Allowed

Vijayan v. the Director of the Health & Family

Kerala HC9 Sept 2021MACA/222/2011

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the Motor Accidents Claims Tribunal, enhancing the compensation awarded for the death of a deceased person in a motor accident to Rs.9,08,000/- by recalculating income, multiplier, and adding conventional heads while removing pain and suffering.

What did the court decide?

Enhanced compensation of Rs.9,08,000/- with 7% interest from petition date to deposit, over and above the Tribunal's award, plus Rs.3,000 costs.

Vijayan Vs the Director of the Health & Family — Medical Negligence | Kerala HC (2021)

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MACA NO. 222 OF 2011

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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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THURSDAY, THE 9^TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943

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MACA NO. 222 OF 2011

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AGAINST THE ORDER/JUDGMENT IN OPMV 1044/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE

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APPELLANTS/PETITIONERS IN THE OP(MV):

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1 VIJAYAN, AGED 54 YEARS, S/O.SANKARAN NAIR, AGED 54 YEARS (FATHER OF THE DECEASED)

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2 USHAKUMARI, W/O.VIJAYAN AGED 45 YEARS (MOTHER OF THE DECEASED).

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3 UDAYA D/O.VIJAYAN AGED 24 YEARS (SISTER OF DECEASED) (ALL ARE RESIDING AT POKKINARI HOUSE, NJARAKKAT PARAMBIL, PAYYADI THAZHAM, PANTHEERANKAVU P.O.) BY ADVS. SMT.O.M.SHALINA SRI.T.V.VINU

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RESPONDENT/S:

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1 THE DIRECTOR OF THE HEALTH & FAMILY WELFARE SERVICE,, PONDICHERY-605001. 2 GANGADHARAN K.K. S/O.K.P.CHATHUKUTTY AGED NOT KNOWN,, KAKKUZHI PARAMBATH HOUSE, PANDAKKAL P.O.,, MAHE VIA., PONDICHERY-605001. BY ADVS. SRI.ANIL GEORGE SRI.JOBY JACOB PULICKEKUDY

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA NO. 222 OF 2011

JUDGMENT

The appellants were the petitioners in OP(MV) No. 1044/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikkode. The respondents in the appeal were the respondents before the Tribunal.

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The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Anoop Kumar (deceased), son of the appellants 1 and 2 and brother of the 3^rd appellant. It was their case that on 06.02.2009, while the deceased was riding his motor cycle bearing registration No.KL 11V/4183 from Thondayade side to Pantheerankavu side, when he reached Kalyanikutti Amma Memorial College, a Tata Sumo Car (car) bearing registration No.PY 01- G-2337 hit on the motor cycle. The car was driven by the 2^nd respondent in a very rash and negligent manner. The car was owned by the 1^st respondent. The deceased was aged 20 years at the time of accident and he was a Sales Executive and was also pursuing his B.Tech course. The appellants

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MACA NO. 222 OF 2011

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were dependents of the deceased. The appellants claimed a compensation of Rs.14,16,000/- from the respondents, which was limited to Rs.7,00,000/-

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The 1^st respondent filed a written statement and additional written statement, admitting that it was the owner of the car. However, the 1^st respondent denied negligence on the part of the 2^nd respondent. It was also contended that as the collision happened between two vehicles, the owner and insurer of the motor cycle were also necessary parties. The 1^st respondent disputed the age, income and occupation of the deceased.

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The appellants produced and marked Exts.A1 to A5 in evidence. The respondents did not let in any evidence.

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The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover an amount of Rs.2,43,000/- from the respondents 1 and 2 with interest on the amount @ 7% per annum from the date of petition till the date of deposit and a cost of Rs.1,500/-.

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Dissatisfied with the quantum of compensation

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MACA NO. 222 OF 2011

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awarded by the Tribunal, the petitioners are in appeal.

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Heard; Smt. O.M. Shalina, the learned counsel appearing for the appellants/petitioners and Sri.Anil Goerge, learned counsel appearing for the respondents.

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The question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just.

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Negligence and Liability

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It is on record as per Ext.A1 FIR and FIS, that the accident occurred due to negligence of the 2^nd respondent . Undisputedly, the 1^st respondent was the owner of the car. Therefore, the 1^st respondent is vicariously liable to pay the compensation amount due to the negligence of the 2^nd respondent.

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Income

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The appellants had claimed that the deceased was a B.Tech student and a Sales Executive and earning a monthly income of Rs.5,000/-. The Tribunal fixed the notional monthly income of the deceased at Rs.2,000/-.

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In Ramachandrappa vs. Manager, Royal

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MACA NO. 222 OF 2011

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Sundaram Alliance Insruance Company Ltd. : (2011) 13 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.

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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 2009 and that the deceased was a Sales Executive and a B.Tech student, I am of the considered opinion that the income of the deceased can safely be fixed at Rs.5,000/- as claimed in the claim petition.

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Multiplier

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The deceased was aged 20 years at the time of his death. In Sarla Varma vs. Delhi Transport Corporation : 2010 (2) KLT 802 , the Honourable Supreme Court has fixed

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the multiplier for persons in the age group of 20 at '18'. Accordingly, I fix the multiplier at ‘18’.

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Personal Living Expenses of the deceased

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Undisputedly, the deceased was a bachelor. Therefore, one half of the compensation has to be deducted

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MACA NO. 222 OF 2011

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towards his personal living expenses as laid down in Sarla Varma (supra) and National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] .

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Future Prospects

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In Sarla Varma and Pranay Sethi (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled to future prospects. As the deceased was 20 years of age at the time of his death, I award 40% towards future prospects on the compensation for loss of dependency.

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Loss due to dependency

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Taking into account the above mentioned factors i.e., income of the deceased at Rs.5,000/-, the multiplier at 18, future prospects at 40% and deducting one half of the compensation towards personal living expenses of the deceased, I refix the compensation for loss of dependency of the appellants at Rs.7,56,000/- instead of Rs.2,08,000/- fixed by the Tribunal.

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Conventional heads of compensation

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In clause (viii) of paragraph 61 of National

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MACA NO. 222 OF 2011

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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.

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In the instant case, the Tribunal has awarded only an amount of Rs.10,000/- towards loss of estate and Rs.3,000/- towards funeral expenses.

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Following the principles in Pranay Sethi (supra), I enhance the compensation under the head 'loss of estate' by an amount of Rs.5,000/- and under the head 'funeral expenses' by a further amount of Rs.12,000/-.

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It is seen that the Tribunal has not awarded any amount under the head loss of consortium. As the appellants 1 and 2 were the parents of the deceased and the 3^rd appellant was the sister of the deceased, who was aged only 23 years at the time of death of the deceased, I hold that each of the appellants are entitled for compensation for loss of consortium at Rs.40,000/-, totaling to an amount of

MACA NO. 222 OF 2011

Rs.1,20,000/-.

Loss of love and affection and pain and sufferings

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It is seen that the Tribunal has awarded an amount of Rs.10,000/- under the head loss of love and affection and Rs.10,000/- under the head pain and suffering.

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In New India Assurance Co. Ltd. Somvathy and others [2020 (9) SCC 644] the Honoruable Supreme Court has held that once the compensation is awarded under the head loss of consortium, no amount can be awarded under the head loss of love and affection, as it would amount to duplication of compensation.

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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 of the deceased.

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In the view of the above declaration of law, I set aside the amount of Rs.10,000/- each awarded under the heads pain and suffering and love and affection.

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MACA NO. 222 OF 2011

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With respect to the compensation awarded under the heads transport expenses and damage to clothing, I find that the Tribunal has awarded reasonable and just compensation.

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On a comprehensive re-appreciation of the pleadings, 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

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reference:

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SI. No	Head of claim	Amount awarded by the Tribunal (in rupees)	Amounts modified and recalculated by this Court
1.	Transportation expenses	1,500/-	1,500/-
2.	Damage to clothing	500/-	500
3.	Funeral expenses	3,000/-	15,000/-
4.	Pain and sufferings	10,000/-	0

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MACA NO. 222 OF 2011

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5.	Loss of estate	10,000	15000
5.	Loss of love and affection	10,000/-	0
6.	Loss of consortium	0	1,20,000/-
7.	Loss due to dependency	20,8000/-	7,56,000/-
	Total	2,43,000/-	9,08,000/-

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Even though the appellants had claimed only an amount of Rs.7,00,000/- as compensation in the claim petition, following the ratio in Pranay Sethi (supra) that the dependents of the deceased are also entitled to future prospects at 40%, the compensation now awarded is more than the amount 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.

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MACA NO. 222 OF 2011

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In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.6,65,000/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, after excluding interest for a period of 221 days that is the period of delay and as ordered by this Court on 29.03.2021 in C.M.Appl. No.341/2011, and cost of Rs.3,000/-. The 1^st respondent shall 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 the judgment. The Tribunal shall disburse the enhanced compensation to the appellants in the ratio of 40:40:20 and in accordance with law, after deducting the liability of the appellants, if any, towards balance court fee. All pending interlocutory applications will stand closed.

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Sd/-

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C.S.DIAS JUDGE

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rkc

Vijayan v. the Director of the Health & Family

Case brief

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Vijayan v. the Director of the Health & Family

Case brief

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