Kerala High Court
Jagadeesh Kumar vs Vinu on 17 February, 2025
MACA. No.2546/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
MACA NO. 2546 OF 2016
AGAINST THE AWARD DATED 12.10.2015 IN OPMV NO.1 OF
2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM
APPELLANTS/PETITIONERS:
1 JAGADEESH KUMAR
AGED 40 YEARS, S/O. LATE THANKAPPAN,
JAGADEESH VILLA, ADINAD VADAKKUM MURI,
K.S.PURAM VILLAGE,KARUNAGAPPALLY TALUK,
KOLLAM DISTRICT.
2 JAYAKUMARI, AGED 29 YEARS, D/O. LATE JAGADAMMA,
KRISHNAPRASADAM, ADINAD THEKKU MURI,
ADINAD VILLAGE, KATTILKADAVU P.O.
BY ADVS.
SRI.NIRMAL V NAIR
A.D.DIVYA
RESPONDENTS/RESPONDENTS:
1 VINU, S/O. CHINNA PILLAI,
KOTTAYAKKONAM PUTHEN VEEDU,
NEAR KAKKACHEL JN.,
KAKKACHEL MANIYAKUZHY MURI,
THRIPERRUPU VILLAGE,
KAKKACHEL MAIYAN KUZHY P.O.,
KANYAKUMARI DISTRICT-629 161.
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2 RAJAN, S/O. BALAKRISHNA PANICKER, SAI KRIPA,
ALTHI KIZHAKKUM KARA, KOLLODU P.O.,
MARANALLOR, NEYYATTINKARA-695 571.
3 THE MANAGER
SHRIRAM GENERAL INSURANCE CO. Ltd.,
DRIVA, THRISSUR-680 001.
BY ADVS.
SRI.P.JACOB MATHEW-SC
SRI.MATHEWS JACOB SR.
SMT.PREETHY R. NAIR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 17.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 17th day of February, 2025
The petitioners in O.P.(M.V.) No.1/2014 on the file of the Motor
Accident Claims Tribunal, Kollam is the appellant herein. (For the
purpose of convenience, the parties are hereafter referred to as per their
rank before the Tribunal)
2. The O.P. was filed under under Section 166 of the Motor
Vehicles Act, 1988, by the children of the deceased by name
Jagadamma, who died in a motor vehicle accident that occurred on
21.5.2013. According to them, on 21.5.2013, at about 9.15 am., while
the deceased was standing by the side of Kollam-Alapuzha National
Highway, lorry bearing registration No.KL-21A-1906, driven by the 1 st
respondent in a rash and negligent manner hit her down and as a result
of which she sustained serious injuries and she succumbed to the injuries
on the same day.
3. The 1st respondent is the driver, the 2 nd respondent is the
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owner and 3rd respondent is the insurer of the offending vehicle.
According to the petitioners, the accident occurred due to the negligence
of the driver of the offending vehicle. The quantum of compensation
claimed in the O.P. was Rs.7,00,000/-.
4. The insurance company filed a written statement, admitting the
accident as well as policy, but disputing the negligence on the part of the
driver of the offending vehicle.
5. The evidence in the case consists of documentary evidence
Exts.A1 to A7. No evidence was adduced by the respondents.
6. After evaluating the evidence on record, the Tribunal found
negligence on the part of the driver of the offending vehicle, awarded a
total compensation of Rs.2,27,000/- and directed the insurer to pay the
same.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioners preferred this appeal.
8. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the
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Tribunal is just and reasonable?
9. Heard Smt. A D. Divya, the learned Counsel appearing for the
petitioners/appellants, and Sri. P. Jacob Mathew, the learned Standing
Counsel for the 3rd respondent.
10. The Point: In this case the accident as well as valid policy of
the offending vehicle are admitted. One of the contentions raised by the
learned counsel for the petitioners is regarding the income of the
deceased as fixed by the Tribunal. According to him, the deceased was
working as tailor, getting a daily income of Rs.1200/- per day, but the
Tribunal fixed her income at Rs.20,000/- per annum. The learned
counsel for the insurer would argue that the income fixed by the tribunal
is reasonable.
11. As per the dictum laid down by the Hon'ble Supreme Court
in the decision in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the notional income
of a coolie, during the year 2013 will come to Rs.9,000/-. Since the
petitioners could not prove the job or income of the deceased, as claimed
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in the OP, in the light of the dictum laid down by the Hon'ble Supreme
Court in Ramachandrappa (supra), his notional income is liable to be
fixed as that of a coolie, at Rs.9,000/-.
12. Petitioners are the major son and daughter of the deceased.
The learned counsel for the 3rd respondent relying upon the decision of
Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Vinish
Jain and Ors [(2018) 3 SCC 619] would argue that the major children
are not entitled to claim compensation as dependents of the deceased.
On the other hand, the learned counsel for the petitioners relying upon
the decision of Hon'ble Supreme Court in Seema Rani v. Oriental
Insurance Co. Ltd. [2025 KHC OnLine 7116] and decision of a Single
Bench of this Court in United India Insurance Co. Ltd. v. Shalumol
and Ors [ILR 2021 (4) Kerala 598] would argue that even major sons
and married daughters can also claim compensation as dependents of the
deceased.
13. In the decision in Vinish Jain and Ors (supra), the
deceased was aged 78 years and the dependents were two major sons
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having own source of income and two grand daughters primarily
dependent on their father and not on their grandfather. In the instant
case, the deceased was aged 58 years and she is the mother of
petitioners, who are aged 38 and 29 on the date of the accident. In the
decision in Seema Rani (supra), in paragraph 9 the Hon'ble Apex Court
held that:
"We have heard the learned counsel for the Appellants. We are
unable to agree with the view taken by the Tribunal on the
dependents of the deceased. This Court in National Insurance
Company Limited v. Birender & Ors. (2020) 11 SCC 356) had
expounded that major married and earning sons of the deceased,
being legal representatives, have a right to apply for
compensation, and the Tribunal must consider the application,
irrespective of whether the representatives are fully dependent on
the deceased or not. The Court went on to conclude that since the
Sons, in that case, were earning merely Rs.1,50,000/- per annum,
they were largely dependent on the earnings of the deceased and
were staying with her "
14. In the decision in Shalumol and Others (supra), in paragraph
42 this court held that:
"The respondents had specifically averred in the claim petition
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that, Sreedevi was tne breadwinner of the family and the
respondents were dependent on her. The respondents lost the love,
affection, happiness, consortium and pecuniary benefits of
Sreedevi. Hence, they were entitled to comnpensation. The
respondents marked Exhibit A-1 to A-6 in evidence. Exhibit A-4 is
the family relationship certificate which proves that the
respondents were dependent on the Sreedevi and Exhibit A-6
substantiates that the Sreedevi was an anganwadi worker and
drawing a monthly honorarium of Rs. 10,031/-. Other than for the
bald assertion in the written statement of the appellant, that the
accident occurred due to the negligence of the Sreedevi and the
respondents were not her legal representatives and dependants,
the appellant has not let in any evidence to refute the assertion in
the claim petition, as aid down in Montford Brothers of St.
Gabriel (supra)."
15. In this case, the father of the petitioners is no more. As per
Exhibit A5 family relationship certificate issued by the Village Officer
concerned, the petitioners are shown as the family members of the
deceased. Therefore, it can be seen that she had no other legal
representatives. In the decision in Seema Rani (supra), the Apex Court
held that major children and married daughters are also eligible for
claiming compensation as dependents of deceased irrespective of
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whether they are fully dependent on the deceased.
16. In the instant case, the petitioners approached the Tribunal
under Section 166 of the Motor Vehicles Act claiming that they are the
dependents of the deceased. No contra evidence was adduced by the
respondents to disprove the above claim. In the above circumstances, I
do not find any merit in the contention of 3 rd respondent that the
petitioners herein cannot claim compensation as dependents of the
deceased.
17. On the date of accident, the deceased was aged 58 years.
Therefore, 10% of the monthly income is liable to be added towards
future prospects, as held in the decision in National Insurance Co.Ltd
v Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is
9, as held in Sarla Verma v. Delhi Transport Corporation, (2009) 6
SCC 121. Since the deceased was married who left behind 2 dependents,
towards personal and living expense, 1/3 of the income is liable to be
deducted, as held in Sarla Verma (supra). In the above circumstances,
the loss of dependency will come to Rs.7,12,800/-.
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18. The Tribunal has awarded Rs.1,00,000/- towards loss of
estate, Rs.25,000/- towards funeral expenses. No compensation was
awarded towards 'loss of consortium'. In the light of the decision in
Pranay Sethi (supra), the appellants are entitled to get a consolidated
sum of Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral
expenses, and the dependents (parents, children and spouse) are entitled
to get a sum of Rs.40,000/- each towards loss of consortium, with an
increase of 10% in every three years. Therefore, towards loss of estate
and funeral expense they are entitled to get a sum of Rs.18,150/- each.
Towards loss of consortium, petitioners together are entitled to get a sum
of Rs.96,800/- (48,400 x 2).
19. Since compensation for loss of consortium was given, further
compensation for love and affection cannot be granted, in view of the
decision in New India Assurance Company Ltd. v. Somwati and
Others, (2020) 9 SCC 644. Therefore, the compensation awarded
towards love and affection is to be deducted.
20. Towards the head 'pain and sufferings', the Tribunal has not
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awarded any compensation. The deceased died in this case on the date
of the accident. In the above circumstances, I hold that Rs.25,000/- will
be a reasonable compensation towards the head 'pain and suffering'.
21. No change is required, in the amounts awarded on other
heads, as the compensation awarded on those heads appears to be just
and reasonable.
22. Therefore, the petitioners/appellants are entitled to get a total
compensation of Rs.8,72,900/-, as modified and recalculated above and
given in the table below, for easy reference:
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.)
1 Transport to hospital 1,000/- 1,000/-
2 Damage to clothing & articles 1,000/- 1,000/-
3 Funeral expenses 25,000/- 18,150/-
4 Love and affection 1,00,000/- Nil
5 Loss of estate 1,00,000/- 18,150/-
6 Loss of consortium Nil 96,800/-
7 Loss of dependency Nil 7,12,800/-
8 Pain and suffering Nil 25,000/-
Total 2,27,000/- 8,72,900/-
Enhanced Rs.6,45,900/-
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23. In the result, this Appeal is allowed in part, and the 3 rd
respondent is directed to deposit a total sum of Rs.8,72,900/- (Rupees
eight lakh seventy two thousand nine hundred only), less the amount
already deposited, if any, along with interest at the rate ordered by the
Tribunal from the date of the petition till realisation/deposit, excluding
interest for a period of 225 days, the period of delay in filing the appeal,
with proportionate costs, within a period of two months from today.
(Enhanced compensation will carry interest @8%).
On depositing the aforesaid amount, the Tribunal shall disburse the
entire amount to the petitioners, in the ratio fixed by the Tribunal,
excluding court fee payable, if any, without delay, as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
