Mallika and Sreerag (minor) v. Ramankutty and United India Insurance Company Limited

MACA.No.836/2013 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945_ ## _MACA NO. 836 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 115/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM_ ## _APPELLANTS/PETITIONERS 1 AND 2:_ - _1 MRS.MALLIKA, W/O.LATE NARAYANANKUTTY, NOW RESIDING AT KEEZHEPATTU HOUSE, POOLACKAPARAMBU, THOTTAKARA POST, OTTAPALAM TALUK, PALAKKAD DISTRICT._ - _2 SREERAG, (MINOR), AGED 6 YEARS, S/O.LATE NARAYANANKUTTY, REPRESENTED BY THE MOTHER AND GUARDINA MALLIKA, THE 1ST PETITIONER HEREIN, NOW RESIDING AT KEEZHEPATTU HOUSE, POOLACKAPARAMBU, THOTTAKARA POST, OTTAPALAM TALUK, PALAKKAD DISTRICT._ _BY ADVS.SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR_ ## _RESPONDENTS/RESPONDENTS 1 AND 2:_ - _1 RAMANKUTTY, AGED 50 YEARS, S/O.LATE KRISHNAN NAIR, VALIYAKULATHINGAL HOUSE, KARAKKURISSI, CHERPLASSERY, NOW RESIDING AT RAGAMSADAN, POST THOTTAKARA, OTTAPALAM TALUK, PALAKKAD DISTRICT-679102._ - _2 MS.UNITED INDIA INSURANCE COMPANY LIMITED, REPRESENTED BY ITS BRANCH MANAGER, MAIN ROAD, OTTAPALAM-679 101._ _BY ADVS.Jayaram P SRI.A.R.GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.836/2013 2 ## **JUDGMENT** The appellants are the petitioners in O.P.(MV).No.115 of 2009 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The said claim petition was submitted by the appellants seeking compensation for the death of one Narayanankutty, in a motor accident that occurred on 08.12.2008. The deceased was the husband of the 1st appellant and the father of the 2nd appellant. 2. According to the appellants, the accident occurred when the motorcycle ridden by the deceased was hit by an autorickshaw bearing registration No.KL-51-3288, driven by the 1[st] respondent in a rash and negligent manner. The 1st respondent was the owner of the said vehicle and it was insured with the 2[nd] respondent. The deceased was aged 47 years at the time of the accident and was conducting a soda manufacturing unit. It is also contended that he was conducting a newspaper agency as well. The monthly income claimed was Rs.12,000/-. The claim petition was submitted in such circumstances. 3. The 1[st] respondent filed a written statement denying the negligence on his part, and according to him, the accident occurred due to the negligence of the deceased himself. It was also contended that the vehicle was validly insured with the 2[nd] MACA.No.836/2013 3 respondent. The 2[nd] respondent filed a written statement admitting the coverage of the policy but disputed the liability on various grounds. They denied the negligence on the part of the 1[st] respondent, and the quantum of compensation was also disputed. 4. The evidence in this case consists of oral testimony of PW1, and as documentary evidence, Exts.A1 to A10 were marked from the side of the appellants. Exts.B1 to B5 were marked from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the autorickshaw and being the insurer, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed at Rs.4,19,000/-, and the said amount was directed to be deposited with interest at the rate of 7% per annum from the date of petition till realization with proportionate costs. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.O.P.Nandakumar, learned counsel for the appellants and Sri.A.R.George, learned counsel for the 2[nd] respondent. 6. The only question that arises for consideration is whether the amount awarded by the Tribunal is reasonable or not. After carefully going through the contents of the award and the MACA.No.836/2013 4 materials placed on record, I am of the view that the amount awarded by the Tribunal is on the lower side. As rightly pointed out by the learned counsel for the appellant, while assessing the compensation for loss of dependency, the Tribunal took a meagre monthly income of Rs.3,500/-. Of course, it is true that even though the appellant claimed that the deceased was earning an amount of Rs.12,000/- from his avocation as a person managing a soda manufacturing unit and newspaper agency, the only evidence available on record is Ext.A9 licence issued for the soda manufacturing unit. Even though the said document would indicate that he was running an establishment, the said document is not sufficient to show the income which he used to derive from the said business. However, even if that be so, the monthly income of Rs.3,500/- taken by the Tribunal appears to be on the lower side, particularly in view of the fact that the accident occurred in the year 2008. When the method of computation of monthly income usually adopted by this Court, which is evolved from the principles laid down 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 evidence can MACA.No.836/2013 5 be taken as Rs.4,500/- in respect of an accident occurred in the year 2004. The method that is usually adopted to determine the monthly income for subsequent years is to add Rs.500/- per year. When such a method is adopted, in respect to the accident in the year 2008, the monthly income of an ordinary worker without any skills and without any evidence can be taken as Rs.6,500/-. In this case, there is some evidence in the form of Ext.A9, which would show that the deceased was running an establishment of his own. Therefore, a slightly higher monthly income than that is usually taken in respect of an ordinary worker can be adopted. Therefore, in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.7,500/-. 7. As the deceased was aged 42 years, the future prospects are also to be taken into consideration by making an addition of 25% of the monthly income in the light of **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)].** As he left behind his wife and child, towards personal expenses, 1/3 is also to be deducted. Accordingly, when the compensation for loss of dependency is re-assessed with the above criteria, the amount would come to Rs.10,50,000/- [(7500x25%)x12x14x2/3]. The amount already awarded by the Tribunal is Rs.3,92,000/- and thus, the additional compensation would come to Rs.6,58,000/-. MACA.No.836/2013 6 8. When moving on to the other heads, it can be seen that the Tribunal awarded only Rs.5,000/- towards funeral expenses, whereas the actual amount should have been Rs.15,000/- in the light of **Pranay Sethi (supra).** Therefore, a further sum of Rs.10,000/- is awarded under the said head. No amount is seen awarded towards loss of estate, whereas it is mandatory to award Rs.15,000/- as per **Pranay Sethi (supra).** Therefore, Rs.15,000/is awarded under this head. 9. The next head which requires consideration is the 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]** , both the appellants, being the wife and child, are entitled to compensation for loss of consortium of Rs.40,000/each, thereby making a total of Rs.80,000/-. The amount already awarded by the Tribunal under this head is Rs.10,000/- and a further sum of Rs.10,000/- is seen awarded under the head of loss of love and affection. Since it is held in **Satinder Kaur (supra)** that when compensation is awarded for loss of consortium, no further amount needs to be granted towards loss of love and affection, the amount of Rs.10,000/- granted by the Tribunal towards love and affection, can be adjusted towards the amount MACA.No.836/2013 7 fixed by this court under the heard loss of consortium. Thus, the additional compensation for loss of consortium is fixed as Rs.60,000/-. Accordingly, the total additional compensation receivable by the appellants is determined as Rs.7,43,000/(6,58,000+60000+10000+15000). In the result, this appeal is allowed. The award dated 28.10.2011 passed by the Motor Accidents Claims Tribunal, Ottappalam in O.P.(MV).No.115 of 2009 is hereby modified by granting an additional amount of Rs.7,43,000/- (Seven lakhs fortythree thousand only) with interest at the rate of 7.5% per annum from the date of petition till realization with proportionate costs. The said amount shall be deposited by the 2nd respondent within a period of three months from the date of receipt of a copy of this judgment. It is further ordered that the claimants shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above within a period of two months from the date of receipt of a copy of this judgment. In case they fail to furnish the said details, it shall be open for the Insurance Company to deposit the same amount before the Tribunal. Further, it is clarified that, as the delay of 404 days in filing the appeal was condoned subject to the condition that the appellant shall not be entitled to interest for the said MACA.No.836/2013 8 period, the 2nd respondent shall be at liberty to exclude the period of delay while computing the interest on the additional compensation. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/5.2.24