Amitha, Amal, Greeshama, Harishma and Lakshmi v. Anoop s/o Kumaran and The United India Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ``` MACA NO. 2482 OF 2015 ``` ``` AGAINST THE JUDGMENT IN OPMV 972/2010 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOZHIKODE / IV ADDITIONAL MACT, KOZHIKODE ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1AMITHA AGED 39 YEARS W/O VASAVAN, RESIDING AT KOTANTA THAZHA KUNI HOUSE, KANNOKKARA POST, VATAKARA TALUK, KOZHIKODE. ``` ``` 2AMAL AGED 17 YEARS (MINOR), S/O VASAVAN, REPRESENTED BY MOTHER AND GUARDIAN, ANITHA, W/O VASAVAN, AGED 39, RESIDING AT KOTANTA THAZHA KUNI HOUSE, KANNOKKARA POST, VATAKARA TALUK, KOZHIKODE. 3GREESHAMA AGED 21 YEARS D/O VASAVAN, REPRESENTED BY MOTHER AND GUARDIAN, ANITHA, W/O VASAVAN, AGED 39, RESIDING AT KOTANTA THAZHA KUNI HOUSE, KANNOKKARA POST, VATAKARA TALUK, KOZHIKODE. 4HARISHMA AGED 15 YEARS (MINOR), D/O VASAVAN, REPRESENTED BY MOTHER AND GUARDIAN, ANITHA, W/O VASAVAN, AGED 39, RESIDING AT KOTANTA THAZHA KUNI HOUSE, KANNOKKARA POST, VATAKARA TALUK, KOZHIKODE. 5LAKSHMI AGED 54 YEARS D/PO KELU, RESIDING AT KOTTANTA THAZHA KUNI HOUSE, KANNOKKARA POST, VATAKARA, KOZHIKODE. BY ADV SRI.ZUBAIR PULIKKOOL ``` **MACA 2482/2015** ..2.. ## **`RESPONDENTS/RESPONDENTS:`** - `1 ANOOP S/O KUMARAN, 418, KARAYI HOUSE, ERANHOLI POST, THALASSERY, KANNUR DISTRICT-670 107.` - `2 THE UNITED INDIA INSURANCE CO. LTD. BRANCH OFICE, THALASSERY, KANNUR-670 101. BY ADV JOHN JOSEPH VETTIKAD` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 2482/2015** ..3.. ## **JUDGMENT** This matter is of the year 2015 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore, admit this Appeal and proceed to dispose it of finally, with the consent of both sides. 2. Late Vasavan was walking on a National Highway, when he was knocked down by the offending vehicle driven in a rash and negligent manner. He succumbed to his injuries soon after and his legal heirs - the claimants herein, filed OP(MV)No.972/2010 before the Motor Accidents Claims Tribunal, Kozhikode (‘Tribunal’ for short), seeking compensation of an amount of Rs.23,03,661/-; limited to Rs.20,00,000/- for his death; and which has been allowed only to a sum of Rs.8,90,000/-. They assail the Award as being inadequate. 3. Sri.Zubair Pulikool – learned counsel for the appellants, argued that the deceased was a Fisherman, which is evident from Exts.A8 and A9 and therefore, that the learned Tribunal erred in having adopted his notional income to be **MACA 2482/2015** ..4.. Rs.5,000/-, against the claim of Rs.10,000/-. He contended that said figure ought to have been adopted, in which event, the compensation for ‘Loss of Dependency’ would have been much higher. He then added that the learned Tribunal has also erred in not awarding compensation under the head ‘Loss of Estate’; and thus prayed that this appeal be allowed. 4. In refutation, Sri.John Joseph Vettikad – learned Standing Counsel for the Insurance Company, argued that the computations adopted by the Tribunal are without error; however, asserting that the amounts granted under the head ‘Loss of Love and Affection’ was impermissible and that under the head ‘Funeral Expenses’ is excessive. He thus prayed that this appeal be dismissed, however, modifying the Award of the Tribunal to the afore extent. 5. I have considered the afore submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute. 6. I notice that the learned Tribunal has, for the purpose of computation of compensation under the head ‘Loss of Dependency’, adopted the notional income of the deceased ## **MACA 2482/2015** ..5.. to be a mere Rs.5,000/-. I see no reason why such a small figure should have been adopted, particularly when, in _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ _**Insurance Company Ltd.**_ [(2011) 13 SCC 236], the Hon’ble Supreme Court has postulated that, even in the case of a person who has unascertainable income, or who is working as a ‘Coolie’, in the year 2010 – when the accident occurred, the minimum figure to be reckoned as his notional income is Rs.7,500/-. Further, in _**Rajani v. Oriental Insurance Company Ltd.**_ [2022 (5) KLT 1012], the Hon’ble Supreme Court has gone on to say that, when the claimant or the deceased is a person who is, or was, engaged in technical avocation, a more robust view has to be adopted. In the case at hand, Exts.A8 and A9 establish that the deceased was a Fisherman, since he was admitted to the Statutory Welfare Fund. Even though his income may not be proved by these documents, it can be still be safely taken by this Court that he was engaged as a Fisherman. I, therefore, propose his notional income to be Rs.8,000/-, which is a mere Rs.500/- more than what has been authorized in **Ramachandrappa** (supra). 7. That said, since the deceased was only 48 years of age at the time of the accident, 25% future prospects must be **MACA 2482/2015** ..6.. added to his income, as is mandated by _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)]. 8. On the question of compensation under the head ‘Loss of Consortium’, no doubt, every dependent of the deceased is entitled to the same at the rate of Rs.40,000/- per head. However, there is a question whether the 5[th] appellant - who is the sister of the deceased - was dependent upon him and there is no clear evidence or answer to it, either in the records or in the impugned Award. Going by her own declarations, as available from the cause title and the claim petition, she was 50 years of age at the time of the accident, but there is nothing to show that she was either unmarried or dependent upon the deceased. I cannot, therefore, treat her as a dependent without further evidence. That said, however, all the other four appellants are certainly entitled to compensation under the head ‘Loss of Consortium’ at the rate of Rs.40,000/- per head. 9. As far as the compensation for ‘Funeral Expenses’ is concerned, **Pranay Sethi** (supra) mandates that it cannot exceed Rs.15,000/-; while it further stipulates an amount of Rs.15,000/- be awarded under the head ‘Loss of Estate’. 10. Needless to say, in view of the afore, the ## **MACA 2482/2015** ..7.. compensation awarded by the Tribunal under the head ‘Loss of Love and Affection’ deserves to be deleted, going by the declarations in _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur**_ [(2021) 11 SCC 780]. In the afore circumstances, this appeal is partly allowed in the following manner: - a The compensation under the head ‘Loss of Consortium’ is enhanced to Rs.1,60,000/-, from Rs.1,00,000 awarded by the Tribunal, at the rate of Rs.40,000/- per head for appellants 1 to 4. - b The compensation under the head ‘Funeral Expenses’ is reduced to Rs.15,000/-, from Rs.25,000/- awarded by the Tribunal. - c In addition, an amount of Rs.15,000/- is awarded under the head ‘Loss of Estate’ as per **Pranay Sethi** (supra). - d The compensation awarded by the Tribunal under the head ‘Loss of Love and Affection’ is deleted. In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the Insurance ## **MACA 2482/2015** **==> picture [20 x 9] intentionally omitted <==** Company, along with interest at the rate of 9% per annum, as ordered by the Tribunal, from the date of claim until it is realised. The appellant will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. Sd/- **DEVAN RAMACHANDRAN, JUDGE** ACR