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2025 Supreme(Online)(Ker) 22936
IN THE HIGH COURT OF KERALA AT ERNAKULAM
JAMES (UNSOUND MIND) – Appellant
Versus
SAJEEVAN – Respondent
MACA 307/2015
Legal representatives are entitled to claim compensation for pain and suffering of the deceased, as personal injury claims survive under the Kerala Torts (Miscellaneous Provisions) Act, 1977.
Headnote:(A) Motor Vehicles Act, 1988 - Compensation claims for injuries sustained in a motor vehicle accident - The Tribunal awarded Rs.10,78,929/- which was challenged by the petitioners seeking Rs.19,08,404/- - The deceased's notional income was fixed at Rs.7000/- and future prospects were added - Deductions for personal expenses were made, and compensation for pain and suffering was enhanced to Rs.1,00,000/- - The Tribunal's dismissal of pain and suffering claim was overturned based on Kerala Torts (Miscellaneous Provisions) Act, 1977 - The legal representatives are entitled to compensation for personal injury sustained by the deceased. (Paras 11, 13, 17, 19, 24)
(B) Negligence - The driver of the offending vehicle was found negligent based on the charge sheet produced by the petitioners - Insurer held liable for compensation. (Paras 10, 12)
(C) Legal heirs' rights - Claims for personal injury survive the death of the injured under the Kerala Torts Act - Legal representatives can claim damages for pain and suffering. (Paras 17, 18)
JUDGMENT Dated : 17th January, 2025 The petitioners in O.P.(M.V.)No.1015/2009 on the file of the Motor Accident Claims Tribunal, Perumbavoor, are the appellants herein. The respondents in the O.P. are the respondents herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal)
2. The petitioners 2 to 5 are the wife, minor children and mother of the deceased original petitioner. The original petition was filed claiming compensation for the injuries sustained by the deceased in a motor vehicle accident that occurred on 16.2.2009. According to them, on 16.2.2009 at 5.30 p.m, the Mini lorry bearing registration No.KL-11/2732 driven by the 1st respondent in a rash and negligent manner overturned into a canal, resulting in injuries to the late petitioner, who was working as the clearner in the said vehicle. He succumbed to the injrues on 7.9.2009.
3. The 1st respondent is the driver-cum-registered owner and the 2nd respondent is the insurer of the lorry. According to the the petitioners, the accident occurred due to the negligence of the driver of the mini lorry. Therefore, they filed the OP claiming a compensation of Rs.23,41,000/- limited to 15,00,000/-.
4. The 1st respondent remained ex-parte. The 2nd respondent filed a written statement, admitting the policy and disputing the negligence on the part of the driver of the offending vehicle.
5. No oral evidence is adduced by either side. The evidence in the case consists of the documentary evidence Exts.A1 to A12 and B1.
6. After evaluating the evidence on record, the Tribunal awarded a total compensation of Rs.10,78,929/-
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.Anupama Johny, the learned counsel for the petitioners/appellants and the learned Standing Counsel Smt.Latha Susan Cherian.
10. The Point: In this case the accident and valid policy of the offending vehicle are admitted. Though in the written statement the 2nd respondent has contended that the accident occurred not due to the negligence of the 1st respondent, at the time of arguments such a contention was not taken. The petitioners produced Ext.A4, copy of the charge sheet involved in the crime registered against the driver of the offending vehicle, in respect to the above accident. In the light of the above charge sheet, negligence on the part of the driver of the offending vehicle stands proved. Therefore, the 2nd respondent, being the insurer, is liable to indemnify the compensation, which is liable to be awarded against the owner of the offending vehicle.
11. The incident was on 16.2.2009. The appellants claimed that being a cleaner in the lorry, the deceased was having a monthly income of Rs.5000/- However, they could not prove the said claim, by adducing evidence. Therefore, by virtue of the decision of the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance [ (2011) 13 SCC 236 ], his notional income is liable to be fixed at Rs.7000/-.
12. Since, on the date of accident, the deceased was aged 40 years, 25% of his income is to be added towards future prospects, and the multiplier to be applied is 15, in the light of the decision in National Insurance Co.Ltd v Pranay Sethi [ (2017) 16 SCC 680 ].
13. The deceased being married and having 4 dependants, deduction towards his personal and living expense is 1/4 of his income , in the light of the decision of Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation [ (2009) 6 SCC 121 ]. Therefore, the loss of dependency will come to Rs.11,81,250/-.
14. The Tribunal has not awarded any amount towards loss of estate.
Rs.25,000/- was awarded towards funeral expenses, and Rs.1,00,000/- towards loss of consortium. In the light of the decision in Pranay Sethi (supra), the appell
