MACA No. 48 of 2016 & CO 122 of 2021: The Oriental Insurance Company Limited vs Manju Praveen and others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 ``` ## `MACA NO. 48 OF 2016` ``` AGAINST THE AWARD DATED 01.09.2015 IN OP(MV) NO.781 OF 2012 OF ADDITIONAL MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL-I,PATHANAMTHITTA ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE ORIENTAL INSURANCE CO.LTD, METRO PALACE, GROUND FLOOR, OPP. NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER BY ADV SRI.V.P.K.PANICKER ``` ## `RESPONDENTS/PETITIONERS:` |`1`|`MANJU PRAVEEN,`| |---|---| ||`W/O. LATE PRAVEEN B NAIR, MUTTATHAIYYATHU VEEDU,PARAKODE`| ||`MURI,ADOOR VILLAGE, PARAKODE P.O-691 554`| |`2`|`KRISHNA PRAVEEN,`| ||`S/O.LATE PRAVEEN B NAIR(MINOR),REPRESENTED BY HIS MOTHER NEXT`| ||`FRIEND MANJU PRAVEEN,MUTTATHAIYYATHU VEEDU,PARAKODE MURI,ADOOR`| ||`VILLAGE, PARAKODE P.O-691 554`| |`3`|`KALYANI,`| ||`D/O.LATE PRAVEEN B.NAIR(MINOR),REPRESENTED BY HER MOTHER NEXT`| ||`FRIEND MANJU PRAVEEN,MUTTATHAIYYATHU VEEDU,PARAKODE MURI,ADOOR`| ||`VILLAGE, PARAKODE P.O-691 554`| |`4`|`BHASKARAN NAIR,`| ||`F/O.LATE PRAVEEN B.NAIR,MUTTATHAIYYATHU VEEDU,PARAKODE MURI,ADOOR`| ||`VILLAGE, PARAKODE P.O-691 554`| |`5`|`VALSALAKUMARI,`| ||`M/O. LATE PRAVEEN B NAIR, MUTTATHAIYYATHU VEEDU,PARAKODE`| ||`MURI,ADOOR VILLAGE, PARAKODE P.O-691 554`| ||`BY ADVS.SRI.ARUN.B.VARGHESE`| ||`SRI.P.HARI`| ||`SMT.AISWARYA V.S.`| ``` THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2024, ALONG WITH CROSS OBJECTION 122/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.48 of 2016 & CO 122 of 2021 -:2:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 ``` ``` CO NO. 122 OF 2021 ``` ``` AGAINST THE AWARD DATED 01.09.2015 IN OP(MV) NO.781 OF 2012 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-I,PATHANAMTHITTA ``` ``` CROSS OBJECTORS/RESPONDENTS 1-5 ``` ``` 1MANJU PRAVEEN, AGED 38 YEARS, W/O. LATE PRAVEEN B. NAIR, MUTTATHAYYAITHU VEEDU, PARAKODE MURI, ADOOR VILLAGE, PARAKODE P. O., PATHANAMTHITTA - 691 554. 2KRISHNA PRAVEEN, AGED 14 YEARS, S/O. LATE PRAVEEN B. NAIR, REPRESENTED BY HIS MOTHER AND NEXT FRIEND MANJU PRAVEEN, MUTTATHAYYAITHU VEEDU, PARAKODE MURI, ADOOR VILLAGE, PARAKODE P. O., PATHANAMTHITTA - 691 554. 3KALYANI PRAVEEN, AGED 10 YEARS D/O. LATE PRAVEEN B. NAIR, REPRESENTED BY HER MOTHER AND NEXT FRIEND MANJU PRAVEEN, MUTTATHAYYAITHU VEEDU, PARAKODE MURI, ADOOR VILLAGE, PARAKODE P. O., PATHANAMTHITTA - 691 554. 4BHASKARAN NAIR, AGED 79 YEARS, F/O. LATE PRAVEEN B. NAIR, MUTTATHAYYAITHU VEEDU, PARAKODE MURI, ADOOR VILLAGE, PARAKODE P. O., PATHANAMTHITTA - 691 554. 5VALSALAKUMARI, AGED 68 YEARS M/O. LATE PRAVEEN B. NAIR, MUTTATHAYYAITHU VEEDU, PARAKODE MURI, ADOOR VILLAGE, PARAKODE P. O., PATHANAMTHITTA - 691 554. BY ADVS.SRI.ARUN.B.VARGHESE SMT.AISWARYA V.S. SMT.VARNA MANOJ ``` ## `RESPONDENT/APPELLANT:` ``` THE ORIENTAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS DULY AUTHORISED OFFICER, METRO PALACE, GROUND FLOOR, OPPOSITE NORTH RAILWAY STATION, ERNAKULAM - 682 018. BY ADV.SRI. V.P.K.PANICKER ``` ``` THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 28.02.2024, ALONG WITH MACA.48/2016, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA No.48 of 2016 & CO 122 of 2021 -:3:- ## **JUDGMENT** Dated this the 28[th] day of February, 2024 The appeal on hand is filed by the 3[rd] respondent, the insurer of the offending vehicle involved in the motor accident and cross objection is filed by the respondents in the appeal on hand who are claimants before the Additional Motor Accident Claims Tribunal -I, Pathanamthitta (for short ‘the Tribunal’). 2. Challenge is raised by the appellant as well as the cross objectors against the quantum of compensation stood awarded by the Tribunal in favour of the respondents. The appellant is seeking for modification of the quantum of compensation by way of reduction and the cross objectors, by way of enhancement. 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents in accordance with their status in the above Original Petition. MACA No.48 of 2016 & CO 122 of 2021 **==> picture [21 x 9] intentionally omitted <==** 4. Before adverting to the contentions raised by the appellant and the cross objectors, this Court is inclined to have a discussion about the facts of the case in brief. The motor accident in question was occurred at about 19.30 hrs. on 15.10.2011. One Mr.Praveen B. Nair was riding his motorcycle bearing Registration No.KL-25-A-581 from east to west through Pathanapuram-Adoor public road, and a lorry bearing Registration No.KL-07-G-6393 dashed against the motorcycle near IOC petrol outlet, Parakode and thereby he sustained serious injuries. While being transported to the hospital for treatment, Mr.Praveen B Nair succumbed to the fatal injuries received by him in the motor accident. Raising an allegation that the driver of the lorry was responsible for causing the motor accident by his rash and negligent driving and a claim for a sum of `1,00,000/- as compensation, the Original Petition was filed before the Tribunal. The driver, the registered owner and the MACA No.48 of 2016 & CO 122 of 2021 **==> picture [21 x 9] intentionally omitted <==** insurer of the lorry bearing Registration No.KL-07-G-6393 were arrayed as respondents 1 to 3 in the Original Petition. 5. The Tribunal issued notice to all respondents but despite service of notice, 1[st] and 2[nd] respondents did not turn upto contest the Original Petition. Therefore, they were declared as ex parte. 3[rd] respondent entered appearance on receipt of notice from the Tribunal and filed a written statement admitting that a certificate of insurance was issued for the vehicle covering the date of accident but contending that the compensation claimed by the petitioners is exorbitant. The possession of driving licence by the 1[st] respondent and allegation of negligence against him were denied. 6. Exts.A1 to A7 were marked by the petitioners in evidence. 3[rd] respondent did not adduce any evidence. The Tribunal found on the basis of the evidence that the motor accident in question was occurred due to the rash and negligent driving of the lorry bearing Registration No.KL-07-G-6393, by its MACA No.48 of 2016 & CO 122 of 2021 **==> picture [21 x 9] intentionally omitted <==** driver. The Tribunal also found that the petitioners being the legal heirs of the deceased Praveen B.Nair are entitled to get compensation for the loss sustained by them due to his death in the motor accident. Accordingly, a sum of `35,34,500/- was arrived at as the compensation payable and the 3[rd] respondent was directed to deposit the same infavour of the petitioners excluding amount if any, paid as interim compensation under Section 140 of the Motor Vehicles Act alongwith interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation and proportionate costs. 7. The argument mainly advanced by Sri.V.P.K.Panicker, the learned counsel for the insurer was that the Tribunal is unjustified in fixing `15,000/- as the monthly income of the deceased, on a notional basis. According to him, when viewed in the backdrop of the fixation of monthly income in the year 2004, for a coolie worker in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13** MACA No.48 of 2016 & CO 122 of 2021 **==> picture [21 x 9] intentionally omitted <==** **SCC 236]** , the monthly income fixed in the case on hand undoubtedly is on the higher side. Thus he sought for a refixation of the monthly income. 8. The learned counsel contended furthermore that the Tribunal added 50% to the monthly income so fixed notionally, in consideration of loss of future prospects. The learned counsel pointed out that the deceased was aged only 37 years at the relevant time of the motor accident and therefore, going by the dictum in **National Insurance Company Limited V. Pranay Sethi and Ors. [2017 (4) KLT 662 (SC)],** the Tribunal ought to have added only 40% to the monthly income fixed. The learned counsel urged furthermore that compensation was awarded by the Tribunal in favour of the petitioners under the conventional heads against the dictum laid down by the Apex Court in **Pranay Sethi** supra. According to the learned counsel, petitioners are not entitled to get compensation for pain and sufferings and loss of love and affection but the Tribunal has MACA No.48 of 2016 & CO 122 of 2021 -:8:- awarded compensation under those heads. The learned counsel urged furthermore that the multiplier ought to have been adopted by the Tribunal in the case on hand is 15, whereas the Tribunal adopted 16. 9. The learned counsel for the cross objectors argued on the contrary that `15,000/- is a reasonable sum to be fixed as monthly income in the case on hand and therefore, it is only to be maintained. The deceased was survived by five family members who are his spouse, two minor children and parents and therefore, each of them have entitlement to get `40,000/as compensation towards loss of consortium. According to him, the Tribunal failed to award compensation accordingly and therefore, interference by this Court is warranted to award so. The learned counsel for the cross objectors also seeks to maintain the compensation stood awarded by the Tribunal towards transportation expenses, damages to clothing, pain and suffering and loss of love and affection. The rate of interest MACA No.48 of 2016 & CO 122 of 2021 -:9:- ordered by the Tribunal to be paid for the compensation amount is also sought to be maintained. The impugned award is perused by this Court to see the basis in the arguments advanced. The age of the deceased was taken by the Tribunal as 37 years and in the absence of any challenge raised against, it is maintained. Therefore, the correct multiplier is 15 and that was also adopted by the Tribunal. The age of the deceased was considered as 37 years and therefore, 40% ought to have been added by the Tribunal to the monthly income fixed, in consideration of loss of future prospects, instead of 40% added by it. The deduction towards personal expenditure was taken as ¼[th] . It being correct is also maintained. 10. The monthly income was found fixed by the Tribunal notionally, since the petitioners failed to adduce any evidence in that regard. It was pleaded by the petitioners in the Original Petition that the deceased was a contractor cum supplier of materials of construction earning `40,000/- monthly. The MACA No.48 of 2016 & CO 122 of 2021 **==> picture [27 x 9] intentionally omitted <==** materials relied on by the petitioners also do not indicate that the deceased was doing work as a contractor and supplier of materials of construction. In the above scenario, the monthly income fixed by the Tribunal notionally as `15,000/- is undoubtedly is on the higher side. 11. It is pertinent to note that the deceased was survived by five family members. Evidence has not come to the effect that the deceased was the sole earning member of the family. Therefore, this Court finds it reasonable to re-fix the monthly income of the deceased as `10,000/- and having due regard to his age, 40% was added to it in consideration of loss of future prospects of the deceased due to his untimely death in the motor accident. In the above circumstances, the compensation payable towards loss of dependency requires calculation afresh and this Court do so. 12. In the calculation afresh with the modified factors discussed hereinabove, `18,90,000/- (`14,000 x 12 x 15x 3/4) MACA No.48 of 2016 & CO 122 of 2021 -:11:- is arrived at towards loss of dependency. As per the dictum in **Pranay Sethi** supra, each of the petitioners are entitled to get `40,000/- as compensation towards loss of consortium. Thus `2,00,000/- ( `40,000/- x 5) is arrived at. 13. It is noticed that the Tribunal has awarded `25,000/and `1,00,000/- as compensation respectively towards funeral expenses and loss of estate. As per the dictum in **Pranay Sethi** supra, petitioners are entitled to get only `15,000/- each as compensation under those heads. Thus the compensation stood awarded by the Tribunal under those heads are modified accordingly. Compensation stood awarded by the Tribunal towards transportation expenses and damages to clothing being reasonable are maintained. The interest rate fixed by the Tribunal is also maintained. 14. In the above manner of calculation afresh, petitioners would get `21,22,000/- (`15,000/- + `2,00,000/-+ `1,000/-+ `1,000/- + `18,90,000/-+ `15,000/-) as compensation. Thus MACA No.48 of 2016 & CO 122 of 2021 **==> picture [27 x 9] intentionally omitted <==** the compensation payable in favour of the petitioners is modified and reduced accordingly. Interest is payable for the sum at the rate of 9% per annum from the date of filing of the Original Petition till the date of payment. 3[rd] respondent shall pay the compensation modified by this judgment with interest accrued on it at the rate fixed as above, within a period of two months from the date on which a certified copy of this judgment is received. 15. The claimants are also entitled to get proportionate costs. Undoubtedly the modified compensation would exceed the claim of compensation. Therefore, the Tribunal shall see that additional court fee is realised from the petitioners for the excess sum awarded than the sum claimed, at the time of disbursal of the amount or else by appropriate measures. The apportionment of the compensation among the petitioners shall be in accordance with the directions issued by the Tribunal in the impugned award as well as the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. MACA No.48 of 2016 & CO 122 of 2021 -:13:- The appeal and Cross objections are allowed in part, accordingly. Sd/- **MARY JOSEPH JUDGE** MJL