MACA Nos. 1631/2012 & conn. cases (The Oriental Insurance Co. Ltd. v. Aravind M.S and others)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 5TH DAY OF DECEMBER 2017 / 14TH AGRAHAYANA, 1939** _**MACA.No. 1631 of 2012**_ **AGAINST THE AWARD IN OPMV 1320/2006 dated 30.4.2012 of MACT ALAPPUZHA** **APPELLANT(S)/3RD RESPONDENT** **THE ORIENTAL INSURANCE CO.LTD ALAPPUZHA, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI -18.** **BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA)** **RESPONDENT(S)/CLAIMANTS:** ## **1. ARAVND M.S** **S/O. LATE MR. MANIYARU PANDARATHIL, RESIDING AT ANNALMADOM (SHILPA BHAVAN), MANIKKAL PANCHAYATH, WARD NO. III, AMBALLOOR MURI NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT, PRESENTLY RESIDING AT VAYALIKKODATH MANA, THEKKE ADUVASSERY, KUNNUKARA VILLAGE, PARAVOOR TAUK, ERNAKULAM - 683 513.** ## **2. AKHILA.M.S (MINOR)** **D/O. LATE MR. MANIYARU PANDARATHIL, RESIDING AT ANNALMADOM (SHILPA BHAVAN), MANIKKAL PANCHAYATH, WARD NO. III, AMBALLOOR MURI NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT, PRESENTLY RESIDING AT VAYALIKKODATH MANA, THEKKE ADUVASSERY, KUNNUKARA VILLAGE, PARAVOOR TAUK, ERNAKULAM - 683 513. (2ND RESPONDENT IS MINOR AND IS REPRESENTED BY HER NEXT FRIEND AND GUARDIAN MR. RAMAN NAMBOODIRI, S/O. RAMAN NAMBOOTHIRIPAD, RESIDING AT VAYALIKKODATH MANA, THEKKE ADUVASSERY, KUNNUKARA VILLAGE, PARAVOOR TALUK - 683 513.** **RR1 & 2 BY ADV. SRI.P.B.KRISHNAN RR1 & 2 BY ADV. SMT.GEETHA P.MENON RR1 & 2 BY ADV. SRI.N.AJITH R1 & 2 BY ADV. SRI.P.B.SUBRAMANYAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-12-2017 ALONG WITH MACA NOS.1633/2012 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K. ABDUL REHIM & SHIRCY V.,JJ.** ## **==============================** ## **M.A.C.A. Nos. 1631, 1632, 1633, 1634, 1975, 2037, 2077 & 2094 of 2012** ## **==============================** ## **Dated this the 5[th] day of December, 2017 JUDGMENT** ## **C.K.Abdul Rehim, J.** A common award passed by the Motor Accidents Claims Tribunal, Alappuzha in O.P.(MV) No. 1320/2016, 1322/2006, 1323/2006 and 1324/2006 are under challenge at the instance of the claimants as well as at the instance of the Insurance Company of the offending vehicle. The appeals filed by the Insurance Company against the awards are M.A.C.A. Nos. 1631/2012, 1634/2012, 1632/2012 & 1633/2012, respectively. The appeals filed by the claimants are M.A.C.A. Nos.2094/2012, 2077/2012, 1975/2012 and 2037/2012 respectively. 2. The accident in question occurred on 27.5.2006 when a lorry bearing Reg.No.KL-01 Y/8226 hit against a MACA 1631/2012 & conn. cases 2 Maruti car in which one Maniyaru Pandarathil and his family were travelling. In the accident, the said Maniyaru Pandarathil, who was driving Maruti car and his wife, who was a passenger in the car, died and two of their children sustained injuries. The Tribunal disposed of the claim petitions through the common award allowing different amounts of compensation. The Tribunal found that the accident occurred due to the negligence on the part of the driver of the lorry and held that the appellant/insurance company is liable to pay the compensation, being the insurer of the lorry involved in the accident. There is no dispute in any of these appeals with respect to the findings on the aspects of negligence and on the liability of the appellantinsurance company. In appeals filed by the insurance company, the awards are challenged on the ground that the amount allowed as compensation is excessive, whereas the claimants in their appeal are seeking enhancement of the quantum of compensation on the basis that the amounts MACA 1631/2012 & conn. cases 3 determined are insufficient and inadequate. 3. Heard; learned counsel for the appellants/claimants and Standing Counsel appearing for the appellant/insurance company. Now we will deal with each of the cases separately. ## **M.A.C.A. Nos. 1631/2012 & 2094/2012 against O.P. (MV) No. 1320/2006** 4. The deceased in this case is a lady aged 42 years (wife of Maniyaru Pandarathil). Two minor sons are the claimants. The claim before the Tribunal was that the deceased was occupied as a 'Tuition Teacher' apart from doing tailoring and embroidery works and was getting a monthly income of Rs.15,000/-. No documentary evidence was produced to substantiate the above claim. However, the appellants have produced copies of insurance policy, F.D.receipt deposit, pass book, chitty pass book etc. in the name of the deceased. Having not produced any documentary evidence with respect to her occupation and MACA 1631/2012 & conn. cases 4 income, the Tribunal adopted notional income of Rs.3500/for the purpose of computation of loss of dependency. Compensation was determined by adopting the correct multiplier of 14. Learned counsel for the appellants/claimants contended that the notional income adopted by the Tribunal is highly insufficient. Considering the lack of any proof regarding the monthly income of the deceased, we have to concur with the findings of the Tribunal that the claimants have failed in proving the income of the deceased. But at the same time we are of the opinion that the income of Rs.3500/- adopted by the Tribunal is slightly on the lower side. The Hon'ble Supreme Court in the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.[ (2011) 13 SCC 236]** held that, even in case of a coolie worker a notional income of Rs.4500/- need to be adopted, that too with respect to an accident which occurred in the year 2006. Considering the socio-economic situations, prevailed in the MACA 1631/2012 & conn. cases 5 year 2006, we are of the opinion that an amount of Rs.4500/- can be adopted as notional monthly income of the deceased, on a reasonable assumption, specially taking note of the documents produced by the claimants which indicate that the deceased was having different earnings. When calculated on that basis, loss of dependency need to be refixed at Rs.5,04,000/- (4500x12x14x2/3). After deducting the amount already awarded under this head, the claimants will be entitled for an enhancement of Rs.1,12,000/- on that count. 5. Learned counsel for the appellants/claimants pointed out that the Tribunal had not awarded anything towards damages to clothing and articles, which we are inclined to accept. We award a sum of Rs.1500/- on that count. The funeral expenses awarded by the Tribunal is only a meagre amount of Rs.5,000/-. So also the Tribunal had failed to award anything towards loss of estate. Taking into consideration of the guidelines fixed by the hon'ble apex MACA 1631/2012 & conn. cases 6 court in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017(4)KLT 662]** we are inclined to refix the compensation for funeral expenses at Rs.15,000/and is inclined to award a sum of Rs.15,000/- towards loss of estate. This will entitle the appellants for a further enhancement of Rs.25,000/-, after deducting the amounts already awarded. 6. Learned Standing Counsel for the appellant/insurance company contended that the amount of Rs.1 lakh awarded by the Tribunal towards pain and sufferings is on the higher side. Considering the fact that the death happened within few days, we are inclined to accept the contention and we reduce the compensation on this count to Rs.25,000/-, consequently the total amount need to be reduced by a sum of Rs.75,000/-. Calculated on the above basis, the total enhancement for which the appellants are entitled is fixed at Rs.63,500/-. **MACA 1634 & 2077 of 2012 against** MACA 1631/2012 & conn. cases 7 ## **OP(MV)No.1322/2006** 7. The person died in the accident is father of the family, Maniyaru Pandarathil, who was aged 47 years at the time of the accident. It was claimed that the deceased was a scholar in Manthra vidya and Thanthrik Vidya, hailing from a noble and reputed Thanthrik family. It was claimed that he was working as Priest in three Temples. Ext.A21 is the salary certificate issued from Marankuzhi Devi Temple, Vembayam, which showed that the deceased was earning Rs.12,000/- per month as salary. The above certificate was proved by examining PW4, Secretary of the above said Temple. Ext.A12 is the certificate issued by the Secretary, Sree Dharmasastha Temple, Nedumangad, which would show that the deceased was earning a sum of Rs.8,000/per month as salary. The Secretary of the said Temple was examined as PW2. PW3 is the relative of the deceased, who when examined deposed that the deceased was working as Priest in two Temples at Thiruvananthapuram and was MACA 1631/2012 & conn. cases 8 earning Rs.5,000/-- and 12,000/- respectively from each of such temples, apart from getting Dakshina to the extent of Rs.8,000/-. PW5 also had supported the above version. PW8 is another Priest, who deposed that he was assisting the deceased in the poojas. According to him, the deceased was working as Priest in two Temples and was doing ritual and other special poojas in various other Temples and houses. According to PW8, the deceased was doing more than 20 poojas per month. Claimants have produced copy of insurance policy, deposit receipt, documents relating to property etc. held by the deceased. The Tribunal, taking into consideration of all the above said materials, had adopted the monthly income of the deceased at Rs.25,000/for the purpose of computing compensation for loss of depedency. Even though counsel on both sides raised rival contentions with respect to the reasonableness of the amount of income fixed, we are not interfering with the same, since we find it justifiable based on the evidence on MACA 1631/2012 & conn. cases 9 record. Learned counsel appearing for the appellants/claimants contended that the Tribunal had failed to add anything towards future prospects. According to him, a person well versed in Manthra vidya and Thanthric vidya is having great potential for increased income, in the present society. Considering the nature of job with the specialised knowledge, he could have continued his life as a self employed person achieving more prospects in the matter of income. Therefore the Tribunal ought to have increased the amount while fixing the multiplicand taking into consideration of the future prospects, is the contention. We take not of the guidelines contained in **Pranay Sethi's case** ( _supra_ ) wherein it is ordered that with respect to as an employed person between the age group of 40 and 50, 25% of the income need to be added as future prospects. Therefore, we are inclined to increase the multiplicand by adding 25% of the income fixed by the Tribunal. Thus the compensation awarded under the head of loss of MACA 1631/2012 & conn. cases 10 dependency is refixed at Rs.32,50,000/(25000+25%x12x13x2/3). After deducting the amount already awarded, the appellants are entitled for an enhancement of Rs.6,50,000/- on that count. 8. It is pointed out that the Tribunal had failed to award anything towards loss of estate and that the amount of Rs.5,000/- awarded towards funeral expenses is on the lower side. Taking into consideration of the guidelines fixed by the Hon'ble Supreme Court in **Pranay Sethi's case** _(supra)_ , we refix the compensation at Rs.15,000/- each. This will entitle the appellants for a further enhancement of Rs.25,000/-. The Tribunal had not awarded anything towards damages to clothing and the articles, which we order a sum of Rs.1500/-. Thus, we hold that the appellants in the said case are entitled for a total enhancement of Rs.6,76,500/-. **M.A.C.A.Nos.1632/2012 & 1975/2012 against O.P. (MV)No.1323/2006 & M.A.C.A.Nos.1633/2012 & 2037/2012 against O.P.MV)No.1324/2006)** MACA 1631/2012 & conn. cases 11 9. Even though the rival contentions are raised by both the sides about reasonableness and justifiability of the amount of compensation awarded in both these claim petitions, on an elaborate consideration of the award, we do not think that any interference is warranted. Hence, no modification is ordered with respect to the quantum of compensation in both the cases. 10. In the result, the above appeals are disposed of as follows: i)M.A.C.A.Nos.1632, 1633, 1975 and 2037 of 2012 are hereby dismissed. ii)M.A.Nos.1631 & 2094 of 2012 are disposed of by enhancing the total compensation awarded in O.P.(MV)No. 1320/2006 by a further sum of Rs.63,500/-. iii) M.A.C.A..No. 1634 & 2077 of 2012 are disposed of by enhancing the total compensation awarded by the Tribunal in O.P.(MV)No.1322/2006 by a further sum of Rs.6,76,500/-. MACA 1631/2012 & conn. cases 12 iv) The a mount of enhancement ordered herein above will carry interest at the same rate as awarded by the Tribunal from the date of the claim petition till realisation. The appellant-insurance company shall deposit the amount, less the amount already paid, within a period of two months from the date of receipt of a copy of this judgment. Needless to observe that the claimants in the appeals where enhancement is ordered will be entitled to approach the Tribunal seeking withdrawal of the amount if deposited, and the Tribunal shall pass appropriate orders thereon. **Sd/C.K. ABDUL REHIM JUDGE** **Sd/-** **SHIRCY V. JUDGE** **ks.** True copy P.S. To Judge MACA 1631/2012 & conn. cases 13 ..... MACA 1631/2012 & conn. cases 14