Kerala High Court
T.Velappan (Deceased) vs M.P.Manoj on 3 November, 2021
MACA NO. 210 OF 2011
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
MACA NO. 210 OF 2011
AGAINST THE ORDER/JUDGMENT IN OPMV 1545/2003 OF ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL ,EKM, ERNAKULAM
APPELLANT/S:
1 T.VELAPPAN (DECEASED), S/O.THATHAN, AGED 57 YEARS,
SKIPPER, F.S.I MATTANCHERRY, (UNDER MINISTRY OF
AGRICULTURE DEPARTMENT OF ANIMAL HUSBANDRY AND
DAIRYING) RESIDING AT SRUTHI, TRICHATTUKUALM P.O.,
2 VALSALA WO.VELAPPAN AGED 56 YEARS
"SRUTHI",TRICHATTUKUALM P.O.,
3 SAJAN SO.VELAPPAN AGED 38 YEARS
"SRUTHI",TRICHATTUKUALM P.O.,
4 SUMESH SO.VELAPPAN AGED 36 YEARS
"SRUTHI",TRICHATTUKUALM P.O.,
BY ADVS.
SMT.K.G.SAROJINI
SRI.T.ABY JACOB
RESPONDENT/S:
1 M.P.MANOJ,S/O. PARAMESWARAN NAIR, AGED 45
YEARS,MULLACKAL HOUSE,NEAR KOLLAPADY
JUNCTION,KANINADU P.O. ERNAKULAM DISTRICT 682311
2 BRANCH MANAGER NATIONAL INSURANCE
CO-LTD,KOLENCHERRY BRANCH, P.B.NO-6,, MEDICAL
MISSION JUNCTION, KOLENCHERRY P.O.,, PIN-682311
BY ADV SRI.E.M.JOSEPH
MACA NO. 210 OF 2011
2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 210 OF 2011
3
JUDGMENT
The appellants were the petitioners in OP(MV)
No.1545/2003 on the file of the Motor Accidents Claims
Tribunal, Ernakulam. The respondents in the appeal were
the respondents before the Tribunal. The parties are, for the
sake of convenience, referred to as per the status before the
Tribunal.
2. The original 1st petitioner had filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the injuries that he sustained in
an accident on 05.11.2002. It was his case that, on the
above said date, while he was riding a motor cycle bearing
registration No.KRY/4037, along the Arookutty - Cherthala
road, when he reached Vaduthala junction, a mini lorry
bearing registration No.KCE/7342 (lorry), owned and driven
by the 1st respondent in a rash negligent manner, hit the
motor cycle. The original 1st petitioner sustained serious
injuries and he was treated at the Ernakulam Medical Centre
Hospital for the period from 05.11.2002 to 25.12.2002.
Thereafter, he was treated at the Government Ayurvedic
MACA NO. 210 OF 2011
Hospital at Cherthala. The original 1st petitioner was
employed as a Skipper in the Fisheries Survey of India (FSI),
Mattancheri and was drawing a monthly income of
Rs.21,874/-. The lorry was insured with the 2nd respondent.
Hence, the original 1st petitioner claimed a total
compensation of Rs.15,50,000/- from the respondents, which
was limited to Rs.10,00,000/-.
3. During the pendency of the claim petition, the
original 1st petitioner expired on 17.10.2006. His wife and
two sons got themselves impleaded as the additional
petitioners 2 to 4. They sought leave of the Tribunal and
converted the claim petition to a death claim and enhanced
the claim to Rs.20,00,000/-.
4. The 1st respondent did not contest the proceedings.
5. The 2nd respondent had filed a written statement
admitting that the lorry had a valid insurance coverage.
However, the 2nd respondent contended that the quantum of
compensation claimed was excessive.
MACA NO. 210 OF 2011
6. The 2nd petitioner and two other witnesses were
examined as PWs 1 to 3 and Exts.A1 to A25 were marked
through them in evidence. Service record of the deceased 1 st
petitioner was marked as Ext.C1.
7. The Tribunal, after analysing the pleadings and
materials on record, arrived at a conclusion that the
deceased 1st petitioner lost his life due to paraplegia,
bedsore septicemia and multi-organ dysfunction, which were
as a result of the accident. Accordingly, the Tribunal treated
the claim petition as one of death and permitted the
petitioners 2 to 4 to realise from the 2 nd respondent an
amount of Rs.7,87,400/- with interest @ 8% per annum from
the date of filing the petition till the date of realisation of the
amount and a cost of Rs.8,500/-.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioners 2 to 4 are in appeal.
9. Heard; Smt. K.G. Sarojini, the learned counsel
appearing for the appellants/petitioners 2 to 4 and Sri. E.M.
Joseph, the learned counsel appearing for the 2 nd
MACA NO. 210 OF 2011
respondent/insurer.
10. The question that arises for consideration in this
appeal is whether the quantum of compensation awarded by
the Tribunal is reasonable and just.
Negligence and Liability
11. Ext.A2 charge sheet filed by the Poochakkal Police
in Crime No.209/02 substantiates that the accident occurred
due to the negligence of the 1st respondent. The 2nd
respondent had admitted that the lorry had a valid insurance
policy and had not proved that the 1st respondent had
violated the insurance policy conditions. Therefore, the 2 nd
respondent is to indemnify the liability of the 1 st respondent
arising out of the accident.
Death of the 1st petitioner
12. The accident occurred on 05.11.2002. Ext.A7 wound
certificate establishes the nature of the serious injuries
sustained by the deceased 1st petitioner. He was aged 54
years at the time of the accident. He had suffered
hemorrhagic contusion with oedema of cervical spinal cord,
extending from the 2nd cervical vertebra to 7th cervical
MACA NO. 210 OF 2011
vertebra. He was discharged on 25.12.2002. Again he was
re-admitted in the hospital on 08.04.2003 and discharged on
26.04.2003. As per Ext.A14 disability certificate issued by
the Medical Board, it was found that the deceased 1st
petitioner had suffered 85% permanent disability. He was
diagnosed with paraplegia, bedsore septicemia and multi-
organ dysfunction. Finally he lost his life on 17.10.2006.
PW3 - the Doctor, who treated the deceased 1 st petitioner,
has certified that the deceased lost his life due to the injuries
sustained in the accident. Therefore, even though the
petition was filed seeking compensation for the injuries in
view of the fact that 1st petitioner expired on 17.10.2006, the
claim was converted and considered as a death claim.
Income of the deceased
13. The deceased 1st petitioner was working as a
Skipper in the FSI, Mattancheri. Ext.A18 salary certificate
proves that the deceased was earning a salary of Rs.21,874/-
per month. From Ext.A18, it is seen that Rs.2,000/- was
being deducted towards his income tax. Therefore, following
the ratio in Kalpana Raj and others vs. Tamilnadu State
MACA NO. 210 OF 2011
Transport Corporation [2015 (2) SCC 764], that income
tax has to be deducted from the gross income, the monthly
net income of the deceased 1 st petitioner can be safely be
fixed at Rs.20,000/-, as fixed by the Tribunal.
14. From the materials on record, it is established that
the deceased was aged 54 years at the time of accident. He
would have been superannuated from service within few
months. Moreover, the deceased had taken voluntary
retirement from service on 01.10.2003.
15. In the above factual matrix, I find cogent reasons to
adopt the split multiplier method, following the law laid
down in Puttamma vs. K.L. Narayana Reddy and
another [2014 (1) KLT 739 (SC)]. Hence, I fix the monthly
notional income of the deceased at Rs.10,000/-.
Multiplier
16. The deceased was aged 54 years at the time of the
accident.
17. In the light of the law laid down in Sarla Varma vs.
Delhi Transport Corporation [2010 (2) KLT 802], the
MACA NO. 210 OF 2011
relevant multiplier to be adopted is '11'.
Dependents of the deceased
18. It is proved by Ext.A5 ration card that the
petitioners 2 to 4 -wife and children, were the dependents of
the deceased, who are three in number.
19. Going by the law in Sarla Varma (supra) and
National Insurance Company Ltd. v. Pranay Sethi
[(2017) 16 SCC 680], one third of the compensation has to
be deducted towards the personal living expenses of the
deceased.
Future Prospects
20. In the light of the ratio in Sarla Varma and Pranay
Sethi (supra) and considering that the deceased was aged
54 years and was a permanent employee at the time of the
accident, I hold that the petitioners 2 to 4 are entitled to
future prospects at 15% on the compensation for loss due to
dependency.
Loss due to Dependency
21. Taking into account the above mentioned factors,
namely, the notional monthly income of the deceased at
MACA NO. 210 OF 2011
Rs.10,000/-, multiplier at 11, future prospects at 15% and
after deducting one third of the compensation towards the
personal living expenses of the deceased, I refix the
compensation for loss of dependency at Rs.10,12,000/-
instead of Rs.2,40,000/- awarded by the Tribunal.
Conventional Heads of Compensation
22. In clause (viii) of paragraph 61 of Pranay Sethi
(supra), the Honourable Supreme Court has held that the
dependents of the deceased are entitled to compensation
under the conventional heads namely, funeral expenses, loss
of estate and loss of consortium at Rs.15,000/-, Rs.15,000/-
and Rs.40,000/- respectively.
23. In the instant case, the Tribunal has awarded only
an amount of Rs.5,000/- under the head 'funeral expenses'
and Rs.5,000/- under the head 'loss of estate' and Rs.5,000/-
under the head 'loss of consortium' to the petitioners 2 to 4.
24. In the light of the ratio in Pranay Sethi (supra), I
enhance compensation by a further amount of Rs.10,000/-
each under the heads 'funeral expenses' and 'loss of estate',
and an amount of Rs.1,10,000/- under the head 'loss of
MACA NO. 210 OF 2011
consortium', since the petitioners 2 to 4 are wife and sons of
the deceased 1st petitioner, who are entitled to Rs.40,000/-
each as 'loss of consortium', totaling to an amount of
Rs.1,20,000/-.
25. The Tribunal has awarded an amount of Rs.10,000/-
towards transportation expenses, Rs.10,000/- towards
bystander expenses, Rs.10,000/- towards pain and sufferings
and Rs.1,92,800/- towards medical expenses. Taking into
account the fact that the deceased met with an accident on
05.11.2002 and lost his life on 17.10.2006, I hold the said
amounts are reasonable and just.
26. The Tribunal has awarded an amount of
Rs.1,00,000/- towards loss of income and Rs.3,10,000/-
towards loss of earnings.
27. As the claim is considered as a death claim, I hold
that the above amounts are not sustainable in law because
the petitioners 2 to 4 are claiming compensation for loss due
to dependency. Hence, I set aside the amounts awarded
under the aforesaid heads.
28. On an over all re-appreciation of the pleadings and
MACA NO. 210 OF 2011
materials on record and the law laid down in the above cited
decisions, I hold that the appellants 2 to 4/petitioners 2 to 4
are entitled for enhancement of compensation as modified
and recalculated above and given in the table below for easy
reference:
Sl. Head of claim Amount Amounts
awarded by modified
No the and
Tribunal(in recalculated
rupees) by this
Court(in
rupees)
1. Transportation 10,000 10,000
expenses
2. Bystander expenses 10,000 10,000
3. Funeral expenses 5,000 15,000
4. Pain and suffering 10,000 10,000
5. Loss of estate 5,000 15,000
6. Loss of consortium 5,000 1,20,000
7. Medical expenses 1,92,800 1,92,800
9. Loss of dependency 2,40,000 10,12,000
Total 7,87,400 13,84,800
In the result, the appeal is allowed in part by enhancing
the compensation by an amount of Rs.5,97,400/- with
MACA NO. 210 OF 2011
interest at the rate of 8% per annum from the date of
petition till the date of realisation and proportionate cost.
The 2nd respondent is ordered to deposit the enhanced
compensation amount with interest and cost before the
Tribunal within a period of 60 days from the date of receipt
of a certified copy of this judgment. The Tribunal shall
immediately on the deposit being made, disburse the
enhanced compensation amount to the appellants 2 to 4/
petitioners 2 to 4 in the ratio of 60:20:20 and in accordance
with law.
Sd/-
C.S.DIAS
JUDGE
rkc
