M.A.C.A NO. 3445 OF 2016

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 22[ND] DAY OF DECEMBER 2021 / 1ST POUSHA, 1943 MACA NO. 3445 OF 2016** **AGAINST THE ORDER/JUDGMENT IN OPMV 446/2013 OF III ADDITIONAL DISTRICT & SESSIONS COURT, THODUPUZHA / I ADDITIONAL MACT, THODUPUZHA** **APPELLANT/3RD RESPONDENT IN O.P (M.V):** **THE KERALA STATE INSURANCE DEPARTMENT REPRESENTED BY ITS DISTRICT INSURANCE OFFICER, MANAKKADU ROAD, THODUPUZHA.** **SRI. K. M FAISAL - GOVERNMENT PLEADER** ## **RESPONDENTS/PETITIONERS IN O.P (M.V):** |**1**|**JANCY**| |---|---| ||**W/O. LATE N.C. GEORGE, NJAVALLYKUNNEL HOUSE,**| ||**MARIAPURAM KARA, THANKAMONY VILLAGE.**| |**2**|**STEPHIN**| ||**S/O. LATE N.C.GEORGE, NJAVALLYKUNNEL HOUSE,**| ||**MARIAPURAM KARA, THANKAMONY VILLAGE**| ||**(MINOR DATE OF BIRTH:22.05.1996).**| |**3**|**NELWIN**| ||**S/O. LATE N.C.GEORGE, NJAVALLYKUNNEL HOUSE,**| ||**MARIAPURAM KARA, THANKAMONY VILLAGE**| ||**(MINOR DATED OF BIRTH:18.10.2000).**| ||**BY ADVS.**| ||**SRI. DOMSON J.VATTAKUZHY**| ||**SRI. MATHEW JOHN K**| ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 22.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A NO.3445 OF 2016** **2** ## **JUDGMENT** This is an appeal filed by the 3[rd] respondent Kerala State Insurance Department aggrieved by the award dated 05.01.2016 in O.P.(MV) No.446 of 2013 of the Motor Accidents Claims Tribunal, Thodupuzha. The parties are referred to as per their status in the claim petition. The deceased N.C. George was the President of Mariyapuram Grama Panchayat. When deceased N.C. George was travelling in a jeep bearing Registration No. KL-6E-4499 owned by Mariyapuram Grama Panchayat from Mariyapuram to Thiruvananthapuram on 28.12.2012, the jeep collided with a lorry bearing Registration No. KL-16E-5849 which was parked on the side of a road at a place called Karattu. N.C. George and another passenger in **M.A.C.A NO.3445 OF 2016** **3** the jeep sustained injuries. N.C. George succumbed to the injuries the same day at the hospital. The petitioners are the wife and two minor children of the deceased and they have filed the claim petition seeking a total compensation of Rs.18,00,000/- for the death of N.C. George. 2.The 1[st] respondent was the driver of the jeep at the time of accident and the 3[rd] respondent is its insurer. The 1[st] respondent, the driver of the jeep filed a written statement contending that the accident happened due to the negligence of the driver of the lorry. The 3[rd] respondent, the Kerala State Insurance Department filed a written statement admitting that the vehicle was insured with them at the time of the accident, but denying negligence on the part of the driver of the jeep. It was contended that the amount claimed as compensation is exorbitant. **M.A.C.A NO.3445 OF 2016** **4** 3. The Tribunal, on the basis of Ext. A1 FIR, Ext. A2 final report and Ext. A4 scene mahazar found that the accident happened due to the negligence of the 1[st] respondent and awarded an amount of Rs.17,24,000/as total compensation for the death of N.C. George with 9% interest per annum from the dated of the petition till realisation together with costs. The 3rd respondent insurer was directed to satisfy the award. The amount awarded as compensation under different heads is as follows:- |Sl.<br>No|Particulars of<br>Claim|Amount<br>Claimed|Compensa<br>tion<br>determine<br>d|Particulars| |---|---|---|---|---| |1|Transportation<br>to hospital and<br>return to home|25,000|15,000|-| |2|Extra<br>nourishment|10,000|-|-| |3|Damage to<br>clothing and<br>articles|1,000|1,000|-| **M.A.C.A NO.3445 OF 2016** **5** |4|Funeral<br>expenses|25,000|30,000|| |---|---|---|---|---| |5|Other<br>incidental<br>expenses|15,000||| |6|Compensation<br>for pain and<br>sufferings|25,000|10,000|-| |7|Loss of<br>consortium to<br>the first<br>petitioner|1,00,000|1,00,000|-| |8|Compensation<br>for the loss of<br>love and<br>affection, care,<br>guidance and<br>future<br>assistance|3,00,000|50,000|-| |9|Compensation<br>for the loss of<br>dependency|15,84,000|15,18,000<br>(15,000x12x11x115x2/300)|| |10|Compensation<br>for the loss of<br>estate|1,00,000||| |11|Compensation<br>for the loss of<br>future<br>prospects|2,37,800||| ||Total|24,51,800<br>Claim<br>limited to<br>18,00,000|17,24,000|| **M.A.C.A NO.3445 OF 2016** **6** 4. The 3[rd] respondent insurer has filed this appeal mainly contending that the amount awarded as compensation is excessive and exorbitant. Sri. K.M. Faisal, the learned Government Pleader appearing for the 3[rd] respondent insurer, points out that the amount of compensation awarded under the head funeral expenses is excessive. Sri. K.M. Faisal also contends that the petitioners are not entitled for any amount under the head pain and sufferings. It is also contended that an amount of Rs.1,00,000/- has been awarded under the head loss of consortium and a further amount of Rs.50,000/- is awarded towards loss of love and affection and the petitioners are not entitled to get compensation under both the heads. 5. According to Sr. Faisal, the monthly income of Rs.15,000/- fixed by the Tribunal for assessing the compensation is without any basis. The deceased was **M.A.C.A NO.3445 OF 2016** ## **7** the President of the Panchayat who was receiving honorarium and sitting fees as evident from Ext. A13 letter and was also receiving income from agricultural property which has been proved by Ext. A7 lease deed. Therefore, I find that, the monthly income fixed by the Tribunal as Rs.15,000/- is just and reasonable. 6. The Tribunal has correctly taken the multiplier as 11 as the deceased was aged 52 years at the time of accident. The addition towards future prospects was taken as 15% and deduction towards personal living expenses of the deceased was taken as 1/3 and has awarded Rs.15,18,000/- (17250x12x11x2/3) as compensation for loss of dependency/loss of future prospects. There is no reason to interfere with the said finding. 7. The Tribunal included the compensation for loss of estate also under the head loss of dependency /loss **M.A.C.A NO.3445 OF 2016** **8** of future prospects and no separate compensation was awarded for loss of estate. The compensation for loss of estate has to be dealt with under a separate head. In view of the law laid down by the Constitution Bench of the Apex Court in **National Insurance Company Limited** _**v.**_ **Pranay Sethi and Ors. [(2017) 16 SCC 680]** , the compensation payable under the conventional head of loss of estate should be Rs.15,000/-. The same has to be enhanced on percentage basis, at the rate of 10%, in a span of every three years. Accordingly, the petitioners are entitled to an amount of **Rs.16,500/-** as compensation under the head loss of estate. 8. The Tribunal has awarded an amount of Rs.30,000/- towards funeral and other incidental expenses. Going by the principles laid down in **Pranay Sethi** (supra), the petitioners are entitled to only **M.A.C.A NO.3445 OF 2016** **9** Rs.15,000/- towards funeral expenses. With an enhancement of 10% for every 3 years, the petitioners are entitled for an amount of Rs.16,500/(15000+1500) towards compensation for funeral expenses. Therefore, the excess amount of **Rs.13,500/-** [Rs.30,000-Rs.16,500] has to be deducted from the compensation awarded under the head funeral expenses. 9. Sri. Faisal contends that the petitioners are not entitled for any amount towards compensation for pain and suffering. However, Sri. Mathew John appearing for the petitioners contend that even for instantaneous death, compensation can be awarded under the head pain and suffering and the deceased George succumbed to the injuries after some hours of the accident while undergoing treatment at hospital. In **Jyni and others** _**v**_ **. Raphel P.T. and others** [2016 **M.A.C.A NO.3445 OF 2016** **10** ## (2) KHC 870] a Division Bench of this Court held:- “36. Death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases.” Accordingly, the compensation awarded under the head pain and suffering can be re-fixed as Rs. 10,000/- and an amount of **Rs.15,000/** (Rs.25,000- Rs.10,000/) has to be deducted under the head pain and suffering. **M.A.C.A NO.3445 OF 2016** **11** 10. Towards loss of consortium and for loss of love and affection an amount of Rs.1,50,000/- has been awarded. Following the ratio of the decision in _**v**_ **. Pranay Sethi** (supra) and **N.Jayasree and others Cholamandalam Ms General Insurance Co. Ltd** (2021 (6) KHC 163), the petitioners are entitled to Rs.40,000/- each for loss of consortium with 10% increase for every 3 years. Accordingly, for loss of consortium, the petitioners are entitled for Rs.1,32,000/- (44,000x3). The Tribunal has awarded Rs.1,00,000/- under the head loss of consortium and Rs.50,000/- towards loss of love and affection. The Hon'ble Supreme Court has held in **United India Insurance Co.Ltd.** _**v.**_ **Satinder Kaur** [AIR 2020 SC 3076], that, when compensation is awarded under the head loss of consortium, there is no need to award compensation for loss of love and affection as a **M.A.C.A NO.3445 OF 2016** **12** separate head. Since the petitioners are entitled for Rs,1,32,000/- towards loss of consortium, no further amount is to be awarded under the head loss of love and affection. Therefore, an amount of **Rs.18,000/(1,50,000-1,32,000)** has to be deducted under the head loss of consortium/loss of love and affection. 11. On the basis of the above findings, the petitioners are entitled for an additional amount of Rs. 16,500/ towards compensation for loss of estate; where as an amount of Rs.46,500/ (Rs.13,500+15,000+18,000) is to be deducted from the compensation awarded by the Tribunal. Therefore, the total compensation payable to the petitioners is modified and reduced to Rs.16,94,000/- (17,24,00030,000). In the result, the appeal is allowed holding that the respondents/petitioners are entitled only for an **M.A.C.A NO.3445 OF 2016** **13** amount of Rs.16,94,000/- instead of Rs.17,24,000 /- awarded by the Tribunal, with 9% interest per annum and proportionate costs. Pursuant to the interim order dated 21.06.2017 passed by this Court, the 3[rd] respondent insurer had deposited one half of the amount awarded inclusive of interest and costs before the Tribunal. The 3[rd] respondent shall deposit the balance amount as per the modified award of this Court within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SPR