Ambika M. Nair and Anjali v. Jalaludeen S.R.Manzil and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ## **`MACA NO. 959 OF 2013`** ``` AGAINST THE ORDER/JUDGMENT IN OPMV 496/2005 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL, PUNALUR`** ## **`APPELLANTS/PETITIONERS:`** ``` 1AMBIKA M. NAIR AGED 45 YEARS W/O.LATE M.G.NAIR, KALAYATHU VEEDU, THEKKUMCHERI, PUTHOOR P.O., PUTHOOR VILLAGE, KOTTARAKKARA TALUK, FROM PATTAZHIKATHU VEEDU, IYVERKALA EAST P.O., PUTHOOR, KUNNATHOOR VILLAGE. 2ANJALI AGED 20 YEARS D/O.LATE M.G.NAIR, KALAYATHU VEEDU, THEKKUMCHERI, PUTHOOR P.O., PUTHOOR VILLAGE, KOTTARAKKARA TALUK, FROM PATTAZHIKATHU VEEDU, IYVERKALA EAST P.O., PUTHOOR, KUNNATHOOR VILLAGE. BY ADV SRI.MANOJ RAMASWAMY ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 JALALUDEEN S.R.MANZIL, CHALLIMUKKU COLONY P.O., PALODE, THIRUVANANTHAPURAM-695564.`** - **`2 JAMALUDEEN S/I ALIYARUKUNJU, KUNNINPURATHU VEEDU, PANAMGODU P.O., PERINGAMALA, THIRUVANANTHAPURAM-695563.`** - **`3 THE MANAGER ORIENTAL INSURANCE CO.LTD., JYOTHI SUPER BAZAR, THODUPUZHA P.O., THODUPUZHA-685584.`** - **`4 THE MANAGING DIRECTOR K.S.R.T.C., THIRUVANANTHAPURAM-695005.`** - **`5 THAMARAKSHAN THAMARA SADANAM, VITH WARD, THRIKKADAVOOR, KOLLAM-691308. BY ADVS. ALEX ANTONY SEBASTIAN P.A. SRI.GEORGE CHERIAN THIRUVALLA`** ``` OTHER PRESENT: ``` ``` MACA NO. 959 OF 2013 ``` ``` ..2.. ``` ## **`ADV LATHA SUSAN CHERIAN`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 959 OF 2013 ``` ``` ..3.. ``` ## **J U D G M E N T** The appellants are the petitioners in O.P.(MV)No.496 of 2005 on the files of the Motor Accidents Claims Tribunal, Punalur. 2. The said claim petition was filed by the appellants, seeking compensation for the death of one Mohan G Nair due to the injuries sustained in a motor accident that occurred on 10.03.2004. According to them, the accident occurred, when the KSRTC bus in which the deceased was travelling, collided with a lorry bearing registration No.KL-7N/5135, thereby causing serious injuries to him. The said lorry was driven by the 1[st] respondent,. The 2[nd] respondent was the registered owner of the lorry, and the 3[rd] respondent was the insurer of the lorry. The 4[th] respondent is the Managing Director of KSRTC, owner of the bus, and the 5[th] respondent was the driver of the bus. The deceased was the husband of the 1[st] appellant and the father of the 2[nd] appellant. According to the appellants, the deceased was a government ``` MACA NO. 959 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** servant working as Assistant Binder, aged 43 years with a monthly income of Rs.5,714/- at the time of the accident. The claim petition was submitted in such circumstances, seeking compensation. 3. The 3[rd] respondent, the insurer of the lorry, filed a written statement admitting the coverage of the policy with respect to the said vehicle, but they disputed the negligence on the part of the driver of the lorry. According to them, the accident occurred due to negligence on the part of the 5[th] respondent, the driver of the KSRTC Bus. The quantum of compensation was also disputed by them. 4. The 4[th] respondent filed a written statement denying the negligence on the part of the 5[th] respondent in causing the accident. They also disputed the quantum of compensation. 5. The evidence in this case consists of Exts.A1 to A9 from the side of the appellants. From the side of the respondents, Ext.B1 policy certificate was marked. After ``` MACA NO. 959 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1[st] respondent, the driver of the lorry and consequently, the 3[rd] respondent, the insurer of the lorry was also held liable to pay the compensation. 6. The quantum of compensation was fixed at Rs.8,75,200/- and the 3[rd] respondent was directed to deposit the said amount with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is filed by the appellants in such circumstances, seeking enhancement of compensation. 7. Heard Adv.Sri. Manoj Ramaswamy, the learned Counsel appearing for the appellants, Adv.Smt. Latha Susan Cherian, learned Counsel appearing for the 3[rd] respondent and Adv.Sri. Alex Antony Sebastian, the learned Counsel appearing for the 4[th] respondent. 8. The main challenge in this appeal is against the quantum of compensation. According to the appellants the compensation awarded was not adequate. The ``` MACA NO. 959 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** learned counsel for the 3[rd] respondent would point out that, a reasonable amount has been awarded by the Tribunal and no interference is required. 9. As far as the compensation awarded for loss of dependency is concerned, it is seen that the same was assessed on the basis of a monthly income of Rs.5,714/which was fixed by accepting the salary certificate produced by the appellants. It is also evident that the parameters which were applicable in the light of the principles laid down in **National Insurance Company Ltd., v. Pranay Sethi [2017(4) KLT 662(SC)]** were followed, and the amount was fixed at Rs.8,32,104/- . Thus the said amount appears to be reasonable, and no interference is required. 10. However, when moving on to the other heads, I find force in the contention put forward by the learned Counsel for the appellants. The Tribunal awarded only Rs.5,000/- towards funeral expenses, whereas the actual amount payable as per **Pranay Sethi’s** case was ``` MACA NO. 959 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** Rs.15,000/-. Therefore, a further sum of **Rs.10,000/-** is to be awarded, and it is ordered accordingly. 11. Similarly, the amount awarded towards loss of estate was also on the lower side, as it was only Rs.3,000/- as against the actual amount of Rs.15,000/-. Accordingly, a further sum of **Rs.12,000/-** is awarded under the said head. 12. The next head which requires re-consideration is loss of consortium. In the light of **Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130]** and **United India Insurance Co.Ltd v. Satinder Kaur, [2020 SCC OnLine SC 410]** all the claimants, being wife and children of the deceased were entitled for compensation for the loss of consortium @ Rs.40,000/- each, and thus making a total amount of Rs.80,000/-. In the award, Rs.20,000/- was awarded towards loss of consortium to the 1[st] appellant, and a further sum of Rs.15,000/- was awarded for loss of love and affection to the 2[nd] appellant. ``` MACA NO. 959 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** 13. As per the decision rendered by the Hon’ble Supreme Court in **Satinder Kaur @ Satwinder Kaur and Other [(2021)11 SCC 780],** when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. Therefore, the amount awarded by the Tribunal for loss of love and affection, can be adjusted towards the compensation for loss of consortium fixed by this Court. Thus, the additional amount under the head would come to **Rs.45,000/** -. 14. Accordingly the total additional compensation is determined as **Rs.67,000/-** (10,000/- + 12,000/- + 45,000/-) In the result, this appeal is allowed, and the award dated 31.10.2012 in OP(MV)No.496/2005 passed by the Motor Accidents Claims Tribunal, Punalur is hereby modified by granting an additional amount of **Rs.67,000/-** (Rupees Sixty Seven thousand only) and the said amount shall be deposited from the 3[rd] respondent ``` MACA NO. 959 OF 2013 ``` **==> picture [37 x 9] intentionally omitted <==** with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. **Sd/-** **ZIYAD RAHMAN A.A,** **JUDGE** LU