MACA Nos. 3392 of 2017 and 3878 of 2018, HDFC ERGO General Insurance Co. Ltd. v. Sheeba T.K. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** ## **MACA.No.3392 OF 2017** **AGAINST THE AWARD IN OPMV 227/2014 DATED 22-07-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT/3RD RESPONDENT:** **HDFC ERGO GENERAL INSURANCE CO.LTD., MUMBAI, REPRESENTED BY ITS MANAGER(LEGAL), REGIONAL OFFICE, RAJAJI ROAD, ERNAKULAM.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENTS/CLAIMANTS:** **1 SHEEBA.T.K., W/O. SAJIL KUMAR K.(LATE),D/O. NANU T.K, KALYANI NIVAS,KANHIRATHINKEEZHIL, P.O. CHOKLI-670672. 2 ADITHYA.K.,(MINOR) D/O. SAJIL KUMAR.K(LATE), KALYANI NIVAS, KANHIRATHINKEEZHIL, P.O. CHOKLI-670672. REPRESENTED BY MOTHER AND NEXT FRIEND SHEEBA T.K, FIRST RESPONDENT.** **3 MADHAVI, W/O. VASU, KOVUMMAL HOUSE,KAVIYOOR P.O., CHOKLI, PIN-670672.** ## **BY ADV. SRI.V.BINOY RAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.08.2019, ALONG WITH MACA.3878/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** ## **MACA.No.3878 OF 2018** **AGAINST THE AWARD IN OPMV 227/2014 DATED 22-07-2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANTS/PETITIONERS:** - **1 SHEEBA T.K, AGED 39 YEARS, W/O. LATE SAJIL KUMAR,D/O. NANU T.K,KALYANI NIVAS,KANJIRATHINKEEZHIL P.O,CHOKLI-670 672.** - **2 MINOR ADITHYA.K, AGED 10 YEARS, D/O. LATE SAJIL KUMAR,KALYANI NIVAS,KANJIRATHINKEEZHIL.P.O.CHOKLI-670 672,REP.BY MOTHER AND NEXT FRIEND SHEEBA.T.K.KALYANI NIVAS,KANJIRATHINKEEZHIL P.O,CHOKLI.** - **3 MADHAVI,** **AGED 74 YEARS, W/O. VASU,KOVUMMAL HOUSE,KAVIYOOR P.O,CHOKLI,670 672.** ## **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** **1 AFTHAB, S/O. MOHAMMED KODAKKADAN(LATE),BINU NIVAS,KALOTH,KONDOTTY P.O,MALAPPURAM DISTRICT,PIN 673 638.** - **2 SARATH KUMAR.P, S/O SREEKUMAR.P,PURATHATT HOUSE,ERANJIKKAL P.O,KOZHIKODE,PIN-673 303.** - **3 THE MANAGER,** **HDFC ERGO GENERAL INSURANCE CO.LTD,RAMON HOUSE, H.T.PAREKH MARG,169,BACK BAY,RECLAMATION MUMBAI,PIN-400 020.** **R2 BY ADV. SRI.R.SUDHISH R2 BY ADV. SMT.M.MANJU R3 BY ADV. SRI.GEORGE CHERIAN (SR.) R3 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.LATHA SUSAN CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.08.2019, ALONG WITH MACA.3392/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.A.C.A Nos.3392 of 2017 & 3878 of 2018** ## **---------------------------------------------** ## **J U D G M E N T** M.A.C.A. No.3878 of 2018 is by the claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal and M.A.C.A. No.3392 of 2017 is by the insurer in the said proceedings. 2. One Sajilkumar aged 43 years died in a motor accident on 05.4.2013. It is stated in the claim petition that he was a taxi driver. His mother, wife and daughter were the claimants in the proceedings. A sum of Rs.20,00,000/- was the claim made in the proceedings. As against the said claim, the Tribunal has granted to the claimants a sum of Rs.18,57,056/by way of compensation. According to the claimants, the compensation granted is grossly inadequate and according to the insurer, the compensation granted is excessive. 3. Heard the learned counsel for the parties. 4. Though it is stated in the claim petition that the deceased was earning a sum of Rs.15,000/- per month, in the absence of supporting evidence, the Tribunal has reckoned ## M.A.C.A Nos.3392 of 2017 & 3878 of 2018 **==> picture [7 x 8] intentionally omitted <==** the monthly income of the deceased only at Rs.10,000/- for the purpose of computing the compensation payable to the claimants for loss of dependency. Further, the Tribunal has arrived at the multiplicand for the said purpose by adding 30% of the income towards future prospects. 5. In the absence of any evidence in support of the plea as regards the income of the deceased, I am of the view that in the light of the decisions of the Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited** , [(2011) 13 SCC 236] and **Syed Sadiq** v. **Divisional Manager, United India Insurance Co. Ltd.** , [(2014) 2 SCC 735], where the Apex Court has reckoned the monthly income of similarly placed persons at Rs.4,500/and Rs.6,500/- in the context of the accidents took place in the year 2004 and 2008 respectively, the monthly income of the deceased in the instant case can be certainly reckoned at Rs.9,000/-, in the context of the accident took place in 2013. In the light of the decision of the Apex Court in **National** M.A.C.A Nos.3392 of 2017 & 3878 of 2018 **==> picture [7 x 8] intentionally omitted <==** **Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], as the dependants of the deceased were three in number, one third of the income has to be deducted towards personal expenses, and as the deceased was aged above 40 and below 50, 25% of the income reckoned has to be added towards future prospects for arriving at the multiplicand while computing the compensation for loss of dependency. As the deceased was aged 43, the multiplier to be applied for the said purpose is '14'. If compensation for loss of dependency is arrived at on that basis, the same would come to Rs.12,60,000/-(Rs.9,000x12x2/3x125/100x14). As the Tribunal has granted a sum of Rs.14,56,056/- towards compensation under that head, Rs.1,96,056/- granted by the Tribunal is therefore excessive. 6. In the light of the decision of the Apex Court in **Pranay Sethi** , and having regard to the fact that the accident in the instant case is one that took place in the year 2013, I am of the view that the Tribunal should have granted only M.A.C.A Nos.3392 of 2017 & 3878 of 2018 7 Rs.40,000/- to the wife of the deceased towards compensation for loss of consortium, Rs.15,000/- towards compensation for loss of estate and Rs.15,000/- towards funeral expenses, totalling to Rs.70,000/-. The Tribunal has granted in its place, a sum of Rs.1,75,000/- under those three heads. Rs.1,05,000/granted under those three heads is, therefore, excessive. 7. Coming to compensation for loss of love and affection, in the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782) and the decision of this court in M.A.C.A. No.721 of 2005, having regard to the fact that the accident in the instant case is one that took place in the year 2013, I am of the view that the Tribunal could have granted Rs.40,000/- to the mother of the deceased and Rs.50,000/- to the daughter of the deceased by way of compensation under that head. As the claimants were granted a sum of Rs.2,00,000/- under that head, Rs.1,10,000/- granted by the Tribunal is therefore excessive. M.A.C.A Nos.3392 of 2017 & 3878 of 2018 **==> picture [7 x 8] intentionally omitted <==** 8. Thus, the total excess compensation granted by the Tribunal would come to Rs.4,11,056/-. In the result, the appeals are disposed of refixing the quantum of compensation at Rs.14,46,000/-. It is clarified that all other directions contained in the impugned award will stand. The parties will be at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. It is made clear that the claimants will not be entitled to interest for the additional compensation granted for the period of delay in filing appeal, viz, 620 days. All interlocutory applications in the appeals are closed. **Sd/-** **P.B.SURESH KUMAR** Mn **JUDGE**