Ganesan @ Ganesh & Bharath Raj v. The Oriental Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ``` MACA NO. 1619 OF 2013 ``` ``` [AGAINST THE AWARD DATED 09.05.2013 IN OP(MV)NO.2291/2006 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR] ``` ## `APPELLANTS/PETITIONERS:` ``` 1GANESAN @ GANESH, AGED 52 YEARS, HUSBAND OF PRIYA AND S/O.KUNJUMON, NAMBI HOUSE, MADAIKADAVU DESOM, MANATHALA VILLAGE, CHAVAKKAD TALUK, THRISSUR DIST. 2BHARATH RAJ, 9 YEARS (MINOR), S/O.LATE PRIYA AND GANESAN @ GANESH, NAMBI HOUSE, MADAIKADAVU DESOM, MANATHALA VILLAGE, CHAVAKKAD TALUK, REPRESENTED BY HIS FATHER GANESAN @ GANESH, NAMBI HOUSE MADAIKADAVU DESOM, MANATHALA VILLAGE, CHAVAKKAD TALUK. ``` ``` (BOTH REPRESENTED BY POWER OF ATTORNEY HOLDER UNNIKRISHNAN, S/O.LATE GOPALAN, 42 YEARS, PARIYAKATH HOUSE, EDAKAZHIYOOR AMSOM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. ``` ``` BY ADV SRI.R.SREEHARI ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1GOPALAKRISHNAN, *DELETED S/O.GOVINDAN, KUTTIYIL HOUSE, NEAR L.P.SCHOOL, PUTHENKOTTAKAKAM, THUPRAM PERUMATHARA VILLAGE, CHERTHALA POST, ALAPPUZHA DISTRICT, PIN 688 524. 2SOMAPANICKER, S/O.NARAYANAN, *DELETED VILAYIL PADETTATHIL HOUSE, PUTHENKOTTAKAKAM, CHERTHALA POST, ALAPPUZHA DISTRICT, PIN.688 524. ``` ``` *(R1 AND R2 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 30/10/19 IN IA NO.1/19) ``` ``` MACA NO. 1619 OF 2013 ``` **==> picture [22 x 9] intentionally omitted <==** ``` 3THE ORIENTAL INSURANCE CO. LTD., THAZHEPALAM, TIRUR 676 101. ``` ``` BY ADVS.SRI.P.JACOB MATHEW, SC SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1619 OF 2013 ``` ``` -3- ``` ## `JUDGMENT` ``` This matter is of the year 2013 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally ``` ``` admitted, based on the undisputed evidence on record. I, therefore, admit this Appeal and ``` ``` proceed to dispose it of finally, with the ``` ``` consent of both sides. ``` ``` 2.The appellants filed OP(MV)No.2291/2006 ``` ``` on the files of the Motor Accidents Claims ``` ``` Tribunal, Thrissur (‘Tribunal’, for short), ``` ``` seeking compensation for the death of the wife ``` ``` of the former and the mother of the latter, ``` ``` Smt.Priya, who was killed in a road accident on ``` ``` 21.07.2006, while the scooter being ridden by ``` ``` her was hit by the offending vehicle driven in a ``` ``` rash and negligent manner. The deceased ``` ``` sustained injuries and later succumbed to it; ``` ``` MACA NO. 1619 OF 2013 ``` ``` -4- ``` ``` constraining the appellants to file the afore Original Petition, seeking compensation for an amountofRs.40,58,000/-,limited ``` ``` Rs.30,00,000/-; but which has been allowed only to a sum of Rs.12,40,000/-. They thus assail the said Award as being exiguous. ``` ``` 3.Sri.R.Sreehari – learned counsel for the appellants, argued that, one of the primary reasons why the compensation awarded by the Tribunal is so inadequate is because, it has adopted the income of the deceased - who was a High School Teacher - as being a mere Rs.11,910/- and then reducing Rs.6,000/- out of it, under the impression that this is the figure that would have been eligible to the family as family pension, consequent to her death. He argued that both of these are wrong and that the figures mentioned in the salary certificate ought to have been adopted without any deduction ``` ``` MACA NO. 1619 OF 2013 ``` ``` -5- ``` ``` effected from the same; and 50% future prospects then added to it, since the deceased was a mere 33 years old at the time of her unfortunate death. ``` ``` 4.Sri.R.Sreehari concluded his submissions ``` ``` saying that the compensation awarded under the heads “Funeral Expenses”, “Loss of Estate”, “Loss of Consortium” and “Pain and Suffering” is exiguous and prayed that they be also suitably enhanced. ``` ``` 5.Sri.MathewJacob,learnedSenior ``` ``` Counsel, instructed by Smt.Preethy Nair - learned counsel appearing for the Insurance Company, on the other hand, argued that the ``` ``` computations adopted by the Tribunal are without ``` ``` error, particularly with respect to the notional ``` ``` income of the deceased, because it is an ``` ``` admitted fact that her family would have got Rs.6,000/-, after her death, as family pension. ``` ``` MACA NO. 1619 OF 2013 ``` ``` -6- ``` ``` 6.Sri.MathewJacobconcludedhis submissions saying that, in fact, the Tribunal has granted more than what was eligible to the appellants, because no amounts under the heads “Pain and Suffering” and “Loss of Love and Affection” could have been offered in terms of the judgment of the Hon’ble Supreme Court in United India Insurance Company Ltd. v. Satinder ``` ``` Kaur @ Satwinder Kaur [(2021) 11 SCC 780]. ``` ``` 7.I have considered the afore rival ``` ``` submissions, on the touchstone of the evidence on record, which I have analyzed very carefully. ``` ``` 8.I notice that the learned Tribunal has ``` ``` arrived at the income of the deceased relying upon Ext.A10 Certificate, which shows that she was drawing Rs.11,910/- at the time of her ``` ``` death. However, the learned Tribunal then went on to deduct Rs.6,000/- from this, under the ``` ## `MACA NO. 1619 OF 2013` ``` -7- ``` ``` conjecture that this is the amount that would have been eligible to the family as family pension, consequent to her death. This is impermissible and unfortunate and should never have been done as per the binding precedents of the Hon’ble Supreme Court. In fact, to a pointed question from this Court, Sri.Mathew Jacob, ``` ``` learned Senior counsel also affirmed so. ``` ``` 9.That said, the notional income of the ``` ``` deceased is certainly eligible to be added with 50% future prospects, going by the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi[2017 (4) KLT 662 (SC)]. ``` ``` 10.The medical evidence on record shows that the deceased suffered very grievous injuries and that she succumbed to it a little while later. However, as perSatinder Kaur (supra), no amounts under the heads “Pain and ``` ## `MACA NO. 1619 OF 2013` ``` -8- ``` ``` Suffering” or “Loss of Love and Affection” could havebeengranted,thoughsufficient ``` ``` compensation certainly should have been offered under the heads “Loss of Consortium”, “Funeral ``` ``` Expenses” and “Loss of Estate”. ``` ``` 11.As per Pranay Sethi (supra), the minimum ``` ``` amount for “Funeral Expenses” and “Loss of Estate” should have been Rs.15,000/- each; and ``` ``` I, therefore, certainly propose to revise the ``` ``` amounts now granted by the Tribunal. On the head ``` ``` of “Loss of Consortium”, again,Pranay Sethi (supra) declares the law that each of the ``` ``` appellant is entitled to Rs.40,000/-, and I ``` ``` surely propose to grant them the said amount. ``` ``` In the afore circumstances, this Appeal is ``` ``` allowed in the following manner: ``` ``` (a)The compensation under the head “Loss of ``` ``` Dependency” is enhanced to Rs.22,86,720/- (Rupees twenty two lakhs eighty six thousand ``` ## `MACA NO. 1619 OF 2013` ``` -9- ``` ``` seven hundred and twenty only), reckoning the notional income of the deceased to be ``` ``` Rs.11,910/- following Ext.A10 – Certificate, ``` ``` which remains uncontroverted; and adding 50% ``` ``` future prospects to it, as perPranay Sethi (supra), but deducting one-third towards personal expenses. ``` ``` (b)The compensation under the head “Funeral ``` ``` Expenses” is enhanced to Rs.15,000/- (Rupees fifteen thousand only), from Rs.5,000/- now granted by the Tribunal. ``` ``` (c)The compensation under the head “Loss of Estate” is enhanced to Rs.15,000/- (Rupees fifteen thousand only), from Rs.5,000/- now granted by the Tribunal. ``` ``` (d)The compensation under the head “Loss of ``` ``` Consortium” is enhanced to Rs.80,000/- (Rupees eighty thousand only), from Rs.30,000/- as granted by the Tribunal. ``` ## `MACA NO. 1619 OF 2013` **==> picture [30 x 9] intentionally omitted <==** - `(e) The compensation under the heads “Loss` ``` of Love and Affection” and “Pain and Suffering” is deleted, being guided bySatinder Kaur (supra). ``` ``` (f)In all other heads, the compensation ``` ``` granted by the Tribunal will remain intact. ``` ``` Needless to say, the appellants will be at ``` ``` full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% ``` ``` (modifying the rate of interest of 8% granted by ``` ``` the Tribunal, in view of the escalation granted by this Court), from the date of claim until it is recovered.They will also be entitled to ``` ``` proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the Tribunal, within a period of ``` ``` MACA NO. 1619 OF 2013 ``` **==> picture [30 x 8] intentionally omitted <==** ``` two months from the date of receipt of a copy ``` ``` this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` akv ``` ``` JUDGE ```