MACA Nos. 2970/2015 & 2369/2015, The New India Assurance Co. Ltd. v. Sreekumari G. & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945** **MACA NO. 2970 OF 2015** **AGAINST THE AWARD DATED 07.01.2014 IN OPMV 1513/2009 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANT/4TH RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, COLLEGE ROAD, PATHANAMTHITTA, REPRESENTED BY ITS MANAGER.** **BY ADVS. SRI.KKM.SHERIF SRI.LAL K.JOSEPH** ## **RESPONDENTS/PETITIONERS 1 TO 3 AND RESPONDENT 1 TO 3:** **1 SREEKUMARI.G W/O. S.VENUGOPAL, CHAMPOLIL KARTHIKA, ANANDAPALLY P.O, PANNIVIZHA - 685 011. 2 VISHNU V S/O. S.VENUGOPAL, CHAMPOLIL KARTHIKA, ANANDAPALLY P.O., PANNIVIZHA - 685 011.** - **3 VIPIN V** **(MINOR AGED 16), S/O. S.VENUGOPAL, CHAMPOLIL KARTHIKA, ANANDAPALLY P.O., PANNIVIZHA, REPRESENTED BY HIS MOTHER AND GUARDIAN SREEKUMARI G, W/O. S.VENUGOPAL, CHAMPOLIL KARTHIKA, ANANDAPALLY, P.O.PANNIVIZHA - 685 011.** - **4 AMMINI AMMA W/O. SADASIVA PILLAI, CHAMPOLIL KARTHIKA, ANANADAPALLY P.O., PANNIVIZHA - 685 011.** **BY ADV SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2023, ALONG WITH MACA.2369/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos.2970/2015, 2369/2015 ..2..** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945** ## **MACA NO. 2369 OF 2015** **AGAINST THE AWARD DATED 7.10.2014 IN OPMV 1513/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANTS/PETITIONERS:** - **1 SREEKUMARI.G W/O LATE VENUGPAL, CHAMPOLIL KARTHIKA, ANADAPALLY PO, PANNIVIZHA, PATHANAMTHIA DISTRICT** - **2 VISHNU V S/O LATE S.VENUGPAL, CHAMPOLIL KARTHIKA, ANADAPALLY PO, PANNIVIZHA, PATHANAMTHIA DISTRICT** - **3 VIPIN V S/O LATE VENUGPAL, (MINOR AGED 16) CHAMPOLIL KARTHIKA, ANADAPALLY PO, PANNIVIZHA, PATHANAMTHIA DISTRICT 3RD APPELLANT REPRESENTED BY HIS NATURAL GUARDIAN MOTHER 1ST APPELLANT** - **4 AMMINI AMMA W/O SADASIVAN PILLAI, CHAMPOLIL KARTHIKA, ANADAPALLY PO, PANNIVIZHA, PATHANAMTHIA DISTRICT** **BY ADV SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS 2 AND 3:** - **1 MUNEER NADUVILAAZHIKATH HOUSE, KAMBALADI, PROUVAZHI PO, KAYAMKULAM-690 520** - **2 THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LTD,COLLEGE ROAD, PATHANAMTHITTA-689 645** **BY ADVS. SRI.LAL K.JOSEPH** **MACA Nos.2970/2015, 2369/2015 ..3..** ## **SRI.KKM.SHERIF** - **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2023, ALONG WITH MACA.2970/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos.2970/2015, 2369/2015 ..4..** ## **JUDGMENT [MACA Nos.2970/2015, 2369/2015]** Since these appeals arise from a common award dated 07.10.2014 passed by the Motor Accidents Claims Tribunal, Pathanamthitta in O.P.(MV)No.1513 of 2009, they are disposed of by this common judgment. The parties are referred to as per their status in the claim petition. 2. M.A.C.A.No.2369 of 2015 is preferred by the petitioners dissatisfied with the compensation awarded by the Tribunal and M.A.C.A.No. 2970 of 2015 is preferred by the 3[rd] respondent insurance company contending that the compensation awarded is excessive. 3. The petitioners are the legal representatives of deceased Venugopal. On 21.11.2009, while Venugopal was proceeding on foot through Thatta-Adoor public road, an autorickshaw bearing Registration No.KL-04/R 7161, **MACA Nos.2970/2015, 2369/2015 ..5..** driven by the 1[st] respondent struck him down and he succumbed to the injuries on 22.11.2009. The 2[nd] respondent is the owner and the 3[rd] respondent is the insurer, of the autorickshaw. According to the petitioners, the accident happened due to the negligent driving of the autorickshaw by the 1[st] respondent. The petitioners claimed an amount of Rs.21,21,000/- as total compensation for the death of Venugopal. 4. On the side of the petitioners, PW1 was examined and Exts.A1 to A22 were marked. No evidence was adduced by the respondents. 5. The 3[rd] respondent/insurer alone contested the claim petition and filed a written statement admitting the existence of a valid policy in respect of the autorickshaw; however, disputed the age, income and occupation of the deceased. They contended that the compensation claimed is exorbitant. **MACA Nos.2970/2015, 2369/2015 ..6..** 6. The Tribunal awarded an amount of Rs.20,24,607/as total compensation with 9% interest per annum from the date of petition till realisation and proportionate cost of Rs.1,22,748/-. The compensation awarded under different heads is extracted below:- |Sl.<br>No.|Head of Claim|Amount<br>claimed|Amount<br>awarded|Basis<br>vital<br>details| |---|---|---|---|---| |1|Loss of dependency||1638000|| |2|Partial loss of earnings|||| |3|Transport to hospital|3000|8850|| |4|Extra nourishment|2000|–|| |5|Bystander's expenses|||| |6|Damage to clothes|1000|1000|| |7|Medical expenses|25000|16757|| |8|Funeral expenses|25000|25000|| |9|Pain and sufferings|25000|10000|| |10|Loss of love and<br>affection|340000|215000|| |11|Loss of consortium|125000|100000|| ## **MACA Nos.2970/2015, 2369/2015 ..7..** |12|Loss of estate|1570000|10000|| |---|---|---|---|---| |13|Loss of amenities|||| ||Others|4000||| ||Total|221000|2024607|| 7. The insurer has come up in appeal contending that the compensation awarded under various heads is excessive and exorbitant. The petitioners have filed the appeal contending that the compensation awarded is inadequate. 8. The deceased was an Electrician and was aged 45 years at the time of the accident. The petitioners produced Exts.A9 and A10 certificates to prove that he was a qualified Electrician. Exts.A11 to A13 certificates would show that he had served the Indian Army as an Electrician in the General Reserve Engineering Force. It can be seen from Ext.A14 that he had obtained Diploma in Engineering from the Military College. He voluntarily retired from the **MACA Nos.2970/2015, 2369/2015 ..8..** Military service on 01.06.2006, as proved by Ext.A17. The petitioners have also produced Ext.P18 to prove that the deceased had secured Wireman licence from the K.S.E.B. Ext.A21 certificate issued by the Village Officer would show that the deceased was running an electrical shop as its proprietor. PW1, the wife of the deceased, has deposed that he was having a monthly income of Rs.20,000/-. The Tribunal, on the basis of the evidence adduced, fixed his notional income as Rs.10,000/- per month as on the date of accident. 9. The learned Counsel for the petitioners contended that the Tribunal ought to have taken the monthly income of the deceased as Rs.20,000/-. The learned Counsel appearing for the Insurance Company, on the other hand, contended that there is no evidence with regard to the income of the deceased and in such event, the Tribunal ought to have taken the income of the deceased as Rs.7,000/- on the basis of the decision of the Hon'ble **MACA Nos.2970/2015, 2369/2015 ..9..** _**v**_ Supreme Court in **Ramachandrappa . Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236 : AIR 2011 SC 2951]. 10. There is no dispute that the deceased was a qualified Electrician and was running an electrical shop. Therefore, the guidelines in **Ramachandrappa** (supra) cannot be followed in the facts and circumstances of the case on hand. Having considered the evidence of PW1 and the documents produced, I am of the view that the Tribunal has rightly fixed the notional monthly income of the deceased as Rs.10,000/-. 11. While calculating compensation under the head loss of dependency, the Tribunal added 30% of the income towards future prospects. Going by the dictum laid down by the Hon'ble Supreme Court in **National Insurance Co. Ltd.** _**v**_ **. Pranay Sethi [2017 (16) SCC 680]** , the deceased being a self employed person and aged 45 years, only 25% of the income can be added towards future **MACA Nos.2970/2015, 2369/2015 ..10..** prospects. Since there are 4 dependents, ¼ of the income has to be deducted towards the personal and living expenses of the deceased. On such assessment, the notional monthly income of the deceased is arrived at Rs.9,375/-. Accordingly, the compensation for loss of dependency is re-calculated as Rs.15,75,000/[9375x12x14]. The Tribunal has awarded an amount of Rs.16,38,000/- under the said head. Hence, the excess amount of **Rs.63,000/-** (16,38,000 – 15,75,000) has to be deducted. 12. An amount of Rs.25,000/- has been awarded under the head funeral expenses. The petitioners are entitled only for and amount of Rs.15,000/- under the said head in the light of the decision in **Pranay Sethi** (supra). Therefore, an amount of **Rs.10,000/-** (Rs.25,000-15,000) has to be deducted. 13. As held by the Hon'ble Supreme Court in **Oriental Insurance Company Ltd.** v. **Kahlon** [AIR 2021 **MACA Nos.2970/2015, 2369/2015 ..11..** SC 3913], the petitioners are not entitled for any amount under the head pain and suffering. Therefore, an amount of Rs.10,000/-, as already awarded, has to be deducted from the said head. 14. Towards compensation for loss of consortium, an amount of Rs.1,00,000/- has been awarded by the Tribunal. Following the ratio in **Pranay Sethi** (supra), the petitioners are entitled to Rs.40,000/- each under the said head. Accordingly, the compensation for loss of consortium is reworked as Rs.1,60,000/- (40,000x4) and the petitioners are entitled to an enhanced amount of **Rs.60,000** [1,60,000 – 1,00,000]. 15. In **United India Insurance Co.Ltd.** v. **Satinder Kaur** [AIR 2020 SC 3076], the Hon'ble Supreme Court held that when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for loss of love and affection as a separate head. Since the petitioners are compensated under the **MACA Nos.2970/2015, 2369/2015 ..12..** head loss of consortium, no further amount is to be awarded towards loss of love and affection. Therefore, **Rs.2,15,000/-** already awarded under the head loss of love and affection has to be deducted from the total compensation. 16. Going by the decision in _**Pranay Sethi**_ (supra), the petitioners are entitled for an amount of Rs.15,000/towards loss of estate. The Tribunal has awarded only an amount of Rs.10,000/-. Accordingly, an enhanced amount of **Rs.5,000/-** is awarded under the said head. 17. I find that the Tribunal has awarded just and reasonable compensation under other heads. 18. Thus, on a re-appreciation of the pleadings and materials on record and the law laid down in the aforecited decisions, I hold that the compensation awarded by the Tribunal in the impugned award is on the higher side and has to be modified and reduced as held above and given in the table below for easy reference. **MACA Nos.2970/2015, 2369/2015 ..13..** |Sl.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of dependency|1638000|1575000| |2|Transport to hospital|8850|8850| |3|Damage to clothes|1000|1000| |4|Medical expenses|16757|16757| |5|Funeral expenses|25000|15000| |6|Pain and sufferings|10000|Nil| |7|Loss of love and affection|215000|Nil| |8|Loss of consortium|100000|160000| |9|Loss of estate|10000|15000| ||**Total**|**2024607**|**1791607**| 19. In the result, M.A.C.A No.2369/2015 is allowed holding that the appellants/petitioners are entitled only for an amount of **Rs.17,91,607/-** as total compensation. As per order dated 07.12.2018 in I.A.No.3729/2015 in M.A.C.A.No.2970 of 2015, the 3[rd] respondent/insurance company has deposited 50% of the award amount. The 3[rd] **MACA Nos.2970/2015, 2369/2015 ..14..** respondent insurance company shall deposit the balance amount in terms of this judgment with 9% interest per annum and costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. M.A.C.A.No.2970/2015 is dismissed. Sd/- **MURALI PURUSHOTHAMAN JUDGE** SB