MACA No. 1139 of 2017; MACA No. 2719 of 2016, High Court of Kerala at Ernakulam

``` MACA NO. 1139 OF 2017 ``` ``` MACA NO. 2719 OF 2016 ``` 1 ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.` ``` TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 ``` ## `MACA NO. 1139 OF 2017` ``` AGAINST THE AWARD DATED 15.01.2016 IN OP(MV)NO.1184/2012 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## `APPELLANT/2ND RESPONDENT:` ``` THE NATIONAL INSURANCE CO. LTD MUMBAI, REPRESENTED BY ITS ASSISTANT MANAGER, (LEGAL) REGIONAL OFFICE, 2ND FLOOR,OMANA BUILDING, M.G ROAD, KOCHI.35. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ## `RESPONDENTS/CLAIMANTS:` ``` 1RADHA, W/O LATE RAJAN, KOTTUPALA HOUSE,RAPAL DESOM, PARAPPUKARA VILAGE, PIN. 680310. 2MANJUSHA, D/O LATE RAJAN, KOTTUPALA HOUSE,RAPAL DESOM, PARAPPUKARA VILLAGE,PIN. 680310. 3VAISAKHAN S/O LATE RAJAN, KOTTUPALA HOUSE,RAPAL DESOM, PARAPPUKARA VILLAGE,PIN. 680310. 4THANKA, M/O LATE RAJAN, KOTTUPALA HOUSE,RAPAL DESOM, PARAPPUKARA VILLAGE. PIN. 680310. BY ADV SRI.T.N.MANOJ ``` ## `OTHER PRESENT:` ``` SC - ADV GEORGE A CHERIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2023, ALONG WITH MACA.2719/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1139 OF 2017 ``` ``` MACA NO. 2719 OF 2016 ``` 2 ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 ``` ## `MACA NO. 2719 OF 2016` ``` AGAINST THE AWARD DATED 15.01.2016 IN OP(MV)NO.1184/2012 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## `APPELLANTS/PETITIONERS:` ``` 1RADHA, W/O LATE RAJAN, KOTTUPALA HOUSE, RAPPAL DESOM, PARAPPUKKARA VILLAGE, 2MANJUSHA, D/O LATE RAJAN, KOTTUPALA HOUSE, RAPPAL DESOM, PARAPPUKKARA VILLAGE, 3VAISAKHAN, S/O LATE. RAJAN, KOTTUPALA HOUSE, RAPPAL DESOM, PARAPPUKKARA VILLAGE, 4THANKA M/O LATE RAJAN, KOTTUPALA HOUSE, RAPPAL DESOM, PARAPPUKKARA VILLAGE, BY ADV SRI.T.N.MANOJ ``` ## `RESPONDENTS/RESPONDENTSS:` ``` 1KRISHNANKUTTY M.K. S/O KUNJAN NAIR, 8/36, MULLAPPILLIL HOUSE, KOKKAPPILY DESOM, THIRUVANIYOOR, ERNAKULAM - 682 631 (DELETED) R1 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 23-10/2019 IN IA NO. 1/2019. 2THE MANAGER NATIONAL INSURANCE COMPANY LTD, TATA, PCBU DEPARTMENT OF MOTOR TRE-UP-BUSINESS, ROYAL INSURANCE BUILDING, 2ND FLOOR, TATA ROAD, CHURCH GATE, MUMBAI (ADDRESS FOR SERVICE IS AS SHOWN ABOVE) R2 BY SRI.GEORGE A. CHERIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2023, ALONG WITH MACA.1139/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1139 OF 2017 ``` ``` MACA NO. 2719 OF 2016 ``` 3 ## `JUDGMENT` ``` Both these appeals are arising from OP(MV)No.1184/2012 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. M.A.C.A.No.2179/2016 was filed by the claimants in the claim petition, whereas M.A.C.A. No.1139/2017 was filed by the second ``` ``` respondent-Insurance Company. (For convenience, the parties in these appeals are hereinafter referred to as per the respective ranks in the claim petition). ``` ``` 2.The said claim petition was filed by the petitioners 1 to 4, seeking compensation for ``` ``` the death of one Rajan due to the injuries ``` ``` sustained to him in a motor accident that ``` ``` occurred on 17.07.2012. He was hit by a car ``` ``` bearing registration No.KL-40/F 8551, driven by ``` ``` the first respondent, the owner of the vehicle ``` ``` MACA NO. 1139 OF 2017 ``` ## `MACA NO. 2719 OF 2016` 4 `and was insured with the 2[nd] respondent.` ``` According to the appellants, the deceased was ``` ``` aged 52 years at the time of the accident and ``` ``` was working as a collie with a monthly income ``` **==> picture [460 x 15] intentionally omitted <==** ``` submitted in such circumstances. ``` ``` 3.The second respondent-Insurance Company ``` ``` alone contested the matter and filed a written ``` ``` statement, wherein they admitted the coverage ``` ``` of policy. However, they disputed the liability ``` ``` on various grounds. The negligence, as well as ``` ``` the quantum of compensation, were also ``` ``` seriously disputed. ``` ``` 4.The evidence in this case consists of ``` ``` Exts.A1 to A5 from the side of the appellants, ``` ``` and no evidence was adduced from the side of ``` ``` the respondent. ``` ``` 5.After the trial, the Tribunal came to ``` ``` the conclusion that, the accident occurred due ``` ``` MACA NO. 1139 OF 2017 ``` ## `MACA NO. 2719 OF 2016` 5 ``` to the negligence on the part of the first respondent and being the insurer of the said vehicle, the second respondent-Insurance Company was held liable to pay the compensation. The quantum of compensation was ``` ``` fixed as Rs.8,41,500/-, and the second ``` ``` respondent was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition ``` ``` till realisation. Seeking enhancement of ``` ``` compensation awarded by the Tribunal, MACA No.2719/2016 was filed, whereas challenging the quantum of the award, MACA No.1139/2017 was ``` ``` filed by the second respondent, the appellant in MACA 1139/2017. ``` ``` 6.Heard Adv.Sri.T.N.Manoj, the learned ``` ``` counselappearingfortheclaimants, ``` ``` Adv.Sri.George A. Cherian the learned counsel appearing for the second respondent-Insurance ``` ``` MACA NO. 1139 OF 2017 ``` ## `MACA NO. 2719 OF 2016` 6 ``` Company in MACA No.2719/2016 and Adv.Sri.George ``` ``` A. Cherian, the learned counsel appearing for ``` ``` the appellant in MACA No.1139/2017. ``` ``` 7.The main dispute in this case relates to ``` ``` the quantum of compensation. When the ``` ``` petitioners contended that the quantum of compensation awarded by the Tribunal was ``` ``` inadequate, the Insurance Company would contend ``` ``` that the Tribunal awarded an exorbitant amount ``` ``` as compensation. As far as the insurance ``` ``` company is concerned, the main contention in ``` ``` the matter relates to the addition made towards ``` ``` future prospects while computing the monthly ``` ``` income of the deceased. It was pointed out that ``` ``` 30% of the monthly income was added towards ``` ``` future prospects for the said purpose, which was against the principles laid down in ``` ``` National Insurance Company Ltd. V. Pranay Sethi ``` ``` [(2017)16 SCC 680], as the deceased comes ``` ``` MACA NO. 1139 OF 2017 ``` ## `MACA NO. 2719 OF 2016` 7 `within the age group of 50 to 60, where the permissible addition was only 10%. In the light of the settled position of law in this regard, as held in` _`Pranay Sethi’s case,`_ `the said contention has to be accepted.` ``` 8.However, when considering the monthly income taken by the Tribunal for the assessment of loss of dependency, it is seen that, the amount determined by the Tribunal was Rs.5000/- which is grossly inadequate. The accident occurred in the year 2012. Of course, there is indeed no proper evidence to establish the monthly income of the deceased, who claimed to be a coolie at the relevant time. But the crucial aspect to be noticed is that, as per the method of computation evolved from the principles laid down by the Hon’ble Supreme Court inRamachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 ``` ``` MACA NO. 1139 OF 2017 ``` ``` MACA NO. 2719 OF 2016 ``` 8 ``` SCC 236] and Syed Sadiq V. Divisional Manager, United India Insurance Company Ltd.[(2014) 2 SCC 735],the monthly income of an ordinary employee without any evidence can be taken as Rs.4500/- in respect of an accident that occurred in the year 2004. To decide the compensation for the subsequent years, the monthly income could be reckoned by adding Rs.500/- per year. When adopting the said method of computation, the monthly income can be fixed as Rs.8500/- in this case, as the accident occurred in the year 2012. Thus, while reassessing the compensation by taking the monthly income as Rs.8500/- and making an addition of 10% thereof towards future prospects, the amount of compensation under the head of loss of dependency would come to Rs.9,25,650/- (8500 + 10%) X 12 X 11 X ¾). The amount already awarded under this head is ``` ``` MACA NO. 1139 OF 2017 ``` ## `MACA NO. 2719 OF 2016` 9 `Rs.6,43,500/- and thus, the additional amount would come to Rs.2,82,150/ -. In addition to that, a further sum of Rs. 5000/- is to be granted under the head of loss of estate as the amount awarded by the Tribunal under this head is only Rs.10,000/-. The learned counsel for the appellants would point out that the amount awarded towards the loss of consortium is on the lower side as it was Rs.50,000/-, whereas as per the principles laid down in` _`Magma General Insurance Co. Ltd., v. Nanu Ram @ Chuhru Ram and Ors. [(2018) 18 SCC 130] and United India Insurance Co Ltd. Vs. Satinder Kaur @ Satwinder Kaur and Other [(2021)11 SCC 780],`_ `the appellants being the wife, children and mother of the deceased are entitled for Rs.40,000/- each under this head. The said contention has to be accepted as it is a well settled proposition of law. Therefore, the` ``` MACA NO. 1139 OF 2017 ``` ## `MACA NO. 2719 OF 2016` 10 `compensation for loss of consortium revised is to Rs.1,60,000/-(40000X4) as against Rs.50,000/- awarded by the Tribunal under this head. Thus the appellants are entitled to get an additional amount of Rs.1,10,000/ -.` ``` However, at this juncture, the learned counsel for the second respondent–Insurance Company would submit that, an amount of Rs.1,00,000/- has been awarded towards loss of love and ``` ``` affection. It was held in Satinder Kaur’s case (supra)that when compensation for loss of ``` ``` consortium is awarded, no separate compensation is to be awarded for loss of love and affection.Therefore,anamountof - Rs.1,00,000/ is to be deducted. The said contention is also accepted as it is in tune with the settled position of law in this ``` ``` regard. Similarly, the amount awarded under the ``` ``` head of funeral expenses is Rs.25,000/-, ``` ``` MACA NO. 1139 OF 2017 ``` ``` MACA NO. 2719 OF 2016 ``` 11 ``` whereas the actual amount payable is Rs.15,000/-. Therefore, there is an excess amount of Rs.10,000/- which is also to be ``` ``` deducted. ``` ``` 10. Thus, while reassessing the total ``` ``` compensation receivable by the appellant in the light of the above observations, the said amount would come to Rs.2,87,150/- [(2,82,150 + 1,10,000 + 5000-(1,00,000+10,000)]. ``` ``` 11.In the light of the aforesaid ``` ``` observations and findings, this appeal is allowed. The award dated 15.01.2016 in OP(MV)No.1184/2012 passed by the Motor ``` ``` Accidents Claims Tribunal, Irinjalakuda, is ``` ``` hereby modified by granting an additional ``` ``` compensation of Rs.2,87,150/- (Rupees Two Lakhs ``` ``` Eighty seven thousand One hundred and fifty only). The second respondent is directed to deposit the said amount along with interest @ ``` ``` MACA NO. 1139 OF 2017 ``` ## `MACA NO. 2719 OF 2016` 12 `as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. However, as there was a delay of 119 days in filing MACA No.2719/2016, the appellants shall not be entitled to the interest for the additional amount pertaining to the said period of delay.` ``` Sd/- ``` ``` ZIYAD RAHMAN, A.A, JUDGE ``` ``` R.AV ```