Allowed

Ramla v. Rajagopal

Kerala HC29 Mar 2022MACA/2193/2012

Case brief

AI extract

What is this about?

High Court enhanced compensation awarded by Motor Accidents Claims Tribunal for death in motor accident. Court fixed monthly income at Rs.5,000 with 25% future prospects addition, calculated loss of dependency, adjusted conventional heads based on Pranay Sethi guidelines, and approved Ayurvedic treatment expenses after verifying bills, directing insurer to pay additional amount with interest.

What did the court decide?

Additional compensation of Rs.5,49,900 with interest at 6% per annum from date of petition till realization granted to claimants.

Ramla Vs Rajagopal — Motor Accident Claims | Kerala HC (2022)

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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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TUESDAY, THE 29^TH DAY OF MARCH 2022 / 8TH CHAITHRA, 1944

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MACA NO. 2193 OF 2012

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AGAINST THE ORDER/JUDGMENT IN OPMV 3465/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL THRISSUR

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APPELLANT/PETITIONER:

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1 RAMLA W/O.LATE IBRAHIM, NARANATHEL HOUSE, (MATTELA VALAPPIL), P.O.MOOKUTHALA, CHELAKKADAVU, MALAPPURAM DISTRICT.

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2 MINOR ASHIQUE S/O.LATE IBRAHIM, DO. DO. REP. BY HIS GUARDIAN NEXT FRIEND, RAMLA, DO. DO.

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3 AMINU W/O.MUHAMMEDDUNNY, DO. DO. BY ADV SRI.P.V.CHANDRA MOHAN

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RESPONDENTS/RESPONDENTS:

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1 RAJAGOPAL

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S/O.NARAYANAN NAIR, VELUTHEDATH HOUSE, PUDUSSERY P.O.,CHOONDAL, THRISSUR DISTRICT. 678 623.

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2 NATIONAL INSURANCE CO. THRISSUR. 680 001. BY ADV SRI.A.R.GEORGE

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OTHER PRESENT:

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SRI.A.R GEORGE-R2

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA No.2193/2012

JUDGMENT

The appellants are the legal heirs of the claimant in O.P. (M.V.)No.3465/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur (in short, the Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming compensation for Rs.17,58,000/- out of the injury sustained by the original claimant in a motor accident.

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It is alleged that on 07.03.2004 while the original claimant was riding a motorcycle bearing Reg.No.KL-10/Q 7936 due to hit by a tempo trax bearing Reg.No.KL8/N-2021 at Korattikkara Junction, he sustained injuries. Immediately he was taken to Ansar Hospital, Perumbilavu and thereafter to Amala Hospital, Thrissur, thereafter admitted at Aswini Hospital, Thrissur and again at Amala Hospital, Thrissur and on 18.6.2006 he succumbed to the injuries. It is alleged that the accident happened due to the rash and negligent driving of

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MACA No.2193/2012

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the first respondent, owner cum driver of the tempo trax. Second respondent is the insurer.

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Pending the proceedings before the Tribunal, the injured died and his legal heirs have been impleaded as additional claimants 2 to 4/appellants 1 to 3.

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Respondent No.1 remained exparte before the Tribunal. Second respondent filed written statement admitting the policy coverage but denied the rashness and negligence on the part of the 1^st respondent, driver. The compensation claimed under various heads are also challenged.

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PW1 examined and Exts.A1 to 16 and Ext.X1 to X3

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marked from the side of the appellants. There was no evidence from the side of the respondents. Tribunal on evaluating the evidence and other facts and circumstances found that the accident happened due to the rash and negligent driving of the first respondent and the second respondent is held liable to indemnify the first respondent. A total compensation of Rs.7,19,610/- was awarded.

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MACA No.2193/2012

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Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants approach this Court on various grounds stated in the memorandum of appeal.

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Notice as against first respondent is dispensed with at the risk of the appellants. Second respondent appeared through Standing Counsel, Sri.A.R. George.

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Heard the learned counsel for the appellants as well as the learned Standing Counsel for the respondent, insurer, Lower court records were called for and perused.

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The accident, injury and liability is not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. According to the learned counsel for the appellants, the deceased was a driver of mini lorry and claimed a monthly income of Rs.6,000/- But the Tribunal taken the income only at Rs.2,500/-, which, according to him, is very low. He would also contend that Tribunal refused to accept the Ayurvedic medical bills issued from Amala Hospital, Thrissur without any sufficient reason

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and hence he seeks for awarding the amount covered by the Ayurvedic medical bills also.

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The learned counsel for the insurer on the other

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hand would contend that a just and reasonable compensation has already been awarded by the Tribunal and no enhancement is required under any of the heads. With respect to the Ayurvedic medical bills, he would contend that duplications are there and some reductions are given in some bills but that has not been given credit to while filing the statement by the appellants.

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In view of the above objection raised by the learned counsel for the insurer, the learned counsel for the appellants were directed to file fresh statement deducting the amount received towards discount. Accordingly a fresh statement was handed over across the Bar by the learned counsel for the claimants showing total amount payable as Rs.58,091.19 instead of Rs.70,385.19 claimed originally. On verifying the statements it is found that the revised statement filed by the counsel is also not fully correct which would be discussed

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MACA No.2193/2012 6

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later.

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With regard to the monthly income though the injured, original claimant is alleged to be driver, no document as such including the driving licence has not been produced. Nobody was also examined from the side of the appellants to prove the income. So, as such, there is no convincing materials to prove the actual income of the injured. In Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the Apex Court notionally fixed the monthly income of a coolie in the year 2004 as Rs.4,500/-. Following the principles in Ramachandrappa, in Syed Sadiq Etc. v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], while dealing with an appeal, which arose out of an accident occurred in the year 2008, in the case of a vegetable vendor, aged 24 years, Apex Court fixed the monthly income notionally as Rs.6,500/-.

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The accident in this case was on 07.03.2004. The original claimant was 44 years old at the time of accident. So following the principles laid down in the above decisions and

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the facts and circumstances, the income of the injured can reasonably be fixed as Rs.5,000/- instead of Rs.2,500- taken by the Tribunal. The fact that the death of the original claimant was due to the injuries sustained out of accident is not in dispute. Tribunal also considered the claim as death case.

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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. 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 precision or identical awards in assessing compensation, same or similar

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facts should lead to awards in the same range.

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In National Insurance Company Ltd. v. Pranay Sethi [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 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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The learned counsel for the claimants further claims for 40% enhancement towards future prospects as has been held in Pranay Sethi. In Sarla Verma the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was

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below 40 years and the said addition was reduced by 30% if the age of the deceased was 40 – 50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons having permanent job.

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But in Pranay Sethi's case the Apex Court though accepted the findings in Sarla Verma's case in fixing the multiplier made some variance with regard to the grant of future prospects in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust and the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act.

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It is also laid down in Pranay Sethi's case that with respect to self-employed or persons with fixed salary when the deceased was below 40 years an addition of 40% can be granted and in the case of between 40 – 50 an addition of 25% and with respect to persons between 50 – 60 years, the addition has been fixed as 10%. The established income also provided as the income minus tax component.

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In this case the monthly income of the deceased has already been taken as Rs.5,000/- per month. Since the claimant was 44 years old at the time of accident as per Pranay Sethi, 25% enhancement can be given towards future prospects. So the monthly income of the deceased can be taken as Rs.6,250/- [Rs.5,000+1,250 (25% of Rs.5,000/-).

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In this case case the deceased was 44 years old. So the suitable multiplier as per Sarla Verma approved by Constitution Bench in Pranay Sethi is '14'.

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On the question of deduction towards personal expenses in Sarla Verma Apex Court held that personal and living expenses of the deceased should be deducted from the

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MACA No.2193/2012

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monthly income to calculate the contribution to the dependants and where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 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 Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65].

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In this case, the claimants are three in number. So 1/3^rd to be deducted towards personal and living expenses. Then the amount towards loss of dependency will be [6,250x12x14 = 10,50,000 - 3,50,000 (1/3^rd of 10,50,000)] = Rs.7,00,000/-. The Tribunal already awarded Rs.3,00,000/- on that head. Deducting that amount, balance would be Rs.4,00,000/- [7,00,000-3,00,000].

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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. The Tribunal awarded Rs.25,000/- towards loss of amenities, Rs.20,000/- towards loss

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of consortium to the wife, 2^nd petitioner, Rs.15,000/- towards loss of love and affection, Rs.5,000/- towards loss of estate, Rs.5,000/- towards funeral expenses. In Pranay Sethi, 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 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. So the appellants are entitled for 10% enhancement on the said amounts. So the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and for funeral expenses.

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In Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] 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

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Sethi, the claimants were found to be entitled for 10% enhancement of 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 conventional heads irrespective of the date of accident. In Pranay Sethi 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. So, Rs.1,32,000/[Rs.44,000x3] is awarded towards loss of consortium. Towards loss of estate and funeral expenses, claimants are entitled to get Rs.33,000/- [16500+16500].

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Once compensation is awarded under the head consortium, the claimants are not entitled to get compensation for love and affection. [See: New India Assurance Co. Ltd. v. Somwati & Ors. [(2020) 9 SCC 644]. So from Rs.1,32,000/-, the amount of Rs.15,000/- awarded towards loss of love and affection and Rs.20,000/- already awarded towards consortium

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to first appellant to be deducted. Balance would be Rs.97,000/ - [1,32,000-15,000-20,000]. Deducting the amount awarded by the Tribunal under the heads funeral expenses (Rs.5,000/-), the balance would be Rs.11,500/[16,500-5,000]. For computing compensation towards loss of estate, Rs.5,000/already awarded to be deducted. Then the balance amount would be Rs.11,500/- [16,500-5,000]. Hence under the conventional heads, the balance amount due to the appellants are Rs.1,20,000/- [97,000+11,500+11,500]. Since case has been taken as death claim, no compensation can be further awarded towards loss of amenities. Hence Rs.25,000/awarded under that head is to be deducted especially because Rs.30,000/- has already been awarded towards pain and suffering.

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Towards bystander expenses an amount of Rs.42,750/- has already been awarded by the Tribunal. According to the learned counsel only after 27 months of the accident, the injured died and he was totally paralyzed and completely bedridden and hence the amount awarded towards

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bystander expense is very low. Having regard to the facts and circumstances, Rs.10,000/- is further awarded towards bystander expenses.

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Next aspect is with regard to the Ayurvedic medical bills, Ext.A10. PW1 is the doctor attached to Aswini hospital who deposed that the injuries is one “quadric plegia”. It is an abnormal condition resulting in paralysis of the left trunk and wholebody. PW1 deposed that the death was probable due to spinal chord injury. So the evidence of PW1 and the medical records prove that he was suffering from quadric plegia after the accident and the resultant injuries. So it is quite natural that Ayurvedic treatment would also be resorted to for relief when such injuries are sustained. To prove the expenses of Ayurvedic treatment according to the learned counsel Ext.A10 medical bills issued from Amala Hospital, Thrissur, have been produced. The discharge card, Ext.A7, issued from the said hospital would prove that from 28.01.2005 to 09.03.2005 he has been admitted and undergoing treatment in the said hospital.

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As stated earlier, in view of the objection raised by the counsel for the insurer, appellants' counsel filed a revised statement dated 29.03.2022 modifying the net amount payable as Rs.58,091.19 ie. deducting Rs.12,294/- from Rs.70,385.19 covered by the original statement. But on verifying the Ayurvedic bills with the statement produced by the claimants there seems to have duplications further in the statement. The revised statement states about the discount shown in item No.50 as well as in item No.55. But on verifying the bills with the statement it could be seen that item No.52 is the break up of item No.50. So no amount can be awarded as per item No.52. So also even in the revised statement the net amount shown in item No.50 is Rs.1,476/- showing the discount of Rs.503/- to the total amount of Rs.1,979/-. But item No.50 final bill dated 09.03.2005 would show that the amount to be paid is only Rs.503/- and not Rs.1,476/- shown in the revised statement. So also apart from the bills from Amala Hospital, Thrissur for Ayurvedic treatment claimants also produced one bill i.e. No.18 of Vaidyamadham Vaidyasala & Nursing Home,

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Mezhathur for Rs.1,217.48 since it is bill paid with respect to the deceased dated 16.12.2004 as a matter of just compensation, that amount also can be awarded to the claimants. So also item No.9 and 16 are mutilated bills and hence it cannot be accepted. Item No.55 is a cash bill issued from Malabar Ayurvedic Hospital and Research Centre, Salafi Gramam, Pulikkal dated 02.11.2005 in the name of the deceased for Rs.23,307/-. That also can be awarded. Item No.54 is a credit bill which has already been deducted in the revised statement. So also item No.53 is towards canteen charges for Rs.10,265/- that cannot be allowed since there is no specification with respect to that expenses. Hence deducting the above, the total compensation which the claimants are entitled to get towards Ayurvedic treatment of the deceased is Rs.44,874/ -.

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In the result, the appellants/claimants are allowed to realise enhanced compensation of Rs.5,74,874/[4,00,000+1,20,000+10,000+44,874]. From that Rs.25,000/awarded towards loss of amenities to be deducted. Balance

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amount would be Rs.5,49,874/- [5,74,874-25,000], rounded to Rs.5,49,900 /- (Rupees five lakhs forty nine thousand nine hundred only) which will carry interest at the rate of 6% per annum from the date of petition till realisation. Second respondent-insurer is directed to pay 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.

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The disbursement of enhanced compensation shall be made taking note of the law on the point and in terms of 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.

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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) before the Tribunal, within one

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month from the date of receipt of certified copy of this

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judgment. Parties shall bear their respective costs.

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Sd/-

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M.R.ANITHA

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