Celina and others v. George Job and Manager, Reliance General Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945 ``` ``` MACA NO. 391 OF 2013 ``` ``` OPMV 852/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** - `CELINA, AGED 66 YEARS, W/O. EASSUNNI,(DIED)` - `1 KATTIPARAMBIL HOUSE, PERUMBALAM VILLAGE, CHERTHALA, OCCUPATION:NIL PRINCE AGED 48 YEARS, S/O.ESSUNNI, KATTIPARAMBIL` - `2 HOUSE, PERUMBALAM VILLAGE, CHERTHALA, OCCUPATION:COOLY ANTONY AGED 40 YEARS, S/O.ESSUNNI, KATTIPARAMBIL` - `3 HOUSE, PERUMBALAM VILLAGE, CHERTHALA, OCCUPATION:COOLY JOSEPH AGED 38 YEARS, S/O.ESSUNNI, KATTIPARAMBIL` - `4 HOUSE, PERUMBALAM VILLAGE, CHERTHALA, OCCUPATION:COOLY SUNI AGED 35 YEARS, S/O.ESSUNNI, KATTIPARAMBIL` - `5 HOUSE, PERUMBALAM VILLAGE, CHERTHALA, OCCUPATION:COOLY RENI AGED 35 YEARS, D/O.ESSUNNI, KATTIPARAMBIL` - `6 HOUSE, PERUMBALAM VILLAGE, CHERTHALA, OCCUPATION:COOLY` ``` RINCY AGED 28 YEARS, D/O.ESSUNNI, KATTIPARAMBIL 7HOUSE, PERUMBALAM VILLAGE, CHERTHALA, OCCUPATION:COOLY RINOY AGED 26 YEARS, S/O.ESSUNNI, KATTIPARAMBIL 8HOUSE, PERUMBALAM VILLAGE, CHERTHALA, OCCUPATION:COOLY REENA AGED 24 YEARS, D/O.ESSUNNI, KATTIPARAMBIL HOUSE, PERUMBALAM VILLAGE, CHERTHALA, OCCUPATION:COOLY 9 (APPELLANTS 2 TO 9 WERE DECLARED AS THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT AS PER ORDER DATED 24.01.2024 IN I.A. NO.1/2024) BY ADVS. SRI.ANVER BASHEER SRI.P.SAJEEV PERUMPALAM SHIJU VARGHESE (ERNAKULAM) BINCY P. PAUL(K/000460/2023) ``` M.A.C.A. No.391/2013 : 2 : ## **`RESPONDENTS/RESPONDENTS:`** ``` GEORGE JOB, S/O. VARKEY JOB, KARIMATTAM VEEDU, RUBY NAGAR, CHANGANASSERY 686 101 (D.L. 1 NO.5/1819/1981, OWNER-CUM-DRIVER OF CAR BEARING REG. NO.KL-33-A-4792 CAR) MANAGER, RELIANCE GENERAL INSURANCE CO.LTD., XL/3599, #4, ELIZABETH ALEXANDER BUILDING, 2SHANMUGHAM ROAD, ERNAKULAM 31 (INSURER OF THE CAR BEARING REG. NO.KL-33-A-4792 POLICY NO.220670231100642) ``` ``` BY ADV SRI.K.B.RAMANAND ADV. SMT. DHANYA M.B. ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** M.A.C.A. No.391/2013 : 3 : ## JUDGMENT The appellants were the petitioners in OP(MV) No.852/2011 on the files of the Motor Accident Claims Tribunal, Ernakulam. 2. The said claim petition was submitted by them seeking compensation for the death of one Easunni, the husband of the 1[st] appellant and the father of the other appellants. According to the appellants, he was aged 68 at the time of the accident. The accident occurred when the deceased was hit by a car driven and owned by the 1[st] respondent. The said vehicle was insured with the 2[nd] respondent. According to the appellants, the deceased was a fertilizer merchant with a monthly income of Rs.6,000/- and the claim petition was submitted in such circumstances. 3. The 2[nd] respondent/insurer filed a written statement admitting the coverage of policy but they disputed the liability on various grounds. The quantum of compensation was also disputed by them. M.A.C.A. No.391/2013 : 4 : 4. The evidence in this case consists of Exts.A1 to A12 from the side of the appellants and no evidence was adduced by the respondents. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent in driving the car and being the insurer, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.90,505/- and the said amount was directed to be deposited by the 2[nd] respondent with interest at the rate of 8% per annum. This appeal is submitted in such circumstances by the appellants seeking enhancement of compensation. During the pendency of the appeal, the 1[st] appellant passed away and the appellants 2 to 9 were declared as the legal heirs of the 1[st] appellant. 6. Heard Smt. Vinsy, the learned counsel appearing for the appellants and Smt. Dhanya M.B., the learned counsel appearing for the 2[nd] respondent insurance company. 7. The only dispute in this case relates to the quantum of compensation. Even though a monthly income of Rs.6000/- was claimed, the tribunal did not accept the same and Rs.15,000/- M.A.C.A. No.391/2013 : 5 : was taken as the annual income. Thereafter, the tribunal calculated an amount of Rs.50,000/- as compensation for loss of dependency. The tribunal also found that, the appellant was aged 82 years at the time of the accident. 8. As regards the age of the deceased, the same was found by the tribunal on the basis of the medical records, wherein the age of the deceased was mentioned as 82. The learned counsel for the appellants points out that the age of the deceased was erroneously taken as 82 merely because of a wrong entry that happened to be made in the medical records. But the crucial aspect to be noticed is that, even if the income of the deceased was taken as 82 years, as against the claim of 68 years, that will not affect the multiplier to be made applicable, since the multiplier for the age group above 65 is 5. Therefore, I am of the view that, the age of the deceased does not have any significance at all for assessing the compensation for loss of dependency. 9. The next aspect relates to the monthly income. Even though the appellants claimed the monthly income as Rs.6,000/-, from his avocation as fertilizer merchant, no documents were produced to substantiate the same. It was in that circumstances, M.A.C.A. No.391/2013 : 6 : the annual income was fixed as Rs.15,000/- by the tribunal. However, it is to be noted that the accident in this case occurred in the year 2011. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], the Hon’ble Supreme Court was pleased to take the monthly income of an ordinary worker as Rs.4,500/- for the year 2004. In such circumstances, the monthly income of Rs.6,000/- claimed by the appellants for the year 2011 is a reasonable amount and I do not find any reason to discard the same. Thus, while reassessing the compensation with the revised monthly income, the compensation for disability would come to Rs.2,40,000/- (6000x12x5x2/3). In this case, the deduction towards personal expenses at the rate of 1/3 is made, taking note of the fact that, at the time of the accident, the wife, the 1[st] appellant and the 9[th] appellant, the youngest daughter of the deceased alone were the dependents of the deceased. All the other appellants were grown up and they were not depending upon the deceased at the time of the accident. The amount already awarded by the tribunal for loss of dependency was Rs.50,000/- and thus the additional compensation under this head would come to Rs.1,90,000/-. The M.A.C.A. No.391/2013 : 7 : tribunal awarded an amount of Rs.7,500/- towards funeral expenses whereas the actual amount should have been Rs.15,000/- in the light of National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]. Therefore, a further sum of Rs.7500/- is awarded. The amount awarded towards loss of estate was Rs.2000/- only which is a meagre amount and therefore, a further sum of Rs.13,000/- is awarded in the light of Pranay Sethi’s case (supra). 10. The next head which requires reconsideration is compensation for loss of consortium. The amount awarded by the tribunal under this head was only Rs.2,000/-. In the light of Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130], and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760], all the appellants being the wife and the children were entitled for compensation at the rate of Rs.40,000/- each. It is true that appellants 2 to 8 were found to be not depending upon the deceased at the time of the accident, but that fact would not disentitle them to claim compensation for loss of consortium on account of the relationship which they had with the deceased, i.e., M.A.C.A. No.391/2013 : 8 : the father and children. In such circumstances, a total amount to be awarded under this head would come to Rs.3,60,000/- and after deducting Rs.2,000/- already awarded by the tribunal the additional amount would come to Rs.3,58,000/-. Accordingly, the total additional compensation is determined as Rs.5,68,500/(1,90,000+7500+13000+3,58,000). 11. In the result, this appeal is allowed. The award dated 16.12.2011 in OP(MV) No.852/2011 passed by the Motor Accident Claims Tribunal, Ernakulam is hereby modified by granting an additional compensation of Rs.5,68,500/- (Rupees Five Lakhs Sixty Eight thousand Five hundred only) and the said amount shall be deposited by the 2[nd] respondent with interest as ordered by the tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. As the appeal was filed with a petition to condone the delay of 294 days, the 2[nd] respondent shall be entitled to exclude the said period while computing the interest on the additional compensation. It is further ordered that the claimants shall furnish the details of the PAN card, Aadhar card and bank details to enable M.A.C.A. No.391/2013 : 9 : the 2[nd] respondent to make the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. Sd/ZIYAD RAHMAN A.A. JUDGE ncd/