Annakkutty and others v The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 18TH DAY OF SEPTEMBER 2019 / 27TH BHADRA, 1941** ## **MACA.No.2720 OF 2015** **AGAINST THE AWARD IN O.P(MV)NO.396/2011 DATED 21-07-2014 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANTS/PETITIONERS:** **1 ANNAKUTTY AGED 57 YEARS** **W/O. KUNJAPPAN, RESIDING AT KARAKUNNEL HOUSE, NIRAPPU KARA, PAIPRA VILLAGE, MUVATTUPUZHA TALUK.** - **2 SHIJO AGED 37 YEARS** **S/O. KUNJAPPAN, RESIDING AT KARAKUNNEL HOUSE, NIRAPPU KARA, PAIPRA VILLAGE, MUVATTUPUZHA TALUK.** - **3 SHILJO AGED 35 YEARS** - **S/O. KUNJAPPAN, RESIDING AT KARAKUNNEL HOUSE, NIRAPPU KARA, PAIPRA VILLAGE, MUVATTUPUZHA TALUK.** - **4 SHILJI** **AGED 35 YEARS** **S/O. KUNJAPPAN, RESIDING AT KARAKUNNEL HOUSE, NIRAPPU KARA, PAIPRA VILLAGE, MUVATTUPUZHA TALUK.** - **5 SHIJI AGED 32 YEARS D/O. KUNJAPPAN, RESIDING AT KARAKUNNEL HOUSE, NIRAPPU KARA, PAIPRA VILLAGE, MUVATTUPUZHA TALUK.** **M.A.C.A No.2720 of 2015** 2 **BY ADVS. SRI.L.RAMMOHAN SRI.AUBREY ABRAHAM ISAAC** ## **RESPONDENT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE CO. LTD. EBENEZER GARDENS, EDAPPALLY, KOCHI. PRESENT ADDRESS: THE ORIENTAL INSURANCE CO. LTD., METRO PLAZA, RAILWAY STATION ROAD, ERNAKULAM NORTH, COCHIN-18.** **BY ADV. SMT. K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A No.2720 of 2015** 3 ## **J U D G M E N T** The claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal have come up in this appeal challenging the inadequacy of the quantum of compensation granted by the Tribunal. 2. One Kunjappachan, aged 58 years died on 15.03.2011 on account of the injuries sustained by him in a motor accident took place on 30.12.2010. It is stated in the claim petition that he was a fish vender. His wife and four children were the claimants in the proceedings. A sum of Rs.6,50,000/- was the claim made in the proceedings. As against the said claim, the Tribunal has granted to the claimants a sum of Rs.4,72,800/- by way of compensation. It is aggrieved by the inadequacy of the said compensation that the claimants have come up in this appeal. 3. Heard the learned counsel for the parties. 4. Though it is stated in the claim petition that the deceased was earning a sum of Rs.6,000/- per month, in the absence of supporting evidence, the Tribunal has reckoned the **M.A.C.A No.2720 of 2015** 4 monthly income of the deceased only at Rs.4,000/- for the purpose of computing the compensation payable to the claimants for loss of dependency. 5. In the absence of any evidence in support of the plea as regards the income of the deceased, in the light of the decisions of the Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited** , [(2011) 13 SCC 236] and **Syed Sadiq** v. **Divisional Manager, United India Insurance Co. Ltd.** , [(2014) 2 SCC 735], where the Apex Court has reckoned the monthly income of similarly placed persons at Rs.4,500/- and Rs.6,500/- in the context of the accidents took place in the year 2004 and 2008 respectively, I am of the view that in the context of the accident took place in the year, 2010, the monthly income of the deceased in the instant case could have been certainly reckoned by the Tribunal at Rs.6,000/- as claimed in the proceedings. In the light of the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], as the dependants of the deceased were stated **M.A.C.A No.2720 of 2015** 5 to be five in number, one fourth of the income has to be deducted towards personal expenses, and as the deceased was aged above 50 and below 60, 10% of the income reckoned has to be added towards future prospects for arriving at the multiplicand while computing the compensation for loss of dependency. As the deceased was aged 58, the multiplier to be applied for the said purpose is '9'. If compensation for loss of dependency is arrived at on that basis, the same would come to Rs.5,34,600/- (Rs.6000x12x3/4x110/100x9). As the Tribunal has granted only a sum of Rs.2,88,000/- towards compensation under that head, the claimants would be entitled to an additional compensation of Rs.2,46,600/-. 6. No amount has been granted by way of compensation to the claimants towards damage to clothing and articles. Even in the absence of any evidence, I am of the view that the tribunal should have granted some amount by way of compensation under that head. Having regard to the fact that the accident is one that took place in the year 2010, according to me, the tribunal could have granted atleast a sum of **M.A.C.A No.2720 of 2015** 6 Rs.2500/- under that head. Similarly, It is trite that a conventional amount has to be granted in all cases of death towards compensation for pain and suffering. The Tribunal has granted a sum of Rs.25,000/- under that head. It is seen that the deceased was under for long treatment for the injuries sustained by him in the accident and death was after about 75 days. Having regard to the facts and circumstances of the case, according to me, Rs.75,000/- would have been the appropriate compensation payable to the claimants under that head. The claimants are, therefore, entitled to a sum of Rs.50,000/- by way of additional compensation. 7. In the light of the decision of the Apex Court in **Pranay Sethi** , and having regard to the fact that the accident in the instant case is one that took place in the year 2010, I am of the view that the Tribunal should have granted Rs.40,000/- to the wife of the deceased towards compensation for loss of consortium. Similarly, in the light of the said decision, the Tribunal should have granted to the claimants Rs.15,000/towards compensation for loss of estate and Rs.15,000/- **M.A.C.A No.2720 of 2015** 7 towards funeral expenses. The Tribunal has granted only a sum of Rs.60,000/- under those heads. The claimants are, therefore, entitled to a further sum of Rs.10,000/- under those heads. 8. The compensation granted by the Tribunal under the remaining heads appear to be in order. In short, the claimants are entitled to Rs.3,09,100/- by way of additional compensation. 9. It is seen that the deceased was riding a motor cycle and the accident occurred when the motor cycle ridden by the deceased was knocked down by the offending car. Eventhough in the case registered by the police in connection with the accident it was found that the accident occurred on account of the negligence of the driver of the offending car and a final report is filed against him for having caused the accident on account of negligent driving, the Tribunal held that the deceased was also negligent to the tune of 15% in the matter of causing the accident as he was not holding a licence to ride the motor cycle ridden by him. In the light of said finding, the **M.A.C.A No.2720 of 2015** 8 Tribunal directed the insurer to pay only 85% of compensation determined as due to the claimants. It is settled that merely for the reason that the injured/deceased in a given case who was riding/driving a vehicle at the time of accident was not holding a licence, it cannot be presumed that he was negligent in the matter of causing the accident. Even after noticing that the deceased was not holding licence to drive the motor cycle, the officer who has investigated the case registered in connection with the accident came to the conclusion that the accident occurred on account of the negligence of the driver of the offending car. In the circumstances, according to me, the Tribunal was not justified in finding contributory negligence on the part of the deceased. The finding to that effect rendered by the Tribunal is, therefore, vacated. Needless to say that the amount withheld by the Tribunal on that account namely Rs.83,425/- has to be paid to the claimants by way of additional compensation. The total additional compensation payable to the claimants would therefore come to Rs.3,92,525/-. In the result, the appeal is allowed granting to the **M.A.C.A No.2720 of 2015** 9 claimants a sum of Rs.3,92,525/- by way of additional compensation. Needless to say, the claimants will be entitled to interest for the additional compensation at the rate of 7.5%. It is clarified that all other directions contained in the impugned award will stand. The parties will be at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. It is made clear that the claimants will not be entitled to interest for the additional compensation granted for the period of delay in filing appeal, viz., 321 days, as ordered by this court. All interlocutory applications in the appeal are closed. **Sd/P.B.SURESH KUMAR, JUDGE** **DK**