MACA 652/2018 & Cross Objection 151/2018, High Court of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 MACA NO. 652 OF 2018`** ``` OP(MV)No.2356/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM APPELLANT/2ND RESPONDENT: ``` ``` NATIONAL INSURANCE CO.LTD., MUMBAI - 4000038 REPRESENTED BY ITS MANAGER, NATIONAL INSURANCE CO. LTD, OMANA BUILDINGS, JEWS STREET, PADMA JUNCTION, COCHI, PIN - 682 035. ``` ``` BY ADV SRI.N.S.NAJEEB ``` ``` RESPONDENTS/PETITIONERS 1, 2 & 4 TO 10: ``` - **`1 K.M.AMEENA, W/O. LATE T.M SAITHU, SUMINAS, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O, PIN - 682 506.`** - **`2 BISNA SAITHU, D/O.LATE T.M SAITHU, REPRESENTED BY MOTHER K.M AMEENA, SUMINAS, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O, PIN - 682 506.`** - **`3 ASYA MEERAN, W/O. K.M MEERAN, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O, PIN - 682 506.`** - **`4 SAINAVA, W/O.LATE MEERAN, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O, PIN - 682 506.`** - **`5 K.M. NAZAR, S/O.LATE MEERAN, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O, PIN - 682 506.`** - **`6 T.M RAPHYMON, S/O. LATE MEERAN, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O, PIN - 682 506.`** - **`7 Y. BEENA, W/O.LATE T.M SHAJIMON, (S/O. LATE K.M MEERAN), THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O, PIN - 682 506.`** - **`8 K.U ALFIYA, D/O. LATE T.M SHAJIMON, REPRESENTED BY MOTHER Y. BEENA, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O, PIN - 682 506.`** - **`9 ABHINAS, S/O.LATE T.M SHAJIMON, REPRESENTED BY MOTHER Y. BEENA, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O, PIN - 682 506.`** ## **`BY ADV SRI.P.M.JOSHI`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARDON 19.08.2022,ALONGWITHCO.151/2018,THECOURTON26.08.2022DELIVEREDTHE FOLLOWING: ``` MACA 652/ 2018 & Cross Objection 151/2018 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 26[TH]DAY OF AUGUST 2022 / 4TH BHADRA,1944 CO NO. 151 OF 2018 ``` ``` MACA 652/2018 OF HIGH COURT OF KERALA OP(MV)No.2356/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM PETITIONERS/RESPONDENTS: ``` - **`1 K.M.AMEENA, AGED 44 YEARS, W/O. LATE T.M. SAITHU, SUMINAS, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O.`** - **`2 BISNA SAITHU, AGED 20 YEARS, D/O. LATE T.M. SAITHU, SUMINAS, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O.`** - **`3 SMT. ASYA MEERAN, AGED 71 YEARS, W/O. K.M. MEERAN, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O.`** - **`4 SAINAVA, AGED 58 YEARS, D/O. LATE MEERAN, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O.`** - **`5 K.M. NAZAR, AGED 49 YEARS, S/O. LATE K. M. MEERNA, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O.`** - **`6 T.M. RAPHYMON, AGED 42 YEARS, S/O. K.M MEERAN, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O.`** - **`7 SMT. Y. BEENA, AGED 43 YEARS, W/O. LATE T.M. SHAJIMON (S/O. LATE K.M. MEERAN), THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O.`** - **`8 K.U ALFIYA (MINOR), AGED 17 YEARS, D/O. LATE SHAJIMON, REPRESENTED BY ITS MOTHER AND NEXT FRIEND, Y. BEENA, AGED 43 YEARS, W/O.LATE T.M. SHAJIMON (S/O. LATE K.M. MEERNA), THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O.`** - **`9 MASTER ABHINAS (MINOR), AGED 15 YEARS, S/O. LATE T.M. SHAJIMON, REPRESENTND BY HIS MOTHER Y.BEENA, THENGUMPILLICHIRAYIL HOUSE, PANANGADU P.O.`** ``` BY ADV P.M.JOSHI ``` ``` RESPONDENT/APPELLANT: ``` ``` THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO. LTD., MUMBAI - 4000038. ``` ``` BY ADV N.S.NAJEEB ``` ``` THISCROSSOBJECTIONHAVINGBEENFINALLYHEARDON19.08.2022,ALONG WITH MACA.652/2018, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING: ``` MACA 652/ 2018 & Cross Objection 151/2018 3 ## **J U D G M E N T** The 2[nd] respondent Insurer in OP(MV)No.2356 of 2013 on the file of the Motor Accidents Claims Tribunal, Ernakulam, is the appellant herein, alleging that the compensation awarded by the Tribunal is excessive. 2. Cross Objection No.151 of 2018 is filed by the claimants in the above OP alleging inadequacy of the compensation awarded by the Tribunal. 3. On 29.08.2012 one Mr.T.M.Saithu met with a road traffic accident and he sustained fatal injuries. On the next day, he succumbed to the injuries. He was a 51 year old UD Clerk. His legal heirs approached the Tribunal claiming compensation of Rs.34,50,000/-. But the Tribunal awarded only Rs.33,46,547/with 8% interest. According to the appellant/Insurer, the Tribunal wrongly assessed the expected salary of the deceased, on expected promotion. The multiplier applied was also not correct. Towards love and affection, the Tribunal awarded Rs.1,60,000/and for pain and suffering Rs.75,000/-. The compensation MACA 652/ 2018 & Cross Objection 151/2018 4 awarded for loss of estate, consortium, funeral expenses etc. were all on the higher side and it is challenged by the Insurer-National Insurance Company Limited. 4. The respondents/claimants in the appeal claimed enhancement of the compensation awarded by the Tribunal contending that the notional income could have been fixed as Rs.20,000/- for computing loss of dependency. Moreover, the multiplier ought to have been taken as 12. 5. Let us have a reappraisal of the facts and evidence to find out whether any interference is warranted in the impugned award. 6. The death of Sri.Saithu in the road traffic accident occurred on 29.08.2012 is not disputed. The appellant is admitting that the offending vehicle was validly insured with them as on the date of accident. It is also an admitted fact that the deceased Saithu was working as UD Clerk (Hr. G.) in CJM Court, Ernakulam. Ext.A11 Salary Certificate will prove that at the time of death, he was drawing monthly salary of Rs.26,987/-. Since, he was aged 51 and a permanent employee, 15% addition could have been given towards future prospects. So his monthly MACA 652/ 2018 & Cross Objection 151/2018 5 income could have been taken as Rs.31,035/-. By deducting ¼ towards personal expenses, his monthly income could be taken as Rs.23,276/-. The multiplier applicable is 11, as he was aged 51. So the loss of dependency could have been assessed as Rs.30,72,432/-. The Tribunal awarded only Rs.28,23,047/-. So the claimants are entitled to get Rs.2,49,385/- as balance due, under the head ‘loss of dependency’. 7. Towards funeral expenses, the Tribunal awarded Rs.25,000/- in the place of Rs.16,500/- that could have been awarded as per the decision **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680]** **`,`** including 10% hike for the period of three years. So Rs.8,500/which was awarded in excess is liable to be deducted. 8. Rs.75,000/- awarded towards pain and suffering also is liable to be deducted as the legal heirs are not eligible to get compensation for pain and suffering of the deceased. 9. Towards damaged clothing Rs.5,000/- was awarded by the Tribunal. Rs.1,000/- was just and proper towards damaged clothing and so the excess Rs.4,000/- awarded under the head MACA 652/ 2018 & Cross Objection 151/2018 6 damaged clothing, is liable to be deducted. 10. Towards compensation for loss of estate, Rs.1,25,000/was awarded by the Tribunal. As per **Pranay Sethi’s** case _(Supra)_ including 10% hike for three years, the claimants were eligible to get only Rs.16,500/-. So, Rs.1,08,500 is awarded in excess and that amount is liable to be deducted. 11. Towards loss of consortium and love and affection, the Tribunal awarded Rs.2,80,000/- in total. The 1[st] respondent is the wife, 2[nd] respondent is the daughter and the 3[th] respondent is the mother of deceased Saithu. Only they are eligible to get compensation for love and affection and loss of consortium. The claimant No.3, the father of the deceased, is no more and additional claimants 5 to 10 were impleaded as the legal heirs of deceased claimant No.3. They are not eligible to get any amount towards love and affection or loss of consortium. The respondents 1 to 3 are eligible to get Rs.44,000/- each towards loss of consortium going by **Pranay Sethi’s** case _(Supra)_ , which will come to Rs.1,32,000/-. But they were already awarded Rs.2,80,000/-, So Rs.1,48,000/- awarded in excess by MACA 652/ 2018 & Cross Objection 151/2018 7 the Tribunal under the head loss of consortium and love and affection is liable to be deducted. So when the respondents were entitled to get Rs.2,49,385/- in addition under the head loss of dependency, Rs.3,44,000/- was awarded in excess under other heads as stated above. So, the difference Rs.94,615/-, the respondents are liable to refund as excess amount. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|Rs.28,23,047/-|Rs.30,72,432/-||Rs.2,49,385 /-| |Funeral<br>expenses|Rs.25,000/-|Rs.16,500/-|Rs.8,500/-|| |Pain and<br>sufferings|Rs.75,000/-||Rs.75,000/-|| |Damaged<br>clothing|Rs.5,000/-|Rs.1,000/-|Rs.4,000/-|| |Loss of estate|Rs.1,25,000/-|Rs.16,500/-|Rs.1,08,500/-|| |Loss of<br>consortium and<br>love and<br>affection|Rs.2,80,000/-|Rs.1,32,000/-|Rs.1,48,000/-|| |Total|||Rs.3,44,000/-|Rs.2,49,385/-| |||||| |Excess amount to be refunded is 3,44,000 – 2,49,385 = Rs. 94,615/-<br>=====||||| Excess amount to be refunded is 3,44,000 – 2,49,385 = Rs. 94,615/===== MACA 652/ 2018 & Cross Objection 151/2018 8 Amount awarded by the Tribunal is Rs.33,46,547/Appellant/Insurer needs to deposit is 33,46,547 - 94,615 =Rs.32,51,932/======== 12. In the result, the appeal is allowed in part finding that Rs.94,615/- awarded by the Tribunal is in excess of the amount eligible to be awarded, and that amount is liable to be deducted from the award amount of Rs.33,46,547/awarded by the Tribunal. So the appellant has to deposit only Rs.32,51,932/with interest at the rate of 8% per annum from the date of petition till realisation. Rs.25,00,000/- was deposited by the appellant, as per the direction in the appeal. The balance has to be deposited within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the respondents/claimants towards Tax, balance court fee and legal benefit fund. MACA 652/ 2018 & Cross Objection 151/2018 9 The appeal is allowed in part and cross objection is dismissed. No order as to costs. Sd/- **SOPHY THOMAS, JUDGE** DSV/23.08.2022