MACA Nos. 3712 of 2022 and 3754 of 2022, High Court of Kerala at Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 ``` ``` MACA NO. 3712 OF 2022 ``` ``` AGAINST THE JUDGMENT IN OPMV 516/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1SASIKALA AGED 36 YEARS W/O GURUNATHAN, 24/27, MASANIYAMMAN KOVIL, LANE 7, BANGLOWMEDU, METTUPALAYAM, COIMBATORE, TAMIL NADU., PIN - 641305 2G DHARIKA(MINOR) D/O GURUNATHAN, REP BY MOTHER AND NEXT FRIEND SASIKALA, 24/27, MASALIYAMMAN KOVIL, LANE 7, BANGGLOWMEDU, METTUPALAYAM, COIMBATORE, TAMIL NADU, PIN - 641305 3G DHARSHA(MINOR) AGED 13 YEARS D/O GURUNATHAN, REP BY MOTHER AND NEXT FRIEND SASIKALA, 24/27, MASALIYAMMAN KOVIL LANE 7, BANGLOWMEDU, METTUPALAYAM, COIMBATORE, TAMIL NADU, PIN - 641305 4MARAGATHAM THANGAVELU AGED 65 YEARS W/O THANGAVELU, ARAVANKOVIL STREET, THUDIYALLUR, COIMBATORE, TAMIL NADU, PIN - 641034 BY ADV BABY MATHEW ``` ## **`RESPONDENT/RESPONDENT:`** ``` SHRIRAM GENERAL INSURANCE CO LTD REP BY ITS BRANCH MANAGER, 73, A/2 PALLIKOODATHAN STREET, KARUKKINIT, AMARUTHAVAL KOVIL STREET, KANCHIPURAM, ``` **MACA 3712 & 3754 of 2022** **==> picture [20 x 9] intentionally omitted <==** ``` TAMIL NADU, PIN - 631501 (INSURER OF TATA LMV VEHICLE BEARING REG NO TN/07/AV/0652, POLICY NO 421011/31/16/003594, VALID FROM 06/11/2015 TO 05/11/2016) BY ADV jacob mathew p ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, ALONG WITH MACA.3754/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 3712 & 3754 of 2022** ..3.. # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 MACA NO. 3754 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENTOPMV 514/2016 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL , PALAKKAD`** ## **`APPELLANTS/PETITIONERS:`** ``` 1ZEENATH SABEER AHAMMED AGED 32 YEARS W/O SABEER AHAMMED, 28/10,RAMASAMI PILLAI STREET 2, MAHADEVAPURAM, METTUPALAYAM, KALLAR R F, COIMBATORE, TAMIL NADU, PIN - 641305 2SHAHANA PARVEEN AGED 16 YEARS (MINOR) REP BY MOTHER AND NEXT FRIEND, ZEENATH SABEER AHAMMED, 28/10/RAMASAMIPILLAI STREET 2, MAHADEVAPURAM, METTUPALAYAM, KALLAR R F, COIMBATORE, TAMIL NADU, PIN - 641305 3S MUHAMMAED SHAHIR AGED 8 YEARS (MINOR) S/O SABEER AHAMMED, REP BY MOTHER AND NEXT FRIEND ZEENATH SABEER AHAMMED, 28/10, RAMASAMIPILLAI STREET 2, MAHADEVAPURAM, METTUPALAYAM, KALLAR R F, COIMBATORE, TAMIL NADU, PIN - 641305 4MARIYEMBEVI PASHEERAHMED AGED 59 YEARS W/O PASHEERAHMED, 50A, ARUL ICE COMPANY, MAHADEVAPURAM, METTUPALAYAM, COIMBATORE, TAMIL NADU, PIN - 641305 5PASHEERAHMED MAIDEEN BASHA AGED 66 YEARS S/O MAIDEEN BASHA, 50A, ARUL ICE COMPANY, MAHADEVAPURAM, METTUPALAYAM, COIMBATORE, TAMIL NADU, PIN - 641305 BY ADV BABY MATHEW ``` ``` RESPONDENT/RESPONDENT: ``` **MACA 3712 & 3754 of 2022** ..4.. ``` SHRIRAM GENERAL INSURANCE COMPANY LTD REP BY ITS BRANCH MANAGER, 73A/2, PALLIKOODATHAN STREET, KARUKKINIT, AMARUTHAVAL KOVIL STREET, KANCHIPURAM, TAMIL NADU, PIN - 631501 (INSURER OF TATA LMV VEHICLE BEARING REG NO TN/07/AV/0652, POLICY NO421011/31/16/003594, VALID FROM 06/11/2015 TO 05/11/2016) BY ADV jacob mathew p ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, ALONG WITH MACA.3712/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA 3712 & 3754 of 2022** ..5.. ## **JUDGMENT** ``` [MACA Nos.3712/2022, 3754/2022] ``` On 16.11.2015, Late Gurunathan and Late Sabeer were involved in a road accident, when the offending vehicle rammed into them in a rash and negligent manner, while they were trying to change the tyre of the pick-up van of the former. Both of them died, succumbing to the injuries sustained by them; and thereupon, their legal heirs filed OP(MV)Nos.516/2016 and 514/2016 respectively, before Motor Accidents Claims Tribunal, Palakkad (‘Tribunal’ for short), seeking compensation of Rs.30,00,000/- each, but which has been awarded only to a sum of Rs.18,00,800/- and Rs.19,01,600/- respectively. The appellants thus assail both the Awards as being inadequate. 2. As is evident from the afore narrative, since the accident is the same and the learned Tribunal has disposed of the Original Petitions through a common judgment, I have heard these matters together and proceed to dispose them of, through this judgment. 3. I have heard Sri.Baby Mathew – learned counsel for the appellants in these cases and Sri.P.Jacob Mathew – learned Standing Counsel for the Insurance Company. **MACA 3712 & 3754 of 2022** **==> picture [20 x 9] intentionally omitted <==** 4. The facts involved, including the causation of the accident and the death, are not disputed. 5. Sri.Baby Mathew has projected only three grounds in these appeals, namely; that the notional income of the deceased in both these cases have been reckoned incorrectly; that sufficient transportation charges have not been awarded; and that the sum offered as ‘Loss of Consortium’ is inadequate. 6. On the contrary, Sri.P.Jacob Mathew – learned Standing Counsel for the Insurance Company, submitted that, since there is absolutely no evidence to show the actual income enjoyed by the deceased at the time of the accident and their consequent death, the learned Tribunal could have only fixed notional income in their favour, which it has done, reckoning Rs.8,000/- each. He, therefore, prayed that these appeals be dismissed. 7. I have considered the afore submissions on the touchstone of the evidence and documents on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute. 8. As I have already indited above, this is an unfortunate case where the pick-up van of Gurunathan had a **MACA 3712 & 3754 of 2022** ..7.. flat tyre, which was then attempted to be replaced by him, along with Sabeer, who is a mechanic. At this time, the offending vehicle rammed into them and both of them died. 9. It is asserted by the legal heirs of Gurunathan, that he is a professional Driver, owning his own vehicle and that he was also engaged in the business of wholesale and retail sale of vegetables. 10. As far the legal heirs of Sabeer is concerned, they maintain that he was a Mechanic, who had been asked by Gurunathan to remove the punctured tyre and replace it. 11. I notice that the Tribunal has adopted the notional income of both deceased as being Rs.8,000/- per month; but while doing so, it did not advert to the ratio of the Hon’ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ [(2011) 13 SCC 236]. This judgment postulates that, even in the case of a person who is a ‘Coolie’, or a person with unascertainable income, in the year 2015 – when the accident occurred - the minimum figure to be adopted as notional income should be Rs.10,000/-. 12. No doubt, in _**Rajani v. Oriental Insurance Company Ltd.**_ [2022 (5) KLT 1012], the Hon’ble Supreme **MACA 3712 & 3754 of 2022** **==> picture [20 x 9] intentionally omitted <==** Court further said that, when the deceased is engaged in an avocation which is not merely a ‘Coolie’, or which involves technical expertise, a robust view has to be taken. 13. However, if this Court can take such a robust view, only if it had been, _prima facie_ , established that the deceased were in involved in an avocation as stated by them. Unfortunately, the claimants have failed to prove the same through any cogent or reliable method - including through documentary or oral evidence. Obviously, this Court can only, therefore, go by the declarations in **Ramachandrappa** (supra). 14. That said, the learned Tribunal has alredy adopted 40% as the future prospects to be added to the notional income of the appellants. There is no error in it having done so, as per _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662 (SC)] . 15. The remaining issue is whether the transportation charges ought to be granted higher than what has been awarded by the Tribunal. In this regard, it is the case of Sri.Baby Mathew, appearing for both sets of appellants, that the deceased were both belonging to Coimbatore and that their dead bodies had to be carried by ambulances. I do not **MACA 3712 & 3754 of 2022** **==> picture [20 x 9] intentionally omitted <==** find any reason to suspect this; and therefore, deem it appropriate to enhance the compensation awarded, by a further amount of Rs.2,000/- each. 16. Finally, as regards ‘Loss of Consortium’ in both these cases, the learned Tribunal has awarded only Rs.40,000/- to one among the appellants. This is unfortunate because, **Pranay Sethi** (supra) authorises a figure of Rs.40,000/- to each of the appellants, since they are the wife, children and parents of the appellants. 13. That being said, the argument of Sri.P.Jacob Mathew, that no amount could then be granted under the heads ‘Loss of Love and Affection’ and ‘Pain and Suffering’, is certainly on firm footing, going by the judgment of the Hon’ble Supreme Court in _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur**_ [(2021) 11 SCC 780]. In the afore circumstances, these appeals are partly allowed, in the following manner: ## I. **MACA NO.3712/2022** a. The compensation under the head ‘Loss of Dependency’ is enhanced to Rs.20,16,000/-, from Rs.16,12,800/-, reckoning the notional income of the deceased to be Rs.10,000/- per month, with 40% future prospects added **MACA 3712 & 3754 of 2022** **==> picture [26 x 9] intentionally omitted <==** to it and one fourth of it being deducted as personal expenses. The multiplier of ‘16’ is adopted in this case as per _**Sarla Verma v. Delhi Transport Corporation**_ [2010 (2) KLT 802], since the deceased was 34 years in age, at the time of the accident. b. The compensation under the head ‘Transportation Charges’ is enhanced to Rs.4,000/-, from Rs.2,000/- as awarded by the Tribunal. c. The compensation under the head ‘Loss of Cosortium’ is enhanced to Rs.1,60,000/-, from Rs.40,000/-, reckoning Rs.40,000/- each to the appellants as per **Pranay Sethi** (supra). d. The compensation under the heads ‘Pain and Suffering’ and ‘Loss of Love and Affection’ is both deleted in terms of **Satwinder Kaur** (supra). In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellants will be entitled to recover the compensation, as enhanced by this Court from the Insurance Company, along with interest at the rate of 9% per annum, as ordered by the Tribunal, from the date of claim until it is realised. The appellants will also be entitled to **MACA 3712 & 3754 of 2022** **==> picture [26 x 9] intentionally omitted <==** proportionate costs as awarded by the Tribunal on the enhanced amounts. However, while computing the interest eligible to the appellant as above, the period of 572 days - being the delay caused by the appellants in filling the appeal - shall stand excluded. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## II. **MACA NO.3754/2022** a. The compensation under the head ‘Loss of Dependency’ is enhanced to Rs.21,42,000/-, from Rs.17,13,600/-, reckoning the notional income of the deceased to be Rs.10,000/- per month, with 40% future prospects added to it and one fourth of it being deducted as personal expenses. The multiplier of ‘17’ is adopted in this case as per **Sarla Verma** (supra), since the deceased was 28 years in age at the time of the accident. b. The compensation under the head ‘Transportation Charges’ is enhanced to Rs.4,000/-, from Rs.2,000/- as awarded by the Tribunal. **MACA 3712 & 3754 of 2022** **==> picture [26 x 9] intentionally omitted <==** c. The compensation under the head ‘Loss of Cosortium’ is enhanced to Rs.2,00,000/-, from Rs.40,000/awarded by the Tribunal, reckoning Rs.40,000/- each to the the appellants, as per **Pranay Sethi** (supra). d. The compensation under the heads ‘Pain and Suffering’ and ‘Loss of Love and Affection’ is both deleted in terms of **Satwinder Kaur** (supra). In all other heads, the compensation awarded by the Tribunal will remain unaltered. Consequently, the appellants will be entitled to recover the compensation, as enhanced by this Court from the Insurance Company, along with interest at the rate of 9% per annum, as ordered by the Tribunal, from the date of claim until it is realised. The appellants will also be entitled to proportionate costs as awarded by the Tribunal on the enhanced amounts. However, while computing the interest eligible to the appellant as above, the period of 572 days - being the delay caused by the appellants in filling the appeal - shall stand excluded. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned **MACA 3712 & 3754 of 2022** **==> picture [26 x 9] intentionally omitted <==** Tribunal, within a period of two months from the date of receipt of a copy of this judgment. Sd/- **DEVAN RAMACHANDRAN, JUDGE** ACR