Femina P.G. vs. The National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943 MACA NO. 2482 OF 2008** **AGAINST THE AWARD IN OP(MV) 1492/2005 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/CLAIMANT:** 1 FEMINA P.G., CHERUKATTIL HOUSE, KISMATHUPADI BHAGOM, ETTUMANOOR EAST P.O, KOTTAYAM. 2 PARVATHY C.R.(MINOR) CHERUKALATHIL, KISMATHUPADI BHAGOM, ETTUMANOOR EAST P.O, KOTTAYAM. 3 PARAMESWARAN CHERUKALATHIL KISMATHUPADI BHAGOM, ETTUMANOOR EAST P.O, KOTTAYAM. 4 LEELA.C.K, CHERUKALATHIL KISMATHUPADI BHAGOM, ETTUMANOOR EAST P.O, KOTTAYAM. BY ADV SRI.SURIN GEORGE IPE ## **RESPONDENTS/RESPONDENTS:** *1 RENY PETER, PULINILKUMKALAYIL HOUSE, KOTHANALOOR.P.O, KOTTAYAM. [DELETED] 2 THE NATIONAL INSURANCE COMPANY LTD, KOTTAYAM. *3 V.V.KURIAN, VADAKKEDATHU HOUSE, MANARKADU.P.O, KOTTAYAM. [DELETED] *RESPONDENT NO.1 & 3 ARE DELETED FROM PARTY ARRAY AS PER ORDER DATED 04.03.2020 IN I.A.No.1/2020 IN MACA NO.2482/2008. BY ADV SRI.JOE KALLIATH 2 ## **M.A.C.A No.2482 of 2008** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2482 of 2008** 3 ## **JUDGMENT** This appeal is at the instance of the petitioners in O.P.(M.V) No.1492/2005 on the file of the Motor Accidents Claims Tribunal, Kottayam. This appeal has been preferred aggrieved by the Award dated 26.09.2007, whereby the Tribunal awarded Rs.8,34,000/- as compensation as against the claim of Rs.25,00,000/-. 2. The respondents herein are the owner, driver and insurer of the vehicle bearing registration no.KL-05-N-2002. 3. The crux of the matter is that one Rejimon met with an accident on 12.07.2005 while he was riding his Kinetic Honda Scooter bearing registration no. KL-5-A-9650 from west to east and in consequence thereof he breathed his last. According to the appellants, the legal representatives of Rejimon, the vehicle bearing registration no.KL-5-N-2002 driven by ## **M.A.C.A No.2482 of 2008** **==> picture [7 x 9] intentionally omitted <==** the 3[rd] respondent in a rash and negligent manner, caused the accident. 4. The 2[nd] respondent Insurance Company filed written statement and opposed the claim while admitting the policy in relation to the alleged offending vehicle. 5. While canvassing increase in the award already granted by the Tribunal, the learned counsel for the appellants would submit that the Tribunal taken '10' as the multiplier, taking the age of the dependents following the practice during 2007. However, the learned counsel for the appellants would point out that following the ratio in _**Sarla Verma v. Delhi Transport Corporation**_ **: (2009) 6 SCC** **121,** the age of the deceased is to be taken for fixing the multiplier and, therefore, the multiplier would be re-fixed as '15' following the table appended to _**Sarla Verma's**_ case (supra). This aspect is not disputed by the 5 ## **M.A.C.A No.2482 of 2008** learned counsel for the Insurance Company. In view of the matter, the proper multiplier in this case is re-fixed as '15'. 6. In fact, the monthly income of the petitioner was fixed as Rs.10,000/- by the Tribunal and the said findings is not under challenge here. Going by the ratio in _**National Insurance Company Ltd. v. Pranay**_ _**Sethi :**_ **(2017) 16 SCC 680** , 40% of the addition also is permissible considering the income of the deceased, as a person having employment of non-permanent nature. Therefore, the income for calculating 'loss of dependency' also to be re-fixed as Rs.14,000/- and is calculated as; **==> picture [316 x 13] intentionally omitted <==** Out of which, Rs,8,00,000/- was granted by the Tribunal. Therefore, **Rs.10,90,000/-** more is entitled by the appellants. 7. Coming to other heads, the Tribunal ## **M.A.C.A No.2482 of 2008** 6 granted 'funeral expenses' at Rs.5,000/-. No amount granted under the head 'loss of estate'. It is settled that appellants are entitled to get Rs.15,000/- under the head 'funeral expenses' and Rs.15,000/- under the head 'loss of estate', ( _**Pranay Sethi's**_ case (supra)). Therefore, **Rs.25,000/-** more is granted under this head. Coming to 'loss of consortium', the Tribunal granted only Rs.10,000/- though the appellants together are entitled to get Rs.1,60,000/-. Therefore, **Rs.1,50,000/-** more is granted under the head 'loss of consortium' following the ratio in _**Pranay Sethi's**_ case (supra). 8. It is submitted by the learned counsel for the Insurance Company that Rs.10,000/- was granted by the Tribunal under the head 'pain and suffering' though the same is impermissible following the ratio in _**United**_ ## **M.A.C.A No.2482 of 2008** ## 7 _**India Insurance Co. Ltd v. Satinder Kaur**_ **@** ## **Satwinder Kaur and others : 2020 (3) KHC 760.** Similarly, Rs.8,000/- also was granted under the head 'loss of love and affection' and it cannot be granted in view of the decision in _**Satinder Kaur's**_ case (supra). Therefore, **Rs.18,000/-** granted under these heads are reduced. 9. In the result, this appeal is allowed. It is held that the appellants are entitled to get Rs.20,81,000/- as compensation out of which Rs.8,34,000/- was granted by the Tribunal and the balance amount of **Rs.12,47,000/-** (Rupees Twelve Lakhs Forty Seven Thousand Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal payable by the Insurance Company from the date of petition till the date of deposit or realisation ## **M.A.C.A No.2482 of 2008** **==> picture [7 x 9] intentionally omitted <==** excluding 34 days mentioned in C.M.Application No.2/2008 of this Court. The amount shall be deposited in the name of appellants in the proportion fixed by the Tribunal within two months. On deposit, the appellants are entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww