Kerala High Court
Simla Davis vs Suresh Babu 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. 1952 OF 2009
AGAINST THE AWARD DATED 28.05.2008 IN OP(MV)NO.3643/2002 OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR
APPELLANTS/ PETITIONERS:
1 SIMLA DAVIS,
W/O. LATE DAVIS.
2 NIKHIL DAVIS(MINOR),
SO.LATE DAVIS.
3 NIRMAL DAVIS (MINOR),
S/O.LATE DAVIS
4 NIDHIN DAVIS (MINOR),
S/O.LATE DAVIS,
(MINOR APPELLANTS 3 AND 4 ARE REP.BY THEIR
GUARDIAN, MOTHER THE 1ST APPELLANT HEREIN)
ALL ARE RESIDING AT, MELEDATH HOUSE, MARATHAKKARA
PO,THRISSUR DISTRICT.
BY ADVS.SRI.P.S.APPU
SRI.C.A.ANOOP
SRI.JIBU P THOMAS
SRI.A.R.NIMOD
SRI.T.C.SURESH MENON
RESPONDENTS/ RESPONDENTS:
1 SURESH BABU,
RESIDING AT KHANNA CHAWL,
G.B.ROAD, KAJUPADA, THANE DIST,
THANE, MAHARASHTRA STATE.
2 RATHISH KUMAR,
S/O.PURUSHOTHAN,
RESIDING AT KALATHIL KAROTTU HOUSE,
CHENIYERKKARA,
ELANTHOOR, PATHANAMTHITTA.
M.A.C.A.No.1952/2009
-:2:-
3 THE ORIENTAL INSURANCE COMPANY LTD,
THANE, DIVISIONAL OFFICE,
3RD FLOOR, ARJUN TOWERS,
GOKHALE ROAD, NAUPADA,
THANE-400 602, MAHARASHTRA.
BY ADVS.K.S.SANTHI
SRI.E.M.MURUGAN
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.1952/2009
-:3:-
Dated this the 29th day of October, 2021
JUDGMENT
The appellants were the petitioners in O.P.(MV)
No.3643/2002 on the file of the Motor Accidents
Claims Tribunal, Thrissur. 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.
Davis(deceased), the husband of the first appellant and
the father of the appellants 2 to 4. It was their case
that, on 22.11.2002, while the deceased was driving
his tempo traveller bearing registration
No.KL-9/J-5823, from Mannuthy to Paliyekkara, while
he was entering Marathakkara road, a tanker lorry
bearing registration No.MH 04/AL 396(lorry) driven by
the second respondent in a rash and negligent manner,
hit the tempo traveller of the deceased. The deceased
M.A.C.A.No.1952/2009
sustained serious injuries and was rushed to the Elite
Mission Hospital, Thrissur, where he was treated as an
inpatient. But, on 30.11.2002 he lost his life. The lorry
was owned by the first respondent and insured with
the third respondent. The deceased was self employed
and was earning a monthly income of Rs.6,000/-. The
appellants were the dependants of the deceased.
They claimed an amount of Rs.9,51,000/- as
compensation from the respondents, which was
limited to Rs.8,00,000/-.
3. In the very same accident, other persons who
also sustained injuries had filed O.P.
(MV)Nos.3641/2002, 3642/2002 and 3646/2002 before
the same Tribunal.
4. The first respondent did not contest the
proceedings and was set ex parte. Even though the
second respondent entered appearance, he did not file
any written statement.
5. The third respondent-insurer had filed
M.A.C.A.No.1952/2009
separate written statements in all the claim petitions
contending that the accident occurred due to the
negligence of the deceased. The third respondent also
disputed the age, occupation and income of the
deceased and the petitioners in the other claim
petitions.
6. The Tribunal consolidated and jointly tried all
the claim petitions.
7. The petitioners in all the claim petitions
produced and marked Exts.A1 to A17 in evidence. The
third respondent marked Exts.B1 and B2 in evidence.
8. The Tribunal by its common award, allowed
the captioned claim petition in part, by permitting the
appellants to realise from the third respondent an
amount of Rs.2,99,000/-. However, since there was
violation of policy conditions, the Tribunal permitted
the third respondent to pay the compensation amount
and recover it from the first respondent.
9. Dissatisfied with the quantum of
M.A.C.A.No.1952/2009
compensation awarded by the Tribunal, the petitioners
are in appeal.
10. Heard; Sri. Nimod A.R., the learned counsel
appearing for the appellants/petitioners and Smt. K.S.
Santhi, 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.A5 final report filed by the Ollur Police in
Crime No.524/2002 proves that the accident occurred
due to the negligence of the second respondent.
Admittedly, the first respondent was the owner and the
third respondent was the insurer of the lorry. As the
second respondent did not produce his driving licence
before the Tribunal, it was inferred that the second
respondent did not hold a valid driving licence on the
M.A.C.A.No.1952/2009
date of the accident. Accordingly, the Tribunal has
rightly permitted the third respondent to pay the
compensation amount and recover it from the first
respondent. I confirm the said finding.
Multiplier
13. Even though the appellants had claimed that
the deceased was only aged 40 years at the time of the
accident/death, they did not produce any material to
prove his age. The Tribunal, on the basis of Ext.A2
postmortem certificate, has fixed the age of the
deceased at 46. I confirm the age of the deceased at
46 as reflected in Ext.A2.
14. In the light of the law laid down in Sarla
Verma and others v. Delhi Transport Corporation
and others [(2010) 2 KLT 802 (SC)], I fix the
multiplier at '13'.
Notional Income of the deceased:
15. The appellants had claimed that the deceased
was a running a tempo traveller service and he was
M.A.C.A.No.1952/2009
earning a monthly income of Rs.6,000/-. Nevertheless,
they did not produce any material to substantiate their
assertion.
16. 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.
17. Following the yardstick in the afore-cited
decision and keeping in mind the fact that the accident
occurred in the year 2002, I re-fix the notional income
of the deceased at Rs.3,500/- per month.
Dependants of the deceased:
18. As per Ext.A6 legal heirship certificate, it is
proved that the appellants are the wife and children of
the deceased, who are four in number.
19. In the light of the law laid down in Sarla
Verma (supra) and National Insurance Company
Ltd. v. Pranay Sethi [(2017) 16 SCC 680], one-fourth
M.A.C.A.No.1952/2009
of the compensation towards 'loss of dependency' has
to be deducted towards the 'personal living expenses'
of the deceased, as the appellants are four in number.
Future prospects:
20. Going by the ratio in Sarla Verma and
Pranay Sethi (supra), and considering that the
deceased was aged 46 years at the time of the
accident/death, the appellants are entitled for 'future
prospects' at the rate of 25% on the compensation for
'loss due to dependency'.
Loss due to dependency:
21. Taking into account the above-mentioned
factors, i.e, the notional income of the deceased at
Rs.3,500/- per month, the multiplier at '13', future
prospects at 25% and after deducting one-fourth of the
compensation towards the 'personal living expenses' of
the deceased, I re-fix the compensation for 'loss of
dependency' at Rs.5,11,875/-, instead of Rs.2,08,000/-
awarded by the Tribunal.
M.A.C.A.No.1952/2009
Conventional heads of compensation:
22. 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.
23. In the instant case, the Tribunal has awarded
an amount of Rs.5,000/- towards 'funeral expenses'
and Rs.10,000/- towards 'loss of estate' and Rs.15,000/-
towards 'loss of consortium'. In view of the ratio in
Pranay Sethi (supra), I enhance the compensation
under the head 'funeral expenses' by a further amount
of Rs.10,000/-, under the head 'loss of estate' by a
further amount of Rs.5,000/- and under the head 'loss
of consortium' by a further amount of Rs.1,45,000/-
(i.e., Rs.40,000/- each to each of the appellants,
totalling to an amount of Rs.1,60,000/-).
M.A.C.A.No.1952/2009
Loss of love and affection
24. The Tribunal has awarded an amount of
Rs.10,000/- under the head 'loss of love and affection'.
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
amount of compensation shall not be awarded under
the head 'loss of love and affection', as it is amount to
duplication of compensation. Therefore, I set aside the
amount of Rs.10,000/- awarded under the head 'loss of
love and affection'.
Pain and sufferings
26. As the deceased expired eight days after the
accident, I confirm the amount of Rs.15,000/- awarded
under the afore-said head.
27. With respect to the other heads of
compensation awarded by the Tribunal, namely;
Rs.1,000/- towards 'transportation expenses',
M.A.C.A.No.1952/2009
Rs.1,000/- 'extra nourishment', Rs.500/- towards
'damage to clothing', Rs.37,600/- towards 'medical
expenses' and Rs.900/- towards 'bystander expenses', I
find the same to be reasonable and just.
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
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 1,000 1,000
2 Funeral expenses 5,000 15,000
3 Pain and sufferings 15,000 15,000
4 Loss of estate 10,000 15,000
5 Loss of love and 10,000 Nil
affection
6 Loss of consortium 15,000 1,60,000
7 Extra nourishment 1,000 1,000
M.A.C.A.No.1952/2009
clothing
9 Medical expenses 37,600 37,600
expenses
11 Compensation for 2,08,000 2,08,000
dependency
Total 3,04,000/- 4,54,000/-
but mistakenly
awarded only
Rs.2,99,000/-
In the result, the appeal is allowed by enhancing
the compensation by a further amount of
Rs.1,50,000/- with interest on the enhanced
compensation at the rate of 7% per annum from the
date of petition till the date of realisation, after
deducting interest for a period of 257 days i.e., the
period of delay in preferring this appeal and as
directed by this Court on 08.09.2021 in
C.M.Appln.No.1/2009, and a consolidated cost of
Rs.40,000/-. 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 of receipt of a certified copy of this
M.A.C.A.No.1952/2009
judgment. After payment, the third respondent is
permitted to recover the compensation amount with
interest and cost from the first respondent, due to the
violation of the policy conditions. Immediately on the
compensation amount being deposited by the third
respondent, the Tribunal shall disburse the enhanced
compensation to the appellants in the ratio of
40:20:20:20 and in accordance with law.
Sd/-
C.S.DIAS,JUDGE
DST/29.10.2021 //True copy/
P.A.To Judge
