MACA Nos. 2049 of 2015 and 1070 of 2015, In the High Court of Kerala at Ernakulam, Against the Award in OPMV 1458/2006 of Motor Accidents Claims Tribunal, Neyyattinkara

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 MACA NO. 2049 OF 2015 ``` ## **`AGAINST THE AWARD IN OPMV 1458/2006 OF MOTOR ACCIDENT CLAIMS`** ## **`TRIBUNAL ,NEYYATTINKARA`** ## **`APPELLANTS/CLAIMANTS:`** - `1 PRAMEELA AGED 41 YEARS W/O LATE SUDARSANAN, THOZHUKOTTIYATHIL VEEDU, KARICHAL, PULLUVILA PO, THIRUVANANTHAPURAM` - `2 P.S. NANDANA (MINOR) D/O LATE SUDARSANAN, THOZHUKOTTIYATHIL VEEDU, KARICHAL, PULLUVILA PO, THIRUVANANTHAPURAM (REPRESENTED BY THE FIRST APPELLANT - MOTHER) BY ADV SRI.M.R.SARIN` ## **`RESPONDENTS:`** ``` 1ALEXANDER S/O ALBY, A.J. NIVAS, CHEMPAKARAMAN THURA, IRAYIMMANTHURA, PULLUVILA PO, THIRUVANANTHAPURAM-695001 ``` - `2 M/S THE ORIENTAL INSURANCE CO.LTD DIVISIONAL OFFICER NO.1. PAZHAVANGADI,THIRUVANANTHAPURAM 695 001` - `3 S.SANAL KUMAR S/O ARJUNAN, MALAVILA VEEDU KARICHAL, KANJIRIAMKULAM, THIRUVANANTHAPURAM 695 001` - `4 K. RAVEENDRAKUMAR RAVIKUMAR S/O KUTTAN CHEKKALA VEEDU, MULLOOR PO THIRUVANANTHAPRUAM 695 001` ``` 5K. RADAMMA BABY W/O KUTTAN CHEKKALA VEEDU, MULLOOR PO THIRUVANANTHAPRUAM 695 001 BY ADVS. SRI.K.RAJESH KANNAN (CAVEATOR) SRI.AJAYA KUMAR. G SRI.GEORGE CHERIAN SR. SMT.K.S.SANTHI SRI.P.SANTHOSHKUMAR KARUMKULAM ``` MACA Nos.1070 & 2049 of 2015 **2** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2022, ALONG WITH MACA.1070/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA Nos.1070 & 2049 of 2015 **3** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, ``` ``` 1944 ``` ``` MACA NO. 1070 OF 2015 ``` ``` AGAINST THE AWARD IN OPMV 1458/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA ``` ## **`APPELLANT:`** ``` THE ORIENTAL INSURANCE CO.LTD. THIRUVANANTHAPURAM, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ## **`RESPONDENTS:`** ``` 1PRAMEELA W/O.LATE SUNDARSANAN, THOZHUKOTTIYATHIL VEEDU, KARICHAL, PULLUVILA P.O., THIRUVANANTHAPURAM. 2P.S.NANDANA (MINOR) D/O.LATE SUNDARSANAN, THOZHUKOTTIYATHIL VEEDU, KARICHAL, PULLUVILA P.O., THIRUVANANTHAPURAM. (REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN A.PRAMEELA). BY ADV SRI.M.R.SARIN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2022, ALONG WITH MACA.2049/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA Nos.1070 & 2049 of 2015 **4** **P.V.KUNHIKRISHNAN, J. -------------------------------M.A.C.A.No.1070 & 2049 of 2015 ---------------------------------------------Dated this the 10[th] day of November, 2022** ## **JUDGMENT** These two appeals are connected and therefore, I am disposing these two appeals by a common judgment. 2. M.A.C.A.No.2049 of 2015 is filed by the claimants in O.P.(MV) No.1458 of 2006 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara, for enhancement of compensation and M.A.C.A.No.1070 of 2015 is filed by the Insurance Company in the above case, challenging quantum of compensation awarded. 3. Brief facts are like this: On 04.03.2006 at about 6.00 pm, while the deceased Sudarsanan was riding a motorcycle bearing registration No.KL-01/R-4421 along Vizhinjam – Poovar Public Road from Vizhinjam side to Poovar side and when reached near Chowara Junction, he was knocked down by a Mahindra **5** MACA Nos.1070 & 2049 of 2015 Van bearing registration No.KL-01/W-9363, which came in the opposite direction driven in a rash and negligent manner and as a result of it, the deceased was sustained with fatal injuries. Subsequently he succumbed to the injuries. 4. To substantiate the case before the Tribunal, Exts.A1 to A5 were marked on the side of the applicants. Ext.B1 is the insurance certificate. After going through the evidence and documents, the Tribunal found that the accident occurred due to the rash and negligent driving of the offending Mahindra Van bearing registration No.KL01/W-9363 by the 4[th] respondent. Admittedly the vehicle was covered with an insurance policy and therefore the appellant in M.A.C.A.No.1070 of 2015 was directed to pay the compensation. The Tribunal found that the claimants are entitled for a total amount of Rs.14,74,348/- as compensation with 9% interest per annum. Aggrieved by the award, these appeals are filed. 5. Heard the learned counsel for the appellants in these cases. MACA Nos.1070 & 2049 of 2015 **6** 6. The counsel for the appellant in M.A.C.A.No.1070 of 2015 submitted that after awarding compensation for loss of consortium, the Tribunal erred in awarding separate compensation for loss of love and affection and also for loss of care and guidance for minor children. The counsel also submitted that for loss of estate, the amount awarded is on a higher side and as per the judgment of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** the maximum amount that can be awarded is only Rs.16,500/- (15,000 + 1,500). The counsel further submitted that as per **Pranay Sethi’s case** (supra), for funeral expenses, the maximum amount that can be awarded is only 15,000/-. After three years, 10% hike is also possible. Therefore the counsel submitted that the maximum amount that can be allowed is only Rs.16,500/-. The counsel further submitted that the multiplier used by the Tribunal is unsustainable because the remaining service of the deceased in the Corporation was only ten years more. 7. The counsel for the appellants in **7** MACA Nos.1070 & 2049 of 2015 M.A.C.A.No.2049 of 2015 submitted that there are four claimants and the appellants are entitled for loss of consortium at the rate of Rs.40,000/- each (40,000 x 4 = 1,60,000). The counsel further submitted that the multiplier used by the Tribunal is correct in the light of the decision in **Jayasree N. and Others v. Cholamandalam MS General Insurance Company Ltd. [2021 (6) KHC 163].** The counsel also submitted that the amount of compensation awarded for transport to hospital is also on a lower side. 8. This Court considered the contentions of the appellants in these cases. As far as compensation for loss of consortium is concerned, there are 4 dependents. Each dependent is entitled for an amount of Rs.40,000/- in the light of the decision in **Pranay Sethi’s case** (Supra). Therefore the claimants are entitled for an amount of Rs.1,60,000/- (40,000 x 4). 9. In view of the law laid down by the Apex Court in **Pranay Sethi’s case** (supra), Rs.25,000/- awarded by the MACA Nos.1070 & 2049 of 2015 **8** Tribunal in the impugned award towards funeral expenses is scaled down to Rs.16,500/-, resulting an excess payment of Rs.8,500/- (25,000 – 16,500) and Rs.50,000/- towards loss of estate is scaled down to Rs.16,500/- resulting an excess payment of Rs.33,500/- (50,000 – 16,500). The Tribunal awarded an amount of Rs.50,000/- towards loss of love and affection and Rs.1,00,000/- towards loss of care and protection to the minor children. In the light of the compensation awarded for loss of consortium, the claimants are not entitled for compensation under these two heads. 10. In such circumstances, the compensation amount entitled by the appellants can be summarized as follows: Loss of dependency : 11,47,848/Loss of consortium : 1,60,000/Loss of Estate : 16,500/Transport to hospital : 1,000/Funeral Expenses : 16,500/Damage to clothing : 500/------------------------ **13,42,348/-** =========== In the result, these appeals are allowed in part. The MACA Nos.1070 & 2049 of 2015 **9** claimants are entitled for an amount of **Rs.13,42,348/-** (Rupees thirteen lakh forty two thousand three hundred forty eight only), which will carry interest at the rate of 9% per annum from the date of petition till realisation. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV