MACA Nos.2311/2016 & 2791/2016 (New India Assurance Company Ltd. v. Amutha w/o Shanmughavelu @ Babu and others)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 22 [ ND ] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 ``` ``` MACA NO. 2311 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.1015 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR ``` ## **`APPELLANT/3rd RESPONDENT:`** ``` NEW INDIA ASSURANCE COMPANY LIMITED BRANCH OFFICE, 149, BHARATHIAR ROAD, 1ST FLOOR, KARAIKAL, TAMIL NADU STATE, PIN: 609 602, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, ERNAKULAM. BY ADV SRI.P.G.GANAPPAN ``` ## **`RESPONDENTS/CLAIMANTS AND RESPONDENTS 1 & 2:`** - **`1 AMUTHA W/O.LATE SHANMUGHAVELU @ BABU 36 MAVUTHIRUPATH, THANACHAVOOR, TAMIL NADU.`** - **`2 SOORYA S/O.LATE SHANMUGHAVELU @ BABU MINOR REPRESENTED BY HIS NEXT FRIEND AND NATURAL GUARDIAN MOTHER AMUTHA DO. DO.`** - **`3 GANAPATATHI`** - **`F/O./O.LATE SHANMUGHAVELU @ BABU DO.DO.`** - **`4 PAPPA`** - **`M/O.LATE SHANMUGHAVELU @ BABU DO.DO.`** - **`5 JOHN SAJEEV.L S/O.LOUIS MARIRANDA, 26/157, VALLAVILAI, KOLLEMCODE P.O., VILAVANCODE, MARTHANDAM, K.K.DISTRICT - 629 160, TAMIL NADU.`** - **`6 V.SREEKUMAR S/O.VELAYUDHAN, CHUNDAVILAL VEEDU, PANAVILAI, NEAR KOLLAMCODE POLICE STATION, KOLLAM CODE P.O., K.K.DISTRICT - 629 160, TAMIL NADU. BY ADVS.`** - **`A.N.SANTHOSH`** - **`K.MOHAN`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.05.2024, ALONG WITH MACA.2791/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 ``` MACA Nos.2311/2016 & 2791/2016 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 22 [ ND ] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 ``` ## **`MACA NO. 2791 OF 2016`** ``` AGAINST THE ORDER/JUDGMENT DATED 21.01.2016 IN OPMV NO.1015 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 AMUTHA W/O. SHANMUGHAVELU @ BABU, 36, MAVUTHIRUPATH, THANCHAVOOR, TAMIL NADU.`** - **`2 SOORYA D/O. SHANMUGHAVELU @ BABU, 36, MAVUTHIRUPATH,THANCHAVOOR, TAMIL NADU, REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER 1ST APPELLANT.`** - **`3 GANAPATHY F/O. SHANMUGHAVELU @ BABU, 36, MAVUTHIRUPATH,THANCHAVOOR, TAMIL NADU.`** - **`4 PAPPA M/O. SHANMUGHAVELU @ BABU, 36, MAVUTHIRUPATH,THANCHAVOOR, TAMIL NADU. BY ADV SRI.A.N.SANTHOSH`** ## **`RESPONDENTS/RESPONDENTS 1 AND 3:`** - **`1 JOHN SAJEEV.L S/O. LOUIS MIRANDA, 26/157, VALLAVILAI, KOLLAMCODE, VILAVANCODE, MARTHANDAM, KANYAKUMARI DISTRICT, TAMIL NADU-629160.`** - **`2 NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE-149, BHARATHIAR ROAD,1ST FLOOR KARAIKAL, TAMIL NADU-609602.`** - **`BY ADVS. K.MOHAN P.G.GANAPPAN`** 3 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.05.2024, ALONG WITH MACA.2311/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 ``` MACA Nos.2311/2016 & 2791/2016 ``` ## `JUDGMENT` ## `[MACA Nos.2311/2016 & 2791/2016]` ``` These appeals are directed against the award in OP(MV)No.1015 of 2010 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The 3 rd respondent/insurer in the OP(MV) is the appellant in MACA No.2311 of 2016 alleging that the compensation awarded is excessive in ``` ``` nature, whereas MACA No.2791 of 2016 alleging that the compensation awarded is is filed by the claimants in the OP(MV) contending that the compensation awarded by the Tribunal is on the lower side. ``` `2. One Mr.Shanmughavelu, a 26 year old` ``` coolie worker died in a road traffic accident occurred on 19/11/2009 at 11.45 pm, while he was riding pillion on a bicycle, He was knocked ``` 5 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` down by a pick-up van bearing registration No.TN-75/B-5144 driven by the 2 nd respondent in a rash and negligent manner. He suffered fatal injuries and he was admitted and treated at Medical Trust Hospital Ernakulam, and he succumbed to the injuries on 25/5/2010. His ``` ``` legal heirs i.e his wife, child and parents approached the Tribunal claiming compensation of Rs.20 Lakh. Learned Tribunal awarded Rs.16,78,176/-. ``` ``` 3. According to the insurer who is the appellant in MACA No.2311 of 2016, learned Tribunal went wrong in adding 50%, towards ``` ``` future prospects instead of 40%, to his monthly income. Moreover, under the head loss of love and affection and loss of consortium, learned Tribunal awarded Rs.4 Lakh in total, and that ``` 6 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` is also excessive in nature. Under the head funeral expenses also instead of Rs.15,000/-, learned Tribunal awarded Rs.25,000/-. ``` ``` 4. The claimants, who are the appellants in MACA No.2791 of 2016 would submit that, though the monthly income claimed in the claim petition was Rs.5,000/-, learned Tribunal fixed the notional income of the deceased @ Rs.4,500/- only. So, the 50% addition given by the Tribunal can be justified. Moreover, after the accident, the deceased was bed ridden till ``` ``` his death. So loss of earning ought to have ``` ``` been assessed, for the entire period from the ``` ``` date of accident till his death. The attendant charges also was liable to be given til his death, but learned Tribunal granted it only for 101 days. ``` 7 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` 5. Now this Court is called upon to answer whether there is any irregularity, illegality or impropriety in the impugned award warranting interference by this Court. ``` ``` 6. Learned counsel for the insurer ``` ``` (appellant in MACA No.2311 of 2016) relied on the decision National Insurance Company Ltd. v. ``` ``` Pranay Sethi and Others, [(2017) 16 SCC 680], ``` ``` to say that in the case of a self employed person below 40 years, the future prospects that could have been allowed was only 40%, but the Tribunal granted 50%, and it is liable to be interfered with. Learned Tribunal fixed ``` ``` notional income of the deceased @ Rs.4,500/-. As per the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company ``` ``` Limited [AIR 2011 SC 2951] , even a coolie ``` 8 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` worker was eligible to get his notional income fixed @ Rs.7,000/- in the year, 2009. The claim of the appellants in MACA No.2791 of 2016 before the Tribunal was that, the deceased was earning monthly income of Rs.5,000/-. So that amount can be fixed as his notional income. When 40% addition is given towards future prospects, his income could have been assessed as Rs.7,000/- (5,000+40%). Since he was having four dependants, 1/4th has to be deducted towards his personal expenses. So the balance income could have been Rs.5,250/-. The multiplier applicable is 17, as the deceased was aged only 26. So the compensation for loss of dependency could have been fixed by the learned Tribunal as Rs.10,71,000/- instead of Rs.10,32,750/-. So the appellants in MACA ``` 9 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` No.2791 of 2016 are eligible to get the difference of Rs.38,250/- (10,71,000-10,32,750) as enhanced compensation under the head loss of dependency. ``` ``` 7. Towards loss of earning, learned Tribunal awarded compensation for six months @ 4,500/-. This Court has fixed his notional income @ Rs.5,000/- as claimed by the claimants in the OP(MV). So, they are eligible to get an enhancement of Rs.3,000/-, when loss of earning is calculated for six months @ Rs.5,000/- per month. ``` ``` 8. Towards attendant charges, learned Tribunal awarded Rs.25,250/- granting Rs.250/- ``` ``` per day for 101 days. Learned counsel for the claimants (appellants in MACA No.2791 of 2016) would say that, the deceased was bed ridden ``` 10 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` after the accident till his death on 25/5/2010. So the total period comes to 186 days, and they are entitled to get attendant charges for the entire 186 days. At the rate of Rs.250/- per day for 186 days, the total amount comes to Rs.46,500/-. After deducting Rs.25,250/- already awarded, they are eligible to get the balance amount of Rs.21,250/-. ``` ``` 9. Towards extra nourishment, learned Tribunal awarded only Rs.5,000/-, against the claim of Rs.25,000/- by the claimants. Since the deceased was bedridden for six months till ``` ``` his death, this Court is inclined to award Rs.5,000/- more under the head extra ``` ``` nourishment. ``` ``` 10. Learned counsel for the insurer (appellant in MACA No.2311 of 2016) would ``` 11 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` contend that, towards love and affection and loss of consortium, the Tribunal awarded Rs.4 Lakh in total. Relying on Pranay Sethi’s case (cited supra) he would submit that, each claimants were entitled to get Rs.40,000/- alone, amounting to Rs.1,60,000/-. Based on ``` ``` Pranay Sethi’s case (cited supra) for the delay, 10% hike can be given for the loss of ``` ``` consortium and so this Court is inclined to fix ``` ``` compensation under the head loss of consortium ``` ``` as Rs.1,76,000/- (44,000x4). But the Tribunal ``` ``` awarded Rs.4 Lakh in total. So there is an ``` ``` excess of Rs. 2,24,000/- awarded by the ``` ``` Tribunal. So that amount is liable to be deducted from the total compensation awarded by the Tribunal. ``` ``` 11. Under the head funeral expenses also, ``` 12 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` instead of Rs.15,000/- learned Tribunal awarded Rs.25,000/- which is in excess by Rs.10,000/-. So that amount also is liable to be deducted from the total award amount. ``` ``` 12. This Court has found that under the head loss of dependency, attendant charges, extra nourishment and loss of earning, the claimants (appellants in MACA No.2791 of 2016) are eligible to get enhanced compensation of ``` ``` Rs.67,500/- in total. Whereas, there is excess amount of Rs.2,34,000/- awarded by the Tribunal under the head loss of consortium and funeral ``` ``` expenses. After adjusting these two amounts, Rs.1,66,500/- awarded by the tribunal is liable to be deducted from the total award amount. ``` ``` 13. The compensation awarded under all ``` ``` other heads seems to be just and proper and it ``` 13 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` needs no interference. ``` ## `14. The enhanced compensation awarded in` ``` this appeal is stated in the table below:- ``` |Head of<br>claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted<br>in appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|10,32,750/-|10,71,000|-|38,250/-| |Towards<br>loss of<br>earning|27,000/-|30,000/-|-|3,000/-| |Attendant<br>charges|25,250/-|46,500/-<br> (250x186)|-|21,250/-| |Towards<br>extra<br>nourishment|5,000/-|10,000/-|—|5,000/-| |Love and<br>affection<br>Loss of<br>consortium|3,00,000/-<br>1,00,000/-|1,76,000/-<br>(44,000x4)|2,24,000/-|| |Funeral<br>expenses|25,000/-|15,000/-|10,000/-|| |TOTAL|||2,34,000/-|67,500/-| ``` 15. Learned counsel for the insurer ``` ``` (appellant in MACA No.2311 of 2016) submitted ``` 14 ``` MACA Nos.2311/2016 & 2791/2016 ``` ``` that 75% of the compensation awarded by the Tribunal was deposited by the insurance company before the Tribunal. So from the balance amount to be deposited, they can deduct Rs.1,66,500/- ``` ``` and its interest. The apportionment also shall be done as ordered by the Tribunal. ``` ``` The appeals are allowed in part to the extent as above, and no order is made as to costs. ``` ``` Sd/- ``` ## **`SOPHY THOMAS,`** ``` JUDGE ``` ``` ska ```