Kerala High Court
C.P.Mohanan vs T.O.Raju on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
MACA NO. 689 OF 2011
AGAINST THE AWARD DATED 30.04.2010 IN OP(MV)NO.1475/2005 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM.
APPELLANTS/ PETITIONERS:
1 C.P.MOHANAN,
SON OF LATER SRI. PADMANABHAN.
2 SUMA MOHANAN,
W/O.C.P.MOHANAN,
BOTH R/A.CHONAIKKODATH HOUSE,
PONOTH ROAD,
KALOOR P.O.,ELAMKULAM VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT
BY ADVS. SRI.ANIL S.RAJ
SMT.ANILA PETER
SRI.G.ARUN GOPAN
SMT.K.N.RAJANI
RESPONDENTS/PETITIONERS:
1 T.O.RAJU,
S/O. T.K. ONACHAN,
THEVARMADOM HOUSE, VADAYAMPADY P.O.,
ERNAKULAM DISTRICT-682309
2 P.Y.MATHAI,
S/O.ULAHANNAN,
PULICHUVATTIL HOUSE,
KARIMUKAL ROAD,
PANNIKUZHI BHAGOM,PUTHENCRUZ P.O.,
PUTHENCRUZ VILLAGE,PIN-682308
3 THE NATIONAL INSURANCE COMPANY LTD,
DIVISIONAL OFFICE,
ERNAKULAM, COCHIN-682016
BY ADV SRI.P.K.MANOJ KUMAR,SC,NATIONAL INSURANCE CO.
LTD.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.No.689/2011
-:2:-
Dated this the 29th day of October, 2021
JUDGMENT
The appellants were the petitioners in O.P.(MV)
No.1475/2005 on the file of the Motor Accidents
Claims Tribunal, Ernakulam. The respondents in the
appeal were the 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 Sri.
C.M. Dhaneesh(deceased), the son of the appellants. It
was their case that, on 13.03.2005, while the deceased
was riding his motorcycle with one Ramanan as the
pillion rider along the Aroor-Vyttila Bypass road, when
they reached the Kundannur Junction, a tanker lorry
bearing registration No.KL-7/W-5255(lorry), driven by
the second respondent in a negligent manner, hit the
motorcycle of the deceased. The deceased sustained
serious injuries and lost his life instantaneously. The
lorry was owned by the first respondent and insured
M.A.C.A.No.689/2011
with the third respondent. The deceased was a printer
by profession and working in a private concern at
Alappuzha. He was earning a monthly income of
Rs.6,000/-. The appellants were the dependants of the
deceased. Hence, they claimed an amount of
Rs.9,03,000/- as compensation from the respondents,
which was limited to Rs.8,50,000/-.
3. The pillion rider also filed O.P.
(MV)No.1472/2005 before the same Tribunal, against
the respondents, seeking compensation on account of
the injuries sustained to him in the accident.
4. The respondent Nos.1 and 2 did not contest
the proceedings and were set ex parte.
5. The third respondent-insurer had filed
written statements in both the claim petitions
admitting that the lorry had a valid insurance
coverage. Nevertheless, it was contended that the
accident occurred due to the negligence of the
deceased. The third respondent also contended that
M.A.C.A.No.689/2011
the claim petitions were bad for non-joinder of
necessary parties and disputed the age, occupation
and income of the deceased.
6. The Tribunal consolidated and jointly tried
the two claim petitions.
7. The petitioners in the two claim petitions
examined PWs1 to 3 and marked Exts.A1 to A13 in
evidence. Ext.X1 disability certificate was marked on
the side of the petitioner in O.P.(MV)No.1472/2005.
The respondents did not let in any evidence.
8. The Tribunal, after analysing the pleadings
and materials on record, allowed the captioned claim
petition in part, by permitting the appellants to realise
from the third respondent an amount of Rs.2,56,000/-
with interest at the rate of 7.5% per annum from the
date of petition till the date of realisation and
proportionate cost.
9. Dissatisfied with the quantum of
compensation awarded by the Tribunal, the petitioners
M.A.C.A.No.689/2011
are in appeal.
10. Heard; Sri. Anil S. Raj, the learned counsel
appearing for the appellants/petitioners and Sri. P.K.
Manojkumar, the learned counsel appearing for the
third respondent-insurer.
11. The sole question that emerges for
consideration in the appeal is whether the quantum of
compensation awarded by the Tribunal is reasonable
and just?
Negligence and liability:
12. Ext.A4 chargesheet filed by the Kochi Traffic
Police in Crime No.984/2005 proves that the accident
occurred due to the negligence of the second
respondent. Undisputedly, the first respondent was the
owner and the third respondent was the insurer of the
lorry. The third respondent had admitted that the lorry
had a valid insurance coverage and had not proved
that the first respondent had violated the insurance
policy conditions. Therefore, the third respondent is to
M.A.C.A.No.689/2011
indemnify the liability of the second respondent arising
out of the accident.
Notional Income of the deceased:
13. The appellants had averred that the deceased
was a printer by profession and working in a private
colour lab in Alappuzha. They claimed that he was
earning a monthly income of Rs.6,000/-. However, the
Tribunal fixed the notional monthly income of the
deceased at Rs.3,000/-(Rs.36,000/-per annum).
14. 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.
15. Following the yardstick in the afore-cited
decision and keeping in mind the fact that the accident
occurred in the year 2005, I re-fix the notional income
of the deceased at Rs.5,000/- per month.
M.A.C.A.No.689/2011
Multiplier
16. It is proved that the deceased was aged 25
years at the time of the accident/death. In the light of
the law laid down in Sarla Verma and others v.
Delhi Transport Corporation and others [(2010) 2
KLT 802 (SC)],the relevant multiplier is '18'.
Dependants of the deceased:
17. Admittedly, the deceased was a bachelor.
Following the ratio in Sarla Verma (supra) and
National Insurance Company Ltd. v. Pranay Sethi
[(2017) 16 SCC 680], one-half of the compensation
towards 'loss of dependency' has to be deducted
towards the 'personal living expenses' of the deceased.
Future prospects:
18. As laid down in Sarla Verma and Pranay
Sethi (supra), and considering that the deceased was
aged 25 years at the time of the accident, the
appellants are entitled for 'future prospects' at the rate
of 40% on the compensation for 'loss due to
M.A.C.A.No.689/2011
dependency'.
Loss due to dependency:
19. Taking into account the above-mentioned
factors, i.e, the notional income of the deceased at
Rs.5,000/- per month, the multiplier at '18', future
prospects at 40% and after deducting one-half of the
compensation towards the 'personal living expenses' of
the deceased, I re-fix the compensation for 'loss of
dependency' at Rs.7,56,000/-, instead of Rs.2,16,000/-
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
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 awarded
M.A.C.A.No.689/2011
an amount of Rs.10,000/- towards 'funeral expenses'
and Rs.5,000/- towards 'loss of estate'. Therefore, I
enhance the compensation under the above two heads
by a further amount of Rs.5,000/- and Rs.10,000/-,
respectively.
22. The Tribunal has not awarded any amount
under the head 'loss of consortium'. In view of the law
in Pranay Sethi (supra), I award the appellants - the
parents of the deceased - Rs.40,000/- each towards
'loss of consortium'.
Loss of love and affection and pain and sufferings
23. The Tribunal has awarded an amount of
Rs.10,000/- towards compensation for 'pain and
sufferings' and Rs.20,000/- towards 'loss of love and
affection'.
24. In paragraph No.19 of Sarla Verma (supra),
the Hon'ble Supreme Court has categorically held that
in the case of instantaneous death, no amount shall be
awarded under the head 'pain and sufferings' to the
M.A.C.A.No.689/2011
dependants of the deceased.
25. In New India Assurance Company Ltd. v.
Somwati & Ors. [2020(9)SCC 644] the Hon'ble
Supreme Court has held that once compensation is
awarded under the head 'loss of consortium', no
compensation shall not be awarded under the head
'loss of love and affection', as it is amount to
duplication of compensation.
26. In the light of the above declaration of law, I
set aside the amounts of Rs.10,000/- awarded under
the heads 'pain and sufferings' and Rs.20,000/-
awarded under the head 'loss of love and affection'.
Other heads of compensation:
27. I award an amount of Rs.1,000/- towards
'transportation expenses' and Rs.500/- towards
'damage to clothing'.
28. On a comprehensive re-appreciation of the
pleadings, materials on record and the law laid down
in the afore-cited decisions, I hold that the
M.A.C.A.No.689/2011
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
Tribunal (in and
rupees) recalculated
by this
Court
1 Transport Nil 1,000
2 Damage to Nil 500
clothing
3 Funeral expenses 5,000 15,000
4 Pain and sufferings 10,000 Nil
5 Loss of love and 20,000 Nil
affection
6 Loss of estate 5,000 15,000
7 Loss due to 2,16,000 7,56,000
dependancy
8 Loss of consortium Nil 80,000
Total 2,56,000 8,67,500
29. Even though the appellants had claimed only
an amount of Rs.8,50,000/- as compensation, following
the ratio in Sarla Verma and Pranay Sethi (supra),
wherein the Hon'ble Supreme Court has held that the
dependants of the deceased are entitled for 'future
M.A.C.A.No.689/2011
prospects', I have awarded more compensation than
what is claimed in the claim petition, as it is just and
reasonable compensation that is to be payable. The
above 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].
In the result, the appeal is allowed by enhancing
the compensation by a further amount of
Rs.6,11,500/- with interest on the enhanced
compensation at the rate of 7.5% per annum from the
date of petition till the date of realisation, after
deducting interest for a period of 172 days i.e., the
period of delay in preferring this appeal and as
directed by this Court on 17.12.2019 in
C.M.Appln.No.1122/2011, and proportionate cost. The
third respondent/insurer is ordered to deposit the
enhanced compensation with interest and cost before
the Tribunal within a period of sixty days from the date
M.A.C.A.No.689/2011
of receipt of a certified copy of this judgment. The
Tribunal shall disburse the enhanced compensation
with interest and cost to the appellants in equal
shares, after deducting their liability, if any, towards
court fee and in accordance with law.
Sd/-
C.S.DIAS,JUDGE
DST/29.10.2021 //True copy/
P.A.To Judge
