Chandranganathan, Sandhya and Soumya v. Thahira T., Muhammed Azharat and The Branch Manager, Oriental Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, ``` # **`1944`** ## **`MACA NO. 3826 OF 2016`** ## **`AGAINST THE JUDGMENT IN OP(MV)302/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , TALIPARAMBA`** ## **`APPELLANTS/PETITIONERS:`** - 1 `CHANDRANGATHAN, S/O C.V.NARAYANAN, AGED 60 YEARS, KADANGOTTU HOUSE, NEAR SHIVA TEMPLE, TALIPARAMBA.P.O., TALIPARAMBA AMSAM, TALIPARAMBA TALUK, KANNUR DISTRICT.` - 2 `SANDHYA,D/.CHANDRANGATHAN, AGED 32 YEARS, KADANGOTTU HOUSE, NEAR SHIVA TEMPLE, TALIPARAMBA.P.O., TALIPARAMBA AMSAM, TALIPARAMBA TALUK, KANNUR DISTRICT.` > 3 `SOUMYA,D/O.CHANDRANGATHAN, AGED 28 YEARS, KADANGOTTU HOUSE, NEAR SHIVA TEMPLE, TALIPARAMBA.P.O., TALIPARAMBA AMSAM, TALIPARAMBA TALUK, KANNUR DISTRICT.` ``` BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH ``` ## **`RESPONDENTS/RESPONDENTS:`** - 1 `THAHIRA T. W/O.SAYYED.K.V.T, SAFIYA MANZIL, VELLARAM PARA, KARIMBAM.P.O.,TALIPARAMBA, TALUK, KANNUR DISTRICT – 670 142.` - 2 `MUHAMMED AZHARAT, S/O.HASSAN KUNHI, KARIMBAM.P.O.,TALIPARAMBA TALUK,` **WPC.No.3826/2016** **==> picture [20 x 8] intentionally omitted <==** `KANNUR DISTRICT – 670 142` 3 `THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO.LTD, TALIPARAMBA BRANCH, MARINA SHOPPING CENTRE, NATIONAL HIGHWAY, TALIPARAMBA, KANNUR DISTRICT – 670 141 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **WPC.No.3826/2016** ..3.. ## **JUDGMENT** On 9.3.2013, at about 9 AM, late C.V.Narayanan was involved in an accident, while he was crossing the road through the “zebra line”, on account of the rash and negligent driving of the offending vehicle by the 2[nd] respondent. 2. C.V.Narayanan died on the same day and thereafter, the appellants approached the Motor Accidents Claims Tribunal, Taliparamba, filing OP(MV)No.302/2016, claiming a total compensation of Rs.10,12,000/-, limiting it to Rs 10 lakhs; and after trial, the Tribunal awarded an amount of Rs.6,15,000/- in their favour. 3. The appellants impugn the Award on the ground that the amounts granted are insufficient, particularly under the head ‘loss of dependency’ because, the income reckoned for the deceased was only Rs.5,000/- per month, while he was earning more than Rs.25,000/-. 4. I have heard Sri.V.T.Madhavan Unni – learned counsel appearing for the appellants; and Sri.Mathews Jacob learned senior counsel, instructed by Smt.Preethy Nair - **WPC.No.3826/2016** ..4.. appearing for the Insurance Company. 5. This appeal is being disposed of with the consent of both sides, on the basis of the documents and evidence handed across the Bar by them, who also affirmed that it can be acted upon without dispute. 6. Sri.V.T.Madhavan Unni - learned counsel for the appellant, vehemently argued that, going by the documents and evidence on record, the income of the deceased ought to have been taken as a minimum of Rs.12,000/- and therefore, that, the impugned Award is wrong to that extent. He further contended that, the multiplier adopted by the Tribunal is in error and that, had the correct one applied, the amount granted would have been much higher. 7. In response, Sri.Mathews Jacob - learned senior counsel for the insurance company, submitted that, since there is no evidence on record with respect to the income of the deceased, the Tribunal has acted without error in having adopted Rs5000/- per month as his notional income. He then added that, the afore being so, there are mistakes in the Award, namely, with respect to the amounts awarded under **WPC.No.3826/2016** ..5.. the head ‘funeral expenses’ and ‘loss of estate’, since not more than Rs.15,000/- could have been awarded under these, going by the judgment of the Hon’ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)]. He concluded his submissions, saying that, in any event of the matter, no amount towards compensation for ‘loss of love and affection’ could have been granted, when compensation for ‘loss of dependency’ had been awarded; and that the compensation for ‘loss of consortium’ at Rs.1,00,000/by the Tribunal is contrary to the judgment of the Hon’ble Supreme Court in _**Pranay Sethi**_ ( _supra_ ), especially when appellants 2 and 3 were not dependents of deceased C.V.Narayanan. 8. I have considered the afore rival submissions and have also gone through the evidence and materials on record, handed across the Bar by the learned counsel for the parties. 9. I find force in the submissions of the learned Senior Counsel that there is no material on record to establish the income of the deceased at the time of the accident. However, going by the judgment of the Hon’ble Supreme Court in **WPC.No.3826/2016** ..6.. ## _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ _**Insurance Company Ltd.**_ [(2011) 13 SCC 236], the standard notional income fixed for a person in the year 2012, with uncertain income, is Rs.9,000/- and this is admitted to even by the Insurance Company. In the absence of any evidence to show that the deceased did not receive this amount, I am of the view that said figure should ought to have been adopted. 10. As regards the multiplier adopted by the Tribunal, I do not find any error because, 9 has been fixed, which is as per the judgment _**Sarla varma v. Delhi Transport Corporation**_ [2010 (2) KLT 802 (SC)]. 11. The corollary questions are, whether the Tribunal has erred in granting amounts under the heads ‘funeral expenses’; ‘loss of estate’ and ‘loss of love and affection’. 12. In this regard, there is certainly some force in the submissions of the learned Senior Counsel for the Insurance Company because, going by _**Pranay sethi**_ ( _supra_ ) and _**New India Assurance Company Ltd. v. Somwati & Ors.**_ [(2020) 9 SCC 644], not more than Rs.15,000/- each could have been granted towards ‘funeral expenses’ and ‘loss of estate’. **WPC.No.3826/2016** ..7.. Further, when ‘loss of dependency’ has been computed, compensation for ‘loss of love and affection’ ought not to have been admitted to it, going by **Somwati** ( _supra_ ) and the amount granted under that head also will have to be deleted. 13. However, as regards the compenstion granted by the Tribunal towards consortium is concerned, the Insurance Company has neither chosen to file cross obejections or even counter pleadings before this Court in substantiation of the plea that appellants 2 and 3 were not dependents of late C.V.Narayanan. This is a pure question of fact, which ought to have been established by them through evidence, or atleast through counter pleadings; and in the absence of the same, the amount awarded by the Tribunal is not in excess or improper. Resultantly, I allow this appeal in part, with the following directions: a) The amount under the head ‘loss of dependency’ is revised to Rs.7,12,800/-, taking the income of the deceased C.V.Narayanan, as being Rs.9,000/- and adopting the correct multiplier; **WPC.No.3826/2016** **==> picture [20 x 8] intentionally omitted <==** b) The amount under the head ‘funeral expenses’ is reduced to Rs.15,000/-, from Rs.25,000/-; c) The amount under the head ‘loss of estate’ is reduced to Rs.15,000/-, from Rs.25,000/-; and d) The amount under the head ‘compensation for love and affection’ is deleted. In all other respects, the Award of the Tribunal will remain intact. Sd/- **DEVAN RAMACHANDRAN, JUDGE** ACR