Branch Manager, National Insurance Company Ltd. v. Naseera and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 23RD DAY OF JUNE 2020/2ND ASHADHA, 1942 MACA.No.1846 OF 2015(E)** **AGAINST THE AWARD DATED 27.03.2015 IN OP(MV)NO.273/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,KALPETTA** ## **APPELLANT:** **THE BRANCH MANAGER, THE NATIONAL INSURANCE COMPANY LTD., KOVILPATTI, THOOTHUKUDI, TAMIL NADU, REPRESENTED BY ITS MANAGER,REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENTS:** |**1**|**NASEERA,AGED 33 YEARS,**| |---|---| ||**W/O.(LATE) MUHAMMADALI,PARATHODUKA (H),**| ||**MADAKKIMALA POST, MUTTIL NORTH VILLAGE,**| ||**VYTHIRI TALUK,WAYANAD DISTRICT-673 121.**| |**2**|**MUHAMMAD RAFI (MINOR),AGED 16 YEARS,**| ||**S/O.LATE MUHAMMADALI,PARATHODUTE**| ||**MADAKKINALA POST,MUTTIL NORTH VILLAGE,**| ||**VYTHIRI-673 121, REPRESENTED BY**| ||**NATURAL GUARDIAN AND MOTHER MRS.NASEERA.**| |**3**|**MINISHATH SHERIN (MINOR),AGED 11 YEARS,**| ||**D/O. LATE MUHANNADALI,PARATHODUKA**| ||**MADAKAKKIMALA POST,MUTTIL NORTH VILLAGE,**| ||**VYTHIRI-673 121, REPRESENTED BY MOTHER**| ||**AND NATURAL GUARDIAN MOTHER MRS. NASEERA.**| MACA No.1846/2015 : 2 : - **4 MUHAMMED JASIL (MINOR),AGED 3 YEARS, D/O. LATE MUHAMMADALI, PARATHODUKA MADAKAKKIMALA POST, MUTTIL NORTH VILLAGE, VYTHIRI-673 121, REPRESENTED BY MOTHER AND NATURAL GUARDIAN MOTHER MRS. NASEERA.** - **5 SAITHALAVI,AGED 63 YEARS,PARATHODUKA (H) MADAKKIMALA POST, MUTTIL NORTH VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT-673 121.** - **6 K.SENRAYA PERUMAL,AGED ABOUT 45 YEARS, S/O.KRISHNA SWAMY, 7/19, POMMALNAIKENPATTY, ETHILAPPANAICKKEN PATTY, ETTAYAPURAM POST, THOOTHUKUDI DISTRICT, TAMIL NADU-627701.** **BY ADV. SRI.ABRAHAM P.GEORGE BY ADV. SMT.M.SANTHY BY ADV. SRI.K.VINODKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1846/2015 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 23[rd] day of June, 2020**_ The appellant, who is the insurer in OP(MV) No.273/2014 of the Motor Accidents Claims Tribunal, Kalpetta, is in appeal aggrieved by Award dated 27.03.2015, invoking Section 173 of the Motor Vehicles Act, 1988. 2. OP(MV) No.273/2014 was filed by respondents 1 to 5. Respondents 1 to 5 stated that while deceased Muhammadali was driving a lorry on 06.01.2012, a Tractor driven by the 6[th] respondent hit against the lorry, as a result of which the lorry was capsised and the deceased sustained injuries. The deceased was taken to Thoothukudi Medical College Hospital, but he succumbed to the injuries. Respondents 1 to 5 claimed ₹40,00,000/- as compensation. MACA No.1846/2015 : 4 : 3. In spite of notice, the 1[st] respondent-driver did not appear before the Tribunal and was set _ex parte_ . The 2[nd] respondent filed written statement. The 2[nd] respondent stated that the accident was caused not due to any rash or negligent driving of the tractor by the 1[st] respondent. The 2[nd] respondent, however, admitted the insurance coverage. The compensation claimed is exorbitant, it was contended. 4. Respondents 1 to 5 produced Exts.A1 to A10. PWs 1 and 2 were examined in support of their claim. No evidence was adduced on the side of the respondents. 5. The Tribunal, after appreciation of evidence, held that the accident was caused due to the rash and negligent driving of the tractor by the 1[st] respondent in OP(MV). Claimants are legal heirs and dependents of the deceased and therefore entitled to the compensation. The Tribunal assessed the notional monthly income of the deceased as ₹15,000/-. The Tribunal noted that the deceased was aged 33 years and the multiplier applicable is 16. The Tribunal MACA No.1846/2015 : 5 : ## awarded ₹34,70,000/- as compensation under the following ## heads:- |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**Claimed**<br>**(in Rupees)**|**Amount**<br>**awarded**<br>**(in Rupees)**|**Basis – vital**<br>**details in a nut**<br>**shell**| |---|---|---|---|---| |1.|Income/Notional income<br>Loss of earning<br>(Total)|₹20,000.00<br>Nil|₹22,500.00<br>Nil|Nil<br>Nil| |2.|Loss of earning<br>(Partial)|Nil|Nil|Nil| |3.|Transportation<br>expenses|₹20,000.00|Nil|Nil| |4.|Extra nourishment|₹1,000.00|Nil|Nil| |5.|Damage to clothing|₹1,000.00|Nil|Nil| |6.|Bystanders expenses|Nil|Nil|Nil| |7.|Loss of consortium|₹1,00,000.00|₹1,00,000.00|Nil| |8.|Loss of love and<br>affection|₹5,00,000.00|₹1,00,000.00|Nil| |9.|Mental shock and agony|Nil|Nil|Nil| |10.|Funeral expenses|₹25,000.00|₹25,000.00|Nil| |11.|Loss of dependency|Nil|₹32,40,000.00|22,500x3/4x12x16| |12.|Pain and suffering|₹2,00,000.00|Nil|Nil| |13.|Loss of estate|₹35,00,000.00|₹5,000.00|Nil| ||**TOTAL**|₹43,47,000.00<br>Limited to<br>₹40 Lakhs|**₹34,70,000.00**|₹34,70,000/- along<br>with interest at the<br>rate of 9% p.a. from<br>the date of making<br>the claim till the<br>date of payment.| The respondents in the OP(MV) were found jointly and severally liable to pay the compensation. The Tribunal also MACA No.1846/2015 : 6 : awarded interest at the rate of 9% per annum with effect from 23.06.2014. Aggrieved by the amount of compensation awarded by the Tribunal, the appellant-insurer is before this Court. 6. Learned counsel for the appellant argued that the Tribunal ought not have fixed the monthly income of the deceased at ₹15,000/-, in the absence of any tangible evidence. Going by the standardised rates of compensation, the Tribunal should have limited compensation for loss of consortium to ₹40,000/-. Awarding compensation of ₹1,00,000/- towards loss of consortium cannot be sustained. 7. The learned Standing Counsel further argued that the Tribunal has made 50% addition towards future prospects, whereas only 40% is permissible. Compensation amount awarded under the head love and affection and loss of estate, also requires reconsideration. At any rate, the notional income of the deceased as arrived at by the Tribunal, is liable to be reworked and consequential MACA No.1846/2015 : 7 : changes are to be made to the total amount of compensation, contended the learned Standing Counsel for the appellant. 8. I have heard the learned Standing Counsel for the appellant and counsel appearing for respondents. 9. The main grievance of the appellant is that the notional income of the deceased ₹15,000/- arrived at by the Tribunal, is excessive. The deceased was aged 33 years at the time of accident. He was working as a lorry driver. The wife of the deceased, the 1[st] respondent herein, gave evidence as PW1 and stated that her deceased husband had a monthly salary of ₹20,000/- and he used to get additional bata for lorry trips. PW1 further stated that the deceased was working as Driver in Gulf countries for nine years and after return, continued as Driver here. Respondents 1 to 5 produced Ext.A9 Passport of the deceased to establish that the appellant had been working abroad. To prove the income of the deceased, respondents MACA No.1846/2015 : 8 : 1 to 5 produced Ext.A10 salary certificate issued by Sreejyothi Transport, Kuruvattoor. The said certificate also would show that the monthly salary of the deceased was ₹20,000/- and over and above, bata was also paid to the deceased. PW2-Mohandas, who was the employer of the deceased and who issued Ext.A10 certificate was also examined on behalf of respondents 1 to 5. The evidence so adduced is not controverted. However, the Tribunal fixed the notional income of the deceased at ₹15,000/- per month. Under the circumstances, this Court does not find any reason to interfere with the notional income so fixed by the Tribunal at the instance of the insurer. 10. The further argument on behalf of the appellant is that the Tribunal added 50% of the income towards future prospects and such addition ought to have been limited to 40%. From the evidence on record, it is clear that the deceased was a salaried employee of a motor transport undertaking. The deceased was below 40 years at the time MACA No.1846/2015 : 9 : of accident. Therefore, going by the judgment of the Apex Court in _**National Insurance Co. Ltd. v. Pranay Sethi and others** [(2017) 16 SCC 680]_ , the addition of 50% towards future prospects of the deceased is absolutely justified. The argument of the learned counsel for the appellant in this regard, therefore cannot be accepted. 11. Learned counsel for the appellant pointed out that in view of the judgment in _**Pranay Sethi** (supra),_ only an amount of ₹40,000/- could have been granted to respondents 1 to 5 towards loss of consortium. The Award of the Tribunal was of the year 2015 and the standardised rates of ₹40,000/- was prescribed only in the judgment of the Apex Court in 2017. Furthermore, it is to be noted that compensation towards loss of estate granted by the Tribunal is only ₹5,000/-, whereas as per the judgment of the apex Court in _**Pranay Sethi** (supra),_ the standardised rate is ₹15,000/-. I also find that respondents 1 to 3, who are petitioners 1 to 3 in the OP(MV), are the wife and two minor MACA No.1846/2015 : 10 : children of the deceased. Therefore, the compensation of ₹1 lakh granted by the Tribunal towards loss of love and affection can also be said to be slightly on the lower side. Thus, taking into account the overall amount awarded by the Tribunal, there is no scope for interference. Any interference to make the awarded amounts to be in accordance with the standardised rates for certain heads, would indeed be set off taking into account the slightly lower amount awarded under the head love and affection. Therefore, no purpose will be served in interfering with the Award to make these minor variations. In the circumstances, this Court finds that the appeal filed by the insurer lacks merit and accordingly it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/19/06/2020