Kerala High Court
Ishu vs M/S. Globe Transport ... on 16 March, 2022
MACA NO. 549 of 2012
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
MACA NO. 549 OF 2012
AGAINST THE ORDER/JUDGMENT IN OPMV 1871/2002 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,TSR
APPELLANT/S:
1 ISHU, W/O.LATE MAMUTTY, VALAPPILAKAYIL HOUSE,
P.O.VELIYAMKODE, MALAPPURAM DIST
2 MINOR MOHAMMED KHALEEL, AGED 2 YEARS
S/O.KHALID, -DO-, REP.BY HIS NEXT FRIEND
V.M.MOHAMMEDALI, S/O.LATE MAMMUTTY -DO-
BY ADV P.V.CHANDRA MOHAN
RESPONDENT/S:
1 M/S. GLOBE TRANSPORT CORPORATION,(REGD.NO.) AE-6,
BLOCK 7TH STREET, 10TH MAIN ROAD, ANNA NAGAR,
CHENNAI-40, TAMIL NADU,
2 SAMBATH, S/O.VELLEKKANNU, HOUSE NO 2, (DASIPURAM
ROAD),M.G.R.NAGAR, VADARKKAD, ARKKAD, VELLOOR
DISTRICT , TAMILNADU-600001
3 THE NEW INDIA ASSURANCE CO-LTD REGIN MANSION
IST FLOOR, 46 MORE STREET, CHENNAI-600001
BY ADV A.C.DEVY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 549 of 2012
2
JUDGMENT
The appellants were the petitioners in OP(MV)
No.1871/2002 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 Abdul Khalid
(deceased) - son of the 1st appellant and father of the 2nd
appellant. It was their case that, on 29.12.2001, while the
deceased was driving his car bearing registration No.KL-
8/Q-5988 along the Palakkad - Thrissur National Highway,
a tanker lorry bearing Registration No.TN 02/P-4599, driven
by the 2nd respondent in a negligent manner, hit the car. The
deceased sustained fatal injuries and lost his life
instantaneously. The other passengers in the car also
succumbed to the injuries. The deceased was employed as a
MACA NO. 549 of 2012
heavy vehicle driver in Salala and was drawing a salary
equivalent to Rs.25,000/- per month. The 1 st respondent was
the owner and the 3rd respondent was the insurer of the
lorry. The 4th respondent was the owner and the 5 th
respondent was the insurer of the car. The appellants were
the dependents of the deceased. Hence, they claimed a
compensation of Rs.30,77,000/- from the respondents.
3. The legal representatives of other passengers, who
lost their lives as well as the injured in the same accident
had also filed OP(MV) No.1872/2002, 1873/2002,
1874/2002, 1875/2002, 1876/2002, 1877/2002 and
1878/2002 before the same Tribunal, against the
respondents, seeking compensation.
4. The respondents 1, 2 and 4 did not contest any of
the claim petitions.
5. The 3rd respondent-insurer had filed separate
written statements and additional written statements
denying the allegations in all the claim petitions. The 3 rd
MACA NO. 549 of 2012
respondent disputed negligence on the part of the 2 nd
respondent. However, the 3rd respondent admitted that the
tanker lorry had a valid insurance coverage.
6. The Tribunal consolidated and jointly tried all the
claim petitions.
7. The petitioners in all the claim petitions examined
PWs 1 to 4 and marked Exts.A1 to A38 in evidence. The 3 rd
respondent had produced and marked Exts.B1 and B2 in
evidence.
8. The Tribunal, after analysing the pleadings and
materials on record, allowed the captioned claim petition
in part, by permitting the appellants to recover from the 3 rd
respondent an amount of Rs.4,14,500/- with interest and
proportionate cost.
9. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioners are in appeal.
10. Heard; Sri. P.V. Chandramohan, the learned
MACA NO. 549 of 2012
counsel appearing for the appellants/petitioners and
Sri.A.C.Devy, the learned counsel appearing for the 3 rd
respondent/insurer.
11. The point that arises for consideration in the
appeal is whether the quantum of compensation awarded
by the Tribunal is reasonable and just ?
Negligence and Liability
12. Ext.A37 final report filed by the Police proves that
the accident occurred due to the negligence of the 2 nd
respondent. Indisputably, the 1st respondent was the owner
and the 3rd respondent was the insurer of the lorry. The
respondents have not let in any evidence to discredit
Ext.A37 final report. The 3rd respondent has also not proved
that the 1st 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
13. The appellants had claimed that the deceased was
MACA NO. 549 of 2012
a heavy vehicle driver, employed with Mohd. Hafees Avavh
Al-Rawas Trading Contracting Company, Salala and was
drawing a monthly salary equivalent to Rs.25,000/-. To
substantiate their contention, they had produced Ext.A11
copy of the driving license of the deceased. The Tribunal,
for want of materials fixed the notional monthly income of
the deceased at Rs.3,000/-.
14. The Honourable Supreme Court in United India
Insurance Company Ltd. Vs. Satinder Kaur @
Satwinder Kaur and others (2020 (3) KHC 760) has
categorically held to prove the income of a person employed
abroad, the salary certificate has to be attested by the
Indian Mission in the country where the deceased/victim
was employed.
15. In the instant case, the appellants have not
produced any documents to prove the monthly income of
the deceased. Ext.A11 only shows that the deceased was a
driver. Therefore, I am constrained to fix the income of the
deceased as per the Indian standards following the law laid
MACA NO. 549 of 2012
down by this Court in Valsamma vs. Binu : [2014 (1) KLT
10].
16. As the deceased was a driver by profession and the
accident occurred in the year 2001, following the yardstick
in Chameli Devi vs. Jivrail Mian [2019 KHC 5351], I fix
the notional monthly income of the deceased at Rs.5,000/-.
Multiplier
17. The deceased was aged 34 years at the time of the
accident.
18. 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 '16'.
Future Prospects
19. Following the ratio decidendi in Sarla Varma
(supra) and National Insurance Company Ltd. v. Pranay
Sethi [(2017) 16 SCC 680], I hold that the appellants are
entitled to future prospects at 40%, as the deceased was
aged 34 years at the time of the accident.
MACA NO. 549 of 2012
Personal living expenses of the deceased
20. As the appellants were the mother and son of the
deceased, who are two in number, I hold that one-third of
the compensation has to be deducted towards the personal
living expenses of the deceased, again following the
principles laid down in Sarla Verma and Pranay Sethi
(supra).
Loss due to dependency
21. Taking into account the above mentioned factors,
namely, the monthly income of the deceased at Rs.5,000/-,
the multiplier at 16, future prospects at 40% and after
deducting one - third of the compensation towards the
personal living expenses of the deceased, I re-fix the
compensation for 'loss of dependency' at Rs.8,96,000/-,
instead of Rs.3,84,000/- awarded by the Tribunal.
Conventional heads of compensation
22. In paragraph 59.8 of Pranay Sethi (supra) it is
held that the dependents of the deceased are entitled for
MACA NO. 549 of 2012
compensation under the conventional heads viz., 'funeral
expenses', 'loss of estate' and 'loss of consortium' at
Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent,
respectively. It is further held that the above amounts have
to be enhanced by 10% every three years.
23. In N.Jayasree vs. Cholamandalam M.S,
General Insurance Co Ltd. [2021 SCC Online SC 967]
and Rasmita Biswal and others vs. The Divisional
Manager, National Insurance Co., Ltd and another
[2021 SCC Online SC 1193], the Hon'ble Supreme Court,
for the accidents that happened in the years 2011 and
2013, respectively, has granted 10% escalation on the
conventional heads, irrespective of the dates of the
accident. Thus, it is to be construed and inferred that the
10 % escalation is to be granted every three years from the
date of pronouncement of the judgment in Pranay Sethi
(supra), which was rendered on 31.10.2017, and not for
accidents that occur every three years after 31.10.2017.
Thus, the dependents of the deceased are, after
MACA NO. 549 of 2012
31.10.2020, entitled to amounts of Rs.16,500/- each under
the heads 'funeral expenses' and 'loss of estate', and
Rs.44,000/- under the head 'loss of consortium'.
24. In the instant case, the Tribunal has awarded an
amount of Rs.3,000/- towards 'funeral expenses'. Thus I
enhance the compensation under the said head by a further
amount of Rs.13,500/-.
25. The Tribunal has not awarded any amount under
the heads 'loss of estate' and 'loss of consortium'. Therefore,
I award the appellants an amount of Rs.16,500/- under the
head 'loss of estate' and Rs.44,000/- each under the head
'loss of consortium' totaling to an amount of Rs.88,000/-.
Pain and sufferings and loss of love and affection
26. The Tribunal has awarded an amount of Rs.5,000/-
under the head 'pain and sufferings' and Rs.20,000/- under
the head 'loss of love and affection'.
27. In paragraph 19 of Sarla Varma (supra), the
Honourable Supreme Court has held that no amount shall
be awarded to the dependents of the deceased under the
MACA NO. 549 of 2012
head 'pain and sufferings' in the case of instantaneous
death. Hence, I set aside the amount of Rs.5,000/- awarded
under the head 'pain and sufferings'.
28. Similarly, in New India Assurance Co. v.
Somwati and others [(2020) 9 SCC 644], the Honourable
Supreme Court has held that once compensation is awarded
under the head 'loss of consortium', no amount shall be
awarded under the head 'loss of love and affection', as it
would amount to duplication of compensation. Therefore, I
set aside the amount of Rs.20,000/- awarded under the head
'loss of love and affection'.
29. 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 are entitled for enhancement of
compensation as modified and recalculated above and given
in the table below for easy reference:
MACA NO. 549 of 2012
Amount Amount
Sl. modified and
awarded by the
Head of claim recalculated
Tribunal (in by this Court
No.
rupees) (in rupees)
Transportation
2,000 2,000
expenses
Funeral expenses 3,000 16,500
Damage to
clothing
Loss of love and
affection
Loss of estate 0 16,500
Loss of consortium 0 88,000
Loss of
3,84,000 8,96,000
dependency
Total 4,14,500 10,19,500
In the result, the appeal is allowed in part, by
enhancing the compensation by an amount of
Rs.6,05,000/- with interest at the rate of 6% per annum
from the date of petition till the date of deposit and
MACA NO. 549 of 2012
proportionate cost. The 3rd respondent is ordered to deposit
the enhanced compensation with interest and cost before
the Tribunal, within a period of 60 days from the date of
receipt of a certified copy of this judgment. As the 2 nd
appellant has now attained majority, I direct the Tribunal to
disburse the enhanced compensation to the appellants,
immediately on the compensation amount being deposited,
in the ratio of 30:70 and in accordance with law.
Sd/-
C.S.DIAS, JUDGE
rkc/16.03.22
