MACA Nos. 860 of 2014 and 1578 of 2014 (Royal Sundaram Alliance Insurance Co. Ltd. v. Sant hi, Lakshmipriya & Vishnupriya)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ## `MACA NO. 860 OF 2014` ``` AGAINST THE AWARD DATED 28.11.2013 IN O.P(MV) NO.274/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA ``` ## `- APPELLANT/3RD RESPONDENT :` ``` ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED NOW REPRESENTED BY ITS ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI -600 002. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## `- RESPONDENTS/PETITIONERS :` ``` 1SANTHI W/O.LATE MOHANAN, KAITHAKOMBIL HOUSE, THODUPUZHA, PIN 685 320. ``` ``` 2LAKSHMIPRIYA D/O.LATE MOHANAN, KAITHAKOMBIL HOUSE, THODUPUZHA, PIN 685 320. ``` ``` 3VISHNUPRIYA D/O.LATE MOHANAN, KAITHAKOMBIL HOUSE, THODUPUZHA, PIN 685 320. ``` ``` BY ADV SRI.S.K.MURALEEDHARA KAIMAL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH MACA.1578/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ``` MACA NO. 1578 OF 2014 ``` ``` AGAINST THE AWARD DATED 28.11.2013 IN O.P(MV) NO.274/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA ``` ## `- APPELLANT/PETITIONER :` - `1 SANTHI, AGED 48 YEARS W/O. LATE K.G.MOHANAN NAIR @ MOHANAN, KAITHAKAMBIL HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE, (A.P.CONSULTANCY, THODUPUZHA-685 584).` - `2 LEKSHMIPRIYA, AGED 22 YEARS D/O. LATE K.G.MOHANAN NAIR @ MOHANAN, KAITHAKAMBIL HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE.` - `3 VISHNUPRIYA, AGED 20 YEARS D/O. K.G.MOHANAN NAIR @ MOHANAN, KAITHAKAMBIL HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE.` ``` BY ADV SRI.S.K.MURALEEDHARA KAIMAL ``` ## `RESPONDENT/RESPONDENT :-` ``` ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD REPRESENTED BY ITS MANAGER, D-1, 2ND FLOOR, AMRITHA TOWERS, KPCC JUNCTION, OPP.MAHARAJA GROUNDS, M.G.ROAD, ERNAKULAM, KOCHI-682 011(INSURER)- 3RD RESPONDENT. ``` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH MACA.860/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.860 & 1578 of 2014 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 22[nd] day of November, 2022** These appeals are originated from an award passed by Motor Accidents Claims Tribunal, Thodupuzha (for short ‘the Tribunal’) on 28.11.2013 in O.P.(MV) No.274 of 2008. Challenge was raised against the award both by the insurer as well as the petitioners. The parties to these appeals are referred to hereinafter as the petitioners and respondents 1 to 3 in accordance with their status before the Tribunal in the Original Petition. 2. The challenge mainly raised against the award was with reference to the quantum stands awarded as compensation by the Tribunal. According to him, the compensation awarded is exorbitant. Rs.10,000/- was fixed as monthly income on a notional basis and the Tribunal is unjustified in fixing such an exorbitant amount as monthly income and calculation of compensation payable to the petitioners on its basis. ``` MACA Nos.860 & 1578 of 2014 ``` ``` 4 ``` 3. According to the learned counsel for the third respondent, evidence was not adduced by the petitioners to substantiate their claims on occupation and monthly income and therefore, the Tribunal is justified in fixing it on a notional basis. The wife of the deceased and the Chartered Accountant who was looking after the accounts of the Consultancy Service run by the wife of the deceased were examined as PWs 1 and 2. The learned counsel has pointed out that even in the oral evidence tendered by the witnesses, there is nothing to show that the deceased was getting Rs.10,000/- as monthly income at the relevant time of his death. 4. It is contended by the learned counsel that as compensation under conventional heads viz, loss of estate, funeral expenses and loss of consortium, the Constitutional Bench of the Apex Court had fixed the sum payable as compensation in _**National Insurance Company Limited v. Pranay Sethi and others**_ [2017 (4) KLT 662 (SC)]. According to him, Rs.20,000/stands awarded by the Tribunal as compensation towards funeral ``` MACA Nos.860 & 1578 of 2014 ``` ``` 5 ``` expenses is on the higher side since the actual amount which the petitioners are entitled to get as compensation in view of **Pranay Sethi** supra is Rs.16,500/-. As compensation under the heads loss of estate and loss of consortium also the amount for which the petitioners are entitled to are Rs.16,500/- and Rs.44,000/- per head. Under the head loss of estate, against the claim raised for Rs.1,00,000/- the Tribunal has awarded Rs.10,000/-. The sum for which the petitioners are entitled to as compensation for loss of estate in view of **Pranay Sethi** supra being Rs.16,500/-, this Court finds it appropriate to award Rs.6,500/- as additional compensation. As compensation towards funeral expenses, though the petitioners are only entitled to get Rs.16,500/-, Rs.20,000/- was awarded by the Tribunal and therefore, Rs.3,500/- needs to be deducted from the total additional compensation arrived at. Placing reliance on **Rajesh and others v. Rajbir Singh and others** [2013 ACJ 1403] the Tribunal has awarded Rs.50,000/- as compensation towards loss of consortium for the 1[st] petitioner who is the wife of the deceased Mohanan. ``` MACA Nos.860 & 1578 of 2014 ``` ``` 6 ``` **Rajesh** supra has been overruled by the Constitutional Bench of the Apex Court in **Pranay Sethi** supra and held that the wife of the deceased is only entitled to get Rs.44,000/- as compensation towards spousal consortium. The Apex Court in **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors.** [(2018) 18 SCC 130] has extended payment of compensation for loss of consortium to the children as well as parents respectively in case of death of either of the parents or children. Therefore, each of the petitioners are entitled to get Rs.44,000/- as compensation towards spousal as well as filial consortium. Thus a total sum of Rs.1,32,000/- (Rs.44,000x3) is found payable as compensation in total towards loss of consortium. The Tribunal has already awarded Rs.50,000/- as compensation under that head, and therefore, this Court awards Rs.82,000/- (Rs.1,32,000/- - Rs.50,000/-) as additional compensation under that head. 5. The petitioners had pleaded in the Original Petition seeking compensation that Mr.Mohanan was working as Manager ``` MACA Nos.860 & 1578 of 2014 ``` ``` 7 ``` of A.P. Consultancy and was paid Rs.15,000/- per month as salary. A letter issued by Royal Sundaram Alliance Insurance Company certifying the factum that the wife of Mr.Mohanan was the proprietor of A.P. Consultancy, their authorised agency functioning from Thodupuzha, is marked in evidence as Ext.A6. The Income Tax returns of A.P. Consultancy for the periods ending 31[st] March 2007, 31[st] March 2008 and 31[st] March, 2009 were also marked in evidence as Exts.A8 to A10. The Chartered Accountant who audited the accounts of A.P. Consultancy was examined as PW2. He deposed that the accounts of A.P. Consultancy were audited by him and Ext.A8 to A10 are the Income Tax returns filed by them. PW1 deposed that Mr.Mohanan was managing A.P. Consultancy during 2008 to 2010, the year in which he died and has taken Rs.15,000/- as monthly salary. But nowhere in Exts.A8 to A10, the payment of Rs.15,000/- as salary to Mr.Mohanan is mentioned. Materials relevant and authentic to establish drawal of Rs.15,000/- by Mr.Mohanan from A.P. Consultancy as monthly salary are not ``` MACA Nos.860 & 1578 of 2014 ``` ``` 8 ``` produced. In the above context, the Tribunal was reluctant to rely on Exts.A8 to A10 and the oral evidence tendered by PW1, PW2 and constrained to fix Rs.10,000/- as his monthly income on a notional basis. The fixation of the monthly income appears to this Court reasonable and therefore is maintained. 6. The date of birth of Mr.Mohanan is established from Ext.A17 as 12.10.1953. Therefore, he has completed 54 years at the relevant time of his death and 11 being the multiplier applicable for persons of age group 51 to 55 years was adopted by the Tribunal and the Tribunal is also justified in doing so. The deceased being aged 54 years 10% needs to be added to the monthly income fixed in consideration of loss of future prospects of the deceased. The legal representatives and dependents of the deceased being 3 in numbers, 1/3[rd] is also liable to deducted in consideration of the personal expenditure of the deceased. 10% when added to Rs.10,000/-, Rs.11,000/- is arrived at. Compensation for loss of dependency is re-assessed with the factors modified, Rs.9,68,000/- (Rs.11,000 x 12 x 11x2/3) is ``` MACA Nos.860 & 1578 of 2014 ``` ``` 9 ``` arrived at as the compensation payable. Rs.8,80,000/- stands awarded by the Tribunal as compensation towards loss of dependency when deducted from the sum now arrived at (Rs.9,68,000 – 8,80,000) the petitioner will get Rs.88,000/- as additional compensation. 7. Thus, Rs.1,70,000/- is arrived at as the total additional compensation payable. The petitioners are disentitled to get Rs.1,00,000/- and Rs.15,000/- respectively awarded by the Tribunal under the heads loss of love and affection, pain and suffering. The Tribunal has awarded Rs.3,500/- over and above the sum, which the petitioners are entitled to get under the head funeral expenses. Therefore, Rs.1,18,500/- (Rs.1,00,000/- + Rs.1,500/- + Rs.3,500/-) needs to be deducted from the total sum found payable as additional compensation and thus, Rs.58,000/(Rupees Fifty eight thousand only) (Rs.1,70,000/- - Rs.1,18,500/-) is arrived at. Petitioners are also entitled to get interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 3[rd] respondent ``` MACA Nos.860 & 1578 of 2014 ``` ``` 10 ``` shall deposit the additional compensation with interest within a period of two months from the date on which a certified copy of this judgment is received. 8. In M.A.C.A No.860/2014 the appellant is the insurer of the offending vehicle stands arrayed in the Original Petition as the 3[rd] respondent. Challenge was raised against the impugned award mainly on three counts viz. fixation of Rs.10,000/- as the monthly income, grant of Rs.1,00,000/-, Rs.50,000/- and Rs.15,000/respectively as compensation towards loss of love and affection, loss of consortium and pain and suffering. 9. The contentions raised are already answered vide discussion made above and this Court finds it unnecessary to delve on it again. In the result, both appeals are allowed in part. Sd/- **MARY JOSEPH** **JUDGE** SMA