Kerala High Court
Pullithodi Fathima vs P.A.Sivaraman on 18 March, 2021
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MACA.No.1976 OF 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942
MACA.No.1976 OF 2010(C)
AGAINST THE AWARD IN OPMV 495/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL
TIRUR DATED 9.10.2009
APPELLANT/S:
1 PULLITHODI FATHIMA
W/O. LATE KUNHIMOHAMMED, MATHARAMBATH HOUSE,,
P.O.TENHIPALAM, PIN-673 636, MALAPPURAM DISTRICT.
2 MATHARAMBATH MOHAMMED RASHID
AGED 15 YRS (MINOR), S/O. LATE KUNHIMOHAMMED,, MARAMBATH
HOUSE, P.O.TENHIPALAM, PIN-673 636,, MALAPPURAM
DISTRICT.
3 MATHARAMBATH MOHAMMED RAZAL
AGED 12 YRS (MINOR), S/O. LATE KUNHIMOHAMMED,, MARAMBATH
HOUSE, P.O.TENHIPALAM, PIN-673 636,, MALAPPURAM
DISTRICT.
4 MATHARAMBATH MOHAMMED RASHEEK
AGED 11 YRS (MINOR), S/O. LATE KUNHIMOHAMMED,, MARAMBATH
HOUSE, P.O.TENHIPALAM, PIN-673 636,, MALAPPURAM
DISTRICT.
5 MATHARAMBATH RISLA SHERIN
AGED 3 1/2 YRS (MINOR), D/O. LATE KUNHIMOHAMMED,,
MARAMBATH HOUSE, P.O.TENHIPALAM, PIN-673 636,,
MALAPPURAM DISTRICT., (THE MINORS ARE REP.BY THEIR
MOTHER AND GUARDIAN,, THE 1ST APPELLANT)
BY ADV. SRI.P.CHANDRASEKHAR
RESPONDENT/S:
1 P.A.SIVARAMAN, PARAMEL HOUSE, PANNISSERY, KOONAMOOCHI
P.O.,, THRISSUR, PIN-680 504.
2 RANJITH KUMAR K., S/O. VELU K.
KOZHIYATTU HOUSE, MAVOOR AMSOM, VALAYANNUR DESOM,,
P.O.VALAYANNUR, PIN-673 661, MALAPPURAM DISTRICT.
R1 BY ADV. SMT.RAJI T.BHASKAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
18-03-2021, THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:
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MACA.No.1976 OF 2010
C.S.DIAS, J.
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MACA No.1976 of 2010
======================
Dated this the 18th day of March, 2021.
JUDGMENT
The appellants were the petitioners 1 to 5 in OP (MV)
495/2008 on the file of the Motor Accidents Claims Tribunal,
Tirur. The sixth petitioner in the claim petition is no more.
The respondents 1 to 3 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 petitioners 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
Matharambath Kunhimohammed (deceased) - the late
husband of the first petitioner, father of petitioners 2 to 5
and son of the sixth petitioner.
3. The concise case of the petitioners in the claim
petition, relevant for determination of appeal, is that on
MACA.No.1976 OF 2010
17.2.2008, while the deceased was travelling in a motor
cycle bearing registration No.KL-10/M-6552 through
Thrissur - Kozhikode National Highway when he reached
the Chelambra Junction in Kakancheri, a bus bearing
registration No.KL-46-3009 (offending vehicle) driven in a
rash and negligent manner by the second respondent, hit
the motor cycle of the deceased. The deceased fell on the
road and was dragged for some distance. He sustained
serious injuries. He was taken to the Red Crescent Hospital,
Chungam and, thereafter, referred to the Medical College
Hospital, Kozhikode. However, he unfortunately passed away
on the same day. The deceased was a cook in a hotel. He
was the sole breadwinner of the family and was earning
Rs.200/- per day from his employment. The petitioners were
fully depending on the income of the deceased. The
petitioners have no job or avocation. The accident occurred
solely due to the negligence on the part of the second
respondent, who drove the offending vehicle in a rash and
negligent manner. The offending vehicle was owned by the
first respondent and insured with the third respondent.
MACA.No.1976 OF 2010
Therefore, the respondents 1 to 3 were jointly and severally
liable to pay compensation to the petitioners, which they
quantified at Rs.16,70,000/-.
4. The respondents 1 and 2 did not contest the
proceedings and were set ex parte.
5. The third respondent - Insurance Company - filed a
written statement admitting that the offending vehicle was
covered by a valid insurance policy. However, it was
contended that the accident occurred due to the gross
negligence on the part of the deceased, who rode the motor
cycle in an inexperienced manner without observing the
Rules and Regulations. Moreover, he was not holding a
driving licence. Hence, the respondents prayed that the
claim petition be dismissed.
6. The first petitioner was examined as PW1 and Exts
A1 to A20 were marked through her in evidence. The
respondents did not adduce any evidence.
7. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed the
claim petition, in part, by directing the third respondent to
MACA.No.1976 OF 2010
pay an amount of Rs.4,72,000/- to the petitioners with
interest at the rate of 7.5% per annum from the date of
petition till the date of realisation with costs of Rs.6,000/-.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioners 1 to 5 are in
appeal.
9. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the third
respondent - Insurance Company.
10. The question that emanates for consideration in
the appeal is whether the amount of compensation awarded
by the Tribunal is reasonable and just.
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
MACA.No.1976 OF 2010
fairness, reasonableness and non-violation of the principle
of equitability.
12. Ext A6 charge-sheet filed by the Police after
investigation, based on Ext A3 inquest report, Ext A4 scene
mahazar and Ext A5 series AMVI reports, substantiate that
the accident was caused due to the rash and negligent
driving of the offending vehicle by the second respondent.
Ext A2 postmortem report and Ext A7 body mahazar proves
that the deceased expired on 17.2.2008 as a result of the
accident. Exts A9 to A15 prove that the petitioners are the
legal heirs of the deceased. Ext A16 death certificate
establishes that the sixth respondent - the mother of the
deceased - also expired.
13. The principal area of dispute in this appeal is with
regard to the fixation of the notional income of the deceased
as well as the non-award of compensation on the
conventional heads and future prospects to the petitioners.
14. It was the specific case of the petitioners that the
deceased was employed as a Cook in a hotel, by name,
Friends Hotel, 14th Mile, Olippuram Road. The petitioners
MACA.No.1976 OF 2010
claimed that the deceased was earning an income of
Rs.200/- per day. He was, undisputedly, 34 years on the date
of his death.
15. The Tribunal fixed the notional income of the
deceased at Rs.3,000/- per month.
16. The Hon'ble Supreme Court in Ramachandrappa
v. Manager, Royal Sundaram Alliance Insurance
Company Limited [(2011) 13 SCC 236] and Syed Sadiq
v. Divisional Manager, United India Insurance Co. Ltd.
[(2014) 2 SCC 735] has fixed the notional income of a
coolie worker at Rs.4,500/- in the year 2004 and that of a
vegetable vendor at Rs.6,500/- in the year 2006,
respectively. In Pushkar Mehra vs. Brij Mohan
Kushwala and others [(2015) 12 SCC 688] the Hon'ble
Supreme Court had fixed the notional income of a skilled
labourer in the year 2004 at Rs.7,020/- per month.
Notional Income
17. Following the parameters laid down by the Hon'ble
Supreme Court in the aforecited decisions and considering
the fact that the deceased was aged 34 years on the date of
MACA.No.1976 OF 2010
his death and was employed as a Cook in a hotel and he
passed away in the year 2008, I am of the considered
opinion that the deceased's notional income can safely be
fixed at Rs.6,500/- as claimed in the claim petition. Hence, I
fix the deceased's notional income at Rs.6,500/- per month.
Future prospects
18. In Sarla Verma v. Delhi Transport Corporation
[(2009) 6 SCC 121] and in line of subsequent decisions
the Hon'ble Supreme Court has categorically laid down the
law that the dependents of the deceased are entitled for
future prospects @ 40% of the total compensation to be
awarded under the head loss of dependency, in the case
where the deceased was a self employed person.
Undisputedly, the deceased was a self employed person and
the petitioners were his dependents.
19. In the said circumstances, following the ratio in
Sarla Verma and Pranay Sethi (supra), adopting the
multiplier at '16' and fixing the notional income of the
deceased at Rs.6,500/- per month, I fix the compensation
under the head 'loss of dependency with future prospects' at
MACA.No.1976 OF 2010
Rs.13,97,760/- instead of Rs.4,32,000/- as fixed by the
Tribunal.
Conventional Heads of Compensation
20. 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. The Hon'ble Supreme Court
in concluding paragraph of Pranay Sethi (supra) has gone
onto hold in clause (viii) of paragraph 61 that, the
compensation to be awarded under the conventional heads
has to be enhanced @ 10% in every three years from the
date of the judgment in Pranay Sethi (supra) on
31.10.2017. Since we are in March 2021, the petitioners are
entitled for compensation under the heads 'loss of estate'
at Rs.16,500/-, 'funeral expenses' at Rs.16,500/- and loss of
consortium, namely, spousal consortium to the first
petitioner @ Rs.44,000/-, parental consortium to the
petitioners 2 to 5 @ Rs.44,000/- each and filial consortium to
MACA.No.1976 OF 2010
the sixth petitioner @ Rs.44,000/- totalling to an amount of
Rs.2,64,000/-.
Other Heads of claim
21. I find that the Tribunal had not awarded any
amount under the heads, transportation expenses, damage
to clothing and pain and sufferings. Accordingly, I award an
amount of Rs.2,000/- towards transportation expenses as the
deceased was taken to two hospitals, Rs.500/- towards
damage to clothing and Rs.10,000/- towards pain and
sufferings.
22. It is seen that the Tribunal has awarded an amount
of Rs.20,000/- under the head loss of love and affection to
the petitioners 2 to 5. In view of the fact that the
compensation has been awarded for loss of love and
affection, I hold that the petitioners are not entitled for
compensation under the said head of claim.
Personal and living expenses
23. In light of the ratio in Sarla Verma (supra) and as
the deceased has six dependents, one-fourth of the total
amount that has been awarded is to be deducted towards
MACA.No.1976 OF 2010
the personal living expenses of the deceased.
24. On an overall re-appreciation of the pleadings,
materials on record and the law laid down by the Hon'ble
Supreme Court 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 and
rupees) recalculated
by this Court
1 Transport to Hospital Nil 2,000/-
2 Damage to clothing Nil 500/-
3 Funeral expenses 5,000/- 16,500/-
4 Pain and sufferings Nil 10,000/-
5 Loss of estate 5,000/- 16,500/-
6 Loss of consortium 10,000/- 2,64,000/-
7 Loss of dependency 4,32,000/- 13,97,760/-
Total 4,52,000/- 17,07,260/-
In the result, the appeal is allowed by enhancing
the compensation by a further amount of Rs.12,55,260/-
(Rupees Twelve Lakh Fifty Five Thousand Two Hundred and
Sixty only) with interest on the enhanced compensation at
the rate of 7.5% per annum from the date of claim petition
till the date of realisation with proportionate costs. The
MACA.No.1976 OF 2010
third respondent shall deposit the additional compensation
granted in this 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 Tribunal shall disburse the compensation to
the appellants 1 to 4/petitioners 1 to 4 in proportion and in
accordance with law. The proportionate claim of the fifth
appellant shall be put in fixed deposit till she attains the age
of majority. The disbursement of compensation to the sixth
claimant shall be made to her legal representatives, in
accordance with law.
Sd/-
C.S.DIAS
SKS/18.3.2021 JUDGE
