Legal heirs of Hareesh v. The Managing Director, Malayala Manorama; R. Thankachan; Reliance General Insurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 ``` ## **`MACA NO. 1717 OF 2015`** ``` AGAINST THE AWARD IN OP(MV)NO.767/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR ``` ## **`APPELLANTS:`** ``` 1SUDHAKARAN G. S/O.GOPALAN NAIR, NIKUNJAM, MYLOM P.O, KOTTARAKKARA, KOLLAM. 2VIJAYAMMA M.G. W/O. SUDHAKARAN G., NIKUNJAM, MYLOM P.O, KOTTARAKKARA, KOLLAM. 3HEERA S. D/O. VIJAYAMMA M.G., NIKUNJAM, MYLOM P.O, KOTTARAKKARA, KOLLAM. BY ADV SRI.ANCHAL C.VIJAYAN ``` ## **`RESPONDENT:`** ``` 1THE MANAGING DIRECTOR, MALAYALA MANORAMA, K.K. ROAD, KOTTAYAM - 686 001. 2R. THANKACHAN S/O. KURIYAN, PARA PUTHRA VEEDU, VALOORKARA, KOTTAYAM - 686 001. 3RELIANCE GENERAL INSURANCE COMPANY LIMITED JACKSON, 2ND FLOOR, CHELLIYAZHUKKAM ROAD, MANORAMA JUNCTION, KOTTAYAM, KERALA - 686 001. BY ADVS. SRI.MILLU DANDAPANI SRI.K.B.RAMANAND SMT.DHANYA BABU ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`MACA NO. 1717 OF 2015 2`** ## **`JUDGMENT`** The legal heirs of Hareesh – who was unfortunately killed in a road accident on 22.08.2011 when the motorcycle being ridden by him was hit by the offending vehicle driven in a rash and negligent manner - have approached this Court impugning the Award of the Motor Accidents Claims Tribunal, Punalur (‘Tribunal’ for short) in O.P(MV)No.767 of 2011 filed by them, seeking compensation of an amount of Rs.10 lakhs and which has been awarded to a sum of Rs.10,23,000/-. They assert that even this is inadequate. 2. Sri.Anchal C.Vijayan – learned counsel for the appellants, argued that the deceased was a 28 year old man, who did not succumb to his injuries immediately, but had to endure treatment for nearly 39 days; and therefore, that this is not a case where it can be treated as one of death simplicitor, but one which involves both injury and death. He thus prayed that the compensation awarded by the Tribunal under various heads be enhanced substantially. 3. Sri.Anchal C.Vijayan then argued that one of the prime reasons why the compensation now awarded is inadequate is because, it has adopted the notional income of the deceased to a mere Rs.6,000/- per month and has added 50% towards Future Prospects, which again is not sufficient. He argued that since his ## **`MACA NO. 1717 OF 2015 3`** client was qualified as a Master of Business Administration - which is proved through Exts.A15, A16, A17 and A18, the notional income to be adopted by the Tribunal should have been much higher than Rs.6,000/- as has been done. He then pointed out that, even though, in normal cases, compensation towards ‘Pain and Sufferings’ could not have been granted, in this case it should have been because, as said above, the deceased suffered 39 days of hospitalization prior to his death. He thus prayed that this appeal be allowed and the compensation enhanced. 4. In response, Smt.Dhanya Babu – learned Standing Counsel for the Insurance Company, argued that the computations arrived at by the Tribunal are without error and thus prayed that this appeal be dismissed. 5. I have considered the afore rival submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 6. I will first deal with the notional income to be arrived at in favour of the deceased. ## **`MACA NO. 1717 OF 2015 4`** 7. It is without doubt and as is admitted, that Exts.A15 to A18 would establish that the deceased was a Master of Business Administration holder. The claim petition avers that he was working as a Lecturer/Tutor in the Institute of Company Secretaries of India and this is sought to be proved through Ext.A10 – Certificate; while his income through Ext.A11 – Remuneration Certificate. Even though these documents may not be deserving of being accepted without proper evidence, the fact remains that the deceased was a highly qualified person, whose capacity to generate income cannot be equated with that of a “coolie” or such other. 8. I say so because, as per _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],**_ even in the case of a person with an unascertainable income in the year 2011 – when the accident happened – the minimum income to be adopted is Rs.8,000/- per month. It is baffling that the learned Tribunal did not accept even this figure and went on to reckon a much lower amount of Rs.6,000/-. Taking note of the afore, I propose to revise the notional income of the deceased to be Rs.10,000/- per month, adverting to the standards available in the year 2011 and particularly taking into account Exts.A10 and A11 – Certificates of Coaching Completion and Remuneration, though not ## **`MACA NO. 1717 OF 2015 5`** being fully guided by it. 9. That said, since the deceased died at the age of 28, 40% Future Prospects became entitled to be added to his income; and this is not opposed by the Insurance Company either. Obviously, adding the Future Prospects, the notional income of the deceased will stand revised to Rs.14,000/- per month. 10. Coming to the other heads of compensation, I notice that the learned Tribunal has awarded a consolidated amount of Rs.25,000/- towards ‘Transportation Charges’ and ‘Funeral Expenses’. This certainly is commensurate with the declarations in _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]**_ because not more than Rs.10,000/- would have been spent for Transportation, thus leaving the remaining for Funeral Expenses. However, going by the same judgment, an amount of Rs.15,000/ought to have been granted for ‘Loss of Estate’ which, the Tribunal has confined to Rs.5,000/-. This certainly will have to be revised. 11. That being said, in this case, the medical evidence show that the deceased was alive for nearly 39 days before he succumbed to the injuries. The claimants must have suffered greatly on account of his hospitalization; and am hence, certain that they are entitled to be compensated for the agony during the said period, including for ## **`MACA NO. 1717 OF 2015 6`** ‘Attender and Extra nourishment’ as would have been eligible. I am, therefore, of the firm view that an amount of Rs.600/- per day under that head would be eligible to them, though this Court is fully aware that, strictly going by _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780],**_ in normal circumstances where the death is instantaneous or quick after the accident, such an amount could not have been granted. But here, the prolonged hospitalization changes the scenario and I have no doubt that an amount of Rs.23,400/- would be eligible to the claimants under the head ‘Pain and Agony and Expenses of Attender’. 12. Moving on, even though the Tribunal has granted compensation for ‘Love and Affection’ to a sum of Rs.75,000/-, it omitted to grant any amount towards ‘Loss of Consortium’, which all the three claimants are entitled to. This is because, the assertion of the appellants in the claim petition, that the 3[rd] appellant - who is the sister of the deceased - was a minor at the time of the accident is not controverted. An amount of Rs.1,20,000/- under the same surely becomes eligible, though, the compensation for ‘Loss of Love and Affection’ will have to be deleted as per _**Satinder Kaur @ Satwinder Kaur (Supra).**_ In the afore circumstances, this appeal is partly allowed in the ## **`MACA NO. 1717 OF 2015 7`** following manner: (a) The compensation under the head ‘Loss of Dependency’ is revised to Rs.14,28,000/-, reckoning the notional income of the deceased to be Rs.10,000/- per month, with 40% Future Prospects added to it and one half deducted towards personal expenses. (b) The compensation towards ‘Loss of Estate’ is enhanced to Rs.15,000/- from Rs.5,000/- now awarded. (c) An amount of Rs.1,20,000/- is awarded as compensation for ‘Loss of Consortium’, at the rate of Rs.40,000/- in favour of each of the appellants. (d) The compensation under the head ‘Pain and Agony and Bystander’s Expenses’ for the claimants is granted to an amount of Rs.23,400/-, reckoning Rs.600/- per day for 39 days of hospitalization. (e) Axiomatically, the compensation for ‘Loss of Love and Affection’ granted by the Tribunal is deleted. In all other heads, the compensation awarded by the Tribunal will remain unaltered. 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 8.5% (reducing the rate of ## **`MACA NO. 1717 OF 2015 8`** interest of 9% 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 learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## **`Sd/-`** ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` MC/14.3 ```