Ammini and others v. Divisional Manager, The New India Assurance Co. Ltd., Kottayam-1

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940** **MACA.No. 2309 of 2015** **AGAINST THE JUDGMENT AND AWARD DATED 17-03-2015 IN OPMV 1533/2013 of M.A.C.T.,KOTTAYAM** ## **APPELLANTS/PETITIONERS:** **-----------------------** - **1 MRS.AMMINI, W/O.ANILKUMAR, MALAVEDAN COLONY, VELLOOTHURUTHY,** - **PANACHIKADU, KOTTAYAM DISTRICT.** - **2 ANOOP, S/O.ANILKUMAR, MALAVEDAN COLONY, VELLOOTHURUTHY,** - **PANACHIKADU, KOTTAYAM DISTRICT.** - **3 ABILASH, S/O.ANILKUMAR, MALAVEDAN COLONY, VELLOOTHURUTHY,** - **PANACHIKADU, KOTTAYAM DISTRICT.** - **4 AJITH, S/O.ANILKUMAR MALAVEDAN COLONY, VELLOOTHURUTHY, PANACHIKADU, KOTTAYAM DISTRICT.** - **5 ABHIJITH(MINOR), S/O.ANILKUMAR, REPRESENTED BY NEXT FRIEND AND MOTHER,** - **AMMINI, W/O.ANILKUMAR, AGED 40 YEARS, MALAVEDAN COLONY,** - **VELLOOTHURUTHY, PANACHIKADU, KOTTAYAM DISTRICT.** - **6 ANJILI, (MINOR) D/O.ANILKUMAR, REPRESENTED BY NEXT FRIEND AND MOTHER, AMMINI, W/O.ANILKUMAR, AGED 40 YEARS, MALAVEDAN COLONY, VELLOOTHURUTHY, PANACHIKADU, KOTTAYAM DISTRICT.** - **7 ARCHANA, (MINOR) D/O.ANILKUMAR, REPRESENTED BY NEXT FRIEND AND** - **MOTHER, AMMINI, W/O.ANILKUMAR, AGED 40 YEARS, MALAVEDAN COLONY, VELLOOTHURUTHY, PANACHIKADU, KOTTAYAM** - **8 ASWATHY, (MINOR) D/O.ANILKUMAR, REPRESENTED BY NEXT FRIEND AND MOTHER, AMMINI, W/O.ANILKUMAR, AGED 40 YEARS, MALAVEDAN COLONY, VELLOOTHURUTHY, PANACHIKADU, KOTTAYAM DISTRICT.** **BY ADVS.SRI.P.M.JOSHI** **SMT.SIJI K.PAUL** **SMT.ELIZABETH KOSHY** ## **RESPONDENT/3RD RESPONDENT:** **--------------------------** **THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., KOTTAYAM-1** **R1 BY ADVS. SRI.N.S.NAJEEB SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** ## **M.A.C.A. No.2309 of 2015(C)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 4[th] day of April, 2018_ ## **J U D G M E N T** The appellants are the petitioners in O.P.(MV) No.1533 of 2013 of the Motor Accidents Claims Tribunal _(hereinafter referred to as 'the Tribunal')_ , Kottayam. They are the wife and children of the deceased Anil Kumar. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the loss caused by the death of the said Anil Kumar, in a road traffic accident. The parties are referred to as in the Original Petition. 2. According to the petitioners, the said Anil Kumar was employed as a coconut plucker and he was earning `12,000/- per month. They claimed `15,00,000/- as compensation under various heads of claim. ## **M.A.C.A. No.2309 of 2015(C)** ## **-: 2 :-** 3. The 3[rd] respondent Insurance Company opposed the said application, disputing the compensation under various heads of claim; but admitted the coverage of insurance policy. After considering the evidence on record, the Tribunal passed the impugned award granting `14,30,000/- with interest, as compensation to the petitioners. The inadequacy and correctness of the quantum of compensation, are challenged in this appeal. 4. Heard the learned counsel for the petitioners and learned standing counsel appearing for the 3[rd] respondent Insurance Company. 5. The learned counsel for the petitioners contends that the monthly income determined by the Tribunal is very low, in view of the fact that the deceased was employed as a coconut plucker at the time of accident. Secondly, it is contended that ## **M.A.C.A. No.2309 of 2015(C)** ## **-: 3 :-** the quantum of compensation determined under the heads 'loss of estate' and 'pain and sufferings' are very low. 6. Per contra, the learned Standing Counsel appearing for the 3[rd] respondent Insurance Company submits that there is no ground for interference with the quantum of compensation, under various heads of claim, determined by the Tribunal; as they are just and fair. Further, it is contended that the compensation granted for 'loss of consortium' is exorbitant and requires interference by this Court in this appeal. 7. In view of the arguments at the Bar, the point to be considered is, whether the Tribunal is justified in determining the monthly income of the petitioners and the quantum of compensation under the heads 'loss of consortium', 'loss of estate' and ## **M.A.C.A. No.2309 of 2015(C)** ## **-: 4 :-** 'pain and sufferings'? According to the petitioners, the deceased was employed as a coconut plucker at the time of accident and he was earning `12,000/ per month. In order to substantiate the said contention, the petitioners have produced Ext.A3 identity card, showing his profession as a coconut plucker. 8. As rightly held by the Tribunal, Ext.A3 identity card cannot take as a conclusive proof to prove the exact income of the deceased; but it gives rise to an inference that he was a coconut plucker at the time of accident. In the decision reported in _**National Insurance Company Limited v. Pranay Sethi and Others**_ [2017(5) KHC 350 (SC)], the Hon'ble Supreme Court held that in the case of an accident occurred in 2004, `3,500/- to `4,500/- can be taken as monthly income of the victim or the claimant, as ## **M.A.C.A. No.2309 of 2015(C)** ## **-: 5 :-** the case may be. In the instant case, the accident has occurred in the year 2013. Having regard to the long lapse of more than nine years after 2004, the Tribunal is not justified in taking `8,500/- as monthly income of the deceased. Therefore, the same would stand enhanced to `9,000/- 9. Similarly, it is submitted by the learned counsel for the petitioners that at the time of death, the deceased was aged 50 years. But, the Tribunal has taken 15% of the said income as increase of income on account of 'future prospectus'. According to the learned counsel, the Tribunal ought to have taken 25% of the income towards 'future prospectus', in view of the decision in _**Pranay Sethi'**_ s case (supra). I find some force in the argument advanced by the learned counsel for the petitioners. In view of the ## **M.A.C.A. No.2309 of 2015(C)** ## **-: 6 :-** decision in _**Pranay Sethi'**_ s case (supra), 25% of the monthly income has to be added as increase of income on account of 'future prospectus'. In the above view, the monthly income, including 'future prospectus', would stand enhanced to `11,250/-. Consequently, the petitioners are given `14,04,000/[11,250 x 12 x 13 x 4/5], as compensation for 'loss of dependency'. The additional compensation is `1,84,080/-[14,04,000 - 12,19,920]. 10. As rightly pointed out by the learned Standing Counsel for the 3[rd] respondent Insurance Company, the Tribunal has went wrong by granting `90,000/- towards 'loss of consortium', in view of the decision in _**Pranay Sethi'**_ s case (supra). According to _**Pranay Sethi'**_ s case (supra), the maximum amount that can be awarded towards 'loss of consortium' is only `40,000/-. Consequently, the ## **M.A.C.A. No.2309 of 2015(C)** ## **-: 7 :-** quantum of compensation granted under the head 'loss of consortium' would stand reduced to `40,000/-. But at the same time, in view of the very same decision, the petitioners are entitled to get `15,000/- for 'loss of estate'. But, the Tribunal has given `10,000/- only. So, the compensation for 'loss of estate' would stand enhanced to `15,000/-. Thus, the petitioners are given `1,39,080/-[1,84,080 - 50,000 + 5,000], as additional compensation. Thus, the total compensation payable to the petitioners is `15,69,900/-[14,30,820 + 1,39,080]. 11. It is needless to say, the total compensation would carry interest as stipulated by the Tribunal. All other findings of the Tribunal would stand undisturbed and operative. The 3[rd] respondent Insurance Company is directed to deposit **M.A.C.A. No.2309 of 2015(C)** ## **-: 8 :-** the additional compensation with interest at the rate of 8.5% per annum, within a period of three months from today and the 1[st] petitioner is allowed to withdraw the said amount, after paying court fees. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL, JUDGE** DST //True copy// P.A. To Judge