Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 31ST DAY OF JANUARY 2022 / 11TH MAGHA, 1943 MACA NO. 547 OF 2013 AGAINST THE AWARD DATED 23/03/2012 IN OPMV 362/2006 ON THE FILE OF OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA NAME & ADDRESS OF THE APPELLANTS/PETITONERS:
1 SAFIYA AGED 34 YEARS W/O. LATE HANEEFA, EDAPLAYIL HOUSE, THALACODE P.O, THALACODE. 2 FASSAL AGED 11 YEARS S/O. LATE HANEEFA, EDAPLAYIL HOUSE, THALACODE P.O., THALACODE (D-B-03.08.2001) MINOR REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN SAFIYA, THE FIRST PETITIONER 3 FASEELA AGED 9 YEARS, D/O LATE HANFEEFA, EDAPLAYIL HOUSE, THALACODE P.O., THALACODE (D-B-14.06.2003) MINOR REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN SAFIYA, THE FIRST PETITIONER 4 FAWAS AGED 7 YEARS, S/O LATE HANEEFA, EDAPLAYIL HOUSE, THALACODE P.O., THALACODE (D-B-04.02.2005) MINOR REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN SAFIYA, THE FIRST PETITIONER 5 MAITHEEN AGED 61 YEARS, S/. LATE HANEEFA, EDAPLAYIL HOUSE, THALACODE P.O., THALAODE. 6 FATHIMA MAITHEEN,AGED 57 YEARS, M/O LATE HANFEEFA, EDAPLAYIL HOUSE, THALACODE P.O., THALACODE. BY ADV SRI.M.M.SAIDU MUHAMMED
NAME & ADDRESS OF THE RESPONDENTS/RESPONDENTS: 1 SABU A.J. ERAMBIL HOUSE, NEENDAPARA P.O., NEENDAPARA - 686 693. 2 SHIJU CHACKO S/O. CHACKOCHAN C.V, CHERUVELIL HOUSE, NEENDAPARA, KOTHAMANGALAM - 686 693. 3 ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, P.B. NO. 50, ELENGICAL PLAZA, CHURCH VIEW JUNCTION, KOTHAMANGALAM, PIN - 686 691. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.R.ANITHA, J.
----------------------------------------- ---------------------------------------- Dated this the 31st day of January, 2022
JUDGMENT
This appeal is filed against the award passed in O.P.M.V No.362/2006 on the file of Motor Accidents Claims Tribunal, Muvattupuzha. Claimants are the wife, children and parents of deceased, Haneefa (herein after be referred as deceased). The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act). Total compensation claimed is Rs.22,10,000/- which was limited to Rs.7,00,000/-.
2. It is alleged that on 31.12.2005 at about 7.15 p.m., while
the deceased was riding a motor cycle bearing Registration No.KL5/F 6957 from Oonukal to Injipara, a jeep bearing Registration No.KL7/K 2358 driven by the 2nd respondent, hit on the motor cycle ridden by the deceased, thereby the deceased sustained fatal injuries. Later he succumbed to the injuries while undergoing treatment at Kothamangalam MPMM Hospital on the very same day.
3. It is alleged that the accident happened only due to the rash and negligent driving of the jeep by the 2nd respondent, the driver of the offending jeep. The 1st respondent is the owner/insured of the offending vehicle and the 3rd respondent is its insurer.
4. Before the Tribunal, respondents 1 and 2 filed joint written
statement, denying the negligence alleged against the 2 nd respondent. Further contended that the accident occurred due to the rash and negligent riding of the motor cycle by the deceased, hence, the claimants are not entitled to claim any compensation from the respondents. The claimants were put to strict proof regarding the age, occupation and income of the deceased. The allegation of rashness and negligence on the part of 2nd respondent is denied. It is further contended that the compensation under various heads was exorbitant and excessive.
5. The 3rd respondent filed separate written statement
admitting the policy coverage with respect to the offending vehicle. It is further contended that the deceased had driven the motor cycle without any driving license and the accident only happened due to the negligence of the deceased himself. Contention in the written statement of respondent 1 and 2 are also reiterated. The 3 rd respondent further contended about violation of the policy conditions by the insured and hence 3rd respondent is not liable to indemnify the 1st respondent.
6. There is no oral evidence on either side. Exts.A1 to A13 were marked from the side of the claimants. Exts.B1 to B2 were marked from the side of the respondents.
7. After evaluation of documents as well as pleadings, the
Tribunal awarded Rs.4,60,800/-. 7.5% was deducted from the total compensation of Rs.5,33,300/- for the reason the the deceased was not having driving license to ride the motor cycle.
8. Dissatisfied with the quantum of compensation awarded
by the Tribunal, claimants are before this Court in appeal for the various grounds stated in the memorandum of appeal. The 3rd respondent insurer appear through standing counsel. Since the policy with respect to the offending vehicle is admitted, notice as against respondents 1 and 2 have been dispensed with.
9. Lower court records was called for. Heard both sides.
10. The first argument of the learned counsel was with regard
to finding of 7.5% deduction from compensation on account of the alleged act of the deceased in riding the motor cycle without any license. It is contended by the learned counsel for the claimant that the only reason for deducting the amount at 7.5% is that he did not have any valid license for riding the motor cycle. It has been found by the
Tribunal that a case M.V.Petty Case No.102/2006 was registered against the owner of the motor cycle on which the deceased was riding as he had allowed the deceased to ride the motor cycle without having any valid license, hence it has been held that at the time of the accident deceased had no valid and effective license to ride the motor cycle and hence, a sum equal to 7.5% is deducted from the compensation awarded to the claimants.
11. In The New India Assurance Co. Ltd vs
Pazhaniammal [2011 (3) KLT 648], a division bench of this court held
that production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under section 166 of the Act. In this case charge sheet has been laid against the 2 nd respondent, the driver of the offending vehicle. No attempt was made from the side of the respondent to examine the 2nd respondent to controvert the police charge and to prove any negligence on the part of the rider of the motor cycle, the deceased. So the fact that the rider of the motor cycle was not having any driving license by itself is not sufficient to attribute any act of contributory negligence on the part of the rider. If at all a person is found driving without license, he can be charged only for driving without license and not for rash and negligent driving. There is also no
finding in the award that the act of rider of the motor cycle contributed to the accident. In Mohammed Noufal T. v. Saheed & Others 2018 (1) KHC 507, a division bench of this Court held that mere absence of driving license of claimant is not a factor to be taken into consideration to hold that claimant also contributed to the accident in the absence of any evidence in that regard. Hence, deduction of 7.5% of compensation on that account is set aside.
12. The next argument is with respect to the fixation of
notional income of the deceased by the Tribunal at 3,000/-per month. According to the learned counsel for the appellant, the deceased was a Tailor. The learned counsel would contend that Ext.A5 the inquest report states that the occupation of the deceased was Tailor. Exts.A11 to A13 are letters issued from Kerala Tailors Union UTUC show that the deceased was a Tailor by profession. Ext.A13 is the letter issued from the executive officer of Kerala Tailoring Units Welfare Fund Board, Ernakulam. So the above documents along with the avernments in the claim petition in the absence of any contra evidence prove that the deceased was a Tailor. The accident occurred in the year of 2006. It is true that claimants could not produce any documents to prove the actual income of the deceased as a tailor.
13. In this context it is relevant to quote
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735], the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any
other evidence contrary to the claim made by the claimant, in the facts
of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time.
14. In Syed Sadiq v. Divisional Manager, United India
Insurance Co. Ltd. [(2014) 2 SCC 735], taking note of the earlier decision in Ramachandrappa's case (supra), the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganized sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month.
15. Based on the principles laid down in the above
decisions, I am of the considered view that Rs.5,000/- per month claimed as monthly income of the deceased can very well be accepted. Therefore, Monthly income of the deceased is taken as Rs.5,000/-.
16. The learned counsel also contended that claimants
are entitled for 40% enhancement towards the future prospects as per the dictum laid down in Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121) and National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662).
17. In sarla Verma (Smt.) & Ors. v. Delhi Transport
Corporation & Anr. [(2009) 6 SCC 121], the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was 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 case where deceased are salaried persons having permanent job.
18. But in Pray Sethi, the Apex Court though accepted
the findings in Sarla Verma in fixing the multiplier made some variance with regard to the grant of furture 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 muliplicand 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. 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.
19. On the question of deduction towards personal
expenses in Sarla Verma's case, the Apex Court held that personal and living expenses of the deceased should be deducted from he monthly income to calculate the contribution to the dependants and where number of dependent family members is between 2 and 3, the deduction towards dependent family members is 1/3 and where number of dependant family members is between 4 and 6 the deduciton 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] as made out in the facts and circumstances of the case.
20. In Reshma Kumar'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 the deceased need not exactly correspond to the number of dependants.
21. In Magma General Insurance Co.Ltd v. Nanu Ram
alias Chuhru Ram and Ors. [(2018) 18 SCC 130], with respect to deduction of personal expenses in the case of the death of a bachelor son in that case was made as one-third instead of ½ taking into account the fact that deceased was living in a village where he was residing with his aged father who was 65 years of old and unmarried sister and both of them were considered as dependants of the deceased.
22. In the present case, monthly income of the deceased
is already fixed as Rs.5,000/-. The deceased was 32 years old at the time of accident. So the claimants are entitled for 40% enhancement of the monthly income towards future prospects. That will come to Rs. 2,000/-. (5,000x40/100). So the total monthly earning would be Rs.7,000/-. Out of the same ¼ to be deducted towards the personal and
living expenses ie Rs.1750/-. (7,000-1,750=5,250). So the annual dependency would be 5250x16x12=10,08,000/-. From that the amount already awarded by the Tribunal to be deducted ie 10,08,000- 4,60,800=5,47,200/-.
23. Next aspect is with respect to the enhancement of the
compensation under conventional heads. According to the learned counsel, the Tribunal awarded only 5,000/- towards the funeral expenses and Rs.2,500/- towards the loss of estate. As per National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662), the Apex Court has held that Rs.15,000/- to be awarded under the head of loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses.
24. The 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. The learned counsel would contend that the judgment in Pranay Sethi's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, 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.44,000x4 towards loss of consortium is Rs.1,76,000/-.
25. 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's case, 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'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.
26. Hence in the present case, the claimants are entitled
to get Rs.16,500/- each towards the funeral expense as well as loss of estate. From that Rs.5,000/- already awarded towards the funeral expenses to be deducted. So the balance would be 11,500/- for funeral expenses and 14,000/- for loss of estate(16,500-2,500).
27. Next is with regard to the consortium to be awarded,
the law laid down by the Apex Court in Magma General Insurance Co.'scase is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance t 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 (5th ed. 1979)). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, disciple, guidance and training”. Filial consortium is the right of the parents to compensation in the case of am accident leading to 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 accident 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.
28. Parental consortium can be granted to the children
upon the premature death of a parent for the loss of “parental aid, proteciotn, affection, society, discipline, guidance and training” aprat from spousal consortium.
29. Here the appellants 1 to 4 are wife and children of the
deceased are entitled to get 44,000/- each towards consortium (spousal consortium and parental consortium). As far as the filial consortium is concerned the deceased was 32 years old and was having his own family and has been living with wife and children. 4 th and 5th respondent are the parents of the deceased. So as per the principles laid down in 'magma' referred above the parents are awarded filial consortium in a case where they loss minor child or unmarried son or daughter. So, the appellants 5 and 6 are not entitled for filial consortium. Under head of consortium claimants are entitled to get 44,000x4=1,76,000/- out of it Rs.15,000/- already awarded to 1st petitioner towards consortium has to be deducted. Tribunal further awarded 45,000/- towards loss of love and affection to claimants 2 to 4. In United insurance Co. Ltd. v.
Satinder Kaur @ Satwinder Kaur & Ors. [AIR 2020 SC 3076 : I.L.R 2020 (3) Ker. 334 : 2020 (3) KHC 760 (SC)] It has been held that once the claimants are awarded compensation towards the conventional heads, no amount can be awarded towards loss of love and affection. So, Rs.45,000/- awarded towards loss of love and affection also to be deducted from the consortium awarded. The amount would be 1,76,000- 45,000+15,000=1,16,000/-.
30. The learned counsel for the claimant did not advance
any argument with respect to compensation awarded under other heads. So in total the claimants are entitled to get total enhanced compensation of Rs. 7,28,697/-(rounded of to Rs.7,28,700/-) (5,47,200+1,16,000+14,000+11,500+39,997(7.5% deducted)).
31. In the result, the appellants are allowed to realize
enhanced compensation of Rs 7,28,700/- which will carry interest at the rate of 7.5% per annum from the date of petition, till realization excluding 92 days, the delay caused in filing this appeal. 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, after deducting the liability of the appellants/claimants towards Balance Court Fee.
32. The disbursement of enhanced compensation to
appellants shall be made taking note of the law on the point and in terms of direction issued by the this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1- 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, with copy to the date of receipt of a certified copy of this judgment. Parties shall bear their respective costs.
33. The enhanced compensation granted in this appeal,
excluding that granted to the 1st appellant as spousal consortium, that granted to appellants 2 and 4 under the head parental consortium shall be apportioned among the appellants in the ration of 30:20:20:20:5:5. The amount due to 4th claimant/4th appellant shall be deposited in a nationalised Bank in his name and the receipt shall be produced before the Tribunal and to be kept in safe custody till 4 th claimant attains majority. In the result appeal stands allowed. Parties shall bear their respective costs. SD/- rps/ M.R.ANITHA, JUDGE