Kerala High Court
Kunjan (Died) And Others vs Ramachandran And Others on 25 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
MACA NO. 726 OF 2007
AGAINST THE AWARD DATED 29.12.2006 IN OP(MV)NO. 40/2000 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , PALAKKAD.
APPELLANTS/PETITIONERS:
1 KUNJAN (DIED),
SON OF AYYAN,
ILLATTIPADAM,VATTEKKAD P.O.,
KOLLANGODE VIA,
ELAVANCHERRY VILLAGE,
CHITTUR TALUK.
2 DEVI @BABY @DEVU,
D/O.KUNJAN,
ILLATTIPADAM,VATTEKKAD P.O.,
KOLLANGOD VIA,ELAVANCHERRY VILLAGE,
CHITTUR TALUK.
3 CHAMI.SO.LATE KUNJAN
ILLATTIPADAMVATTEKKAD P.O.,
KOLLANGODE VIA,
ELVANCHERRY VILLAGE,
CHITTUR TALUK.
4 KRISHNANSO.LATE KUNJAN
ILLATTIPADAM,VATTEKKAD P.O.,
KOLLANGOD VIA, ELAVANCHERRY VILLAGE,
CHITTUR TALUK.
5 SANTHADO.LATE KUNJAN
ILLATTIPADAM,VATTEKKAD P.O.,
KOLLANGODE VIA,ELAVANCHERRY VILLAGE,
CHITTUR TALUK
BY [email protected]@DEVU(PARTY)
SRI.T.K.SANDEEP
RESPONDENTS/RESPONDENTS:
1 RAMACHANDRAN,
PANANTHARA VEEDU,VATTEKKAD POST,
ELAVANCHERRY VILLAGE,
CHITTUR TALUK.
M.A.C.A.No726/2007
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2 MANIKANDAN,
S/O.VELAYUDHAN KUMBLAKKODE,
ELAVANCHERRY POST,
CHITTUR TALUK.
3 NATIONAL INSURANCE COMPANY,
BRANCH OFFICE,III FLOOR,
EAST FORT COMPLEX,
PALAKKAD.
BY ADVS.SRI.P.JAYASANKAR
SRI.LAL GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.No726/2007
-:3:-
Dated this the 25th day of November, 2021
JUDGMENT
The appellants were the petitioners in O.P
(MV)No.40/2000 on the file of the Motor Accidents
Claims Tribunal,Palakkad. The respondents in the
appeal were respondents before the Tribunal.
2. The appellants had filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988,
claiming compensation on account of the death of
'Velayudhan'(deceased), the son of the first appellant
and the brother of the appellants 2 to 5. It was their
case that, on 19.11.1999, while the deceased was
working as a helper for a tractor bearing Registration
No.KL-9D-157(tractor), the deceased fell under the
tractor, due to the negligence of the second
respondent. The tractor was owned by the first
respondent and insured with the third respondent. The
deceased was a coolie worker and earning a monthly
M.A.C.A.No726/2007
income of Rs.3,000/-. The appellants were the
dependants of the deceased. Hence, they claimed a
compensation of Rs.2,50,000/- from the respondents.
3. The respondent Nos.1 and 2 did not contest
the proceedings.
4. The third respondent had filed a written
statement, refuting the allegations in the claim
petition. It was contended that although the tractor
had a valid insurance policy, the second respondent
was not holding a valid driving licence. Therefore, the
first respondent had violated the insurance policy
conditions. At the same breath, the third respondent
took a contradictory plea and denied that the tractor
had a valid insurance policy. The third respondent also
disputed the age, income and status of the deceased.
The third respondent prayed that the claim petition be
dismissed.
5. The second appellant and a witness were
M.A.C.A.No726/2007
examined as PWs.1 and 2 and Exts. A1 to A8 were
marked in evidence. The third respondent produced
and marked Exts.B1 to B3 in evidence.
6. The Tribunal, after analysing the pleadings
and materials on record, allowed the claim petition in
part, by permitting the appellants to recover from the
first respondent an amount of Rs.2,29,500/- with
interest and cost, on the finding that, in the insurance
policy, the column for filling the registration number
and the engine number of the vehicle, the details were
blank. Therefore, the first respondent had not proved
that the tractor had a valid insurance policy. Also the
first respondent had not produced the registration
certificate of the tractor for verification.
7. Aggrieved by the exoneration of the third
respondent, and dissatisfied with the quantum of
compensation awarded by the Tribunal, the petitioners
are in appeal.
M.A.C.A.No726/2007
8. Heard; Sri. T.K. Sandeep, the learned counsel
appearing for the appellants/petitioners and Sri. Lal
George, the learned counsel appearing for the third
respondent-insurer.
9. The questions that arise for consideration in
the appeal are:
(i) whether the exoneration of the third
respondent is correct or not?
(ii) whether the quantum of compensation
awarded by the Tribunal is reasonable and
just?
Question No:(i)
10. The appellants had specifically contended
that the tractor bearing registration No.KL-9D-157 was
covered by policy bearing No.570705/1999/6302344
valid for the period from 07.08.1999 to 06.08.2000.
They had produced Ext.A2 insurance policy certificate
to substantiate their assertion.
M.A.C.A.No726/2007
11. The Tribunal, on the basis of a bald assertion
made by the third respondent, in its written statement,
that it was denying the policy and by finding that the
details of the registration number and engine number
of the tractor were not entered in Ext.B1, arrived at a
conclusion that the tractor was not covered by a valid
insurance policy. The finding of the Tribunal is
erroneous and perverse for more reasons than one.
Firstly, there was nothing on record to substantiate the
assertions of the third respondent, other than the mere
pleadings. Secondly, the appellants had examined
PWs.1 and 2 and proved Ext.A2 insurance policy
certificate issued by the third respondent, which
establishes that the tractor was covered by a valid
policy. The Tribunal, ignored Ext.A2 and the oral
testimonies of PWs.1 and 2, for the reason that the
details were left blank in Ext.B1 copy of the insurance
policy.
M.A.C.A.No726/2007
12. In view of the uncontraverted oral
testimonies of PWs.1 and 2 read with Ext.A2 insurance
policy and the specific assertions in the claim petition,
I hold that the tractor was covered by a valid
insurance policy. Similarly, the third respondent has
also not proved that the first respondent had violated
the insurance policy conditions. Therefore, the third
respondent is to indemnify the liability of the first
respondent, arising out of the accident.
13. Hence, I answer Question No.(i) in favour of
the appellants.
Question No:(ii)
Notional income:
14. The deceased was aged 22 years at the time
of accident/death and he was a coolie worker. The
appellants claimed that he was earning a monthly
income of Rs.3,000/-. The Tribunal, for the want of
materials, fixed the notional monthly notional income
M.A.C.A.No726/2007
of the deceased at Rs.1,500/-.
15. In Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236], the Hon'ble Supreme Court has
fixed the notional income of a coolie worker in the year
2004, at Rs.4,500/- per month.
16. Following the yardstick in the afore-cited
decision and considering the fact that the accident
occurred at the fag end of 1999, I fix the notional
monthly income of the deceased at Rs.3,000/-.
Multiplier
17. As the deceased was aged 22 years at the
time of the accident/death, the relevant multiplier to
be adopted is '18', in the light of the law laid down in
Sarala Verma and others v. Delhi Transport
Corporation and others [(2010) 2 KLT 802 (SC)].
Future prospects:
18. In view of the ratio in Sarla Verma (supra)
M.A.C.A.No726/2007
and National Insurance Company Ltd. v. Pranay
Sethi [(2017) 16 SCC 680] and considering the fact
that the deceased was a bachelor at the time of his
death, one-half of the compensation has to be
deducted towards the 'personal living expenses' of the
deceased.
Loss of dependency:
19. Taking into account the above-mentioned
factors, that is the monthly income of the deceased at
Rs.3,000/-, the 'multiplier' at '18', 'future prospects' at
40% and deducting one-half of the compensation
towards the 'personal living expenses' of the deceased,
I re-fix the compensation for 'loss due to dependency'
at Rs.4,53,600/-, instead of Rs.2,04,000/- awarded by
the Tribunal.
Conventional heads of compensation:
20. In clause (viii) of paragraph 61 of Pranay
Sethi (supra), the Hon'ble Supreme Court has held
M.A.C.A.No726/2007
that the dependants of the deceased are entitled for
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.
21. In the instant case, the Tribunal has not
awarded any amount under the conventional heads.
Therefore, I award an amount of Rs.15,000/- towards
'funeral expenses', Rs.15,000/- towards 'loss of estate'
and Rs.40,000/- towards 'loss of consortium' to the
second appellant alone, who is the widowed sister of
the deceased. I decline to award 'loss of consortium' to
the first appellant, who passed away during the
pendency of the proceeding and the supplemental
appellants 3 to 5 - the other siblings of the
deceased,who are leading independent lives.
Loss of Love and affection:
22. The Tribunal has awarded an amount of
M.A.C.A.No726/2007
Rs.15,000/- under the head 'loss of love and affection'.
23. In New India Assurance Company Ltd. v.
Somwati & Ors. [2020(9)SCC 644], the Hon'ble
Supreme Court has held that once compensation under
the head 'loss of consortium' is awarded, no amount
can be awarded under the head 'loss of love and
affection', as it is amount to duplication of
compensation.
24. On a comprehensive re-appreciation of the
pleadings, materials on record and the law referred to
in the afore-cited decisions, I hold that the
appellants/petitioners are entitled for enhancement of
compensation as modified and re-calculated above and
given in the table below for easy reference.
Sl.No Head of claim Amount Amounts
awarded by the modified and
Tribunal (in recalculated
rupees) by this Court
1 Transport 5,000 5,000
expenses
M.A.C.A.No726/2007
3 Funeral expenses Nil 15,000
4 Pain and sufferings 5,000 5,000
5 Loss of love and 15,000 Nil
affection
6 Loss of estate Nil 15,000
7 Loss of consortium Nil 40,000
(second
appellant)
8 Loss of 2,04,000 4,53,600
dependency
TOTAL 2,29,500 5,34,100
25. Even though the appellants had claimed only
an amount of Rs.2,50,000/- as compensation, in the
light of the principles in Sarla Verma and Pranay
Sethi (supra), I have awarded 'future prospects' and
also compensation under the conventional heads.
Thus, the amount now awarded is more than what is
claimed in the claim petition. The said course is
permissible in view of the law laid down in Nagappa
v. Gurudayal Singh [2003(1) KLT 115 (SC)] and
Rajesh v. Rajbir Singh[2013(3) KLT 89 (SC)].
M.A.C.A.No726/2007
Therefore, I hold the appellants are entitled for
enhancement of compensation by a further amount of
Rs.3,04,600/-. In view of my findings on Question No.
(i), the third respondent is ordered to deposit the total
compensation of Rs.5,34,100/-.
In the result, the appeal is allowed by permitting
the appellants to recover from the third respondent an
amount of Rs.5,34,100/- with interest on the said
amount at the rate of 6% per annum from the date of
petition till the date of deposit and proportionate cost.
The third respondent is ordered to deposit the said
amount with interest and cost before the Tribunal
within two months from the date of receipt of a
certified copy of this judgment. Immediately on the
compensation amount being deposited, the Tribunal
shall disburse the above amount to the appellants 2 to
5, in the ratio of 60:10:10:20, after deducting their
liability, if any, towards payment of court fee, and in
M.A.C.A.No726/2007
accordance with law.
Sd/-
C.S.DIAS,JUDGE
DST //True copy/
P.A.To Judge
