K.v.Jacob Vs Peter

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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THURSDAY, THE 10^TH DAY OF MARCH 2022 / 19TH PHALGUNA, 1943

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MACA NO. 1741 OF 2014

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AGAINST THE AWARD DATED 18.02.2013 PASSED IN OPMV 1259/2012 OF

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MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM

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APPELLANTS/PETITIONERS:

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1 K.V.JACOB AGED 58 YEARS S/O.VARKEY, KALAPURACKAL HOUSE, MAMALA P.O., THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682 305. 2 SOPHY AGED 57 YEARS W/O.K.V.JACOB, KALAPURACKAL HOUSE, MAMALA P.O., THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682 305. 3 MINU AGED 27 YEARS W/O.VIBIN, KALAPURACKAL HOUSE, VELIYANADU P.O., PEPATHI, ERNAKULAM DISTRICT, PIN - 682 319. BY ADVS.

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SRI.T.K.VENUGOPALAN SRI.PRAMOD KOCHUTHOMMEN.E. SRI.SHIBU JOSEPH

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RESPONDENTS/RESPONDENTS:

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1 PETER AGED 50 YEARS S/O EDWARD, VYPISSERY HOUSE, OCHANTHURUTH, PUTHUVYPE, ERNAKULAM DISTRICT-683 508.

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2 ROYSON JOSEPH ROYAL TOURS AND TRAVELS, LISIE JUNCTION, KOCH-682 017.

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3 THE BRANCH MANAGER M/S.SHRIRAM GENERAL INSURANCE CO.LTD., AZAD TOWER, AMMANKOVIL CORSS ROAD, KOCHI - 35. BY ADV R.AJITH KUMAR (128/84)-R3

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION

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ON 10.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A No. 1741 of 2014

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M.R.ANITHA, J.

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M.A.C.A No. 1741 of 2014

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Dated this the 10^th day of March, 2022

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JUDGMENT

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This appeal has been filed against the award passed in O.P.M.V No.1259/2012 on the file of Motor Accidents Claims Tribunal, Ernakulam (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) out of the death of Sri.Naveen Jacob son of the appellants/claimants 1 and 2 and brother of the 3^rd appellant/claimant out of a motor accident occurred on 02.02.2012 at about 7.30 a.m., while deceased was riding his motor bike bearing Registration No.KL-40 E.3011 through National Highway 49 by hit with bus bearing Registration No.KL-07 AZ 5499 driven by the 1^st respondent at Mamala. 2^nd respondent is the owner of the offending vehicle. 3^rd respondent is the insurer. The

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appellants/claimants claimed a total compensation of

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Rs.26,37,000/-.

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Before the Tribunal, respondents 1 to 3 remained ex parte. PW1, the father of the deceased was examined and Exts.A1 to A18 were marked from the side of the appellants/claimants (hereinafter be referred as claimants).

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On evaluating the pleadings as well as evidence, the Tribunal awarded a total compensation of Rs.4,77,500/-. Aggrieved by the quantum of compensation awarded by the Tribunal, the claimants approach this Court in appeal for the various grounds stated in the memorandum of appeal. Notice was duly served to respondents 1 and 3. 3^rd respondent insurer appeared through Adv. Ajith Kumar Varma, the learned Standing Counsel. Heard the learned counsel for the claimants as well as

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the learned Standing Counsel for the 3^rd respondent. Lower court records were called for and perused.

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According to the learned counsel for the claimants, the

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1^st claimant was examined as PW1. He deposed that the deceased was a driver and insurance agent and his monthly

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income was Rs.14,670/-. Ext.A14 series were produced to substantiate the contention. But the Tribunal fixed the monthly income of the deceased as Rs.7,500/-. That is very low. It is contended that multiplier was wrongly taken as “9” in view of the age of the deceased. It is further contended that the amount of compensation awarded under various heads are very low. Hence he seeks enhancement on all other heads.

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The learned Standing Counsel on the other hand contended that a just and reasonable compensation has already been awarded and no interference is called for in this appeal.

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The first aspect is with regard to the monthly income of the deceased. 1^st claimant the father of the deceased was examined as PW1 and gave evidence with respect to the occupation and income of the deceased. Ext.A14 series were produced to substantiate it. The employer who issued Ext.A14 series has not been examined and proved. However, Ext.A9 driving license has been produced which would show that the deceased has driving license to drive motor cycle, Auto Rikshaw including transport vehicle. As per Ext.A9, the deceased was 28

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years old. In the circumstances, I find it just and proper to fix monthly income of the deceased as Rs.9,000/-.

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In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident evaluating the principles in U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors. [1995 (2) KLT 218 (SC) : (1996) 4 SCC 362] as well as the principles laid down in the General Manger, Kerala State Road Transports Corporation v. Susamma Thomas [(1994 (1) KLT 67 (SC) : (1994) 2 SCC 176]. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical

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precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range.

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In National Insurance Company Ltd. v. Pranay Sethi

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[2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness

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and non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance.

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In Sarla Verma's case the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was

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limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years.

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In Pranay Sethi, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons.

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In the present case, the deceased was a driver and he was 28 years old at the time of accident. So claimants are entitled for 40% enhancement towards future prospects. The monthly income of the deceased already fixed as Rs.9,000/-. 40% of it will come to Rs.3,600/-. Total monthly earning would be 9,000+3,600(40% of 9,000)=12,600. The annual income of the decease d is Rs.1,51,200/- (12,600x12).

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On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that personal

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and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Where number of dependent family members are between 2 and 3, the deduction towards dependant family members are 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma

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Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65).

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13. In Reshma Kumari's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly

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correspond to the number of dependants.

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Here, claimant was a bachelor. So ½ has to be deducted towards personal and living expenses. That will come to Rs.75,600/- (1,51,200x1/2). Suitable multiplier to be applied as held in Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121) approved by the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662) is '17' since the deceased was 28 years only. So the annual dependency would be 75,600x17=12,85,200/-. From that the amount already awarded by the Tribunal to be deducted ie 12,85,200-4,05,000= Rs.8,80,200/-.

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The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in Pranay Sethi followed by Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130) In that decision, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses.

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Apex Court has also held that the above amounts

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should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The judgment in Pranay Sethi was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amount. Hence, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/each towards loss of consortium.

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In this context, Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi, the claimants were found to be entitled for 10% enhancement ie. Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on

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conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads.

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Next is with regard to the consortium to be awarded, the law laid down by the Apex Court in Magma General Insurance Co.'s case is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5^th ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to

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the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium.

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In the present case, claimants 1 and 2, parents of the deceased are entitled for compensation towards filial consortium. 3^rd appellant is the sister of the deceased who is already married. So she is not entitled to get any amount towards loss of consortium. So claimants 1 and 2 are entitled to get Rs.44,000/each towards filial consortium, amounting to Rs.88,000/(44,000x2). Once amount is awarded under conventional heads, claimants are not entitled to get any amount towards loss of love and affection. The amount awarded by the Tribunal towards pain

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and suffering is Rs.20,000/-. But the death was instantaneous. So no amount need be awarded towards pain and suffering.

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Once amount is awarded under conventional heads,

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claimants are not entitled to get any amount towards loss of love and affection. (See New India Assurance Co. Lte. Somwati & Others [2020 9 SCC 644]). So amount of Rs.30,000/- awarded by the Tribunal towards loss of love and affection has to be deducted. Deduction also to be made of Rs.10,000/- awarded towards loss of estate and Rs.10,000/- towards funeral expenses. So towards loss of estate and funeral expenses, claimants are entitled to get enhancement of Rs.6,500/- each. Under the head of consortium, claimants are entitled to get Rs.88,000/-. From that, the amount already awarded by the Tribunal towards loss of love and affection to be deducted ie. 88,000-30,000=58,000. Hence in total under

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conventional heads claimants are entitled to get 58,000+13,000(6,500+6,500)= Rs.71,000/- .

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It has already been found that since death was instantaneous, claimants are not entitled to get any amount towards pain and suffering undergone by the deceased. So that

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amount has to be deducted from the enhanced compensation. So in total the claimants are entitled to get total enhanced compensation of Rs.9,31,200/- (8,80,200+71,000-20,000).

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In the result, the appellants are allowed to realize enhanced compensation of Rs.9,31,200/- (Nine lakhs thirty one thousand two hundred only) which will carry interest at the rate of 7.5% per annum from the date of petition, till realization. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. Enhanced compensation shall be apportioned in the ratio 40:60 in between appellants/claimants 1 and 2.

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The disbursement of the amount to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch)

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before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of certified copy of this judgment.

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In the result appeal stands allowed. Parties shall bear

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their respective costs.

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SD/M.R.ANITHA, JUDGE

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rps/

K.v.Jacob v. Peter

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K.v.Jacob v. Peter

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