Leela, Seema and Juddymon v. National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY ,THE 20TH DAY OF DECEMBER 2018 / 29TH AGRAHAYANA, 1940** ## **MACA.No. 439 of 2015** **AGAINST THE AWARD IN OPMV 93/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR DATED 29-08-2014** ## **APPELLANTS/PETITIONERS:** **1 LEELA AGED 63 YEARS W/O JOHN, PYNADATH HOUSE, KARAYAMPARAMBU, KARUKUTTY P.O., KARUKUTTY VILLAGE, ALUVA TALUK** **2 SEEMA AGED 42 YEARS W/O JOY, KARIPRAMBADAN HOUSE, MANGALASSERY, KORATTY SOUTH P.O., KIZHAKKUMMURY VILLAGE, MUNKUNDAPURAM TALUK** **3 JUDDYMON AGED 37 YEARS S/O.JOHN, PYNADATH HOUSE, KARAYAMPARAMBU, KARUKUTTY P.O., KARUKUTTY VILLAGE, ALUVA TALUK** **BY ADVS. SRI.GOPAKUAMR G SMT.ANUPAMA JOHNY** ## **RESPONDENT/RESPONDENT :** **NATIONAL INSURANCE CO. LTD. URUMATH BUILDING, PUMP JUNCTION,ALUVA 683 101** **BY ADV. SRI.P.JACOB MATHEW** **SR.ADV. SRI. MATHEWS JACOB, S.C.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 439 of 2015** **2** ## JUDGMENT This appeal is directed against the award dated 29.08.2014 in O.P(MV) No.93/2009 on the files of the Motor Accident Claims Tribunal, Perumbavoor (for short 'the Tribunal'). 2. The appellants are the petitioners before the Tribunal. They are dependants of one Mr.John, who died in a motor accident occurred at 4.45 p.m. on 14.01.2009. A bus bearing registration No.KL-45/B-2552 dashed against the scooter ridden by Mr.John due to the rash and negligent driving by its driver. He sustained fatal injuries and succumbed to death on the spot itself. Alleging that the accident was occurred due to the negligence of the driver of the bus and seeking for a compensation of Rs.5 lakhs, the claim petition as above was preferred before the Tribunal. 3. Driver, owner and insurer of the bus were arrayed as respondents in the claim petition. 1[st] and 2[nd] respondents (driver and owner) remained ex parte. The 3[rd] respondent had filed a **MACA.No. 439 of 2015** **3** written statement admitting insurance coverage of the bus bearing registration No.KL-45/B-2552 as on date of accident and contending that the accident was occurred solely due to negligence of Mr.John, who was riding the scooter at the relevant time. Age, occupation and income of the deceased as well as the compensation claimed were disputed. 4. Petitioners have let in documentary evidence before the Tribunal as Exts.A1 to A13 series. On appreciation of the entire evidence on record, the Tribunal found the driver of the bus bearing registration No.KL-45/B-2552 responsible for the accident by its rash and negligent driving. The Tribunal has also found that the petitioners are entitled to get compensation for the death of Mr.John and computed the sum payable as Rs.4,01,500/-. The Tribunal had directed the 3[rd] respondent insurer of the bus to deposit the sum of Rs.4,01,500/- with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. 5. Aggrieved by the quantum of compensation so awarded by the Tribunal, the petitioners have approached this Court in **MACA.No. 439 of 2015** **4** the captioned appeal seeking for a modification of the compensation awarded, by enhancement. 6. Smt.Anupama Johny, the learned counsel on behalf of the petitioners/appellants has submitted that the Tribunal failed to award just and reasonable compensation under various heads and therefore, interference by this Court is warranted. It is contended by the counsel that Tribunal had fixed Rs.3,000/- as the monthly income for arriving at compensation for loss of dependency. According to her, petitioners had raised claim to the effect that Mr.John was an agriculturist, aged 61 years and was earning Rs.10,000/- as monthly income. According to the counsel, in the said circumstances, the Tribunal is highly unjustified in fixing Rs.3,000/- as the monthly income in the case of a victim of a motor accident in the year 2009. 7. In view of the contentions raised as above this Court ventured to see merits in it. It is pertinent to note that materials of any nature are not produced and marked in evidence to support the claim of the petitioners that the deceased was an agriculturist aged 61 years and was getting a monthly income of **MACA.No. 439 of 2015** **5** Rs.10,000/- as on date of accident. Not even oral evidence was let in by any of the petitioners. In the said circumstances Tribunal had taken Rs.3,000/- as the monthly income. Since the Apex Court in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.** [(2011) 13 SCC 236] had taken Rs.4,500/as the monthly income for a Coolie worker, who had met with a motor accident in the year 2004, this Court finds it justified in fixing Rs.6,000/- as the monthly income. The multiplier of 7 was taken and 1/3[rd] of the monthly income towards personal expenses was deducted by the Tribunal correctly. Therefore, when compensation is arrived at by taking Rs.72,000/(Rs.6,000 x 12) as the multiplicand and 7 as the multiplier, a sum of Rs.5,04,000/- is arrived at. Rs.1,68,000/- being the sum already awarded by the Tribunal, a sum of Rs.3,36,000/- will be payable in addition under the above head. The contention further advanced was that the award of compensation under the head loss of estate being a meagre sum, interference is warranted. 8. In view of **National Insurance Co.Ltd. v. Pranay Sethi** [2017 (4) KLT 662(SC)], Rs.15,000/- being the reasonable **MACA.No. 439 of 2015** **6** sum payable under the conventional head, loss of estate, this Court finds merit in the contention raised by the learned counsel that the petitioners are entitled for that and is inclined to award Rs.15,000/- under that head. It is also pointed out that under the head loss of consortium Tribunal has awarded a sum of Rs.1,00,000/- against the direction to award Rs.40,000/- by the Constitutional Bench in **Pranay Sethi** 's case (supra). Therefore, it is required to deduct Rs.60,000/- from Rs.1,00,000/- awarded by the Tribunal under that head. 9. Though the learned counsel has pleaded to maintain the sum awarded as compensation under the head funeral expenses, in view of **Pranay Sethi** (supra), it is impracticable. The reasonable sum found by the Constitutional Bench in the above case as payable under the head funeral expenses being Rs.15,000/-, this Court needs to deduct Rs.10,000/- from Rs.25,000/- awarded by the Tribunal. It is found from the impugned award that a sum of Rs.1,00,000/- was awarded by the Tribunal under the head loss of love and affection. As already stated, the deceased was survived by his wife, daughter **MACA.No. 439 of 2015** **7** and son. It is disclosed from the cause title of the claim petition that the daughter of the deceased is married and the son is a major one. Therefore, the children of the deceased cannot be treated as dependants of the deceased. The wife alone being the dependant and a sum of Rs.40,000/- having been awarded by the Tribunal under the head loss of consortium, this Court finds it justified to deduct Rs.60,000/- from the sum of Rs.1,00,000/- awarded under the head. Grant of Rs.1,00,000/under the head loss of love and affection being against the Constitutional Bench decision in **Pranay Sethi** 's case (supra), this Court is inclined to set it aside. In the refixation as above, petitioners will be entitled to get a total sum of Rs.4,14,500/(3000+500+15,000+40,000+5000+3,36,000+15,000). The amount awarded by the Tribunal as per the impugned award being Rs.4,01,500/-, the petitioner will be entitled to get an additional sum of 13,000/-(Rupees thirteen thousand only) [4,14,500-4,01,500]. In the result, the appeal is allowed in part. The compensation already awarded by the Tribunal is enhanced by **MACA.No. 439 of 2015** **8** grant of Rs.13,000/-. The same is payable to the petitioner with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. The 3[rd] respondent before the Tribunal, the sole respondent herein shall deposit Rs.13,000/- with interest as directed above within a period of two months from the date of receipt of a copy of this judgment. The observation made by the Tribunal in the impugned award that the wife alone is entitled to get compensation is set aside. The Tribunal shall apportion the total award amount proportionately to all petitioners. No order as to costs. **Sd/-** **MARY JOSEPH** **JUDGE** ttb