Kunhikrishnan Nair and others v. Pavithran M.M. and United India Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 MACA NO. 1089 OF 2023 ``` ``` AGAINST THE AWARD DATED 28.02.2006 IN OP(MV)NO.370/2002 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA ``` ## **`APPELLANTS/PETITIONERS:`** - `1 KUNHIKRISHNAN NAIR, S/O CHANDU, AGED 66 YEARS, RESIDING AT KANMANA THAZHEKUNI, P.O. MUCHUKUNNU, KOLLAM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN 673 307.` - `2 KALLYANI, AGED 53 YEARS, W/O KUNHIKRISHNAN NAIR, RESIDING AT KANMANA THAZHEKUNI, P.O. MUCHUKUNNU, KOLLAM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN 673 307.` - `3 BABU RAJ, AGED 31 YEARS, S/O KUNHIKRISHNAN NAIR, RESIDING AT KANMANA THAZHEKUNI, P.O. MUCHUKUNNU, KOLLAM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN 673 307.` - `4 SHEEBA, AGED 29 YEARS, D/O KUNHIKRISHNAN NAIR, RESIDING AT KANMANA THAZHEKUNI, P.O. MUCHUKUNNU, KOLLAM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN 673 307.` ``` BY ADV K.MUHAMMED SALAHUDHIN ``` ## **`RESPONDENTS /RESPONDENTS :`** - `1 PAVITHRAN M.M., FATHER'S NAME NOT KNOWN, MUYIPRAMEETHAL HOUSE, MAYYANUR P.O., VADAKARA, PIN 679105.` - `2 UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS BRANCH MANAGER, BRANCH OFFICE, KALLINGAL BUILDING, P.B. NO.17, MAIN ROAD, VATAKARA, INSURER OF KL-11-M-6666 BUS. PIN 673 101.` ``` SRI. P.K.MANOJ KUMAR-SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 1089/23 2 ## **`JUDGMENT`** This matter is of the year 2023 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, handed over by them across the Bar. I, therefore admit this Appeal and proceed to dispose it of finally, with the consent of both sides. 2. Late Rajeevan was involved in a road accident on 29.03.2002, when the motorbike in which he was travelling was hit by the offending vehicle, driven in a rash and negligent manner. Even though he sustained serious injuries initially, he succumbed to the same sometimes later; whereupon, his legal heirs – the appellants herein – filed OP(MV) No.370/2002, before the Motor Accidents Claims Tribunal, Vatakara (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of an amount of Rs.9,00,000/-, but which has been allowed only to an extent of Rs.2,53,000/-. They assail this amount as being MACA 1089/23 3 inadequate. 3. Sri.Mohammed Salahudeen – learned counsel for the appellants, argued that the primary reason why the compensation has been fixed low by the learned Tribunal is because it has reckoned the notional income of the deceased to be a mere Rs.2,000/-, even when there is evidence to establish that he was a Carpenter, earning Rs.8,000/- per month. He then argued that the Tribunal has erred in not granting compensation under the heads ‘Loss of Consortium’ or ‘Loss of Estate’; and in confining the amounts awarded under the heads ‘Funeral Expenses’ and ‘Love and Affection’ to Rs.2,000/- and Rs.10,000/- respectively. He concluded his submissions asserting that the afore heads, including ‘Loss of Dependency’, deserve to be substantially enhanced because the deceased was only 23 years at the time of accident; and hence, the claimant being eligible to be reckoned additional amounts towards future prospects. 4. Sri.P.K.Manoj Kumar – learned Standing Counsel for MACA 1089/23 4 the Insurance Company, on the contrary, argued that since the accident happened in the year 2002, the computations adopted by the Tribunal in favour of the deceased are without error. He thus prayed that this Appeal be dismissed. 5. I have considered the afore rival contentions on the touchstone of the evidence on record, which I have analyzed very carefully. 6. I will first deal with the adequacy of notional income adopted by the Tribunal in favour of the deceased. 7. Even though the claimants assert that the deceased was a Carpenter earning Rs.8,000/- per month, no evidence has been lead to prove it. Obviously, the learned Tribunal could have only reckoned his notional income; but while doing so, it should have been guided by the postulations in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], wherein, it has been held that, even in the case of a person whose income is otherwise unascertainable, or who is working as 5 MACA 1089/23 a ‘Coolie’, in the year 2002 – when the accident occurred – the minimum figure to be reckoned is Rs.3,500/-, with 40% future prospects added to it, as per National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662], since the deceased was only 23 years at the time of the accident. 8. That said, the learned Tribunal has erred in not granting compensation under the head ‘Loss of Estate’ and ‘Loss of Consortium’ and in confining the compensation under the head ‘Funeral Expenses’ to a mere Rs.2,000/-. This is because, in Pranay Sethi (supra), an amount of Rs.15,000/- each has been authorised under the heads ‘Funeral Expenses’ and ‘Loss of Estate’; while Rs.40,000/- ought to have been granted to each of the appellants towards ‘Loss of Consortium’. 9. However, as rightly argued by Sri.P.K.Manoj Kumar, no amount under the head “Loss of Love and Affection” could have been awarded, as per United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780], when the MACA 1089/23 6 compensation for “Loss of Dependency” had been granted. In the afore circumstances, this Appeal is partly allowed in the following manner: (a) The compensation under the head “Loss of Dependency” is enhanced to Rs.5,29,200/- (Rupees five lakhs twenty nine thousand two hundred only), from Rs.2,40,000/-, reckoning the notional income of the deceased to be Rs.3,500/per month, with 40% future prospects added to it and one half deducted from it, towards personal expenses, since he was a bachelor, as per Sarla Verma (supra). The multiplier adopted for this purpose is ‘18’, as has been conceded by both sides, in modification of ‘15’, as adopted by the Tribunal. (b) The compensation under the head “Funeral Expenses” is enhanced to Rs.15,000/- (Rupees fifteen thousand only), from Rs.2,000/-, as per Pranay Sethi (supra). (c) An additional amount of Rs.15,000/- (Rupees fifteen thousand only) is awarded to the appellants under the head “Loss MACA 1089/23 7 of Estate”, as per Pranay Sethi (supra). (d) A sum of Rs.80,000/- (Rupees eighty thousand only) is awarded to the appellants under the head “Loss of Consortium”, at the rate of Rs.40,000/- each to the first two among them, as per Pranay Sethi (supra). (e) The compensation awarded by the Tribunal under the head “Loss of Love and Affection” of Rs.10,000/- is deleted, as per Satinder Kaur (supra). (f) In all other heads, the compensation granted by the Tribunal will remain intact. Consequently, 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 6%, as awarded by the Tribunal, 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. Needless to say, while calculating interest on the amount MACA 1089/23 8 enhanced by this Court, a period of 2072 days - being the delay in filing this Appeal – shall stand excluded. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` Sd/- ``` ``` RR/AKV ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```