Allowed

Sreedevi v. Abu @Aboobacker

Kerala HC21 Oct 2022MACA/1926/2012

Case brief

AI extract

What is this about?

High Court set aside the Motor Accident Claims Tribunal award regarding heads of compensation. It held loss of love and affection is subsumed under loss of consortium, struck 10% hike for delay, fixed monthly income at Rs. 5,500 with 25% future prospect addition, and directed payment of Rs. 5,38,000 additional compensation.

What did the court decide?

Additional compensation of Rs. 5,38,000 with 7.5% interest directed to be paid by respondents within two months.

Sreedevi Vs Abu @Aboobacker — Motor Accident Claims | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶4

FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944

¶5

MACA NO. 1926 OF 2012

¶6

AGAINST THE AWARD IN OPMV 974/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR DATED 05/06/2012

¶7

APPELLANTS/PETITIONERS:

¶8

1SREEDEVI
D/O. LATE RADHAMMA.

¶9

2SREELATHA
D/O. LATE RADHAMMA.

¶10

3CHITRA
D/O. LATE RADHAMMA.

¶11

ALL ARE RESIDING AT VALIYAVEETTIL KOKOORI,
CHELAKKARA, VENGANELLUR, THRISSUR DISTRICT.
BY ADVS.SRI.T.C.SURESH MENON
 SRI.P.S.APPU
 SRI.K.A.ANAS
 SRI.A.R.NIMOD

¶12

RESPONDENTS/RESPONDENTS:

¶13

1ABU @ ABOOBACKER
S/O MOYTHUNNI, RESIDING AT KODAPURATH HOUSE,
PILAKKOD P.O., VARAVOOR, THRISSUR DISTRICT,
PIN-680 585.

¶14

2THE NEW INDIA ASSURANCE COMPANY LIMITED
THRISSUR, PIN-680 001.

¶15

BY ADVS.SRI.RENIL ANTO KANDAMKULATHY
 SRI.P.G.GANAPPAN

¶16

OTHER PRESENT:

¶17

SC SRI.P.G. GANAPPAN

¶18

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶19

MACA No.1926 of 2012

C.R.

JUDGMENT

Dated this the 21^st day of October, 2022

¶24

This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Thrissur (for short ‘the Tribunal’) on 05.06.2012 in O.P.(M.V) No.974/2006.

¶25

For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners and respondents 1 and 2 in accordance with their status in the Original Petition.

¶26

The appellants are the legal heirs of one Mrs.Radhamma

¶27

who died at the age of 53 years following the fatal injuries sustained by her in a motor accident occurred at 06.00 pm on 12.03.2006. As per the allegations in the Original Petition, the motor accident was occurred at Ottupara situated in Thrissur-Shoranur road when she was knocked down by a Motorcycle bearing Registration No.KL8/AD 1677 which was ridden by its rider in a rash and negligent manner. She was taken to Aswini Hospital, Thrissur and while undergoing treatment there, she succumbed to the injuries sustained. Alleging that the motor accident was occurred due to the

¶28

MACA No.1926 of 2012

¶29

¶30

rash and negligent riding of the Motorcycle by its rider who was also its registered owner at the relevant time, the Original Petition was filed seeking for a sum of `4,10,000/- as compensation. The owner cum rider and the insurer of the Motorcycle were arrayed as respondents 1 and 2 in the Original Petition.

¶31

1^st and 2^nd respondents entered appearance on notice being served on them from the Tribunal. Written statement was filed by the 1^st respondent contending that death of the victim can only be taken as the consequence of age related ailments, she being very old at the relevant time. The contentions raised furthermore that since the 1^st respondent was riding the Motorcycle carefully and was found not guilty in the criminal case registered for the motor accident and was acquitted after trial, he cannot be made liable for causing the motor accident. The old lady has caused the motor accident to happen by her own negligence. Admittedly, the Motorcycle involved in the motor accident was validly insured with the 2^nd respondent.

¶32

Exts.A1 to A10 were marked on the side of the

¶33

petitioners and Exts.B1 and B2 on the side of the respondents in

¶34

¶35

MACA No.1926 of 2012

¶36

evidence. Based on those evidence, the Tribunal found the rider of the Motorcycle negligent and responsible for causing the motor accident. The Tribunal also arrived at `3,43,500/- as the compensation payable and the 2^nd respondent, insurer of the offending vehicle was directed to deposit the above sum with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realization alongwith proportionate cost, in favour of the petitioners.

¶37

The main challenge raised in the appeal on hand is against the quantum stood awarded as compensation under various heads. The monthly income taken consideration of by the Tribunal as 3,000/- for calculation of compensation is alleged as too low. The petitioner allegedly was a construction worker having 6,000/as monthly income at the relevant time of the motor accident. The learned counsel canvassed for fixation of the monthly income having due regard to that fixed by the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance

¶38

Insurance Co.Ltd [(2011) 13 SCC 236]. The learned counsel for the petitioners also canvassed for consideration of loss of future

¶39

MACA No.1926 of 2012

¶40

¶41

prospects of the lady on account of her untimely death in the motor accident. The learned counsel also canvassed for modification of the compensation stood awarded by the Tribunal under the conventional heads in tune with the directions of the Apex Court in National Insurance Company Limited v. Pranay Sethi & Ors. [2017 (4) KLT 662 (SC)].

¶42

On the strength of the dictum in Jaya and others vs. Shaji and others [2014 ACJ 1378 ], the learned counsel for the petitioners canvassed for maintaining the compensation stood awarded by the Tribunal towards pain and suffering. It was contended on the basis of the dictum in the above case that the legal representatives of the victim who died in a motor accident are entitled to claim compensation under Section 2 of the Kerala Torts (Miscellaneous Provisions) Act, 1977 for the personal injuries sustained by the victim of the motor accident, who succumbed to those.

¶43

The learned counsel for the appellant has also relied on New India Assurance Co. Ltd. vs. Urmila Shukla & Ors. (Civil Appeal No.4634/2021 (un reported) Arising out of S.L.P.(Civil)

¶44

MACA No.1926 of 2012

¶45

¶46

No.26687/2018), to fortify the argument advanced as above and canvassed for maintaining the compensation stood awarded by the Tribunal towards pain and suffering. The dictum laid down by the Apex Court in the case supra is extracted hereunder:

¶47

“11. xxxx If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid.”

¶48

The above decision was found rendered based on Rule

¶49

220A of the U.P.Motor Vehicles Rules, 1998 (for short ‘the Rules’). The learned counsel also canvassed for maintaining the compensation stood awarded by the Tribunal towards loss of love and affection.

¶50

It was contended by the 2^nd respondent on the contrary that ‘13’, the multiplier adopted by the Tribunal is incorrect. According to him, an authentic document being not relied on by the petitioners to prove the age of the deceased, the Tribunal is unjustified in adopting ‘13’ as the multiplier. The learned counsel has drawn the attention of this Court to the inconsistencies in the pleadings of the petitioners in the Original Petition and in the

¶51

¶52

MACA No.1926 of 2012

¶53

evidence tendered by them before the Tribunal. In the certificate prepared after the postmortem examination of the body of the lady, as well as the accident register cum wound certificate marked respectively in evidence as Exts.A2 and B2, the age of the lady was mentioned as 54 and 60 years. Driving licence of the lady was marked in evidence as Ext.A7 and in that document her age as on 01.01.1998 was shown as 41 years. Challenge was raised against adoption of 13 by the Tribunal as the multiplier in the above context. The monthly income considered by the Tribunal was also sought to be maintained. According to him, the Constitution Bench of the Apex Court in Pranay Sethi supra has directed consideration of reasonable figures of 15,000/-, 40,000/- and `15,000/- respectively as compensation under the conventional heads of loss of estate, loss of consortium and funeral expenses. According to him, the court also directed for consideration of 10% hike in those sums in every succeeding three years, with a view to maintain conformity and consistency in respect of the compensation under those heads.

¶54

¶55

MACA No.1926 of 2012

¶56

According to him, as per Pranay Sethi supra the Apex Court has recognized only the above three conventional heads for awarding compensation in favour of the legal representatives who survived the victim of the motor accident who died consequently and therefore, there is no justification for the Tribunal in awarding compensation towards pain and suffering and loss of love and affection. He thus canvassed for setting aside the impugned award to the extent compensation stood granted under the above heads.

¶57

The death of the lady was evidenced as occurred in the motor accident in question. Therefore, it can be taken as occurred untimely and there is every reason to consider her loss of future prospects. The learned counsel for the petitioners canvassed for an addition of 25% to the monthly income fixed for calculation purpose and the learned counsel for the 2^nd respondent, for an addition of 10%. According to the learned counsel for the 2^nd respondent, the lady can only be taken as aged 53 years at the relevant time of the motor accident and therefore, there can only be an addition of 10% to the monthly income in consideration of loss of future prospects.

¶58

MACA No.1926 of 2012

¶59

¶60

In United India Insurance Co.Ltd. v. Satinder Kaur @

¶61

Satwinder Kaur and Others [2020 (3) KHC 760 (SC)], steps to be followed to provide conformity and consistency in awarding compensation were laid down by the Apex Court as follows :-

¶62

“Step 1 (Ascertaining the multiplicand)

¶63

The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance which is considered to be the contribution to the dependant family, constitutes the multiplicand.

¶64

Step 2 (Ascertaining the multiplier)

¶65

Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.

¶66

Step 3 (Actual calculation)

¶67

The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. …........ But no amount is to be awarded under the head of pain, suffering or

¶68

MACA No.1926 of 2012

¶69

¶70

hardship caused to the legal heirs of the deceased.”(emphasis supplied)

¶71

“(a) Deduction for personal and living expenses

¶72

The personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the family. In Sarla Verma (supra) (paras 30, 31 and 32), this Court took the view that it was necessary to standardize the deductions to be made under the head personal and living expenses of the deceased.

¶73

Accordingly, it was held that:

¶74

.where the deceased was married, the deduction towards personal and living expenses should be 1/3^rd if the number of dependent family members is two to three;

¶75

.1/4^th if the number of dependent family members is four to six; and

¶76

.1/5^th if the number of dependent family exceeds six.

¶77

.If the deceased was a bachelor, and the claim was filed by the parents, the deduction would normally be 50% as personal and living expenses of the bachelor.”

¶78

“A Constitution Bench of this Court in National Insurance Co.Ltd. v. Pranay Sethi and Others held that the standards fixed in Sarla Verma (supra) would provide guidance for appropriate deduction towards

¶79

MACA No.1926 of 2012

¶80

¶81

personal and living expenses, and affirmed the conclusion in para 43.6 of Reshma Kumari (supra)”

¶82

“(e) Three conventional heads

¶83

In Pranay Sethi (supra) , the Constitution Bench held that in death cases, compensation would be awarded only under three conventional heads viz. loss of estate, loss of consortium and funeral expenses.

¶84

The Court held that the conventional and traditional heads, cannot be determined on percentage basis, because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified, which has to be based on a reasonable foundation. It was observed that factors such as price index, fall in bank interest, escalation of rates, are aspects which have to be taken into consideration. The Court held that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years, which will bring consistency in respect of these heads.”

¶85

“At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection.

¶86

MACA No.1926 of 2012

¶87

¶88

The Constitution Bench in Pranay Sethi (supra) , has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.

¶89

In Magma General (supra) , this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.

¶90

The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.” (emphasis supplied)

¶91

14. The above directions were found issued by the Apex

¶92

Court under Article 142 of the Constitution of India with a view to maintain conformity and consistency in the matter of awarding compensation in cases of death in motor accidents. The directions being issued with that purpose, this Court is bound to follow those overlooking the dictums relied on by the learned counsel for the petitioners. Thus it is held that petitioners are not entitled to get compensation towards of loss of love and affection and pain and suffering. The argument advanced by the learned counsel for

¶93

¶94

MACA No.1926 of 2012

¶95

petitioners to maintain the compensation stood awarded by the Tribunal under the above heads is discarded in the above context.

¶96

Petitioners had pleaded in the Original Petition that the lady was aged 53 years at the relevant time of her death in the motor accident. They have produced the driving licence and marked in evidence as Ext.A7, without any objection being raised against by the 2^nd respondent. The age of the deceased was shown in Ext.A7 as 41 years as on 01.01.1998. With the production and marking of Ext.A7, unopposed by the 2^nd respondent, the confusion with regard to the age of the deceased was resolved and therefore, the age of the lady at the relevant time was considered by the Tribunal as 49 years on its basis and adopted 13 as the multiplier applicable. Calculation of compensation by the Tribunal being based on the above factors and challenge having not been raised by the 2^nd respondent against the mode of calculation, is maintained.

¶97

The Tribunal has fixed `3,000/- as the monthly income of the lady for calculation of compensation. The motor accident being occurred in the year 2006, the Tribunal is unjustified in fixing such a lower sum. Following the fixation of the monthly income by

¶98

MACA No.1926 of 2012

¶99

¶100

Apex Court in Ramachandrappa supra, the monthly income is

¶101

modified to `5,500/-.

¶102

It is held by the Apex Court in National Insurance

¶103

Company Limited v. Pranay Sethi & Ors. [2017 (4) KLT 662 (SC)]:

¶104

“Taking into consideration the cumulative factors, namely passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc.. an addition of 40% of the established income of the deceased towards future prospects, where the deceased was below 40 years and an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.”

¶105

The Tribunal failed to consider loss of future prospects of the lady though her death was established as untimely. Therefore, on the basis of the above dictum, the lady being considered as 49 years at the relevant time, 25% is added to the monthly income fixed as 5,500/-, in consideration of loss of future prospects of the lady and thus 6,875/- (5,500/- + 25% of 5,500/-) is arrived at. The lady being survived by three family members, as per the direction issued by the Apex Court in Satheendar Kaur supra, 1/3^rd is deducted from the monthly income fixed, in consideration of personal and living expenses of the lady, had she not been died in the motor accident.

¶106

¶107

MACA No.1926 of 2012

¶108

In the calculation with the factors modified as above and those maintained, 7,15,000/- [6,875/- x 12 x 13 x 2/3] is arrived

¶109

at. 3,12,000/- stood awarded by the Tribunal when adjusted against the above sum, petitioners will get 4,03,000/- as additional compensation towards loss of dependency.

¶110

As directed by the Apex Court in National Insurance

¶111

Company Limited v. Pranay Sethi & Ors. [2017 (4) KLT 662 (SC)], petitioners are entitled to get 15,000/- each as compensation towards loss of estate and funeral expenses and 40,000/- per head as compensation towards loss of consortium, provided, the legal representatives who survived the deceased are spouse, children and parents with reference to their relation with the deceased. The appeal having been considered after 3 years, from the year of Pranay Sethi supra, 10% hike is also permitted. Thus, the petitioners are entitled to get 16,500/- (15,000/- + 10% of 15,000/-) each as compensation towards loss of estate and funeral expenses and 44,000/- (40,000 + 10% of 40,000/-) per head as compensation towards loss of consortium. `5,000/- each stood awarded by the Tribunal towards loss of estate and funeral expenses

¶112

MACA No.1926 of 2012

¶113

16

¶114

when adjusted against the sum payable to the petitioners, they will get 11,500/- each (16,500/- - `5,000/-) as additional

¶115

compensation under those heads. Petitioners being three in numbers, 1,32,000/- (44,000/- x 3) is arrived at as the total compensation payable to them towards loss of consortium.

¶116

As directed by the Apex Court, petitioners are not entitled to get 15,000/- and 5,000/- respectively stood awarded by the Tribunal towards loss of love and affection and pain and suffering and therefore those are deducted from the total additional compensation now arrived as payable and thus petitioners will get 5,38,000/- (Rupees Five lakhs thirty eight thousand only) [(4,03,000/- + 11,500/- + 11,500/- + 1,32,000/-) - ( 15,000/- + `5,000/-)] as additional compensation, which will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization. The 2^nd respondent shall pay the additional compensation arrived at as above with interest accrued on it within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated

¶117