Allowed

Mallika v. v.R.Ramachandran

Kerala HC22 Sept 2021MACA/1669/2009

Case brief

AI extract

What is this about?

The High Court allowed the appeal by enhancing the compensation of Rs. 3,02,000 to Rs. 5,72,000. The Court modified the notional income, multiplier, and conventional heads, set aside amounts for pain and sufferings and loss of love and affection to avoid duplication, and ordered the insurer to pay the enhanced amount with interest.

What did the court decide?

Enhancement of compensation from Rs. 3,02,000 to Rs. 5,72,000 with interest at 7% p.a. and costs of Rs. 4,000.

Mallika Vs v.R.Ramachandran — Motor Accident Claims | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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WEDNESDAY, THE 22^ND DAY OF SEPTEMBER 2021 / 31ST BHADRA,

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1943

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MACA NO. 1669 OF 2009

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AGAINST THE ORDER/JUDGMENT IN OPMV 3084/2001 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL

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THRISSUR

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APPELLANT/S:

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1 MALLIKA

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AGED 50 YEARS

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W/O PRABHAKARAN NAIR

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PERULIL HOUSE,, KADAVANTHARA, ERNAKULAM DISTRICT.

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2 PRAJITH S/O.PRABHAKARA NAIR. PERULIL HOUSE,, KADAVANTHARA, ERNAKULAM DISTRICT.

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3 PRAVEENA MINOR D/O.PRABHAKARAN NAIR PERULIL HOUSE,, KADAVANTHARA, ERNAKULAM DISTRICT.

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(MINOR APPELLANT 3 IS REPRESENTED BY HER GUARDIAN MOTHER THE 1ST APPELLANT HEREIN),

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BY ADV T.C.SURESH MENON

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RESPONDENT/S:

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1 V.R.RAMACHANDRAN S/O RAMAKRISHNAN RESIDING AT VALAPARAMBIL HOUSE,, P.O.KANJANY, THRISSUR.

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MACA NO. 1669 OF 2009

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2	CHANDRAN S/O.KUMARAN RESIDING AT CHILLIPARAMBIL HOUSE, NEAR TO SRI.SANKARAN SHED, KANJANY,, MANALOOR, THRISSUR.
3	THE NEW INDIA ASSURANCE COMPANY LIMITED KOLLANNUR BUILDINGS, PALACE ROAD,, THRISSUR (DIVISIONAL OFFICE).
4	K.C.RUGMANI AMMA W/O.MADHAVAN NAIR RESIDING AT CHUNTHARATH HOUSE,, KOOGALAKKODE, KAVASSERY P.O.,,
	ALATHUR, PALAKKAD.
5	LAKSHMIKUTTY D/O.MADHAVAN NAIR
	RESIDING AT CHUNTHARATH HOUSE,,
	KOOGALAKKODE, KAVASSERY P.O.,, ALATHUR, PALAKKAD.
	BY ADV. LAL K JOSEPH, SC
THIS	MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION	ON 22.09.2021, THE COURT ON THE SAME DAY
DELIVERED	THE FOLLOWING:

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MACA NO. 1669 OF 2009

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JUDGMENT

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The appellants were the petitioners in O.P(M.V)
No.3084/2001 on the file of the Motor Accidents Claims
Tribunal, Thrissur. The respondents in the appeal were the
respondents before the Tribunal.

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2. The appellants had filed a claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the death of 'Prabhakaran
Nair' (deceased), the husband of the first appellant and the
father of the appellants 2 and 3. It was their case, on
20/08/2001, while the deceased was travelling in a bus
bearing Registration No. KER 7081 (bus), through the
Swaraj Round, Thrissur. When the bus reached the Bini
Junction, the deceased attempted to alight from the bus,
but the second respondent/driver of the bus, without giving
any signal and in a negligent manner moved the bus

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MACA NO. 1669 OF 2009

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forward. The deceased fell down and sustained severe
injuries. Even though he was taken to the Medical College
Hospital, Thrissur, his life could not be saved. The first
respondent was the owner and the third respondent was
the insurer of the bus. The respondent Nos. 4 and 5 were
the mother and sister of the deceased. The deceased was a
driver by profession and earning a monthly income of
Rs.5,000/-. The appellants were the dependants of the
deceased. Hence, the appellants sought an amount of Rs.
5,00,000/- (Rupees Five Lakh Only) from respondent Nos. 1
to 3 as compensation.

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3. The respondent Nos. 1 and 2 had filed a written
statement contending that the deceased was not a
passenger in the bus. It is averred that there was no
negligence on the part of the 2nd respondent, and the
accident occurred due to the negligence of the deceased.

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MACA NO. 1669 OF 2009

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4. The third respondent had filed a written statement
admitting that the bus had a valid insurance coverage. It
was contended that the appellants had filed another
original petition before Motor Accidents Claims Tribunal,
Palakkad. Hence, the present claim petition was not
maintainable. The 3rd respondent prayed that the claim
petition be dismissed.

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5. The appellants produced and marked Exhibits A1
to A7(2) in evidence. The 3rd respondent produced a copy
of the insurance policy and marked it as Exhibit B1.

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6. The Tribunal, after analysing the pleadings and

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materials on record, allowed the claim petition in part, by
permitting the appellants to realise and amount of
Rs.3,02,000/- (Rupees Three Lakhs and Two Thousand
Only) with interest at the rate of 7% per annum, from the
rate of petition till date of payment and proportionate

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MACA NO. 1669 OF 2009

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costs.

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7. Dissatisfied with the quantum of compensation

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awarded by the Tribunal, the petitioners/appellants are in
appeal.

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8. Heard; Sri. T.C. Suresh Menon, the learned

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counsel appearing for the appellant/petitioners and Sri Lal
K. Joseph, the learned counsel appearing for the 3rd
respondent/insurer.

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9. The sole question that arises for consideration is:-

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“whether the quantum of compensation awarded by the
Tribunal is reasonable and just?”

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Insurance and Liability:-

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10. Exhibit A6 final report filed by the Traffic police,
Thrissur in Crime No. 363/2001 substantiates that the
accident occurred due to the negligence of the second

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MACA NO. 1669 OF 2009

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respondent. Undisputedly, the 1st respondent was the
owner and the 3rd respondent was the insurer of the bus.
The 3rd respondent has admitted the insurance policy and
has not alleged that the 1st respondent has violated the
policy conditions. Therefore, the 3rd respondent is to
indemnify the liability of the 1st respondent and pay the
compensation amount.

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Notional Income:-

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11. The appellants have claimed that the deceased
was a Driver by profession and was earning a monthly
income of Rs. 5000/-. But, the Tribunal fixed the monthly
income of the deceased notionally at Rs. 2000/-.

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12. In Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited

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[(2011) 13 SCC 236], the Honourable Supreme Court has
fixed the notional income of a coolie worker in the year

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MACA NO. 1669 OF 2009

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2004 at Rs. 4500/- per month.

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13. Following the benchmark fixed in the aforesaid

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decision and taking into account that the accident
occurred in the year 2001, I am of the opinion that the
notional income of the deceased can safely be fixed at Rs.
3,000/- per month.

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Multiplier:-

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14. The deceased was aged 44 years at the time
accident. In the light of the law laid down in Sarla Varma

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and others v. Delhi Transport Corporation and others

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[(2010) 2 KLT 802 (SC)], the relevant multiplier is '14'.

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Dependents of the deceased:-

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15. It is proved that the appellants were the wife and
two children of the deceased. So, they are three in number
and all three of them were the dependents of the deceased.

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MACA NO. 1669 OF 2009

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16. In the light of the decision in Sarla Verma and
National Insurance Company Ltd. v. Pranay Sethi
[2017 (4) KLT 662 (SC)], 1/3rd of the compensation has
to be deducted towards the personal living expenses of the
deceased.

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Future Prospects:-

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17. Following the ratio in Sarla Verma and Pranay
Sethi (supra) and considering the fact that the deceased
was aged 44 years at the time of accident, the appellants
are also entitled for future prospects at 25% on the
compensation for 'loss of dependency'.

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Loss due to dependency:-

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18. Taking into account the above-mentioned factors,
that is the monthly income of the deceased at Rs. 3,000/-,
the multiplier at '14', future prospects at 25% and after
deducting 1⁄3rd of the compensation for loss of dependency

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MACA NO. 1669 OF 2009

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towards personal living expenses of the deceased, I re-fix
the compensation for 'loss of dependency' of the appellants
at Rs. 4,20,000/- instead of Rs.2,40,000/- awarded by the
Tribunal.

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Conventional heads of compensation:-

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19. In clause (viii) of paragraph 61 of Pranay Sethi
(supra), the Hon'ble Supreme Court has held that the
dependents of the deceased are entitled for compensation
under the conventional heads namely, 'funeral expenses',

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'loss of consortium' and 'loss of estate' at the rate of
Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively.

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20. 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'. In view of the law laid
down in Pranay Sethi (supra), I enhance the
compensation under the head 'funeral expenses' by a

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MACA NO. 1669 OF 2009

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further amount of Rs.10,000/- and compensation for 'loss of
estate' by a further amount of Rs.5,000/-.

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21. The Tribunal has awarded an amount of
Rs.15,000/- towards 'loss of consortium'. As the appellants
are the wife and children of deceased, I hold that all the
three appellants are entitled for compensation for 'loss of
consortium' at Rs. 40,000/- each, i.e., totaling to an amount
of Rs.1,20,000/- which is an enhancement by a further
amount of Rs.1,05,000/-.

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Loss of love and affection and pain and sufferings:-

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22. The Tribunal has awarded an amount of
Rs.15,000/- as compensation for 'pain and sufferings' and
and Rs.15,000/- for 'loss of love and affection'.

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23. In New India Assurance Company Ltd. v.
Somwati & Ors. [2020(9)SCC 644], the Hon'ble
Supreme Court has held that once compensation is

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MACA NO. 1669 OF 2009

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awarded under the head 'loss of consortium', no amount
can be awarded under the head 'loss of love and affection',
as it is amount to duplication of compensation.

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24. Similarly, in United India Insurance Company
Ltd. v. Satinder Kaur @ Satwinder Kaur and Others
[2020(3)KHC 760], the Hon'ble Supreme Court has held
that in the case of instantaneous death, no amount can be
awarded under the head 'pain and sufferings'.

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25. Therefore, I set aside the amounts of Rs. 15,000/-

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and Rs.10,000/- awarded by the Tribunal under the above
heads.

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26. With respect to the compensation awarded under
the heads 'transportation expenses' and 'damage to
clothing', I find the same to be reasonable and just.

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27. On a comprehensive re-appreciation of the
pleadings and materials on record and the law referred to

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MACA NO. 1669 OF 2009

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in the afore-cited decisions, I am of the definite opinion
that the appellants/petitioners are entitled for
enhancement of compensation as modified and

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recalculated above and given in the table below for easy

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reference.

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`Sl.` `No.`	`Head of claim`	`Amount` `awarded by` `Tribunal`	`Amount` `modified and` `recalculated` `by this Court`
		`(in Rs.)`	`(in Rs.)`
`1`	`Transportation to` `hospital`	`1,500`	`1,500`
`2`	`Damage to clothing`	`500`	`500`
`3`	`Funeral expenses`	`5,000`	`15,000`
`4`	`Pain and sufferings`	`15,000`	`0`
`5`	`Love and affection`	`15,000`	`0`
`6`	`Loss of estate`	`10,000`	`15,000`
`7`	`Loss of consortium`	`15,000`	`1,20,000`

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MACA NO. 1669 OF 2009

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`8`	`Loss of dependancy`	`2,40,000`	`4,20,000`
	`Total`	`3,02,000`	`5,72,000`

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In the result, the appeal is allowed by enhancing the
compensation by a further amount of Rs.2,70,000/-
(Rupees Two Lakhs and Seventy Thousand Only) with
interest on the enhanced compensation at the rate of 7%
per annum from the date of petition till the date of deposit,
after deducting interest for a period of 210 days, i.e., the
period of delay in flng the appeal and as ordered by thisi
Court 20.07.2021 in C.M. Appl. No. 1909/2009, and a cost
of Rs.4,000/-. The 3rd respondent/insurer is ordered to
deposit the enhanced compensation with interest and costs
awarded in the appeal within a period of sixty days from
the date of receipt of a certified copy of this judgment. The
Tribunal shall disburse the enhanced compensation to the
appellants /petitioners in the ratio of 50:25:25 and in

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MACA NO. 1669 OF 2009

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accordance with law, after deducting their liability, if any,
towards payment of court fee.

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All pending interlocutory applications will stand
closed.

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Sd/-
C.S.DIAS
JUDGE

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avs

Mallika v. v.R.Ramachandran

Case brief

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Mallika v. v.R.Ramachandran

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