCHI-682025.

      3      THE NEW INDIA ASSURANCE CO.LTD.
             VALLAMALLOM ESTATE, RAVIPURAM, M.G.ROAD, KOCHI-
             682015.
      4      NIVIA REBIN
             THANDASSERY HOUSE, SAMATHI ROAD, SRA-127,
             COCHIN-682023.

             R3   BY   ADV.   SRI.GEORGE CHERIAN (SR.)
             R3   BY   ADV.   SMT.K.S.SANTHI
             R3   BY   ADV.   SMT.LATHA SUSAN CHERIAN
             R3   BY   ADV.   SRI.A.A.ZIYAD RAHMAN
             R3   BY   ADV.   SRI.LAL K.JOSEPH
             R3   BY   ADV.   SRI.V.S.SHIRAZ BAVA

             SMT. K S SANTHI -SC        R3

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
19-11-2020, THE COURT ON 01-03-2021 DELIVERED THE FOLLOWING:
 MACA.No.986 OF 2012

                                     2

                             JUDGMENT

Dated this the 1st day of March 2021

The petitioners 1 and 2 in O.P.(MV)

No.1201/2004 on the file of the Motor Accident

Claims Tribunal, Ernakulam are the appellants. The

respondents 1 to 3 and the 3 rd petitioner in the

claim petition are the respondents in the appeal.

The parties are, for the sake of convenience, referred

to as per their status in the claim petition.

2. The petitioners had filed the claim petition

under Section 166 of the Motor Vehicles Act,1988

( in short "Act") claiming compensation on account

of the death of Nevil .C.Wilson (deceased), the son

the petitioners 1 and 2 and the brother of the 3rd

petitioner.

3. The concise case of the petitioners in the

claim petition is that on 19.1.2004 while the

deceased was driving his motorcycle bearing

Reg.No.KL-7AP-4645 along the Kakkanad-

Palarivattom road, a bus bearing Reg. No.KL7/J 2673 MACA.No.986 OF 2012

(offending vehicle) driven by the 2nd respondent, in a

rash and negligent manner, hit the motor cycle

ridden by the deceased, who succumbed to the

injuries. The offending vehicle was owned by the 1 st

respondent and was insured with the 3rd

respondent. The petitioners 1 and 2 - the parents

of the deceased - and the 3rd petitioner - the minor

sister of the deceased - are the dependents of the

deceased. The deceased was doing business in sale

of waste paper and he was getting an income of

Rs.4,000/- per month. The accident occurred solely

due to the rash and negligent driving by the 2nd

respondent. Hence, the petitioners are entitled for

a compensation of Rs.6,15,000/-.

4. The respondents 1 and 2 were set ex

parte.

5. The 3rd respondent - Insurance Company

- filed a written statement, inter alia, refuting the

allegations in the claim petition. The 3 rd respondent

denied that there was any negligence on the part of

the 2nd respondent. The 3rd respondent also alleged MACA.No.986 OF 2012

that there was violation of the insurance policy

condition. The 3rd respondent prayed that the claim

petition be dismissed.

6. The petitioners produced and marked

Exts.A1 to A19 in evidence. Neither party adduced

any oral evidence.

7. The Tribunal, after considering the

pleadings and materials on record, by the

impugned award allowed the claim petition, in part,

by directing the 3rd respondent to pay the

petitioners compensation at the rate of

Rs.3,22,430/- with interest at the rate of 7.5% per

annum. The compensation was directed to be

apportioned at the rate of 40:40:20 among the

petitioners.

8. The comparative table showing the

compensation that was claimed by the petitioners

and that was awarded by the Tribunal is as

follows:-

 MACA.No.986 OF 2012






      SI.         Head of claim             Amount         Amount awarded (in
      No                                    claimed            rupees)
                                          (in rupees)
      1     Funeral expenses                   5000              5000
      2     Transportation expenses
      3     Damages to clothing
      4     Love and affection               25,000             10,000
      5     Medical expenses                 25,000             19,430
      6     Shock pain and sufferings        10,000             10,000
      7     Compensation         for         5,00,000           2,73,000
            continuing and permanent
            disability
      8     Loss of estate                   50,000              5,000
                             Total         6,15,000            3,22,430
                                          =======             ========




            9.     Dissatisfied         with     the       quantum         of

compensation awarded by the Tribunal under the

various heads mentioned above, the petitioners 1

and 2 are in appeal.

10. Heard the learned counsel appearing for

the appellants/petitioners 1 and 2 and the learned

counsel appearing for the 3 rd respondent/Insurance

Company.

11. The point that emerges for consideration in

this appeal is whether the amount of compensation MACA.No.986 OF 2012

awarded by the Tribunal is just and reasonable?

12. 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.

13. By Ext.A4 charge-sheet filed by the Police,

it is found that it was the 2nd respondent who caused

the accident. The 2nd respondent was charge-

sheeted for offences punishable under Sections 279

and 304A of the Indian Penal Code. Undisputedly,

the deceased was 24 years at the time of the

accident. The petitioners had claimed that the

deceased had a monthly income of Rs.4,000/- per

month from his business in waste paper. MACA.No.986 OF 2012

14. In Ramachandrappa v. Manager,

Royal Sundaram Alliance [(2011) 13 SCC 236],

the Hon'ble Supreme Court has fixed the notional

income of a coolie worker in year 2004 at the rate

of Rs.4500/- per month. In view of the said ratio,

the income of the deceased can safely be fixed at

Rs.4,000/- as claimed in the petition.

15. In Magma General Insurance

Company Ltd v. Nanu Ram @ Chuhru Ram &

Others [2018 KHC 6697] and a catena of

subsequent decisions, the Hon'ble Supreme Court

has laid down the law that in the case of death of

a son, the parents are entitled to filial consortium

at the rate of Rs.40,000/- each.

16. In the case on hand, the Tribunal has

awarded only an amount of Rs.10,000/- under the

head 'love affection'. In light of the law laid down

in Magma General Insurance Company Ltd

(supra), the petitioners 1 and 2 are jointly MACA.No.986 OF 2012

entitled for a compensation of Rs.80,000/- under

the head 'filial consortium' i.e. an enhancement

by Rs.70,000/- under the said head of claim.

17. It is also laid down in Pranay Sethi

(supra) and a plethora of subsequent judgments

that the dependants of the deceased are entitled

for funeral expenses @ Rs.15,000/-. In the case

on hand, only an amount of Rs.5,000/- has been

awrded under the said head of claim. Hence, I

enhance the compensation under the said head

of claim by a further amount of Rs.10,000/-.

18. Under the head 'loss of estate also, the

Tribunal has awarded only an amount of

Rs.5,000/-. Again going by the ratio in Pranay

Sethi, the petitioners are entitled for

compensation under the head 'loss of estate' at

Rs.15,000/- i.e., an enhancement by a further

amount of Rs.10,000/-.

19. In light of the recent decision of the MACA.No.986 OF 2012

Hon'ble Supreme Court in Pappu Deo Yadav v.

Naresh Kumar and others [AIR 2020 SC 4424],

which has followed the earlier line of decisions, it

has been held that the dependents are also

entitled for future prospects.

20. In the case on hand, the deceased was

only 24 years of age at the time of accident and

the relevant multiplier to be adopted is 18.

Hence, the petitioners are entitled for future

prospects at the rate of 40%. As the deceased

was a bachelor, half of the amount has to be

deducted towards his personal expenses . In the

said circumstances, the petitioners are entitled

for loss of dependency at the rate of

Rs.6,04,800/- in stead of Rs.2,73,000/-.

21. With respect to the other heads of claim

namely medical expenses and pain and sufferings,

the Tribunal has awarded reasonable and just

compensation.

MACA.No.986 OF 2012

22. On an overall re-appreciation of the

pleadings and the law laid down by the Hon'ble

Supreme Court in the aforecited decisions, I am of

the considered opinion that the petitioners and the

4th respondent 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 Amount Amounts No claimed awarded (in modified and (in rupees) rupees) recalculated by this Court 1 Funeral expenses 5000 5000 15,000 2 Transportation expenses 3 Damages to clothing 4 Love and affection 25,000 10,000 80,000 (Filial consortium) 5 Medical expenses 25,000 19,430 19,430 6 Shock pain and 10,000 10,000 10,000 sufferings 7 Compensation for 5,00,000 2,73,000 6,04,800 loss of dependency with future prospects 8 Loss of estate 50,000 5,000 15,000 Total 6,15,000 3,22,430 7,44,230 ======= ======== =======

23. The petitioners had claimed an amount of

Rs.6,15,000/- towards compensation. After re-

appreciating the pleadings and materials on record, I

have re-fixed the compensation at Rs.7,44,230/-. MACA.No.986 OF 2012

The above course is permitted in view of the law laid

down by the Hon'ble Supreme Court in Nagappa v.

Gurudayal Singh [2003 (1) KLT 115 (SC)], wherein

it has been held that there is no restriction in the

Tribunal awarding more compensation than what is

claimed in the petition.

In the result, the appeal is allowed by directing

the 3rd respondent to pay the appellants/petitioners

and the 4th respondent enhanced compensation of

Rs.4,21,800/- with interest at the rate of 7.5% per

annum on the enhanced compensation and

proportionate costs. The 3rd respondent shall

deposit the additional compensation with interest

and proportionte costs granted in this appeal before

the Tribunal within two months from the date of

receipt of a certified copy of this judgment after

deducting the liability, if any, of the petitioners and

the 4th respondent towards the balance court fee

and legal benefit fund. The disbursement of

compensation to the appellants/petitioners and MACA.No.986 OF 2012

the 4th respondent shall be done in the ratio fixed

by the Tribunal at 40:40: 20,in accordance with

law. It is made clear that the compensation under

the head 'filial consortium' @ Rs.80,000/- shall

only be paid to the appellants/petitioners and the

said amount shall not be taken into account while

apportioning the compensation payable to the 4 th

respondent.

Sd/-

Ma/1.3.2021                             C.S.DIAS, JUDGE
                          /True copy/