MACA No. 2015 of 2014 & CO No. 159 of 2014 (The New India Assurance Co. Ltd. v. Hema & others)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` THURSDAY, THE 19[TH] DAY OF OCTOBER 2023 / 27TH ASWINA, 1945 ``` ## **`MACA NO. 2015 OF 2014`** ``` AGAINST THE AWARD DATED 11.04.2014 IN OP(MV) 1288/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ``` ## **`APPELLANT/3RD RESPONDENT IN O.P.(M.V):`** ``` THE NEW INDIA ASSURANCE CO. LTD. ``` ``` SREEVALLI BUILDING, ANICODE, CHITTUR, PALAKKAD-678101, REPRESENTED BY THE DULY CONSTITUTED ATTORNEY, K.K.CHANDRAN (DEPUTY MANAGER), REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI-682011. ``` ``` BY ADVS. M.JACOB MURICKAN DINESH MATHEW J MURICKEN ``` ## **`RESPONDENT/PETITIONERS 2 & 3 AND RESPONDENTS 1 & 2 IN O.P.(M.V.):`** - `1 HEMA W/O.UNNIKRISHNAN, AGE NOT KNOWN, THOPPILPARAMBIL HOUSE, KUNNUMPURAM, DESAM, ALUVA, ERNAKULAM DISTRICT, PIN-683102.` - `2 SUBRAMANYAN (DIED)` ``` F/O.UNNIKRISHNAN, AGE NOT KNOWN, THOPPILPARAMBIL HOUSE, KUNNUMPURAM, DESAM, ALUVA, ERNAKULAM DISTRICT, PIN-683102. ``` ``` 3GIRISHKUMAR AGE AND FATHER'S NAME NOT KNOWN, 2/153, GOPALAPURAM, MANNUR, POLLACHI, COIMBATORE, TAMILNADU, PIN-642001. ``` - `*4 ABHILASH(DELETED) S/O.DINESH, AGE NOT KNOWN, AMBADI COTTAGE, 7/4, ATHICODE P.O., PALAKKAD DISTRICT-678554.` ``` *RESPONDENT NO.4 IS DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 29/09/2021 IN I.A.3516/2014 IN MACA 2015/2014. ``` ``` MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014 ``` ``` 2 ``` ``` *ADDL.5SATHI MOHANAN, AGED 59 YEARS, W/O.MOHANAN.M.M., MUTHUKKAMPILLY, NEAR MAHADEVA TEMPLE, ASOKAPURAM, ALUVA, ERNAKULAM DISTRICT, PIN- 683 101. ``` ``` *ADDL.6BABY.T.S. AGED 55 YEARS, D/O.T.K.SUBRAMANIAN, THOPPILPARAMBIL, WEST DESOM.P.O., CHENGAMANAD, ALUVA, ERNAKULAM DISTRICT, PIN- 683 102. ``` ``` *ADDL.7SHOBHANA.T.S. AGED 53 YEARS, W/O.RADHAKRISHNAN.A.K., ASSARIPARSMBIL, V.P.ROAD, NEAR MAMPILLY, NJARAKKAL, ERNAKULAM DISTRICT PIN- 682 505. ``` ``` *ADDL.8BABURAJ.T.S. AGED 47 YEARS, S/O.T.K.SUBRAMANIAN, THOPPILPARAMBIL HOUSE, KUNNUMPURAM, DESOM.P.O., CHENGAMANADU, ALUVA, ERNAKULAM DISTRICT, PIN- 683 102. ``` ``` *ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 8 AS PER ORDER DATED 04.04.2023 IN IA 1/2023 IN MACA 2015/2014. ``` ``` BY ADVS. ANUPAMA JOHNY LIJU. M.P NO ADVOCATE ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2023, ALONG WITH CO.159/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 19[TH] DAY OF OCTOBER 2023 / 27TH ASWINA, ``` ## **`1945`** ``` CO NO. 159 OF 2014 ``` ``` CROSS-OBJECTION IN MACA 2015/2014 OF HIGH COURT OF KERALA FROM THE AWARD DATED 11.04.2014 IN OP(MV) 1288/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR CROSS OBJECTOR/RESPONDENTS 1 AND 2 IN MACA 2015/2014: ``` - `1 HEMA W/O LATE UNNIKRISHNAN, THOPPILPARAMBIL KUNNUMPURAM, DESAM, ALUVA` ``` 2SUBRAMANIAN (DIED) F/O. LATE UNNIKRISHNAN, THOPPILPARAMBIL, KUNNUMPURAM, DESAM, ALUVA. ``` ``` *ADDL.3SATHI MOHANAN, AGED 59 YEARS, W/O. MOHANAN M.M., MUTHUKKAMPILLY, NEAR MAHADEVA TEMPLE, ASOKAPURAM, ALUVA, ERNAKULAM DISTRICT, PIN- 683 101. ``` ``` *ADDL.4BABY T.S. AGED 55 YEARS, D/O. T.K. SUBRAMANIAN, THOPPILPARAMBIL, WEST DESOM P.O., CHENGAMANAD, ALUVA, ERNAKULAM DISTRICT, PIN - 683 102. *ADDL.5SHOBHANA T.S. AGED 53 YEARS, W/O RADHAKRISHNAN A.K, ASSARIPARAMBIL, V.P ROAD, NEAR MAMPILLY, NJARAKKAL, ERNAKULAM DISTRICT, PIN- 682 505. ``` ``` MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014 ``` ``` 4 ``` ``` *ADDL.6BABURAJ T.S. , AGED 47 YEARS, S/O. T.K. SUBRAMANIAN, THOPPILPARAMBIL HOUSE, KUNNUMPURAM, DESOM P.O., CHENGAMANADU, ALUVA, ERNAKULAM DISTRICT, PIN - 683 102. ``` ``` *ARE IMPLEADED AS THE ADDITIONAL CROSS OBJECTORS 3 TO 6 IN C.O.159/2014 IN MACA 2015/14 AS PER ORDER DATED 03.03.2023 IN IA 1/23 IN CO.159/2014 IN MACA 2015/14. BY ADVS. SRI.GOPAKUMAR G. (ALUVA) ANUPAMA JOHNY ``` ## **`RESPONDENT/APPELLANT AND RESPONDENT NO.3 AND 4 IN MACA NO.2015/2014:`** ``` THE NEW INDIA ASSURANCE CO.LTD. SREEVALLI BLDG, ANICODE, CHITTUR, PALAKKAD – 678101 ``` ``` BY ADVS. SRI.M.JACOB MURICKAN SRI.LIJU. M.P ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2023, ALONG WITH MACA.2015/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014 ``` ``` 5 ``` ## **`JUDGMENT`** ## **`[MACA No.2015/2014, C.O.NO.159/2014]`** This appeal is submitted by the 3[rd] respondent in OP(MV) No.1288/2008 on the files of the Motor Accident Claims Tribunal, Perumbavoor. 2. The aforesaid claim petition was initially submitted by one Unnikrishnan seeking compensation for the injuries sustained to him in a motor accident that occurred on 23.02.2008. During the pendency of the claim petition, the said petitioner died on 27.10.2008 while undergoing treatment in relation to the injuries sustained in the accident. Thereupon, the legal heirs of the deceased got themselves impleaded as additional petitioners 2 to 4 and the claim petition was amended as a claim for death. 3. According to the claimants, the accident occurred when the said Unnikrishnan was hit by a Toyota Qualis car bearing registration No.TN 41 K 5356 driven by the 4[th] respondent herein, the 2[nd] respondent in the claim petition. ``` 6 ``` ## **`MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014`** The said vehicle was insured with the appellant herein. According to the claimants, the deceased was aged 40 years at the time of the accident, and he was working as a carpenter with a monthly income of Rs.5,000/-. The claim petition was submitted in such circumstances. 4. The owner and the driver of the vehicle filed a written statement contending that there was no negligence on the part of the 2[nd] respondent in the claim petition. They also contended that the vehicle was validly insured with the appellant herein and, if at all there is any liability, that has to be indemnified, by them. 5. The appellant/ 3[rd] respondent filed a written statement and an additional written statement, admitting the coverage of the policy but disputing the liability on various grounds. They also disputed the negligence and the quantum of compensation. 6. The evidence in this case consists of Exts.A1 to A12 series from the side of the claimants, and Exts B1 was ``` 7 ``` ## **`MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014`** marked on the side of the respondents. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent in the claim petition, the driver of the car. Therefore, being the insurer of the said vehicle, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.10,58,009/- and the appellant herein was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realisation. This appeal is filed by the insurance company, challenging the quantum of compensation. 7. The wife and the father of the deceased filed a cross objection seeking enhancement of compensation. During the pendency of the appeal, the father of the deceased, the 2[nd] cross objector, passed away, and his legal heirs were impleaded as additional cross objectors 3 to 6. 8. Heard Sri. Dinesh Mathew J. Muricken, the learned counsel appearing for the appellant and Smt. Anupama ``` MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014 ``` ``` 8 ``` Johny, the learned counsel appearing for the claimants/cross objectors. 9. The learned counsel for the insurance company would point out that the amounts awarded under various heads by the tribunal are on the higher side and, therefore, interference is required. On the other hand, the learned counsel appearing for the claimants would oppose the aforesaid contention and, simultaneously, seek to enhance compensation as, according to them, the amount awarded by the tribunal is inadequate. 10. I have carefully gone through the records. Even though it was claimed that the deceased was a carpenter by profession, no evidence was produced. The tribunal has considered the monthly income as Rs.3,500/-. Considering the date of the accident, which is in the year 2008, I am of the view that the monthly income of Rs.5,000/- claimed by the appellant is a reasonable amount in the light of the principles laid down by the Hon’ble Supreme Court in ``` MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014 ``` ``` 9 ``` **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] wherein even in the absence of any evidence, the monthly income was fixed as Rs.4,500/- for an ordinary employee in respect of an accident occurred in the year 2004. Therefore, the monthly income for the purpose of computing the compensation can be taken as Rs.5,000/- in this case. 11. Similarly, it is seen from the award that the Tribunal has made no addition towards future prospects, which was one of the mandatory requirements as per the principles laid down by the Hon’ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. Therefore, compensation has to be calculated by adding 25% of the monthly income towards future prospects, considering that he was 40 years old at the time of the accident. The multiplier applicable is 14. Thus, while re-assessing the compensation with the above criteria, the amount of compensation for loss of dependency would come to ``` 10 ``` ## **`MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014`** Rs.7,00,000/- [(5,000+25%) x 12 x 14 x 2/3]. The amount already awarded by the Tribunal under this head was Rs.3,92,280/- and after deducting the same, the additional amount would come to Rs.3,07,720/-. 12. The amount awarded by the Tribunal for loss of estate was only Rs.2,500/- whereas the actual amount should have been Rs.15,000/-. Therefore, a further sum of Rs.12,500/- is granted under the said head. 13. At this juncture, the learned counsel for the Insurance Company would point out that the Tribunal awarded an amount of Rs.1,00,000/- towards loss of love and affection and a further sum of Rs.1,00,000/- towards loss of consortium. It was pointed out that the loss of love and affection ought not have been granted by the Tribunal. After considering the principles laid down by the Hon’ble Supreme Court in **United India Insurance Co Ltd v. Satinder Kaur @ Satwinder Kaur and others [ 2020 (3) KHC 760]** , I find some force in the said contention. Since the deceased left ``` MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014 ``` ``` 11 ``` behind their wife and parents, all of them are entitled to compensation for loss of consortium at the rate of Rs.40,000/- thereby, the total amount would be Rs.1,20,000/(40000 x 3). It was also held in the aforesaid decision that when compensation is awarded for loss of consortium, no separate amount needs to be granted for loss of love and affection. Therefore, while re-fixing the compensation for loss of consortium as Rs.1,20,000/- the amount of Rs.1,00,000/awarded under the head of loss of love and affection is hereby deducted. Therefore, this modification would result in a deduction of Rs.80,000/- in the compensation so determined. Similarly, the Tribunal awarded Rs.25,000/towards funeral expenses, whereas the actual amount payable is only Rs.15,000/-. Therefore, on that head, an amount of Rs.10,000/- is in excess, and that has to be deducted. 14. Thus, after reworking the compensation due to the above reasons, the total additional amount payable by the ``` MACA NO. 2015 OF 2014 & CO NO. 159 OF 2014 ``` ``` 12 ``` appellant comes to Rs.2,30,220/- [(3,07,720 + 12,500) – (80,000 + 10,000)]. In the light of the aforesaid observations and findings, this appeal and cross objection are disposed of, modifying the award dated 11.04.2014 in O.P.(M.V.) No.1288/2008 passed by the Motor Accident Claims Tribunal, Perumbavoor, by granting the additional compensation of Rs.2,30,220/(Rupees two lakh thirty thousand two hundred and twenty only) and the appellant herein shall deposit the said amount within a period of three months from the date of receipt of a copy of this judgment with interest @ 8% per annum from the date of petition till realisation with proportionate costs. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ncd/scs