MACA Nos. 2566 & 3269 of 2022 (The Oriental Insurance Co. Ltd v. Rajasenan T.S. and Others)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945 ``` ``` MACA NO. 2566 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 30.04.2022 IN OPMV NO.1898 OF 2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM APPELLANT/3RD RESPONDENT: ``` ``` THE ORIENTAL INSURANCE CO.LTD 3RD FLOOR, MATTETHRA BUILDINGS, M.C.ROAD, BAKER JUNCTION, KOTTAYAM, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI, PIN - 682018 ``` ``` BY ADVS.GEORGE A.CHERIAN ``` ``` K.JACOB MATHEW GEORGE CHERIAN (SR.) ``` ## **`RESPONDENTS/PETITIONERS & RESPONDENTS 1 AND 2:`** - **`1 RAJASENAN.T.S.,AGED 59 YEARS S/O LATE SREEDHARAN NAIR, EDATHIPARAMBIL @ EDATHIPARAMBU HOUSE, KRISHNANJALI, KODIMATHA, KOTTAYAM, SOUTH.P.O., KOTTAYAM, NOW RESIDING AT JOMER ARCADE S-8, 4TH FLOOR, CHITTOOR ROAD, ERNAKULAM, PIN – 682 016`** - **`2 RAKESH KRISHNAN.R.,AGED 25 YEARS S/O RAJASENAN.T.S., EDATHIPARAMBIL @ EDATHIPARAMBU HOUSE, KRISHNANJALI, KODIMATHA, KOTTAYAM, SOUTH.P.O., KOTTAYAM, NOW RESIDING AT JOMER ARCADE S-8, 4TH FLOOR, CHITTOOR ROAD, ERNAKULAM, PIN – 682 016`** - **`3 RAJEEV KRISHNAN.R`** - **`S/O T.S.RAJASENAN, EDATHIPARAMBIL @ EDATHIPARAMBU HOUSE, KRISHNANJALI, KODIMATHA, KOTTAYAM, SOUTH.P.O., KOTTAYAM, NOW RESIDING AT JOMER ARCADE S-8, 4TH FLOOR, CHITTOOR ROAD, ERNAKULAM, PIN – 682016`** M.A.C.A. Nos. 2566 & 3269 of 2022 ## -:2:- - **`4 HAREESH. S.BABU`** ``` S/O SATHEESH BABU, AGED 32 YEARS, VADAKKE AMBATTU VEEDU, NEAR ERINDHIKKAL TEMPLE, VALLIYAKUNNUPURAM, VELOORKARA, PIN – 682 308 ``` ``` BY ADVS.T.K.KOSHY ANTONY PAUL ``` ``` V.V.RISANI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2023, ALONG WITH MACA.3269/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos. 2566 & 3269 of 2022 -:3:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, ``` ## **`1945`** ``` MACA NO. 3269 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 30.04.2022 IN OPMV NO.1898 OF 2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM APPELLANTS/PETITIONERS: ``` ``` 1RAJASENAN T S AGED 60 YEARS S/O LATE SREEDHARAN NAIR, EDATHIPARAMBIL @ EDATHIPARAMBU HOUSE, KRISHNANJALI, KODIMATHA, KOTTAYAM SOUTH P O, KOTTAYAM. NOW RESIDING AT JOMER ARCADE S 8, 4TH FLOOR, CHITTOOR ROAD, ERNAKULAM, PIN - 682016 ``` ``` 2RAKESH KRISHNAN R AGED 25 YEARS S/O RAJASENAN T S, EDATHIPARAMBIL @ EDATHIPARAMBU HOUSE, KRISHNANJALI, KODIMATHA, KOTTAYAM SOUTH P O, KOTTAYAM. NOW RESIDING AT JOMER ARCADE S 8, 4TH FLOOR, CHITTOOR ROAD, ERNAKULAM, PIN - 682016 BY ADVS.T.K.KOSHY V.V.RISANI ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RAJEEV KRISHNAN R AGED 27 YEARS, S/O T S RAJASENAN, EDATHIPARAMBIL @ EDATHIPARAMBU HOUSE, KRISHNANJALI, KODIMATHA, KOTTAYAM SOUTH P O, KOTTAYAM. NOW RESIDING AT ``` M.A.C.A. Nos. 2566 & 3269 of 2022 -:4:- ``` JOMER ARCADE S 8, 4TH FLOOR, CHITTOOR ROAD, ERNAKULAM, PIN - 682016 ``` - **`2 HAREESH S BABU AGED 32 YEARS`** ``` S/O SATHEESH BABU, AGED 32, VADAKKE AMBATTU VEEDU, NEAR ERINDHIKKAL TEMPLE, VALLIYAKUNNUMPURAM, VELOORKARA, PIN - 680661 ``` - **`3 THE ORIENTAL INSURANCE CO LTD 3RD FLOOR, MATTETHRA BUILDINGS, M C ROAD, BAKER JUNCTION, KOTTAYAM REPRESENTED BY MANAGER LEGAL, PIN – 686 532`** ``` BY ADVS.GEORGE A.CHERIAN ``` ``` JACOB MATHEW KAITHALIL(K/000596/1989) GEORGE CHERIAN (SR.)(G-81) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2023, ALONG WITH MACA.2566/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos. 2566 & 3269 of 2022 ## -:5:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. Nos. 2566 & 3269 of 2022 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of December, 2023 ## **JUDGMENT** These appeals are originated from an award dated 30.04.2022 of Motor Accident Claims Tribunal, Ernakulam in OP(MV) No.1898/2019. MACA No.2566/2022 was filed by the insurer of the offending vehicle whereas MACA No.3269/2022 was filed by the legal representatives of one Mrs.Bindu, who lost her life in a motor accident. 2. As per the claim of the petitioners in the Original Petition, at about 3.45 p.m. on 21.01.2019 while Mrs.Bindu along with her family were travelling in a car bearing registration No.KL-05/AQ 3604 through Kottarakkara – Adoor MC road from south to north, suddenly the car swift away from the tar road and hit against the culvert on the western side of the road near Maharshikavu at Puthusseribhagom due to the rash and negligent driving by its driver, who was arrayed as the 2[nd] respondent. M.A.C.A. Nos. 2566 & 3269 of 2022 -:6:- Mrs.Bindu and her husband Mr.Rajasenan sustained serious injuries in the motor accident. They were rushed to General Hospital, Adoor and after first aid, referred to Medical College Hospital, Kottayam for better management. From there, Mrs.Bindu was shifted to Aster Medicity, Cheranelloor, Ernakulam. Though the doctors strived hard to maintain her life, she succumbed to the injuries on 01.02.2019. Arraying the owner, the driver and the insurer of the offending car as respondents 1 to 3 and claiming a total sum of `60,00,000/- as compensation, the above Original Petition was filed by the legal representatives of deceased Bindu before the Tribunal. All respondents were served with notice. 3. 1[st] respondent filed written statement admitting his ownership of the car at the relevant time of the motor accident. Admittedly he was having a valid driving licence on the date of the motor accident. It was contended that the driver of the car was driving it at the instructions and guidance of the 1[st] respondent and he was also having 10 years driving experience as on the date of the motor accident. Compensation claimed was M.A.C.A. Nos. 2566 & 3269 of 2022 -:7:- also disputed for its exorbitance and want of basis. The car was admittedly insured with the 3[rd] respondent. 4. 2[nd] respondent had also filed written statement admitting insurance coverage for the car as on date of the motor accident. The claims of the petitioners regarding the age, occupation, monthly income and death of the victim due to the injuries sustained in the motor accident were also disputed. It was contended that the 2[nd] respondent was holding a valid driving licence as on date of the motor accident and was driving it in a prudent manner with limited speed and abiding the traffic rules and regulations. It was contended that the vehicle met with the motor accident due to application of brake all of a sudden by the 2[nd] respondent so as to avoid collision with a KSRTC bus coming in high speed from the opposite direction. It was contended that the 2[nd] respondent was not rash and negligent in driving the vehicle. Admittedly the vehicle was insured with the 3[rd] respondent. The claim petition was sought to be dismissed for the reasons. M.A.C.A. Nos. 2566 & 3269 of 2022 -:8:- 5. 3[rd] respondent filed written statement admitting insurance coverage for the car at the relevant time of the motor accident. It was contended that the owner of the vehicle failed to report the factum of the motor accident and also to produce vehicular documents for verification. Negligence alleged against the 2[nd] respondent was denied. It was contended that the motor accident was occurred accidentally. The claims regarding the age, occupation, monthly income and the compensation were also disputed for being excessive and without any basis. 3[rd] respondent also sought for dismissal of the claim petition. 6. Before the Tribunal, petitioners alone adduced evidence. 1[st] petitioner himself mounted the witness box to depose as PW1 and marked Exts.A1 to A13. The respondents did not adduce any evidence. The Tribunal on appreciation of the evidence adduced by the petitioners, arrived at a finding that the motor accident in question was occurred due to the rash and negligent driving of the car bearing registration No.KL-05/AQ 3604 by the 2[nd] respondent. The Tribunal has also found that Mrs.Bindu sustained injuries while travelling in the car and succumbed to M.A.C.A. Nos. 2566 & 3269 of 2022 ## -:9:- those and therefore petitioners as her legal representatives, are entitled to get compensation from the respondents. The Tribunal has arrived at a sum of `23,06,100/- as the compensation payable and directed the 3[rd] respondent to pay it with interest, at the rate of 8.5% per annum from the date of filing of the Original Petition till the date of realisation. Proportionate costs was also ordered. 7. Challenge was raised against the award in question by claimants for the reason that the compensation stood awarded is inadequate and disproportionate to the sufferings of the petitioners and the 1[st] respondent. The award is under challenge by the 3[rd] respondent insurer for the reason that the compensation stood awarded under various heads are excessive and devoid of basis. It was also contended by the learned counsel that the insured is also made as 1[st] respondent in the Original Petition and compensation was also found awarded by the Tribunal towards loss of consortium and he was also permitted to share the compensation. According to the learned counsel, the Tribunal is not justified in awarding compensation M.A.C.A. Nos. 2566 & 3269 of 2022 -:10:- towards loss of consortium in favour of the 1[st] respondent, he being the insured of the offending vehicle. The learned counsel has further contended that the Tribunal is highly unjustified in permitting the 1[st] respondent also to share a portion of the compensation awarded. The learned counsel seeks for deduction of the compensation stood awarded by the Tribunal towards loss of consortium and also the apportionment of a share of the compensation in favour of the 1[st] respondent. 8. The main argument advanced by Sri.T.K. Koshi, learned counsel for the appellant in MACA No.3269/2022 was that the monthly income fixed by the Tribunal is meagre when compared to the year in which the motor accident was occurred. According to him, the deceased was a housewife and the Tribunal had fixed a proportionate sum as her monthly income having due regard to fixation of it in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** [(2011) 13 SCC 236]. According to him, the deceased being a housewife, she has to work for the entire day unlike a coolie worker who has to work only for a specific period. According to him, therefore the M.A.C.A. Nos. 2566 & 3269 of 2022 ## -:11:- monthly income cannot be fixed in terms of the fixation adopted by the Apex Court in **Ramachandrappa** supra. He seeks for modification of the monthly income and calculation of compensation for loss of dependency on its basis. The learned counsel has contended further that only 10% was added by the Tribunal in consideration of loss of future prospects. According to him, since the deceased was aged 50 years at the relevant time of the motor accident, the Tribunal ought to have added 25% to the monthly income in consideration of loss of future prospects, instead of 10%. 9. It is contended by Smt.Latha Susan Cheriyan, the learned Standing Counsel for the 3[rd] respondent that the date of birth of Mrs.Bindu is established by the evidence on record. According to her, the petitioners themselves had stated the date of birth of the deceased in the claim petition as 27.05.1968. According to her, when the age of the deceased is calculated on the basis of the date of birth, she has completed 50 years at the relevant time of the motor accident. Therefore she can only be taken as above 50 years at the relevant time of the motor M.A.C.A. Nos. 2566 & 3269 of 2022 -:12:- accident. Accordingly it was canvassed that the addition of 10% to the monthly income in consideration of loss of future prospects is only to be maintained. The learned counsel has contended furthermore that the petitioners are disentitled to get `16,500/each as compensation towards loss of estate and funeral expenses and `44,000/- per head towards loss of consortium. It is also contended that the 1[st] respondent being the insured of the offending vehicle, is not entitled to get `44,000/- stood awarded by the Tribunal as compensation towards loss of consortium and sought to deduct the same from the total compensation payable. 10. As per the dictum of the Apex Court in **Sarala Verma v. Delhi Transport Corporation** [2010 (2) KLT 802(SC)] which was confirmed in **Reshma Kumari and Others v. Madan Mohan and Another** [2013 KHC 4253] and modified in **National Insurance Co.Ltd. V. Pranay Sethi and others** [2017 (4) KLT 662(SC)], only 10% can be added to the monthly income of a person aged between 50 to 60 years, in consideration of loss of future prospects. In the case on hand, the admitted date of birth of the deceased being 27.05.1968, she M.A.C.A. Nos. 2566 & 3269 of 2022 -:13:- can be taken to be above 50 years at the relevant time. Therefore she being in the category of persons coming within the age group of 50-60 years, in the light of **Pranay Sethi** supra, 10% added to the monthly income by the Tribunal in consideration of loss of future prospects is only to be maintained. 11. The monthly income of the deceased was taken by the Tribunal as `12,000/- on the basis of **Ramachandrappa** supra. True that in **Ramachandrappa** supra the monthly income was fixed by the Apex Court in the case of a coolie worker who died in a motor accident in the year 2004 whereas in the case on hand the deceased is a housewife. The Apex Court has in innumerable number of decisions said that the work done by a housewife cannot be equated in terms of money. In several cases, the Apex Court has taken a sum higher than `5,000/- which was normally considered as the monthly income of housewives by various courts. In the case on hand the Tribunal has fixed `12,000/- as the monthly income and compensation was calculated on its basis. In the view of this Court the said sum being reasonable is maintained. M.A.C.A. Nos. 2566 & 3269 of 2022 -:14:- 12. Petitioners undoubtedly are entitled to get `16,500/each as compensation towards loss of estate and funeral expenses in view of **Pranay Sethi** supra. Each of the petitioners are also entitled to get `44,000/- as compensation towards loss of consortium. 1[st] respondent was the son of the deceased and solely for the reason of being the insured of the offending vehicle, he cannot be denied compensation for loss of consortium. In the above circumstances, this Court is inclined to maintain the compensation stood awarded by the Tribunal towards loss of estate, funeral expenses and loss of consortium. 13. The discussions made hereinabove constrains this Court to hold that the appeals are not maintainable and are liable to be dismissed. In the result, both appeals are dismissed. 14. It is submitted by the learned counsel for the appellant in MACA No.3269 of 2022 that only 50% of the compensation amount awarded was deposited by the 3[rd] respondent. He seeks for a direction to deposit the remaining 50% of the award amount with interest and costs. Accordingly the 3[rd] respondent is directed to deposit the balance compensation with interest M.A.C.A. Nos. 2566 & 3269 of 2022 -:15:- acrued on it within two months from the date of receipt of a certified copy of this judgment. 15. It is brought to the notice of this Court that 50% of the compensation amount already deposited by the 3[rd] respondent has not been disbursed in favour of the petitioners as well as the 1[st] respondent, for the reason that the 1[st] respondnet was not made a party in the Interlocutary Application seeking stay. In that event, this Court directs the Tribunal to disburse the amount in deposit in favour of the parties as apportioned by the Tribunal in the impugned award. Sd/- **MARY JOSEPH, JUDGE.** ttb M.A.C.A. Nos. 2566 & 3269 of 2022 -:16:- ## **`APPENDIX OF MACA 2566/2022`** ## **`RESPONDENTS’ ANNEXURES :`** ``` Annexure A1 ``` ``` CERTIFIED COPY OF THE ORDER OF HON'BLE MACT COURT IN IA 511/2022 IN OP (MV)1898/2022 DATED 01.10.2022 ```