Manoj s/o Mathai and others v Abdul Nawab W/o Rukkiya (deleted) and Nazeer Parali and National Insurance Company Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944** **MACA NO. 1541 OF 2016** **AGAINST THE COMMON AWARD IN OPMV 527/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **- APPELLANTS/PETITIONERS CLAIMANTS:** 1 MANOJ AGED 40 YEARS AGED 40 YEARS, S/O. MATHAI, KANJICKAL HOUSE, PAZHANGATTU CHAL ROAD, THENGODE P.O., KAKKANAD, KOCHI-30. 2 ROSHAN MINOR AGED 10 YEARS, S/O. MANOJ, KANJICKAL HOUSE,PAZHANGATTU CHAI ROAD, THENGODE P.O., KAKKANAD-30,REPRESENTED BY NEXT FRIEND AND GUARDIAN MANOJ, AGED 40 YEARS, S/O. MATHAI, KANJICKAL HOUSE, PAZHANGATTU CHAL ROAD, THENGODE P.O., KAKKANAD-30. 3 SHREYA ANN AGED 8 YEARS, D/O. MANOJ, KANJICKAL HOUSE, PAZHANGATTU CHAI ROAD, THENGODE P.O., KAKKANAD30,REPRESENTED BY NEXT FRIEND AND GUARDIAN MANOJ,AGED 40 YEARS, S/O. MATHAI, KANJICKAL HOUSE,PAZHANGATTU CHAL ROAD, THENGODE P.O., KAKKANAD-30. 4 VISMAYA MINOR AGED 6 YEARS, D/O. MANOJ, KANJICKAL HOUSE,PAZHANGATTU CHAL ROAD, THENGODE P.O., KAKKANAD-30, REP.BY NEXT FRIEND AND GUARDIAN MANOJ, AGED 40 YEARS, S/O. MATHAI, KANJICKAL HOUSE, PAZHANGATTU CHAL ROAD, THENGODE P.O., KAKKANAD-30. 5 JOY AGED 65 YEARS, S/O. KOCHUMMEN, KAILATH HOUSE,MANJUMMEL P.O., ELOOR. 6 SUSHMA AGED 60 YEARS AGED 60 YEARS, W/O. JOY, KAILATH HOUSE,MANJUMMEL P.O., ELOOR. BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON MACA Nos. 594/2016 & 1541/2016 2 ## **RESPONDENTS/RESPONDENTS :** *1 ABDUL NAWAB W/O. RUKKIYA, PARAYANPARAMBIL HOUSE,NEAR MADRASAPPADY, VELIYATHUNAD, ALUVA-683 511. (DELETED) (R1 IS DELTED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 29.9.2021 IN I.A.No.1/2018IN MACA 1541/2016) 2 NAZEER PARALI HOUSE, MUTTOM, THAIKKATTUKARA, ALUVA-683 106. 3 NATIONAL INSURANCE COMPANY LIMITED A.M.ROAD, PERUMBAVOOR. BY ADVS. SRI.GEORGE CHERIAN SR. FOR R3 SRI.P.JAYAN TOMY SMT.LATHA SUSAN CHERIAN SRI.PHILIP.N.JOSEPH SMT.P.F.ROSY SRI.V.M.SYAM KUMAR SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2022, ALONG WITH MACA.594/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos. 594/2016 & 1541/2016 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 MACA NO. 594 OF 2016** **AGAINST THE AWARD IN OPMV 527/2013 DATED 20.11.2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/3RD RESPONDENT:** THE NATIONAL INSURANCE CO LTD PERUMBAVOOR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, MG ROAD, KCOHI 35 BY ADVS. SRI.GEORGE CHERIAN(SR) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **RESPONDENTS/CLAIMANTS:** 1 MANOJ S/O.MATHAI, KANJICKAL HOUSE, PAZHANGATTU CHAL ROAD, THENGODE PO, KAKKANAD 30 2 ROSHAN S/O.MANOJ, KANJICKAL HOUSE, PAZHANGATTU CHAL ROAD, THENGODE PO, KAKKANAD 30, MINOR REPRESENTED BY NEXT FRIEND AND GUARDIAN MANOJ (FIRST RESPONDENT) 3 SHREYA ANN D/O.MANOJ, KANJICKAL HOUSE, PAZHANGATTU CHAL ROAD, THENGODE PO, KAKKANAD 30, MINOR REPRESENTED BY NEXT FRIEND AND GUARDIAN MANOJ (FIRST RESPONDENT) 4 VISMAYA D/O.MANOJ, KANJICKAL HOUSE, PAZHANGATTU CHAL ROAD, THENGODE PO, KAKKANAD 30, MINOR REPRESENTED BY NEXT FRIEND AND GUARDIAN MANOJ (FIRST RESPONDENT) 5 JOY S/O.KOCHUMMEN, KAILATH HOUSE, MANJUMMEL PO, MACA Nos. 594/2016 & 1541/2016 4 ELOOR, PIN 683501 6 SUSHAMA W/O.JOY, KAILATH HOUSE, MANJUMMEL PO, ELOOR, PIN 683501 BY ADVS. P.SANJAY A.PARVATHI MENON BIJU MEENATTOOR PAUL VARGHESE (PALLATH) P.A.MOHAMMED ASLAM KIRAN NARAYANAN PRASOON SUNNY RAHUL RAJ P. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2022, ALONG WITH MACA.1541/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos. 594/2016 & 1541/2016 5 ## **JUDGMENT** Since common issues arise for consideration in these appeals, they are heard together and are disposed of by this common judgment. 2. M.A.C.A No.1541/2016 is preferred by the petitioners in OP(MV) No.527 of 2013 on the file of the Motor Accidents Claim Tribunal, Ernakulam aggrieved by the inadequacy of the amount of compensation awarded by the Tribunal and M.A.C.A No.594/2016 is filed by the 3[rd] respondent therein who is the insurer of the offending vehicle involved in the accident contending that the Tribunal has awarded exorbitant compensation. The parties are referred to as per their status in the claim petition unless otherwise specifically mentioned. 3. According to the petitioners, while deceased Asha Manoj was travelling as a pillion rider on a motorcycle along with her husband on 04.10.2012 through Aluva-Ernakulam road, a lorry bearing registration No.KL7/E-6964 driven by the 1[st] respondent and owned by the MACA Nos. 594/2016 & 1541/2016 6 2[nd] respondent hit the motorcycle and the deceased sustained severe injuries. She was taken to hospital where she succumbed to the injuries. The petitioners who are the husband, three minor children and parents of the deceased preferred the claim petition claiming an amount of Rs.40 lakhs for the death Asha Manoj. 4. The Insurance Company filed written statement admitting that the lorry was covered by a valid insurance policy at the time of accident. However, it was contended that the accident happened on account of the negligence of the rider of the motorcycle. It was also contended that the amount of compensation claimed is excessive. 5. The Tribunal found that the accident happened due to the negligence of the 1[st] respondent, the driver of the lorry and awarded an amount of Rs.17,99,500/- as compensation with 9% interest per annum from the date of petition till realisation with proportionate costs. The 3[rd] respondent insurance company was directed to satisfy the award. MACA Nos. 594/2016 & 1541/2016 7 6. The contention of the insurance company in M.A.C.A No.594/2016 is that the amount of compensation awarded by the Tribunal is excessive and not in accordance with the guidelines issued by the Apex Court in various decisions. The contention of the appellants in M.A.C.A No.1541 of 2016 is that the compensation awarded by the Tribunal under various heads is inadequate. In view of the rival contentions, this Court has to fix a just and reasonable compensation. 7. The deceased was aged 29 years at the time of the accident. Therefore, the multiplier to be adopted is 17. According to the petitioners, the deceased was working as an Insurance Advisor and Clerk in Future Generali India Ltd and was having a monthly income of Rs.20,500/-. They have produced Ext.A12 salary certificate to prove the income of the deceased. The Tribunal held that the monthly income of the deceased cannot be fixed as per Ext.A12 and took the average monthly income of the deceased as Rs.5,000/-. It is to be noted that even a MACA Nos. 594/2016 & 1541/2016 8 casual worker would get an amount of Rs.8,500/- per month in the year 2012 going by the guidelines issued by the Apex Court in **Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd.** **(2011 (13 SCC) 236).** Therefore, I re-fix the notional monthly income of the deceased as Rs.8,500/-. 8. There are four dependents. Since the deceased was 29 years of age at the time of accident and had no permanent employment, the future prospects to be added to the income can only be 40%. Therefore, the monthly income of the deceased would come to Rs.11,900/(8500+3400) Accordingly, the compensation under the head loss of dependency is recalculated as Rs.18,20,700/- [11900x12x17x3/4]. Since the petitioners have already been awarded an amount of Rs.11,47,500/- under the head loss of dependency, they are entitled for an enhanced compensation of Rs. **6,73,200/** - (18,20,70011,47,500) under the said head. 9. Towards Transportation to hospital and back, MACA Nos. 594/2016 & 1541/2016 9 the Tribunal has awarded an amount of Rs.5,000/- which I find as just and reasonable. 10. Towards funeral expenses, the petitioners were awarded an amount of Rs.25,000/-. Going by the dictum laid down by the Apex Court in **National Insurance Company v. Pranay Sethi (2017 (4) KLT 662(SC),** the petitioners are entitled only for an amount of Rs.15,000/- under the head funeral expenses. Therefore, an amount of **Rs.10,000/** - has to be deducted. 11. The Tribunal has awarded an amount of Rs.75,000/- towards loss of estate. Going by the dictum in **Pranay Sethi** (supra), the petitioners are entitled only for an amount of Rs.15,000/- under the head loss of estate. Accordingly, an amount of **Rs.60,000** /- has to be deducted. 12. Towards pain and sufferings, the Tribunal has awarded an amount of Rs.25,000/- . Going by the decisions in **United India Insurance Company vs. Satinder Kaur (2020 SCC Online SC 410)** and **Oriental** MACA Nos. 594/2016 & 1541/2016 10 **Insurance Company vs. Kahlon (deceased through his Legal Representative Narinder Khlon Gosakan)** **(2021 AIR SC 3913)** , the petitioners are not entitled for any compensation under the head pain and sufferings. Therefore, the said amount has to be deducted from the total compensation. 13. An amount of Rs.4,00,000/- has been awarded by the Tribunal towards loss of love and affection. A further amount of Rs.1,00,000/- has been awarded as compensation for loss of consortium. The claimants are the parents, three minor children and husband of the deceased and they are entitled for compensation for loss of consortium of Rs.40,000/- each **(Pranay Sethi)** and accordingly, they are entitled for an amount of Rs.2,40,000/- (40000x6) under the said head. Therefore, an amount of Rs.1,40,000/- (2,40,000-1,00,000) is awarded additionally under the head loss of consortium. The Hon'ble Supreme Court has held in **Satinder Kaur** (supra) that when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for MACA Nos. 594/2016 & 1541/2016 11 loss of love and affection as a separate head. Since the petitioners were awarded an amount of **Rs.4,00,000/-** as compensation for loss of love and affection, the said amount has to be deducted. 14. The Tribunal has awarded an amount of Rs.20,000/-towards postmortem and medical expenses and Rs.2,000/- for damages to clothing and articles. I find the same to be just and reasonable. 15. Accordingly, the petitioners are entitled for an amount of **Rs.21,17,700** /- as total compensation as per the chart below:- |**Sl.No.**|**Head of claim**|**Amt.Claimed**|**Amt.awarded**<br>**by the Tribunal**|**Amt. awarded by**<br>**this Court**| |---|---|---|---|---| |1.|Transport to hospital and back<br>to home|1,000|5000|5000| |2.|Funeral expenses|15000|25000|15000| |3.|Compensation for loss of<br>pecuniary<br>benefits<br>after<br>deducting personal expenses|288000|1147500|1820700| |4.|Compensation for loss of<br>estate|100000|75000|15000| |5.|Compensation for pain and<br>sufferings|10000|25000|------| |6.|Compensation for loss of<br>consortium|500000|100000|240000| |7.|Compensation for loss of love<br>and affection|600000|400000|-----| |8.|Expenses for postmortem and<br>other medical expenses|90000|20000|20000| |9.|Compensation for damages to<br>clothing and articles|2000|2000|2000| |10|Total|4297000|1799500|**2117700**| MACA Nos. 594/2016 & 1541/2016 12 In the result, the appeals are disposed of. The petitioners are entitled for an amount of **Rs.3,18,200** /- (21,17,700-17,99,500) as enhanced compensation. It is submitted by the learned counsel for the appellant in M.A.C.A No.594 of 2016 that pursuant to the order dated 04.03.2016 in the said appeal, 50% of the amount was deposited before the Tribunal. The appellant insurance company shall deposit the balance amount as modified by this Court with 9% interest per annum from the date of petition till realisation along with proportionate costs within a period of two months from the date of receipt of a copy of this judgment. The apportionment of the amount shall be as ordered by the Tribunal. While calculating interest on enhanced compensation, the petitioners will be disentitled for interest for a period of 101 days as per order dated 01.04.2022 in C.M.Appl. No.1/2016 in M.A.C.A No.1541/2016. ## al/-+