Cholamandalam MS General Insurance Company Limited v. Elsy and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 19TH DAY OF JUNE 2019 / 29TH JYAISHTA, 1941** ## **MACA.No.2071 of 2015** **AGAINST THE AWARD IN OP(MV) No.1382/2013 of the MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 31-03-2015** ## **APPELLANT/3RD RESPONDENT:** **CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED** **NOW REPRESENTED BY ITS DEPUTY MANAGER-CLAIMS, ACEL ESTATE, IYYATTIL JUCTION, CHITTOOR ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** - **1 ELSY** **VECHUPARACKAL HOUSE, KONNI PO, NOW RESIDING AT VEHCUPARACKAL HOUSE , KARUKACHAL PO, KOTTAYAM DISTRICT PIN- 686 320.** **2 ABYMOL SIBY, VECHUPARACKAL HOUSE, KONNI P.O, NOW RESIDING AT VEHCUPARACKAL HOUSE , KARUKACHAL P.O, KOTTAYAM DISTRICT PIN - 686 320.** - **3 ARUN SIBY, VECHUPARACKAL HOUSE, KONNI PO, NOW RESIDING AT VEHCUPARACKAL HOUSE , KARUKACHAL PO, KOTTAYAM DISTRICT PIN- 686 320.** - **4 JOSEPH THOMAS** **VECHUPURCKAL HOUSE, V. KOTTAYAM, PRAMADOM, PATHANAMTHITTA DISTRICT – 689 318.** M.A.C.A No.2071 of 2015 2 **5 ANNAMMA VECHUPURCKAL HOUSE, V. KOTTAYAM, PRAMADOM, PATHANAMTHITTA DISTRICT – 689 318.** **BY ADVS. SRI.K.J.GLADIS SMT.S.SREEDEVI SRI.T.K.RADHAKRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.2071 of 2015 3 ## **J U D G M E N T** The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the quantum of compensation granted by the Tribunal. 2. One Sibi Thomas, aged 46 years, died in a motor accident took place on 25.01.2012. He was self employed. The wife, two children and parents of the deceased were the claimants in the proceedings. A sum of Rs.20,00,000/was claimed in the proceedings by way of compensation. As against the said claim, the Tribunal granted to the claimants a sum of Rs.17,05,000/- by way of compensation. It is aggrieved by the said decision of the Tribunal that the insurer has come up in this appeal. 3. Heard the learned senior counsel for the appellant. 4. The learned senior counsel for the appellant M.A.C.A No.2071 of 2015 4 contended that in the absence of any evidence as regards the income, the Tribunal ought not have reckoned the monthly income of the deceased at Rs.10,000/-. It was also contended by the learned senior counsel that in the matter of computing the compensation for loss of dependency, the Tribunal could have added only 25% of the income towards future prospects as the deceased was self employed and the Tribunal has acted illegally in adding 30% of the income towards future prospects by computing the compensation payable for loss of dependency. It was also contended by the learned counsel that Rs.10,000/- has been granted by the Tribunal to the claimants towards funeral expenses in excess, in terms of the decision of the Apex Court in **National Insurance Company Ltd V. Pranay Sethi** [2017(4) KLT 662 (SC)]. It was also contended by the learned senior counsel that in the light of the decision of the Apex Court in the said case, Rs.60,000/- granted by the Tribunal towards loss of consortium to the wife of the deceased is also in excess. M.A.C.A No.2071 of 2015 5 5. I have considered the contentions raised by the learned senior counsel for the appellant. It is seen that insofar as the deceased was a self employed person aged 46, only 25% of the income could have been added by the Tribunal towards future prospects while computing the compensation payable for loss of dependency. Likewise, the learned senior counsel is right in contending that in the absence of any positive evidence as regards the income of the deceased, the Tribunal was not justified in reckoning Rs.10,000/- as 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 persons whose income could not be established by independent evidence 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 M.A.C.A No.2071 of 2015 6 that in so far as the accident in the instant case took place in the year 2012, the monthly income of the deceased can be reckoned at Rs.8,500/-. If the compensation payable to the claimants towards loss of dependency is worked out on that basis, it would come to Rs.12,43,125/- (Rs.8,500x125/100x12x13x3/4). In so far as the Tribunal has granted a sum of Rs.15,21,000/- under the said head, a sum of Rs.2,77,875/- is in excess. In the light of the decision of the Apex Court in **Pranay Sethi** , the learned senior counsel is also right in contending that Rs.10,000/- granted by the Tribunal towards funeral expenses and Rs.60,000/- granted to the wife of the deceased towards compensation for loss of consortium are in excess. Thus, the total excess compensation granted by the Tribunal would come to Rs.3,47,875/-. 6. It is seen that the Tribunal has granted only a sum of Rs.5,000/- towards compensation for pain and sufferings. Even in the case of instantaneous death, according to me, the Tribunal should have granted a minimum of M.A.C.A No.2071 of 2015 7 Rs.10,000/- under that head. The claimants are, therefore, entitled to a further sum of Rs.5,000/- under that head. Likewise, towards loss of estate, the Tribunal has granted only a sum of Rs.10,000/-. The claimants are entitled to a further sum of Rs.5,000/- under that head also, in the light of the decision of the Apex Court in **Pranay Sethi.** Likewise, only a sum of Rs.40,000/- is seen granted by the Tribunal towards compensation for loss of love and affection. In the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), according to me, the Tribunal could have granted a sum of Rs.40,000/- each to the parents and children. If that be so, the additional compensation payable to the claimants under that head would come to Rs.1,20,000/- [Rs.1,60,000-40,000] Thus, the total additional compensation to which the claimants are found entitled would come to Rs.1,30,000/-. If the said sum of Rs.1,30,000/- is adjusted against the excess compensation granted, viz, Rs.3,47,875/-, the net excess would come to M.A.C.A No.2071 of 2015 8 Rs.2,17,875/-. 7. In the result, the appeal is allowed in part and the compensation fixed by the Tribunal is scaled down to Rs.14,87,125/- [Rs.17,05,000-2,17,875]. **Sd/P.B.SURESH KUMAR, JUDGE** DK