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2025 DIGILAW 289 (KER)

JAGADEESH KUMAR v. VINU

2025-02-17

C.PRATHEEP KUMAR

body2025
JUDGMENT : 1. The petitioners in O.P.(M.V.) No.1/2014 on the file of the Motor Accident Claims Tribunal, Kollam is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal) 2. The O.P. was filed under under Section 166 of the Motor Vehicles Act, 1988 , by the children of the deceased by name Jagadamma, who died in a motor vehicle accident that occurred on 21.5.2013. According to them, on 21.5.2013, at about 9.15 am., while the deceased was standing by the side of Kollam-Alapuzha National Highway, lorry bearing registration No.KL-21A-1906, driven by the 1 st respondent in a rash and negligent manner hit her down and as a result of which she sustained serious injuries and she succumbed to the injuries on the same day. 3. The 1 st respondent is the driver, the 2 nd respondent is the owner and 3 rd respondent is the insurer of the offending vehicle. According to the petitioners, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. was Rs.7,00,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of documentary evidence Exts.A1 to A7. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.2,27,000/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners preferred this appeal. 8. Now the point that arises for consideration is the following: Whether the quantum of compensation awarded by the Tribunal is just and reasonable? 9. Heard Smt. A D. Divya, the learned Counsel appearing for the petitioners/appellants, and Sri. P. Jacob Mathew, the learned Standing Counsel for the 3 rd respondent. 10. The Point: In this case the accident as well as valid policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioners is regarding the income of the deceased as fixed by the Tribunal. P. Jacob Mathew, the learned Standing Counsel for the 3 rd respondent. 10. The Point: In this case the accident as well as valid policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioners is regarding the income of the deceased as fixed by the Tribunal. According to him, the deceased was working as tailor, getting a daily income of Rs.1200/- per day, but the Tribunal fixed her income at Rs.20,000/- per annum. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., [ 2011 (13) SCC 236 ] the notional income of a coolie, during the year 2013 will come to Rs.9,000/-. Since the petitioners could not prove the job or income of the deceased, as claimed in the OP, in the light of the dictum laid down by the Hon’ble Supreme Court in Ramachandrappa (supra), his notional income is liable to be fixed as that of a coolie, at Rs.9,000/-. 12. Petitioners are the major son and daughter of the deceased. The learned counsel for the 3 rd respondent relying upon the decision of Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Vinish Jain and Ors., [ (2018) 3 SCC 619 ] would argue that the major children are not entitled to claim compensation as dependents of the deceased. On the other hand, the learned counsel for the petitioners relying upon the decision of Hon'ble Supreme Court in Seema Rani v. Oriental Insurance Co. Ltd., [2025 KHC OnLine 7116] and decision of a Single Bench of this Court in United India Insurance Co. Ltd. v. Shalumol and Ors., [ILR 2021 (4) Kerala 598] would argue that even major sons and married daughters can also claim compensation as dependents of the deceased. 13. In the decision in Vinish Jain and Ors. (supra), the deceased was aged 78 years and the dependents were two major sons having own source of income and two grand daughters primarily dependent on their father and not on their grandfather. In the instant case, the deceased was aged 58 years and she is the mother of petitioners, who are aged 38 and 29 on the date of the accident. In the instant case, the deceased was aged 58 years and she is the mother of petitioners, who are aged 38 and 29 on the date of the accident. In the decision in Seema Rani (supra), in paragraph 9 the Hon'ble Apex Court held that: “We have heard the learned counsel for the Appellants. We are unable to agree with the view taken by the Tribunal on the dependents of the deceased. This Court in National Insurance Company Limited v. Birender & Ors. (2020) 11 SCC 356 ) had expounded that major married and earning sons of the deceased, being legal representatives, have a right to apply for compensation, and the Tribunal must consider the application, irrespective of whether the representatives are fully dependent on the deceased or not. The Court went on to conclude that since the Sons, in that case, were earning merely Rs.1,50,000/- per annum, they were largely dependent on the earnings of the deceased and were staying with her ” 14. In the decision in Shalumol and Others (supra), in paragraph 42 this court held that: “The respondents had specifically averred in the claim petition that, Sreedevi was tne breadwinner of the family and the respondents were dependent on her. The respondents lost the love, affection, happiness, consortium and pecuniary benefits of Sreedevi. Hence, they were entitled to comnpensation. The respondents marked Exhibit A-1 to A-6 in evidence. Exhibit A-4 is the family relationship certificate which proves that the respondents were dependent on the Sreedevi and Exhibit A-6 substantiates that the Sreedevi was an anganwadi worker and drawing a monthly honorarium of Rs. 10,031/-. Other than for the bald assertion in the written statement of the appellant, that the accident occurred due to the negligence of the Sreedevi and the respondents were not her legal representatives and dependants, the appellant has not let in any evidence to refute the assertion in the claim petition, as aid down in Montford Brothers of St. Gabriel (supra).” 15. In this case, the father of the petitioners is no more. As per Exhibit A5 family relationship certificate issued by the Village Officer concerned, the petitioners are shown as the family members of the deceased. Therefore, it can be seen that she had no other legal representatives. Gabriel (supra).” 15. In this case, the father of the petitioners is no more. As per Exhibit A5 family relationship certificate issued by the Village Officer concerned, the petitioners are shown as the family members of the deceased. Therefore, it can be seen that she had no other legal representatives. In the decision in Seema Rani (supra), the Apex Court held that major children and married daughters are also eligible for claiming compensation as dependents of deceased irrespective of whether they are fully dependent on the deceased. 16. In the instant case, the petitioners approached the Tribunal under Section 166 of the Motor Vehicles Act claiming that they are the dependents of the deceased. No contra evidence was adduced by the respondents to disprove the above claim. In the above circumstances, I do not find any merit in the contention of 3 rd respondent that the petitioners herein cannot claim compensation as dependents of the deceased. 17. On the date of accident, the deceased was aged 58 years. Therefore, 10% of the monthly income is liable to be added towards future prospects, as held in the decision in National Insurance Co. Ltd. v. Pranay Sethi, [ (2017) 16 SCC 680 ] and the multiplier to be applied is 9, as held in Sarla Verma v. Delhi Transport Corporation , (2009) 6 SCC 121 . Since the deceased was married who left behind 2 dependents, towards personal and living expense, 1/3 of the income is liable to be deducted, as held in Sarla Verma (supra). In the above circumstances, the loss of dependency will come to Rs.7,12,800/-. 18. The Tribunal has awarded Rs.1,00,000/- towards loss of estate, Rs.25,000/- towards funeral expenses. No compensation was awarded towards 'loss of consortium'. In the light of the decision in Pranay Sethi (supra), the appellants are entitled to get a consolidated sum of Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral expenses, and the dependents (parents, children and spouse) are entitled to get a sum of Rs.40,000/- each towards loss of consortium, with an increase of 10% in every three years. Therefore, towards loss of estate and funeral expense they are entitled to get a sum of Rs.18,150/- each. Towards loss of consortium, petitioners together are entitled to get a sum of Rs.96,800/- (48,400 x 2). 19. Therefore, towards loss of estate and funeral expense they are entitled to get a sum of Rs.18,150/- each. Towards loss of consortium, petitioners together are entitled to get a sum of Rs.96,800/- (48,400 x 2). 19. Since compensation for loss of consortium was given, further compensation for love and affection cannot be granted, in view of the decision in New India Assurance Company Ltd. v. Somwati and Others , (2020) 9 SCC 644 . Therefore, the compensation awarded towards love and affection is to be deducted. 20. Towards the head ‘pain and sufferings’, the Tribunal has not awarded any compensation. The deceased died in this case on the date of the accident. In the above circumstances, I hold that Rs.25,000/- will be a reasonable compensation towards the head 'pain and suffering'. 21. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 22. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.8,72,900/-, as modified and recalculated above and given in the table below, for easy reference: Sl. No. Head of Claim Amount awarded by Tribunal (in Rs.) Amount Awarded in Appeal (in Rs.) 1 Transport to hospital 1,000/- 1,000/- 2 Damage to clothing & articles 1,000/- 1,000/- 3 Funeral expenses 25,000/- 18,150/- 4 Love and affection 1,00,000/- Nil 5 Loss of estate 1,00,000/- 18,150/- 6 Loss of consortium Nil 96,800/- 7 Loss of dependency Nil 7,12,800/- 8 Pain and suffering Nil 25,000/- Total 2,27,000/- 8,72,900/- Enhanced Rs.6,45,900/- 23. In the result, this Appeal is allowed in part, and the 3 rd respondent is directed to deposit a total sum of Rs.8,72,900/- (Rupees eight lakh seventy two thousand nine hundred only), less the amount already deposited, if any, along with interest at the rate ordered by the Tribunal from the date of the petition till realisation/deposit, excluding interest for a period of 225 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. (Enhanced compensation will carry interest @8%). 24. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioners, in the ratio fixed by the Tribunal, excluding court fee payable, if any, without delay, as per rules.