MACA Nos. 786/2013 and 399/2012, High Court of Kerala at Ernakulam - Biju Kumar & Baiju Raj v. Vineesh & Ranjith & Reliance General Insurance Co. Ltd.; Reliance General Insurance Co. Ltd. v. Bijukumar & Baiju Raj

MACA.No.786/2013 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 19[TH] DAY OF JANUARY 2024 / 29TH POUSHA, 1945_ _MACA NO. 786 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 489/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE_ ## _APPELLANTS/PETITIONERS:_ _1 BIJU KUMAR, AGED 32 YEARS, S/O.LATE KUMARAN NAIR,RESIDING AT 815(1/790), PALARKANDI, P.O.CHELANNUR, KOZHIKODE._ _2 BAIJURAJ, AGED 32 YEARS, S/O.(LATE)KUMARAN NAIR,RESIDING AT 815 (1/790)PALARKANDI, P.O.CHALANNUR, KOZHIKODE._ _BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.PRINCY XAVIER SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN_ ## _RESPONDENTS/RESPONDENTS:_ - _1 VINEESH, S/O.SOUMINI, AGE NOT KNOWN, RESIDING AT 9/403, PUDUKKALHOUSE, P.OTHAMARASSERY, KOZHIKODE-673 003._ _2 RANJITH, AGED 29 YEARS, S/O.RAVEEDRAN, RESIDING AT VAZHAYIL HOUSE, P.O.THAMARASSERY, KOZHIKODE-673 003._ MACA.No.786/2013 2 _3 RELIANCE GENERAL INSURANCE COMPANY LIMITED, 2ND FLOOR, CITADEL ARCADE, OPP.TAGORE CENTENARY HALL, RC ROAD, KOZHIKODE._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2024, ALONG WITH MACA.399/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.786/2013 3 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 19[TH] DAY OF JANUARY 2024 / 29TH POUSHA, 1945_ _MACA NO. 399 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 489/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE_ ## _APPELLANT/3RD RESPONDNET:_ _RELIANCE GENERAL INSURANCE CO.LTD., KOZHIKODE, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM._ _BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA)_ ## _RESPONDENTS:_ _1 BIJUKUMAR, S/O.KUMARAN NAIR (LATE), AGED 32 YEARS, 815(1/790) PALARKANDI P.O., CHELANNUR, KOZHIKODE DISTRICT, PIN-673 003._ _2 BAIJU RAJ, S/O.KUMARAN NAIR (LATE), 815(1/790) PALARKANDI P.O., CHELANNUR, KOZHIKODE DISTRICT, PIN-673 003._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2024, ALONG WITH MACA.786/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.786/2013 4 ## **JUDGMENT** ## **[MACA Nos.786/2013, 399/2012]** Both these appeals arose from the award passed by the Motor Accident Claims Tribunal, Kozhikode in O.P(MV) No.489 of 2011. (The parties in these appeals are hereinafter referred to on the basis of the respective ranks in the claim petition). 2. The said claim petition was submitted by the claimants seeking compensation for the death of their mother, aged 51 years, due to the injuries sustained to her in a motor accident that occurred on 23.05.2010. The accident occurred, when the tempo traveller in which the deceased was travelling capsized due to the rash and negligent driving of the same, by the second respondent. The first respondent was the owner and it was insured with the third respondent. According to the appellant, the deceased was a house wife as well as an agricultural worker and the monthly income claimed was Rs.4000/-. 3. The claim was contested by the third respondentInsurance Company alone. In their written statement, they admitted the coverage of the policy but raised various MACA.No.786/2013 5 contentions disputing their liability. The quantum claimed by the appellants was also disputed. 4. The evidence in this case consists of Exts.A1 to A4 from the side of the appellants and no evidence was adduced from the side of the third respondent-Insurance Company. 5. After the trial, the Tribunal came to the conclusion that, the accident occurred due to the negligence on the part of the driver of the tempo traveller and being the insurer of the said vehicle, the third respondent-Insurance Company was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,02,400/- (Rupees three lakhs two thousand four hundred only) and the third respondent was directed to deposit the said amount along with interest @ 7% per annum from the date of petition till realisation with proportionate costs. 6. Challenging the said quantum of compensation, the third respondent-Insurance Company filed MACA No.399/2012, whereas the claimants filed MACA No.786/2013, seeking enhancement of compensation. 7. Heard Sri.V.S.Chandrasekaran, the learned counsel appearing for the appellants and Smt.Latha Susan Cherian, the learned counsel appearing for the third respondent-Insurance Company in MACA No.786 of 2013 and Sri.George A.Cherian, MACA.No.786/2013 6 the learned counsel appearing for the appellant and Sri.V.S.Chandrasekharan, the learned counsel for the fourth respondent in MACA No.399/2012. 8. The quantum of compensation is under challenge in both these appeals. The learned counsel for the petitioners contends that the amount awarded by the Tribunal is grossly inadequate, whereas the learned counsel for the 3[rd] respondent Insurance Company would contend that it was highly exorbitant. The main dispute pertains to the compensation awarded under the head of loss of disability. The specific contention raised by the 3[rd] respondent is to the effect that both the claimants are the sons of the deceased, who are major and were capable of taking care of their own. Therefore, it is contended that they were not dependent upon the mother and hence, compensation for dependency should not have been granted in this case. Reliance was also placed on the decision rendered by this Court in **Sujatha P. v. Oriental Insurance Co. Ltd.[2017 (4) KLT 899].** Since such a contention is raised, that has to be addressed first, before moving into the question of considering the quantum of compensation. Of course, it is true that a Division Bench of this Court in **Sujatha's case (supra)** observed MACA.No.786/2013 7 that in a case where the major sons of the deceased may not be treated as dependents in the absence of any evidence. However, the case that was dealt with this Court in **Sujatha's case** was relating to death of an engineer in PWD and the clam was made by the wife and children of the deceased. In the said case, the Tribunal arrived at the finding that in the absence of any evidence, the children of the deceased cannot be treated as dependents and for the purpose of assessing the compensation for disability, the wife of the deceased alone was treated as a dependent. Taking note of the fact that the wife was getting family pension for the death of the deceased a deduction of 50% of the monthly income was made towards personal expenses, as against the normal deduction of 1/3. Thus, it is evident that the factual circumstances under which the observations made by the Honourable Supreme Court in **Sujatha's case** was slightly different from the case at hand. In this case, records would indicate that the claimants and the family were engaged in agricultural operations and the deceased was claimed to be agricultural worker. There is no dispute that all of them were residing under the same roof. In such circumstances, as the claimants and the deceased were persons with low income group MACA.No.786/2013 8 and making their livelihood by doing agricultural work, mutual dependency by working together cannot be ruled out. Therefore, the yardstick which was applied by this Court in **Sujatha's case** cannot be made applicable in the factual circumstances existing in this case. As rightly pointed by the learned counsel for the appellant, the fact that all the persons were working together for meeting the house hold expenses is a factor which has to be taken into consideration while deciding the question of dependency. Thus, when one of the earning members dies, an additional burden will be there, on the remaining earning members. Therefore, I am of the view that this is a case in which the claimants have to be treated as dependents due to the reasons mentioned above and it is accordingly accepted. In such circumstances, the contention raised by the 3[rd] respondent Insurance Company cannot be entertained. 9. When considering the question of quantum of compensation under the head of disability, the crucial aspect to be noticed is the monthly income. The Tribunal took the monthly income as Rs.3,000/- as against the claim of Rs.4,000/-. Considering the fact that the accident occurred in the year 2010, the monthly income of Rs.3,000/- is grossly inadequate. When the method of computation evolved from the principles laid down MACA.No.786/2013 9 by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735]** is adopted, the monthly income of an ordinary worker without any skills can be taken as Rs.4,500/- in respect of an accident that occurred in the year 2004. The usual method that is adopted to determine the monthly income for subsequent years is to add Rs.500/- each every year. If that computation is adopted, the reasonable monthly income for an ordinary worker can be taken as Rs.7,500/- for the year 2010 even in the absence of any evidence. Of course, it is true that the amount claimed is only Rs.4,000/-. However, that by itself cannot be an impediment for the court to take a higher monthly income if the facts and circumstances of the case so warrants. It is to be noted that, the deceased was claimed to be an agricultural worker and therefore, the monthly income she would have earned may not be static and it would vary from month to month. Therefore, probability of lesser monthly income being shown in the claim petition cannot be ruled out. Moreover, in **Minu Rout v. Satya Pradumna Mohapatra [2013(3) KLT Online 1128 (SC)]** the Honourable MACA.No.786/2013 10 Supreme Court was pleased to take the monthly income at higher rates than claimed in the claim petition. It is also to be noted in this regard that, the ultimate object of the provisions of the Motor Vehicles Act is to ensure “just compensation” to the victims of the accident and therefore, the technicalities should not stand in the way while ensuring the just compensation. In such circumstances, I deem it appropriate to fix the monthly income as Rs.7,500/-. As she was aged 51 years at the time of the accident, an addition of 10% is to be made towards future prospects. The multiplier applicable is 11. Thus, while reassessing the compensation for loss of dependency the amount would come to Rs.7,26,000/- [(7500+10%)x12x11x2/3]. The amount already awarded by the Tribunal is Rs.2,64,000/- and thus additional compensation would come to Rs.4,62,000/-. 10. The amount awarded towards funeral expenses was only Rs.5,000/- and in the light of **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** a further sum of Rs.10,000/- is awarded. Similarly, amount awarded for loss of estate was only Rs.10,000/- and therefore, a further sum of Rs.5,000/- is awarded under the said head. MACA.No.786/2013 11 11. Next head to be considered is loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others [2018 (3) KLT Online 3095 (SC)]** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** the appellants being the sons of the deceased are entitled for compensation for loss of consortium at the rate of Rs.40,000/each. However, it is seen that an amount of Rs.10,000/- was awarded towards loss of love and affection. In **Satinder Kaur (supra),** it was categorically held by the Honourable Supreme Court that when compensation for loss of consortium is awarded, no separate compensation for loss of love and affection is to be granted. Therefore, the said amount is adjusted towards compensation for loss of consortium and it would result in an additional compensation of Rs.70,000/- under the head of loss of consortium. Thus, the total additional compensation would come to Rs.5,47,000/- [462000+70000+10000+5000]. 12. In the result, M.A.C.A.No.399 of 2012 is hereby dismissed. M.A.C.A.No.786 of 2013 is allowed and the award dated 15.12.2011 passed in O.P.(MV).No.489 of 2011 by the Principal Motor Accidents Claims Tribunal, Kozhikode is hereby modified by granting an additional amount of Rs.5,47,000/- MACA.No.786/2013 12 (Rupees five lakhs forty seven thousand only), which shall be deposited by the 3[rd] respondent after adjusting the amounts with interest at the rate as ordered by the Tribunal and proportionate costs within three months from the date of receipt of a copy of this judgment. It is also made clear that, as the appeal was filed with a delay of 358 days and it was condoned subject to condition that the appellants will not be entitled for interest for the said period, the 3[rd] respondent Insurance Company shall be at liberty to exclude the said period while computing the interest for additional compensation. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** DG/2.2.24