Kerala High Court

Beevi vs V.Sundar Raj on 18 March, 2021

MACA.Nos.1073 & 2183 OF 2009
                                  1

            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.1073 OF 2009

  AGAINST THE AWARD IN OP(MV)NO. 643/2005 DATED 09-09-2008 OF
            MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA


APPELLANTS/CLAIMANTS:

      1      BEEVI,AGED 37, W/O.KUNHI MOIDY,
             UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,
             CHENOLI DESOM,, POST CHENOLI,
             KOYILANDY - 673525.

      2      THAJUNNISA, AGED 19DO.KUNHI MOIDY
             UNNICHIRAKANDY HOUSE,NOCHAD AMSOM,,
             CHENOLI DESOM, POST CHENOLI,
             KOYILANDY-673525.

      3      THASNEEM,AGED 15 YEARS, S/O.KUNHIMOIDY
             DATE OF BIRTH 24/101993,REP.BY MOTHER/
             NEXT FRIEND BEEVI, W/O. KUNHI MOIDY,
             UNNICHIRAKANDY, HOUSE, NOCHAD AMSOM,
             CHENOLI DESOM, POST, CHENOLI,
             KOYILANDY-673525.

      4      KUNHOKKAR, AGED 84 YEARS,S/O. AMMED
             UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,
             CHENOLI DESOM,, POST CHENOLI, KOYILANDY-67352.

      5      AMINAAGED, 69 YEARS, W/O. KUNHOKKAR
             UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,
             CHENOLI DESOM,, POST CHENOLI,
             KOYILANDY - 673525.

             BY ADVS.
             SRI.U.P.BALAKRISHNAN
             SRI.K.R.AVINASH (KUNNATH)
 MACA.Nos.1073 & 2183 OF 2009
                               2

RESPONDENTS/RESPONDENTS:

      1      V.SUNDAR RAJ, MANAGING PARTNER,
             SUNDARA RAJ SAW MILL & INDUSTRIES,
             NETHAJI ROAD,, THRISSUR DISTRICT
             (OWNER OF THE KL 8/E 4887, NO.LORRY)

      2      SENTHIL KUMAR, AGED 32 YEARS
             S/O.RAMASWAMY, HOUSE NO.V/6,MGR NAGAR,,
             CHETTIPPALAYAM, COIMBATORE, D.L.NO.463/TN 37/00,
             (DRIVER OF THE KL 8/E 4887 NO.LORRY)

      3      THE NATIONAL INSURANCE CO.LTD. REGD.
             OFFICE III,MIDDLETEN STREET, P.B.NO.9229,,
             KOLKATTA,WEST BENGAL, POLICY NO.650201/31/04/,
             6703682, VALID FROM 11.10.2004 TO 10.10.2005,
             (INSURER OF THE KL 8/E 4887 NO LORRY)

             R1 BY ADV. SRI.E.M.JOSEPH

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 16-03-2021, ALONG WITH MACA.2183/2009, THE COURT ON 18-03-
2021 DELIVERED THE FOLLOWING:
 MACA.Nos.1073 & 2183 OF 2009
                                  3


               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.2183 OF 2009

  AGAINST THE AWARD IN OP(MV) NO. 643/2005 DATED 09-09-2008 OF
            MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA


APPELLANT/3RD RESPONDENT:

               NATIONAL INSURANCE CO. LTD.
               KOLKATTA, REP.BY THE MANAGER,,
               REGIONAL OFFICE, M.G.ROAD, COCHIN-35.

               BY ADV. SRI.E.M.JOSEPH

RESPONDENTS:

      1        BEEVI, AGED 37 YEARS, W/O.KUNHI MOIDY,
               UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,,
               CHENOLI DESOM, POST CHENOLI,,
               KOYILANDY TALUK, PIN-673525.

      2        THAJUNNISA, AGED 19 YEARS
               D/O.KUNHI MOIDY, UNNICHIRAKANDY HOUSE,,
               NOCHAD AMSOM, CHENOLI DESOM,
               POST CHENOLI,, KOYILANDY TALUK, PIN-673525.

      3        THASNEEM, AGED 14 YEARS
               S/O.KUNHI MOIDY, REP.BY MOTHER BEEVI,,
               UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,,
               CHENOLI DESOM, POST CHENOLI,,
               KOYILANDY TALUK, PIN-673525.

      4        KUNHOKKAR AGED 83 S/O.AMMED
               UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,,
               CHENOLI DESOM, POST CHENOLI,,
               KOYILANDY TALUK, PIN-673525.

      5        AMINA, AGED 68 YEARS, W/O.KUNHOKKAR
 MACA.Nos.1073 & 2183 OF 2009
                               4

             UNNICHIRAKANDY HOUSE, NOCHAD AMSOM,,
             CHENOLI DESOM, POST CHENOLI,,
             KOYILANDY TALUK, PIN-673525.

      6      V.SUNDAR RAJ MANAGING PARTNER
             SUNDARA RAJ SAW MILL & INDUSTRIES,,
             NETHAJI ROAD, THRISSUR-1.

      7      SENTHIL KUMAR, AGED 28,
             S/O.RAMASWAMY, HOUSE NO.V/6,, M.G.R.NAGAR,
             CHETTIPPALAYAM,, COIMBATORE.

             R1-5 BY ADVS. SRI.K.R.AVINASH (KUNNATH)
             SRI.U.P.BALAKRISHNAN
             R6 BY ADV. SRI.MILLU DANDAPANI

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 16-03-2021, ALONG WITH MACA.1073/2009, THE COURT ON 18-03-
2021 DELIVERED THE FOLLOWING:
 MACA.Nos.1073 & 2183 OF 2009
                                 5



                              C.S.DIAS,J
                    ------------------------

MACA Nos.1073 & 2183 of 2009

------------------------

Dated this the 19th day of March, 2021

COMMON JUDGMENT

As these appeals arise out of the common award

between the same parties in OP(MV)No.643 of 2005 on

the file of the Motor Accident Claims Tribunal,

Vatakara, they are being disposed of by this common

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

referred to as per their status in the claim petition.

2. The case of the petitioners in brief in the claim

petition is that : on 15.02.2005 when one Kunhimoidy

(deceased), the husband of the 1 st petitioner and the

father of the petitioners 2 and 3 and son of petitioners 4

and 5, was riding a motorcycle bearing registration No.

KL 18 A 5773, a Lorry bearing registration No.KL/08 E

4887 (offending vehicle) driven by the 2 nd respondent in

a rash and negligent manner, hit the motorcycle driven MACA.Nos.1073 & 2183 OF 2009

by the deceased. The deceased was taken to Deeja

Hospital, Perambra and later to the Malabar Institute of

Medical Science, Kozhikode, but he succumbed to the

injuries. The accident occurred solely due to the

negligence on the part of the 2nd respondent. The 1st

respondent is the owner and the 3 rd respondent is the

insurer of the offending vehicle. The deceased was

working as a Pharmacist in Saudi Arabia. After he

returned to India, he started his own pharmaceutical

shop at Perambra named 'Thaj Medical' and he was

getting a monthly income of Rs. 25,000/-. The

petitioners, who are the dependants of the deceased are

entitled to a compensation of Rs.10,00,000/-.

3. The respondents 1 and 2 did not contest the

proceedings and were set ex-party.

4. The 3rd respondent - insurance company -

filed a written statement, inter alia, contending that the

offending vehicle was insured by the 3rd respondent. MACA.Nos.1073 & 2183 OF 2009

However, the 2nd respondent did not have the

vehicular documents or a valid driving license. The

accident occurred solely due to the negligence of the

decease. The amount claimed in the claim petition was

exorbitant and excessive. The claim petition be

dismissed.

5. The 1st petitioner was examined as PW1 and

Exts.A1 to A18 were marked through her. The 3 rd

respondent marked Ext.D1 in evidence.

6. The Tribunal, after analysing the pleadings

and materials on record, by the impugned award

allowed the claim petition, in part, by holding that the

petitioners were entitled to get a total compensation of

Rs.6,32,000/- with interest at the rate of 6% per annum

from the date of petition till the date of realisation and

Rs.16,000/- as costs. The 3rd respondent was directed to

pay the compensation amount.

7. Dissatisfied with the quantum of compensation MACA.Nos.1073 & 2183 OF 2009

awarded by the Tribunal the petitioners have filed

MACA No.1073 of 2009 and aggrieved by the impugned

award, the 3rd respondent has filed MACA No.2183 of

2009.

8. Heard the learned counsel appearing for the

appellants/claimants and the learned counsel appearing

for the 3rd respondent - insurance company.

9. The question that emerges for consideration in

these appeals is whether the quantum of compensation

awarded by the Tribunal reasonable and just?

10. 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 MACA.Nos.1073 & 2183 OF 2009

be viewed through the prism of fairness, reasonableness

and non-violation of the principle of equitability.

11. Ext.A2 charge-sheet substantiates that the

accident occurred due to the rash and negligent driving

of the offending vehicle by the 2nd respondent. Ext.P3

postmortem report proves that the deceased died in the

accident on 15.02.2005.

12. The principal area of dispute in these appeals

is whether the notional income fixed by the Tribunal at

Rs.5,000/- is correct or not?

13. The petitioners had claimed that the deceased

was a Pharmacist by profession. To prove this aspect

they produced Ext.A6 Pharmacy Diploma Course

Certificate, Ext.A7 identity card issued by the Kerala

State Pharmacy Council and Ext.A9 license issued by

the Perambra Grama Panchayath. Eventhough, they

produced Ext.A11 salary certificate, the same was not

accepted by the Tribunal as it was an unsigned MACA.Nos.1073 & 2183 OF 2009

document. The petitioners also produced documents to

prove that the deceased was a subscriber of chitties.

The fact remains that eventhough the petitioners

claimed that the deceased had an income of Rs.25,000/-

per month, it is undisputed that the deceased was not

an income tax assessee. More over, they did not

produce the audited balance sheet or accounts to prove

that the deceased was getting an income of Rs,25,000/-

as alleged in the claim petition. Therefore, we would

have to proceed with the case on the basis of the

notional income of the deceased.

14. The Hon'ble Supreme Court in Minu Rout

and Others v. Satya Pradyumna Mohapatra and

Others. (2013 ACJ 2544) has fixed the notional income

of a driver for an accident that took place in the year

2004 at the rate of Rs.6,000/- per month. In

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [(2011) 13 MACA.Nos.1073 & 2183 OF 2009

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 in

the year 2004, at Rs.4,500/- per month and that of a

vegetable vendor in the year 2008, at Rs.6,500/- per

month.

Notional Income

15. Following the parameters laid down by the

Hon'ble Supreme Court in the afore-cited decisions and

taking into consideration that the deceased was a

Pharmacist by profession, and that the accident was

occurred in the year 2005, I am of the considered

opinion that the petitioner's notional income can safely

be fixed at Rs.7,000/- per month. Hence, I fix the

deceased's notional income at Rs.7,500/- per month.

Multiplier

16. In view of the re-fixation of the notional

income of the petitioners, the consequential MACA.Nos.1073 & 2183 OF 2009

compensation to be awarded has to necessarily be

enhanced. In Sarala Verma v Delhi Transport

Corporation reported in 2010(2) KLT 802 (SC) and

Pranav Sethi (supra) the Hon'ble Supreme Court has

held that the future prospects has also to be awarded to

the dependants of the deceased under the head 'loss of

dependency'. As the deceased was aged 41 at the time

of accident, the relevant multiplier is '14' and,

therefore, 25% has to be taken as future prospects. In

the light of the fact that the deceased had five

dependants, 1/4th of the total compensation payable

under the head 'loss of dependency' and 'future

prospects' has to be deducted towards the personal

living expenses of the deceased. In the said

circumstances, I re-fix the compensation for loss of

dependency with the future prospects at

Rs.11,02,0500/- instead of Rs.6,00,000/-

17. In Pranav Sethi (supra), the Hon'ble Supreme MACA.Nos.1073 & 2183 OF 2009

Court has held that in Clause No.8 of paragraph 61 that

the dependants of the deceased are entitled for

compensation under the conventional heads namely loss

of estate, loss consortium and funeral expenses at

Rs.15,000/-, 40,000/- and 15,000/- respectively. Thus, I

hold that the petitioners are entitled to compensation

under the heads loss of estate at Rs.15,000/-, funeral

expenses at Rs.15,000/-, loss of consortium at

Rs.40,000/- each i.e, Rs.40,000/- towards the spousal

consortium of the 1st petitioner, Rs.80,000/- toward the

parental consortium to the petitioners 2 and 3 and

Rs.80,000/- towards filial consortium to the petitioners

4 and 5.

18. With respect to the amount of compensation

awarded by the Tribunal under the head transport, I

find the same to be reasonable and just.

19. On an overall re-appreciation of the pleadings,

materials on record and the law laid down by the MACA.Nos.1073 & 2183 OF 2009

Hon'ble Supreme Court in the afore-cited decisions, I

am of the firm opinion that the petitioners are entitled

for enhancement of compensation as modified and

recalculated above and given in the table below for easy

reference.

     Sl.   Heads of claim        Amount awarded by   Amounts modified
     No                           the Tribunal (in    and recalculated
                                      rupees)           by this Court
     1     Transport                  1,000/-             1,000/-

     2     Funeral expenses           2,000/-            15,000/-

     3     Pain and suffering           nil              10,000/-

     4     Loss of estate                0               15,000/-

     5     Loss of consortium         5,000/-           2,00,000/-

     6     Loss of dependency        6,00,000/-         11,02,500/-

     7     Love and affection         25,000/-              nil
                                     6,33,000           13,43,500/-

In the result, MACA No.1073 of 2009 and MACA

No.2183 of 2009 are disposed of by enhancing the

compensation compensation by a further amount of

Rs.7,10,500/- (Rupees seven lakh ten thousand and five

hundred only) with interest at the rate of 6% per annum

from the date of petition till the date of realisation with MACA.Nos.1073 & 2183 OF 2009

proportionate costs. The third respondent/insurance

company shall deposit the additional compensation

before the Tribunal with proportionate interest and

costs within a period of two months from the date of

receipt of a certified copy of the judgment, after

deducting the liability of the appellants towards balance