Kerala High Court

Bensy Thoufeek Rahman vs Krishnan A on 8 March, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

     MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

                         MACA.No.546 OF 2008

   AGAINST THE AWARD IN OPMV 284/2002 DATED 28-11-2007 OF MOTOR
             ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA


APPELLANT/PETITIONERS:

      1      BENSY THOUFEEK RAHMAN, 25 years,
             W/O.DECEASED THOUFEEK, THEPARAMBIL HOUSE,
             LOKAMALESWARAM NORTH, KODUNGALLUR P.O., THRISSUR
             DISTRICT.

      2      MAKKARU MOULAVI 65 YEARS
             THEPARAMBIL HOUSE, LOKAMALESWARAM NORTH,
             KODUNGALLUR P.O., THRISSUR DISTRICT.

      3      HAFSA 55 YEARS W/O.MAKKARU MOULAVI
             THEPARAMBIL HOUSE, LOKAMALESWARAM NORTH, KODUNGALLUR
             PO.

      4      THOUBA NASEEHA 4 YEARS
             D/O.DECEASED THOUFEEK RAHMAN, MINOR, REPRESENTED, BY
             MOTHER BENSY THOUFEEK RAHMAN, THEPARAMBIL HOUSE,
             LOKAMALESWARAM NORTH P.O, KODUNGALLUR.

             BY ADV. SRI.N.KRISHNANKUTTY PILLAI
RESPONDENT/DEFENDANTS:

      1      KRISHNAN A.
             P.O.ARIMBOOR, THRISSUR DISTRICT.

      2      VINODH S/O.UNNIKRISHNAN
             KAIMAPARAMBIL HOUSE, LOKAMALESWARAM VILLAGE,
             P.O.KODUNGALLUR, THRISSUR DISTRICT.

      3      THE MANAGER NATIONAL ASSURANCE CO.LTD.
             P.B.NO.70, MALIAKKAL BUILDINGS, MAIN ROAD,
             IRINJALAKUDA, THRICHUR.

             R1 BY ADV. SRI.P.JACOB MATHEW
             R1 BY ADV. SRI.MATHEWS JACOB SR.
             R3 BY ADV. K.S.SHANTHI

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.No.546 OF 2008

                                 2

                           JUDGMENT

Dated this the 8th day of March 2021

The appellants were the petitioners in O.P. (MV)

No.284/2002 on the file of the Motor Accidents

Claims Tribunal, Irinjalakuda. The respondents in

the appeal were the respondents in the claim

petition. The parties are, for the sake of convenience,

referred to as per their status in the claim petition.

2. The concise facts in the claim petition,

relevant for the determination of the appeal, are:

the 1st petitioner is the widow of Thoufeek

(deceased), who died in a motor accident on

18.1.2002. The petitioners 2 and 3 are the parents

of the deceased and the 4th petitioner is the child

born in the wedlock between the deceased and the

1st petitioner. It is pleaded in the claim petition

that, on 18.1.2002 while the deceased was riding

his motorcycle bearing Reg. No.TC-76-95, a bus

bearing Reg. No. KL 8/B-151 (offending vehicle)

driven by the 2nd respondent, in a rash and

negligent manner, hit the motorcycle. The 1 st MACA.No.546 OF 2008

respondent is the owner of the bus and the 3 rd

respondent is the insurer. The deceased was aged

27 years on the date of accident. The deceased was

the sole bread-winner of the family. The deceased

was working as a Store Keeper-cum-Cashier and

getting a monthly income of Rs.4,000/- plus

allowances. The respondents 1 to 3 are jointly and

severally liable to pay the petitioners a

compensation of Rs.6,48,000/- ,which was limited to

Rs.6,00,000/- , with interest and proportionate costs.

3. The 1st respondent was absent and was set

ex parte.

4. The 2nd respondent filed a written

statement denying the allegations in the claim

petition.

5. The 3rd respondent filed a written

statement refuting the allegations in the claim

petition, but it was admitted that the offending

vehicle had a valid insurance policy. The 3 rd

respondent contended that the accident occurred

due to the rashness and negligence on the part of MACA.No.546 OF 2008

the deceased. Therefore, the respondents are not

liable to pay any amount towards compensation.

6. The petitioners produced and marked

Exts.A1 to A6 in evidence. The 3 rd respondent

produced and marked Ext.B1 (Insurance Policy) in

evidence. Neither party adduced any oral evidence.

7. The Tribunal, after analysing the

pleadings and materials on record, by the

impugned award allowed the claim petition, in part,

by permitting the petitioners to realise an amount

of Rs.3,28,000/- from the respondents jointly and

severally with interest at the rate of 7% per annum

from the date of petition till the date of realisation

and directed the 3rd respondent to pay the

compensation amount.

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/petitioners and the learned counsel

appearing for the 3rd respondent/3rd respondent. MACA.No.546 OF 2008

10. The learned counsel appearing for the

appellants/petitioners argued that the Tribunal has

gone wrong in not awarding adequate

compensation under the conventional heads as laid

down by the Hon'ble Supreme Court in a plethora

of decisions. He also contended that in view of the

categoric declaration of law in National

Insurance Company Ltd. v. Pranay Sethi

[(2017) 16 SCC 680] and United India

Insurance Company Ltd v. Satinder Kaur @

Satwinder Kaur and Others [2020 (3) KLT 760],

the appellants are also entitled to future prospects.

Similarly, even though the petitioners are four in

number and were dependants on the deceased, the

Tribunal deducted 1/3rd of the compensation

towards personal living expenses of the deceased,

which should have been 1/4th. Therefore, the

appellants are entitled for enhancement of

compensation.

11. The learned counsel appearing for the 3 rd

respondent argued that the Tribunal has awarded MACA.No.546 OF 2008

just and reasonable compensation. The only

mistake in the award is that the Tribnal wrongly

adopted the multiplier of 18, which is actualy 17,

in view of the law laid down in Pranay Sethi

(supra). It was also contended that the Tribunal

has rightly deducted 1/3rd towards the personal

living expenses of the deceased because the 4 th

petitioner was a child in the womb at the time of

accident and, therefore, was not a dependant on

the deceased. She submitted that the Tribunal has

already awarded just compensation to the

appellants. Hence,they are not entitled for any

further enhancement of compensation, and the

appeal be dismissed.

12. The question that emanates for

consideration in this appeal is whether the

quantum of compensation awarded by the Tribunal

on account of the death of the deceased is just and

reasonable?

13. A Constitution Bench of the Hon'ble

Supreme Court in National Insurance Company MACA.No.546 OF 2008

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.

14. Ext.A2 charge-sheet filed by the Police,

has proved the fact that the accident occurred on

account of the negligence on the part of the 2nd

respondent, who drove the vehicle in a rash and

negligent manner. Undisputedly, the offendiing

vehicle was owned by the 1st respondent and

insured with the 3rd respondent. Ext.B1 Policy

produced by the 3rd respondent substantiates that

the offending vehicle had a valid insurance policy.

Ext.A3 inquest report and Ext.A4 post-mortem

certificate proves that the deceased died on

account of the accident that occurred on MACA.No.546 OF 2008

18.1.2002. Therefore, it stands proved beyond

doubt that the deceased died in the accident that

occurred on 18.1.2002, due to the rash and

negligent driving of the offending vehicle by the

2nd respondent, which was insured with the 3rd

respondent. Hence the liability of the 3rd

respondent stands substantiated.

15. The principal area of dispute in the

appeal is with regard to the notional income of

the deceased fixed by the Tribunal. In the claim

petition, the petitioners had claimed that the

deceased was a Store Keeper-cum-Cashier having

a monthly income of Rs.4,000/- plus allowances.

The Tribunal fixed the income of the deceased at

Rs.2,000/-.

16. In Ramachandrappa v. Manager,

Royal Sundaram Alliance [(2011) 13 SCC

236] and in Syed Sadiq and others v.

Divisional Manager, United India Insurance

Co.Ltd [(2014) 2 SCC 735], the Hon'ble MACA.No.546 OF 2008

Supreme Court has fixed the notional income of

a coolie worker in year 2004 at the rate of

Rs.4,500/- per month and for a vegetable

vendor at the rate of Rs.6,500/- per month in

the year 2006, respectively.

17. Following the parameters laid down by

the Hon'ble Supreme Court in the aforecited

decisions, I am of the considered opinion that

the the notional income of the deceased can

safely be re-fixed at Rs.3,000/- per month.

Accordingly, I fix the notional income of the

deceased at Rs.3,000/- per month.

18. The next area of dispute is whether

1/3rd or 1/4th has to be deducted towards the

personal living expenses of the deceased. The

Tribunal had deducted 1/3rd towards the

personal living expenses of the deceased,

without taking into account the fact that the 4 th

appellant/4th petitioner was a dependant on the MACA.No.546 OF 2008

deceased, as on the date of his death, as the

child was in the womb.

19. Undisputedly, the 4th appellant was

impleaded in the claim petition, after her birth,

pursuant to the order of the Tribunal in I.A

No.2865/2003. It is no one's case that the 4th

appellant was not the child conceived to the

1st appellant in her wedlock with the deceased.

Even though the child was not born as on the

date of death of the deceased, the child was

certainly a dependant on the deceased-her

father. It was only due to the death of the

deceased, the child has lost support, love and

affection of her father. If the father was alive,

it would have been his statutory liability to

maintain the child. Certainly, the 4th appellant

is a dependant on the deceased. In the said

circumstances, I am of the definite opinion that

1/4th of the total compensation has to be MACA.No.546 OF 2008

deducted towards the personal living expenses

of the deceased and not 1/3rd as deducted by

the Tribunal. Although the 4 th appellant was in

the womb on the date of accident, after her

birth, she has become a dependent of the

deceased. Hence, I deduct only 1/4th of the

total compensation towards the personal living

expense of the deceased.

20. It is seen from the impugned award

that the Tribunal has adopted the multiplier of

18 taking into account the age of the 1st

petitioner. Going by the law laid down by the

Hon'ble Supreme Court in Sarla Verma &

Others v. Delhi Transport Corporation

[(2009) 6 SCC 121] the multiplier of the

deceased has to be taken into account who was

27 years of age at the time of the death.

Therefore, the correct multiplier is 17.

21. Now coming to the conventional heads, MACA.No.546 OF 2008

i.e, funeral expenses, loss of estate and loss of

consortium. It is seen that the Tribunal has

awarded only an amount of Rs.5,000/-, nil and

Rs.15,000/- respectively under the above three

heads.

22. In light of the law laid down in Pranay

Sethi and Satinder Kaur @ Satwinder Kaur

(supra), the petitioners are entitled to an amount of

Rs.15,000/- under the head of claim 'funeral

expenses. Rs.15,000/- under the head 'loss of estate'

and Rs.40,000/- each under the head spousal

consortium, parental consortium and filal consortium.

Thus, they are entitled to a total amount of

Rs.1,60,000/- under the said head 'loss of

consortium'.

23. Even though the petitioners had claimed

transportation expenses, no amount was granted

under the said head of claim, I am of the opinion that

the petitioners are entitled to an amount of Rs.1,000/-

towards 'transportation expenses'. Similarly, the MACA.No.546 OF 2008

petitioners are entitled to an amount of Rs.500/-

under the head 'clothing'.

24. It is no longer res-integra in view of the

categoric declaration of law in Pranay Sethi (supra)

followed by the most recent decision of the Hon'ble

Supreme Court in Pappu Deo Yadav v. Naresh

Kumar [ AIR 2020 SC 4424] that the dependents

of a deceased are entitled for future prospects.

25. In the case on hand, the deceased was

self employed and aged 27 years. Therefore,

the petitioners are entitled to 40% towards future

prospects. Therefore, the total compensation

under the head 'loss of dependency with future

prospects' has to be enhanced to Rs.6,42,600/-

instead of Rs.2,88,000/- awarded by the Tribunal.

26. On an overall re-appreciation of the

pleadings, materials on record and the law laid down

by the Hon'ble Supreme Court and this Court in the

aforecited decisions, I am of the definite opinion that

the appellants/petitioners are entitled for MACA.No.546 OF 2008

enhancement of compensation as modified and re-

calculated above and given in the table below for

easy reference.

       SI.           Head of claim            Amount      Amounts
       No                                   awarded (in   modified and
                                              rupees)     recalculated
                                                          by this Court
       1     Transport to hospital                           1,000
       2     Clothing                                          5,00
       3     Funeral expenses                 5,000          15,000
       4     Pain and sufferings              5,000          5,000
       5     Love and affection               15,000            -
       6     Loss of estate                                  15,000
       7     Loss of consortium               15,000        1,60,000
       8     Loss of dependancy              2,88,000       6,42,600
             Total                          Rs.3,28,000     8,39,100

In the result, the appeal is allowed in part, by

enhancing the compensation by a further amount of

Rs.5,11,100/- with interest at the rate of 7% per

annum on the enhanced compensation from the

date of petition till the date of realisation with

proportionate costs. The 3rd respondent/Insurance

Company 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 MACA.No.546 OF 2008

judgment, after deducting the liability of the

appellants/petitioners towards the balance court fee