Cholamandalam MS General Insurance Company Limited v. Karthayani K.V. and others, MACA No. 4764 of 2019

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945** **MACA NO. 4764 OF 2019** **AGAINST THE ORDER/JUDGMENT OPMV 441/2018 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , TALIPARAMBA** ## **APPELLANT/2ND RESPONDENT:** CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED DARE HOUSE, NO.2, NSC BOSE ROAD, CHENNAI-600001, NOW REPRESENTED BY ITS DEPUTY MANAGER-CLAIMS, REGIONAL OFFICE, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI-11. BY ADVS. MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENTS/PETITIONERS:** 1 KARTHYAYANI.K.V. AGED 67 YEARS W/O.LATE KUNHIKANNAN K.V., KAVUNGAL VEETTIL, CHERUTHAZHAM, MOOLAYIL, MANDOOR P.O., KANNUR DISTRICT-670501. 2 SHYNA K.V., AGED 41 YEARS D/O.LATE KUNHIKANNAN K.V., KAVUNGAL VEETTIL, CHERUTHAZHAM, MOOLAYIL, MANDOOR P.O., KANNUR DISTRICT-670501. 3 SHEENA K.V., AGED 39 YEARS D/O.LATE KUNHIKANNAN K.V., KAVUNGAL VEETTIL, CHERUTHAZHAM, MOOLAYIL, MANDOOR P.O., KANNUR DISTRICT-670501. 4 SHYJU K., AGED 34 YEARS S/O.LATE KUNHIKANNAN K.V., KAVUNGAL VEETTIL, MACA No.4764 of 2019 2 CHERUTHAZHAM, MOOLAYIL, MANDOOR P.O., KANNUR DISTRICT-670501. BY ADV SRI.P.M.UNNI NAMBOODIRI ## **OTHER PRESENT:** RES -SRI.P.M.UNNI NAMBOODIRI **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.4764 of 2019 3 ## **JUDGMENT** This appeal is submitted by the 2[nd] respondent in O.P.(M.V) No.441 of 2018 on the files of the Motor Accidents Claims Tribunal, Taliparamba. 2. The said claim petition was submitted by the respondents 1 to 4 herein seeking compensation for the death of one Kunhikannan K.V who died due to the injuries sustained in a motor accident that occurred on 01.03.2017. According to the respondents, the accident occurred when the auto rickshaw on which the deceased was travelling was hit by a lorry parked on the left side of the road, thereby causing serious injuries to him. The auto rickshaw was being driven by the 1[st] respondent in the claim petition, and he was the owner of the said vehicle as well, which was insured with the appellant herein. It was contended that the deceased was aged 70 years and was working as a mason with a monthly income of Rs.25,000/- at the time of the accident. The claim petition was filed in such circumstances seeking compensation of Rs.16,00,000/- MACA No.4764 of 2019 **==> picture [7 x 9] intentionally omitted <==** 3. The 2[nd] respondent/Insurance Company alone contested the matter by filing a written statement wherein they admitted the coverage of policy for the auto rickshaw. However, they disputed the liability on various grounds, and they also disputed the quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A8 from the side of the respondents, and from the side of the appellant, no evidence was adduced. After the trial, the Tribunal arrived at a conclusion that the accident occurred due to the negligent driving of the auto rickshaw by the 1[st] respondent in the claim petition and being the insurer of the said vehicle, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.8,85,952/-, which was rounded to Rs.8,86,000/and the appellant was directed to deposit the said amount along with the interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted in such circumstances. 5. Heard Sri.P.Jacob Mathew, the learned counsel appearing for the appellant and Sri.P.M. Unni Namboodiri, the learned counsel appearing for the respondents. MACA No.4764 of 2019 5 6. The learned counsel for the appellant would submit that the amount of Rs 2,00,000/- awarded by the Tribunal under the head of loss of love and affection was improper. It was pointed out that the said amount was awarded even after awarding a sum of Rs.1,60,000/- under the head of loss of consortium. As per the decision rendered by the Hon’ble Supreme Court in **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780], if compensation is awarded for loss of consortium, separate compensation for love and affection need not be awarded. After considering the materials placed on record, I find some force in the contention put forward by the learned counsel for the appellant. Since the compensation is already awarded for loss of consortium, the amount awarded under the head of loss of love and affection is liable to be set aside. Similarly, as held in **Satwinder Kaur'** case (supra), the amount of pain and suffering also could not have been granted, and therefore, the said amount is also deleted. 7. At this juncture, the learned counsel for the claimants would point out that the monthly income taken by the Tribunal was on the lower side, which resulted in much lower compensation 6 MACA No.4764 of 2019 under the head of loss of dependency. Even though no appeal was filed by them seeking enhancement of compensation, considering the fact that the claimants are entitled to just compensation, the said aspect is to be considered while reassessing the compensation receivable by the claimants. After perusing the records, I find some force in the said contention raised by the learned counsel for the respondent, particularly because of the reason that in the light of the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC** **236]** and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd.** [2014 (2) SCC 735], even in the absence of any evidence, the monthly income of an ordinary employee can be fixed as Rs.11,000/- in respect of an accident occurred in the year 2017. Therefore, even while making deductions as mentioned above, the compensation under the head of loss of dependency has to be reworked with the above revised monthly income. At this juncture, the learned counsel for the appellant would point out that the 1[st] respondent was the only dependent of the deceased, as all the other claimants were the 7 MACA No.4764 of 2019 children who were grown up, mature and capable of taking care of themselves. Therefore, the proper deduction towards personal expenses should have been 1/2, as the wife was the only dependent, instead of 1/3 taken by the Tribunal. However, it is seen from the observations that the Tribunal specifically considered the said issue and found that only the 2[nd] respondent daughter has been married away and is not depending upon the deceased. The other claimants were depending upon the deceased. Therefore, the number of dependents was taken as three. In such circumstances, as the number of dependents was more than one, I do not find any necessity to entertain the contention, and therefore, I hold that the deduction to be made is only 1/3. Thus, while reassessing the compensation under the head of loss of dependency, the said amount would come to Rs.4,40,000/- (11,000 x 12 x 5 x 2/3). After deducting an amount of Rs.3,19,980/- already awarded by the Tribunal. The additional amount under the said head would come to Rs.1,20,020/-. 8. When reassessing the compensation in the light of the modifications made as above, the excess compensation would be Rs.99,980/- [(2,00,000 + 20,000) – (1,20,020)], which is rounded to MACA No.4764 of 2019 **==> picture [7 x 9] intentionally omitted <==** Rs.1,00,000/-. Thus, the total compensation receivable by the appellant is refixed as Rs.7,85,952/-. In such circumstances, in the light of the aforesaid observations and findings, the award dated 13.08.2019 in O.P. (M.V) No.441/2018 passed by the Motor Accidents Claims Tribunal, Taliparamba is hereby modified by refixing the total amount of compensation as Rs.7,85,952/- and the appellant is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate cost, within a period of three months from the date of the award, after adjusting the amounts already deposited by them. Sd/- **ZIYAD RAHMAN A.A** **JUDGE** rpk