Kerala High Court

Venkata Bhagyalakshmi & Others vs S.D.Mohammed Shaki & Others on 8 September, 2021

MACA NO. 2448 OF 2009
                               1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
                     MACA NO. 2448 OF 2009
  AGAINST THE JUDGMENT DATED 15.12.2005 IN OPMV 25/2002 OF
        MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR, MALAPPURAM


APPELLANTS/PETITIONERS:

    1      VENKATA BHAGYALAKSHMI
           W/O.LATE VENKATESWARLU BONTALA,, DOOR NO.C/54,
           LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE
           DISTRICT,, ANDHRA PRADESH.

    2      VENKATA GOPINATH
           S/O.LATE VENKATESWARLU BONTALA,, DOOR NO.C/54,
           LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE
           DISTRICT,, ANDHRA PRADESH.

    3      VENKATA JEEVANKUMAR
           S/O.LATE VENKATESWARLU BONTALA,, DOOR NO.C/54,
           LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE
           DISTRICT,, ANDHRA PRADESH.

    4      BONTALA NARAYANA AMMA
           M/O.LATE VENKATESWARLU BONTALA,, DOOR NO.C/54,
           LINGAREDDYVARA STREET,, VAKADU P.O., NELLORE
           DISTRICT,, ANDHRA PRADESH.

           BY ADV SRI.V.BINOY RAM


RESPONDENTS/RESPONDENTS:

    1      S.D.MOHAMMED SHAKI, S/O.MOHAMMED GOUSE,
           21/44, JANDA STREET, NELLORE P.O.,, ANDHRA PRADESH.

    2      HARI BABU, S/O.VENGIDAYYA
           POOVADI HOUSE, BAIJI, KAVALA, NELLORE P.O., ANDHRA
 MACA NO. 2448 OF 2009
                             2

         PRADESH.

    3    UNITED INDIA INSURANCE CO.LTD.
         16/2968, ANURAJ COMPLEX,, JAWAHARLAL ROAD, NELLORE
         P.O.,, ANDHRA PRADESH.

    4    M.K.ABDUL LATHEEF
         S/O.HASSINAR HAJI UMMAR SAHIB,, SAHIB MANZIL,
         KALLIGUNDI P.O.,, SAMPAGEGATE, SULLIA, KARNATAKA.

    5    RAJESH, S/O.KUNJAPPU
         KULLACHAL HOUSE, MALLOM AMSSOM, P.O.,, KASARGODE.

    6    THE NEW INDIA ASSURANCE CO.LTD.
         BRANCH OFFICE, 2ND FLOOR, COMPLEX,, DENTOORWELL
         CIRCLE, KANKANADY,, MANGLORE, KARNATAKA.

         R3 BY SMT.DEEPA GEORGE
               SRI.M.A.GEORGE
         R6 BY SMT.M.MEENA JOHN
               SRI.VIJU THOMAS


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 2448 OF 2009
                               3

                        JUDGMENT

The appellants were the petitioners in OP(MV)

No.25/2002 on the file of the Motor Accidents Claims

Tribunal, Tirur. 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 Venkateswarlu

(deceased), who was aged 35 years at the time of accident.

The deceased was the husband of the 1 st appellant, father of

the appellants 2 and 3 and the son of the 4 th appellant. The

appellants had averred in the claim petition that on

23.11.2000, while the deceased was traveling in a passenger

tempo van bearing registration No.AP-26-T/9225 (van)

through Kuttippuram - Edappal road, when the van reached

near Mallur Shiva Temple, a lorry bearing registration No.KA-

21A/9990, driven by the 5th respondent came from the

opposite direction and there was a collision between the lorry

and the van. The accident occurred due to the negligence of MACA NO. 2448 OF 2009

the 2nd respondent, who drew the van in a negligent manner

and hit on the lorry. As a result of the said accident, that the

deceased sustained serious injuries and was taken to the

Aswini Hospital, Thrissur, where he lost his life on

02.12.2000. The 1st respondent was the owner and the 3rd

respondent was the insurer of the van. The deceased was a

businessman by profession and earning a monthly income of

Rs.5,000/-. The appellants were the dependents of the

deceased. They claimed a total compensation of Rs.6,20,000/-

from the 3rd respondent, being the insurer of the van.

3. The other injured and legal heirs of the deceased, who

lost their lives in the same accident, filed OP(MV) Nos.751,

752, 753 and 755 of 2001 before the same Tribunal on the

very same set of pleadings.

4. The respondents 1, 2, 4 and 5 did not contest the

proceedings and were set ex-parte. The 3rd respondent filed

written statements in all the cases admitting that the van had

a valid insurance coverage. Nevertheless, it was contended

that the accident occurred due to the negligence on the part

of the driver of the lorry.

MACA NO. 2448 OF 2009

5. The 6th respondent/insurer of the lorry also filed

separate written statements in all the claim petitions

contending that the accident occurred due to the negligence

of the 2nd respondent/driver of the van.

6. The Tribunal consolidated and jointly tried all the

claim petitions. The petitioners in all the cases produced and

marked Exts.A1 to A35 in evidence. The respondents did not

let in any evidence.

7. The Tribunal by its common award allowed all the

claim petitions. The appellants in the present case were

permitted to realise an amount of Rs.3,96,000/- with interest

at the rate of 6% per annum from the date of petition till the

date of realisation with cost of Rs.4,000/-.

8. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the appellants/petitioners are in

appeal.

9. Heard; Sri.Binoy Ram V., learned counsel appearing

for the appellants/petitioners and Smt.Deepa George, learned

counsel appearing for the 3rd respondent/insurer of the van

and Sri.Viju Thomas, learned counsel appearing for the 6 th MACA NO. 2448 OF 2009

respondent/insurer of the lorry.

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.A1 FIR, Ext.A31 scene mahazer and Ext.A32

case diary of the Kuttippuram Police substantiate that the

accident occurred due to the negligence on the part of the 2nd

respondent, who drew the van in a negligent manner.

Undisputedly, the 1st respondent was the owner and the 3rd

respondent was the insurer of the van. Thus, the 3 rd

respondent is to indemnify the liability of the 1 st respondent

arising out of the accident by the use of the van.

Notional Income

12. The appellants had claimed that the deceased was a

businessman by profession and earning a monthly income of

Rs.5,000/-. The Tribunal for want of materials, fixed the

notional income of the deceased at Rs.3,000/- per month.

13. In Ramachandrappa vs. Manager, Royal

Sundaram Alliance Insruance Company Ltd. [(2011) 13 MACA NO. 2448 OF 2009

SCC 236] the Honourable Supreme Court has fixed the

notional income of a coolie worker in the year 2004 at

Rs.4,500/ per month.

14. Following the bench mark fixed by the Honourable

Supreme Court in the afore-cited decision and keeping in

mind that the accident occurred in the year 2000, I do not

find any reason to differ with the fixation of notional income

by the Tribunal at Rs.3,000/- per month. Hence, I confirm the

notional income of the deceased fixed by the Tribunal at

Rs.3,000/-.

Multiplier

15. Even though the appellants had stated in the claim

petition that the deceased was aged 40 years at the time of

the accident, they produced Ext.A30 election identity card,

which showed that the deceased was aged 30 years as on

01.01.1995. Hence, on the date of his death, he was aged 35

years.

16. In the light of the law laid down in Sarla Varma vs.

Delhi Transport Corporation [2010 (2) KLT 802], which

was confirmed by the Constitutional Bench of the Honourable MACA NO. 2448 OF 2009

Supreme Court in National Insurance Company Ltd. v.

Pranay Sethi [(2017) 16 SCC 680] the relevant multiplier to

be adopted in this case is '16'.

Dependents of the deceased

17. The appellants were the wife, children and mother

of the deceased, who are four in number.

18. Going by the principles laid down in Sarla Varma

and Pranay Sethi (supra), 1/4th of the compensation has to

be deducted towards the personal living expenses of the

deceased.

Future Prospects

19. Following the ratio in Sarla Varma and Pranay

Sethi (supra) and considering the fact that the deceased was

aged 35 years at the time of the accident, the multiplier

being '16', the appellants are also entitled for future

prospects at 40% on the compensation for loss of

dependency.

Loss due to Dependency

20. Taking into account the above mentioned factors,

namely, the notional income of the deceased at Rs.3,000/-, MACA NO. 2448 OF 2009

number of dependents at 4, multiplier at 16, future prospects

at 40% and deducting 1/4th of the total compensation for loss

of dependency towards the personal living expenses of the

deceased, I hold that the appellants are entitled for

compensation for loss due to dependency at Rs.6,04,800/-

instead of Rs.5,28,000/- awarded by the Tribunal.

Conventional Heads of Compensation

21. In clause (viii) of paragraph 61 of National

Insurance Company Ltd. v. Pranay Sethi (supra) the

Honourable Supreme Court has held that the dependents of

the deceased are entitled to compensation under the

conventional heads i.e., funeral expenses,loss of estate and

loss of consortium at Rs.15,000, Rs.15,000 and Rs.40,000

respectively.

22. In the instant case, the Tribunal has awarded only an

amount of Rs.2,500/- under the head funeral expenses.

Therefore, I enhance the compensation under the said head

by a further amount of Rs.12,500/-.

23. Likewise the Tribunal has not awarded any amount

under the head loss of estate and only an amount of MACA NO. 2448 OF 2009

Rs.10,000/- under the head loss of consortium. Therefore, I

award the amount of Rs.15,000/- under the head of loss of

estate and an amount of Rs.40,000/- each to the appellants

towards loss of consortium, totaling to an amount of

Rs.1,60,000/-, i.e., an enhancement by Rs.1,50,000/-.

Compensation for pain and sufferings

24. The Tribunal has awarded an amount of Rs.7,500/-

under the head pain and suffering.

25. In United India Insurance Company Ltd. Vs.

Satinder Kaur @ Satwinder Kaur and others (2020 (3)

KHC 760) the Honourable Supreme Court has held that in

the case of death, no amount of compensation can be

awarded under the head pain and suffering to the

dependents. Accordingly, I set aside the amount awarded

under the head pain and suffering.

26. With respect to the other heads of compensation,

namely, transportation expenses and medical expenses, I find

that the Tribunal has awarded reasonable and just

compensation.

27. On an overall re-appreciation of the pleadings, MACA NO. 2448 OF 2009

materials on record, and the law laid down in the above

referred decisions, I am of the definite opinion that the

appellants are entitled for enhancement of compensation as

recalculated above and given in the table below for easy

reference:

SI.          Head of claim                Amount          Amounts
                                       awarded by         modified
No                                     the Tribunal       and
                                        (in rupees)       recalculated
                                                          by       this
                                                          Court

1.    Transportation                         8,500/-            8,500/-
      expenses




3.    Funeral expenses                       2,500/-           15,000/-


4.    Loss of estate                                  0        15,000/-


5.    Medical expenses                      49,500/-           49,500/-


6.    Loss of consortium                    10,000/-         1,60,000/-


7.    Loss     due           to           3,18,000/-         6,04,800/-
      dependency

                Total                    3,96,000/-         8,52,800/-
 MACA NO. 2448 OF 2009

28. Even though the appellants had claimed only an

amount of Rs.6,20,000/-, in the claim petition, following the

ratio in Pranay Sethi (supra) the dependents of the

deceased are also entitled to future prospects at 40%.

Therefore, the compensation 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 vs.

Rajbir Sing [2013 (3) KLT 89 (SC)] wherein the Honourable

Supreme Court has held that there is no restriction in

awarding more compensation than what is claimed in the

claim petition.