Amritha Kumari P. et al. v. Oriental Insurance Company Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 MACA NO. 1377 OF 2017** **AGAINST THE ORDER/JUDGMENT OPMV 1572/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS:** 1 AMRITHA KUMARI.P. AGED 49 YEARS, W/O. LATE SREENIVASAN, PATTARU KUZHIYIL HOUSE, PANNIKKODE P.O., MUKKAM, KOZHIKODE DISTRICT. 2 SRUTHI. P. AGED 24 YEARS, D/O. LATE SREENIVASAN, PATTARU KUZHIYIL HOUSE, PANNIKKODE P.O., MUKKAM, KOZHIKODE DISTRICT. 3 ASWATHI. P. AGED 22 YEARS, D/O. LATE SREENIVASAN, PATTARU KUZHIYIL HOUSE, PANNIKKODE P.O., MUKKAM, KOZHIKODE DISTRICT. 4 ANAGHA AGED 14 YEARS (MINOR), D/O. LATE SREENIVASAN, REPRESENTED BY MOTHER/GUARDIAN AMRITHA KUMARI. P., 1ST PETITIONER, RESIDING AT PATTARU KUZHIYIL HOUSE, PANNIKKODE P.O., MUKKAM, KOZHIKODE DISTRICT. BY ADVS. SRI.P.R.SREEJITH SMT.MAYA CHANDRAN SRI.M.PROMODH KUMAR SRI.K.B.SAJEESH ## **RESPONDENTS/RESPONDENT NO.3 & SUPPL.RESPONDENTS 4 TO 6:** 1 ORIENTAL INSURANCE COMPANY MAVOOR ROAD, KOZHIKODE - 673 661. 2 MEHJEBIN AGED NOT KNOWN, W/O. LATE NISHAD. P., D/O. YUSAF, ATTUPURATH HOUSE, KOORACHUNDU, KOZHIKODE - 673 527. 3 PAKKAR S/O. MOYI, AGE NOT KNOWN, KALATHUMTHODIKA HOUSE, P.O. CHERUVADI, MAVOOR VIA, KOZHIKODE - 673 661. M.A.C.A.No.1377 of 2017 : 2 : 4 PATHUMMA W/O. PAKKAR, AGE NOT KNOWN, KALATHUMTHODIKA HOUSE, P.O.CHERUVADI, MAVOOR VIA, KOZHIKODE - 673 661. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI - SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1377 of 2017 : 3 : ## **DEVAN RAMACHANDRAN, J. ========================= M.A.C.A.No. 1377 of 2017 ========================== Dated this the 21[st] day of March, 2023** ## **JUDGMENT** Sreenivasan was unfortunately killed in a road accident on 20.11.2010, when the offending pickup van hit him, as he was walking on the side of the public road. He sustained very serious injuries and had to be rushed to the Medical College Hospital, Kozhikode, but succumbed to it a while later. The claimants, who are his wife and three minor children, at that time, filed OP(MV)No.1572/2015 before the Motor Accidents Claims Tribunal, Kozhikode (the 'Tribunal' for short), seeking compensation of an amount of Rs.15,77,000/-, but which has been allowed only to a sum of Rs.11,39,000/-. They assail the compensation as being inadequate. 2. Sri.Gopi Krishnan N. – learned counsel appearing for the appellants, argued that the notional income of Rs.5,000/- adopted by the Tribunal in favour of the deceased is not only inadequate but irrational, because there is evidence on record to show that he was earning Rs.20,000/- per month as a professional cook. He then pointed out that the compensation under the head “Loss of Consortium” has been confined to Rs.1,00,000/- by the Tribunal, under the reasoning that only the wife and one of the children are M.A.C.A.No.1377 of 2017 : 4 : entitled to it. He contented that all the children are entitled to compensation under this head; and thus prayed that this appeal be allowed. 3. Smt.K.S.Santhi – learned Standing Counsel for the Insurance Company, on the other hand, submitted that there is absolutely no evidence on record to show that the deceased was a professional cook, except the statement in the claim petition; and therefore, that the learned Tribunal did not err in adopting the computations, through which, it has arrived at the compensation, which is also fair and just. She thus prayed that this appeal be dismissed. 4. I have evaluated the afore rival submissions on the touchstone of various materials and evidence 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. 5. I must say upfront, that the submissions of Sri.Gopi Krishnan N., relating to the notional income of the deceased, carry great weight. This is because, 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 is working as a “coolie”, or with an unascertainable income, in the year 2010 – when the accident M.A.C.A.No.1377 of 2017 : 5 : occurred – the minimum figure to be reckoned as his notional income is Rs.7,500/-. Further, in **Rajani v. Oriental Insurance Co.Ltd. [2022 (5) KLT Online 1012],** the Hon'ble Supreme Court has held that, in the case of a person involved in a technical avocation, a more robust view has to be taken. Therefore, even if there is no evidence to prove Rs.20,000/- as the income of the deceased, the sum total in the ratio of the afore two judgments would compel me to adopt a figure which is slightly more than Rs.7,500/-, since the avocation of the deceased as a professional cook is technical one. I, therefore, propose it to be Rs.9,000/- per month. The deceased was 45 years at the time of the accident and, therefore, the afore amount is also deserving to be added with 25% future prospects; and since he is survived by his wife and three children, not more than 1/4 can be deducted as his personal expenses. 6. That being said, there is some force in the submissions of Smt.K.S.Santhi, that no amount could have been granted by the Tribunal under the heads “Loss of Love and Affection” and “Loss of Care and Guidance for the Minor Child” because **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** **[(2021) 11 SCC 780]** mandates that all such be subsumed into the compensation awarded under the head “Loss of Dependency”. However, taking note of the fact that all the children of the M.A.C.A.No.1377 of 2017 : 6 : deceased were minors at the time of the accident, I deem it appropriate to retain the compensation under the head “Loss of Care and Guidance”, since their future would have been surely affected on account of the unfortunate and untimely death of their father. My view as afore would not be altered even though the record shows that, at the time of the filing of the appeal, the first two children were more than 20 years in age because, at the time when the accident occurred, they were undoubtedly minors. 7. Finally, on the question of “Funeral Expenses”, “Loss of Estate” and “Pain and Suffering”, Smt.K.S.Santhi is right that only Rs.15,000/- could have been awarded under the afore two heads and no amount could have been granted under the latter head, going by **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]** and **Satinder Kaur @ Satwinder Kaur (supra)** . In the afore circumstances, this appeal is partly allowed in the following manner: (a) The compensation for “Loss of Dependency” is enhanced to Rs.14,17,500/-, reckoning the notional income of the deceased to be Rs.9,000/- per month, with 25% future prospects added to it and 1/4 of it reduced as personal expenses, as per **Pranay Sethi (supra)** . The multiplier of '14' is taken as per **Sarla** M.A.C.A.No.1377 of 2017 : 7 : ## **Verma v. Delhi Transport Corporation [2010 (2)** **KLT 802],** since the deceased is admitted to have been 45 years old at the time of the accident. (b) The compensation under the head “Loss of Consortium” is enhanced to Rs.1,60,000/-, from Rs.1,00,000/- awarded by the Tribunal, as per **Pranay** ## **Sethi (supra).** (c) The compensation under the head “Funeral Expenses” is reduced to Rs.15,000/-, from Rs.25,000/granted by the Tribunal, as per **Pranay Sethi** ## **(supra).** (d) The compensation under the head “Loss of Estate” is reduced to Rs.15,000/-, from Rs.25,000/- granted by the Tribunal, as per **Pranay Sethi (supra).** (d) The compensation awarded by the Tribunal under the heads “Pain and Suffering” and “Loss of Love and Affection” are both deleted, as per **Satinder Kaur @ Satwinder Kaur (supra)** . Consequently, the appellants will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 9% as awarded by the Tribunal, from the date of the claim until it is recovered. They will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. M.A.C.A.No.1377 of 2017 : 8 : However, while computing the interest eligible to the appellants on the amounts enhanced as above, the period of 108 days – being the delay caused by them in filing the appeal – shall stand excluded. 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** anm