Annakutty George, Vincent George, Ansal George, Antony G. v. Reliance General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942** ## **MACA.No.1176 OF 2011** **AGAINST THE AWARD IN OPMV 121/2008 DATED 28-07-2010 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANTS/PETITIONERS:** |**1**|**ANNAKUTTY GEORGE**| |---|---| ||**AGED 47 YEARS**| ||**W/O.LATE GEORGE,**| ||**PUTHANPURAKKAL HOUSE, ANAPPARA**| ||**CHUNDALE POST, KOTTAPPADY AMSOM,**| ||**VYTHIRI TALUK,, WAYANAD DISTRICT.**| |**2**|**VINCENT GEORGE**| ||**AGED 30 YEARS**| ||**S/O.LATE GEORGE,**| ||**PUTHANPURAKKAL HOUSE, ANAPPARA,,**| ||**CHUNDALE POST, KOTTAPPADY AMSOM,**| ||**VYTHIRI TALUK,, WAYANAD DISTRICT.**| |**3**|**ANSAL GEORGE**| ||**S/O.LATE GEORGE**| ||**AGED 26YEARS,**| ||**PUTHANPURAKKAL HOUSE, ANAPPARA,,**| ||**CHUNDALE POST, KOTTAPPADY AMSOM,**| ||**VYTHIRI TALUK,, WAYANAD DISTRICT.**| |**4**|**ANTONY G.**| ||**S/O.LATE GEORGE**| ||**AGED 22** **YEARS,**| ||**PUTHANPURAKKAL HOUSE, ANAPPARA,,**| ||**CHUNDALE POST, KOTTAPPADY AMSOM,**| ||**VYTHIRI TALUK,, WAYANAD DISTRICT.**| ||**BY ADV. SMT.CELINE JOSEPH**| MACA.No.1176 OF 2011 2 ## **RESPONDENT/RESPONDENT NO.3:** **RELIANCE GENERAL INSURANCE CO.LTD RGICL, CALICUT, HEAD OFFICE, 3RD FLOOR,, MAKER CHAMBERS, IV 222, NARIMAN POINT,, MUMBAI - 400021,, (INSURER OF KL-01 Q/2295 MARUTHI OMNI VAN).** **R1 BY ADV. SRI.GEORGE CHERIAN (SR.) R1 BY ADV. SMT.K.S.SANTHI R1 BY ADV. SMT.LATHA SUSAN CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1176 OF 2011 3 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- M.A.C.A. No. 1176 of 2011 ------------------------------------------ Dated this the 12[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellants are the claimants in O.P(M.V). No. 121/2008 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The above claim petition was filed under Section 166 (1) (c) of the Motor Vehicles Act by the appellants claiming compensation for the death of one ‘George’ who died in a road traffic accident. The appellants are the legal heirs of the above said ‘George’. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` `2. The short facts are like this: - On 03.11.2007,` `when the deceased was standing on the side of the road` MACA.No.1176 OF 2011 4 ``` for crossing, a Maruthi Omni Van bearing Registration No. KL-01-Q/2295 driven by the 1[st] respondent in a rash and negligent manner coming from Vythiri side to Chundala side hit him. He sustained serious injuries and taken to Medical College hospital, Calicut and was treated there till 08.11.2007 and he succumbed to his injuries. According to the petitioners, the accident occurred due to the rash and negligent driving of the Mauthi Omni Van by the 1[st] respondent. ``` ``` 3. To substantiate the case, Exhibits A1 to A9 were marked on the side of the petitioners and PW1 is the witness examined on their side. After going through the evidence and documents, the Tribunal found that the appellants are entitled an amount of Rs.4,11,400/- (Rupees Four Lakhs Eleven Thousand and Four Hundred Only) as compensation with interest at the rate of 7.5% ``` MACA.No.1176 OF 2011 5 ``` p.a., from the date of petition till realisation. Aggrieved by the quantum of compensation, this appeal is filed. ``` `4. Heard the learned counsel for the appellants and` `the learned counsel for the respondent.` ``` 5. The learned counsel for the appellants submitted that the Tribunal fixed the monthly income of the deceased as Rs.3,500/-. According to the petitioners, the deceased was a Timber Merchant and was aged 49 years at the time of accident. Exhibit A9, is the document produced to prove that the monthly income of the deceased was Rs.7,500/-. The learned counsel submitted that the 1[st] claimant gave evidence before the Court in tune with the Exhibit A9 certificate. The Tribunal without any reason rejected the same. ``` `6. I perused Exhibit A9, certificate produced by the` `claimants. Exhibit A9 is not proved through the person` MACA.No.1176 OF 2011 6 ``` who issued the same. It is true that PW1, who is the first claimant gave evidence. But the contents in Exhibit A9 cannot be proved through PW1. But the fact remains that the Tribunal fixed the monthly income of the deceased as Rs.3,500/-. Admittedly, the deceased was aged only 49 years at the time of accident. The accident was happened on 03.11.2007. InRamachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236], the Apex Court held that even a coolie will get a monthly income of Rs. 4,500/- in the year 2004. The accident in this case was happened in the year 2007 and therefore, the monthly income of the deceased can be safely fixed as Rs.6,000/-. Moreover, towards future prospects, 25% increase in the monthly income is to be given in the light of the decision of Apex Court inNational Insurance Co. Ltd v. Pranay Sethi[2017(4) KLT 662]. If that is the ``` MACA.No.1176 OF 2011 7 ``` case, the monthly income will be Rs.7,500/-. As far as the multiplier is concerned, the multiplier adopted by the Tribunal is ‘13’ and that is not disputed. Therefore, taking the multiplier as ‘13’ and monthly income as Rs.7,500/-, loss of dependency is to be recalculated like this:- ``` ``` 7500x12x13x2/3=Rs.7,80,000/- ``` ``` The Tribunal awarded an amount of Rs. 3,64,000/- and that is to be deducted. Therefore, the appellants are entitled an additional amount of Rs.4,16,000/- (Rupees Four Lakhs Sixteen Thousand Only) towards loss of dependency. ``` ``` 7. As far as consortium is concerned, the Tribunal awarded an amount of Rs.10,000/-. Claimants are the wife and three children of the deceased. They are entitled consortium in the light of dictum laid down in ``` MACA.No.1176 OF 2011 8 ``` National Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT 662 and Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others[(2018) 18 SCC 130]. Therefore, the first appellant is entitled Rs. 30,000/- (Rupees Thirty Thousand) more towards loss of consortium. Similarly, the appellant Nos. 2 to 4 are entitled amount for loss of love and affection. The tribunal awarded only Rs.10,000/- for loss of love and affection and therefore, they are entitled Rs.1,10,000/- (Rupees One Lakh Ten Thousand Only) more towards loss of love and affection. ``` ``` 8. As far as funeral expenses is concerned, an amount of Rs. 5,000/- is allowed by the Tribunal. In the light of the decision of the Apex Court inNational Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT 662],the appellants are entitled Rs.10,000/- (Rupees Ten ``` MACA.No.1176 OF 2011 9 ``` Thousand Only) more towards funeral expenses. ``` ``` 9. Towards loss of estate, no amount is awarded by the Tribunal. The appellants are entitled an amount of Rs. 15,000/- (Rupees Fifteen Thousand Only) towards loss of estate. ``` `10. The enhanced compensation entitled by the` `appellants can be summarized like this:-` ``` HeadAmount Loss of dependency Rs. 4,16,000/- Funeral Expenses Rs. 10,000 /- Loss of Consortium Rs. 30,000/- Loss of love and affection Rs. 1,10,000/- Loss of estate Rs. 15,000/- ``` ``` Total Rs.5,81,000/- ``` ``` Therefore, this appeal is allowed in part. The impugned award is modified and the appellants are entitled an ``` MACA.No.1176 OF 2011 10 ``` enhanced compensation of Rs.5,81,000/- (Rupees Five Lakhs Eighty One Thousand Only) with interest at the rate of 7.5% p.a, from the date of application till realisation. The 3[rd] respondent/ respondent herein is directed to pay the enhanced compensation with interest. ``` ``` Sd/- ``` ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` avs ```