Kerala High Court
Valsala & Another vs Eldo P. Chacko & Others on 29 October, 2021
MACA No. 2296 OF 2009
1
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. 2296 OF 2009
AGAINST THE ORDER/JUDGMENT IN OPMV 2273/2004 OF THE MOTOR
ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/S:
VALSALA,S/O SATHYAN,AGED 52 YEARS
1 PANATHITTAYIL HOUSE, SHANMUGKHAPURAM,, PACHALAM
P.O., KOCHI-12.
ANJU SATHYAN, DO.SATHYAN, AGED 25 YEARS
2 PANATHITTAYIL HOUSE, SHANMUGKHAPURAM,, PACHALAM
P.O.,KOCHI-12.
BY ADV SRI.T.K.AJITHKUMAR (VALATH)
RESPONDENT/S:
ELDO P. CHACKO, S/O P.N.CHACKO,
1
POOKKAMPILLY HOUSE, KOMBANAD P.O.
THE BRANCH MANAGER, NATIONAL INSURANCE
2 COMPANY, MYDHILI MANDIRAM, JANATHA JUNCTION,
PALARIVATTOM. KOCHI-25
THE BRANCH MANAGER, THE ORIENTAL
3 INSURANCE COMPANY, ELIZABETH GARDEN,, EDAPPALLY
HIGH SCHOOL JUNCTION, KOCHI-24.
ROSY, W/O.LATE JOSEPH AGED 68 YEARS,
4 KACHAPPILLY HOUSE, KIZHAKKAMBALAM,, PERUMBAVOOR
P.O.
MERCY JOSEPH, DO.LATE JOSEPH
5 AGED 68 YEARS, KACHAPPILLY HOUSE,,
KIZHAKKAMBALAM, PERUMBAVOOR P.O.
6 JANCY JOSEPH DO.LATE JOSEPH
MACA No. 2296 OF 2009
2
AGED 68 YEARS, KACHAPPILLY HOUSE,,
KIZHAKKAMBALAM, PERUMBAVOOR P.O.
BY ADVS.
SMT.DEEPA GEORGE
SRI.M.A.GEORGE
SRI.P.JACOB MATHEW
SRI.MATHEWS JACOB SR.
SRI.K.SUNILKUMAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA No. 2296 OF 2009
3
JUDGMENT
The appellants were the petitioners 2 and 3 in
OP(MV) No.2273/2004 on the file of the Motor Accidents
Claims Tribunal, Ernakulam. The respondents in the
appeal were the respondents 2 to 7 before the Tribunal.
The parties are, for the sake of convenience, referred to
as per the status before the Tribunal.
2. The petitioners had filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the death of Aneesh
(deceased), son of the petitioners 1 and 2 and the
brother of the 3rd petitioner. It was their case that, on
05.07.2004, while the deceased was riding his motor
cycle bearing registration No.KL 7F 9813 through the
M.G.Road, Ernakulam from North to South direction,
when he reached the Padma Junction, a bus bearing
registration No.KL 7AF 5200 (bus) driven by the 2nd
respondent in a rash and negligent manner, hit the motor
cycle of the deceased. The deceased instantaneously lost
MACA No. 2296 OF 2009
his life. The bus was owned by the 1 st respondent and
insured with the 3rd respondent. The 4th respondent was
the insurer of the motor cycle ridden by the deceased.
The deceased was a Technician and was working in a
private concern at Mattancheri. He was earning a
monthly income of Rs.4,000/-. The appellants were the
dependents of the deceased. They claimed a total
compensation of Rs.10,55,000/- from the respondents 1
to 3.
3. During the pendency of the claim petition, the 1 st
petitioner expired. The petitioners 2 and 3 were recorded
as the legal representatives of the deceased 1 st petitioner.
Similarly, the 1st respondent also expired. His legal
representatives were impleaded as respondents 5 to 7.
4. The respondents 3 and 4 contested the
proceedings. The 3rd respondent had filed a written
statement contending that the accident occurred due to
the negligence of the deceased. The 3 rd respondent also
disputed the age, income and occupation of the
deceased.
MACA No. 2296 OF 2009
5. The 4th respondent contended that the accident
occurred due to the negligence of the 2 nd respondent.
The 4th respondent prayed that the 3rd respondent may
be directed to pay the compensation amount.
6. The petitioners 2 and 3 produced and marked
Exts.A1 to A16 in evidence. The respondents did not let
in any evidence.
7. The Tribunal after analysing the pleadings and
materials on record, allowed the claim petition in part, by
permitting the petitioners 2 and 3 to recover from the 3 rd
respondent an amount of Rs.3,60,000/- with interest @
7% per annum from the date of petition till expiry of one
month and, thereafter, at the rate of 9% per annum till
the date of realisation and proportionate cost. The
compensation amount was directed to be apportioned
between the petitioners 2 and 3 in the ratio of 70:30.
8. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioners 2 and 3 are in
appeal.
9. Heard; Sri.T.K.Ajith Kumar, the learned counsel
MACA No. 2296 OF 2009
appearing for the appellants/petitioners, Smt.Deepa
George, the learned counsel appearing for the 2 nd
respondent and Sri.P. Jacob Mathew, the senior learned
counsel appearing for the 3rd respondent.
10. The sole question that emerges 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 Kochi City
Traffic Police in Crime No.2068/04 proves that the
accident occurred due to the negligence of the 2nd
respondent. Admittedly, the 1st respondent was the owner
and the 3rd respondent was the insurer of the bus. The
3rd respondent admitted that the bus had a valid
insurance coverage and has not proved that the 1 st
respondent had violated the insurance policy conditions.
Therefore, the 3rd respondent is to indemnify the liability
of the 1st respondent arising out of the accident.
Income of the deceased
12. The petitioners had claimed that the deceased
MACA No. 2296 OF 2009
was a technician and was employed in a private concern
in Mattancheri. Even though they claimed that the
deceased was earning a monthly income of Rs.4,000/-,
the Tribunal fixed the monthly notional income of the
deceased at Rs.5,000/-. I do not find any error in the
fixation of the notional income of the deceased at
Rs.5,000/-, per month, which I confirm.
Multiplier
13. Ext.A5 SSLC book proves that the deceased was
aged 22 years on the date of accident/death.
14. In the light of the law laid down in Sarla Varma
vs. Delhi Transport Corporation [2010 (2) KLT 802],
the relevant multiplier to be adopted is '18'.
Dependents of the deceased
15. It is proved that the deceased was a bachelor.
16. In the light of the law laid down in Sarla Varma
(supra) and National Insurance Company Ltd. v.
Pranay Sethi [(2017) 16 SCC 680], one half of the
compensation has to be deducted towards the personal
living expenses of the deceased.
Future Prospects
MACA No. 2296 OF 2009
17. Following the ratio in Sarla Varma and Pranay
Sethi (supra) and considering the age of the deceased at
22 years, I hold that the appellants are entitled to future
prospects at 40% on the compensation for loss due to
dependency.
Loss due to Dependency
18. Taking into account the above mentioned
factors, namely, the notional monthly income of the
deceased at Rs.5,000/-, multiplier at 18, future prospects
at 40% and deducting one half of the compensation
towards the personal living expenses of the deceased, I
refix the compensation for loss of dependency at
Rs.7,56,000/-, instead of Rs.3,30,000/- awarded by the
Tribunal.
Conventional Heads of Compensation
19. 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.
MACA No. 2296 OF 2009
20. In the instant case, the Tribunal has awarded
only an amount of Rs.3,000/- under the head funeral
expenses and Rs.5,000/- towards loss of estate.
21. In the light of the law laid down in Pranay
Sethi (supra) I enhance the compensation under the
aforesaid heads by a further amount of Rs.12,000/- and
10,000/- respectively.
22. It is seen that the Tribunal has not awarded any
amount under the head 'loss of consortium'. In such
circumstances, I award an amount of Rs.40,000/- each to
the petitioners 2 and 3 - mother and sister of the
deceased, totaling to an amount of Rs.80,000/-.
Compensation for loss of love and affection and
pain and sufferings
23. The Tribunal has awarded an amount of
Rs.10,000/- under the head 'pain and suffering' and
Rs.10,000/- under the head 'loss of love and affection'.
24. In paragraph 19 of Sarla Verma (supra) the
Honourable Supreme Court has held that in the case of
instantaneous death, no amount shall be awarded under
the head pain and sufferings.
MACA No. 2296 OF 2009
25. Similarly, in New India Assurance Company
Ltd. vs. Somvathy and others : [(2020) 9 SCC 644], the
Honourable Supreme Court has held that once
compensation is awarded under the head 'loss of
consortium' is awarded, no amount of compensation shall
be awarded under the head 'loss of love and affection', as
it would amount to duplication of compensation.
26. Therefore, I set aside the amounts of Rs.10,000/-
each, awarded under the head 'pain and suffering' and
'loss of love and affection'.
27. With respect to the compensation awarded
under the head transportation expenses, I find that the
Tribunal has awarded reasonable and just compensation.
28. On a comprehensive re-appreciation of the
pleadings and materials on record and the law laid down
in the above cited decisions, I hold that the
appellants/petitioners 2 and 3 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
MACA No. 2296 OF 2009
modified
awarded by and
N the recalculated
o Tribunal(in by this
rupees) Court(in
rupees)
Transportation
1. 2,000 2,000
expenses
2. Funeral expenses 3,000/- 15,000
3. loss of estate 5,000/- 15,000
Loss of love and
affection
6. Loss of consortium 0 80,000
Loss due to
7. dependency 3,30,000 7,50,000
Total 3,60,000 8,62,000
In the result, the appeal is allowed in part, by
enhancing the compensation by an amount of
Rs.5,02,000/- with interest at the rate of 7% per annum
from the date of petition till the date of realisation and
proportionate cost. The 2nd respondent - insurer in the
appeal/3rd respondent/insurer of the offending bus is
ordered to deposit the enhanced compensation awarded
MACA No. 2296 OF 2009
in the appeal before the Tribunal with interest and cost
within a period of 60 days from the date of receipt of a
certified copy of this judgment. The Tribunal shall
disburse the enhanced compensation amount to the
appellants/petitioners 2 and 3 in the ratio of 50:50 and in
accordance with law.
Sd/-
C.S.DIAS
JUDGE
rkc
