Mariyamma Mathew and Others v. Radhakrishnan K. and The Divisional Manager, National Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944 ``` ## `MACA NO. 4444 OF 2019` ``` AGAINST THE AWARD IN OPMV 156/2015 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA / I ADDL. M.A.C.T. ``` ## `APPELLANTS/PETITIONERS 1 TO 5:` ``` 1MARIYAMMA MATHEW, AGED 54 YEARS VARUKUNNEL HOUSE, MAKKAPUZHA P.O., CHETHACKAL VILLAGE, RANNY TALUK, PATHANAMTHITTA DISTRICT. 2BLESSY RACHEL MATHEW, AGED 29 YEARS VARUKUNNEL HOUSE, MAKKAPUZHA P.O., CHETHACKAL VILLAGE, RANNY TALUK, PATHANAMTHITTA DISTRICT. 3PRAISON MATHEW, AGED 24 YEARS VARUKUNNEL HOUSE, MAKKAPUZHA P.O., CHETHACKAL VILLAGE, RANNY TALUK, PATHANAMTHITTA DISTRICT. 4PRAYWIN MATHEW, AGED 24 YEARS VARUKUNNEL HOUSE, MAKKAPUZHA P.O., CHETHACKAL VILLAGE, RANNY TALUK, PATHANAMTHITTA DISTRICT. 5RACHEL JOSEPH, AGED 94 YEARS VARUKUNNEL HOUSE, MAKKAPUZHA P.O., CHETHACKAL VILLAGE, RANNY TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. T.K.KOSHY SRI.SABU I.KOSHY SMT.V.V.RISANI ``` ## `RESPONDENTS/RESPONDENTS 1 AND 2:` ``` 1RADHAKRISHNAN K. S/O.KRISHNAN NAIR, SREEVILAS HOUSE, KAIPATTOOR P.O., VALLICODE, PATHANAMTHITTA DISTRICT, PIN-689 648. 2THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, NELSON COMPLEX, P.B.NO.60, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN-690 502. ``` ``` BY ADV SRI.LAL GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 4444 OF 2019 ``` ``` 2 ``` ## `JUDGMENT` ``` This matter is of the year 2019 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, ``` ``` therefore admit this Appeal and proceed to dispose it of finally, with the consent of both sides. ``` ``` 2.V.J.Mathew was walking on the side of ``` ``` Thiruvalla – Kozhenjeri Road, when the offending car driven in a rash and negligent manner hit him, causing serious injuries and later his death. His legal heirs, who are appellants herein, thereupon, filed OP(MV)No.156/2015 before theMotorAccidentsClaimsTribunal, ``` ``` Pathanamthitta, seeking compensation for a sum of ``` ``` MACA NO. 4444 OF 2019 ``` ``` 3 ``` ``` Rs.26,30,000/- limited to Rs.20,00,000/-; but which has been allowed granting an amount of Rs.12,93,818/-. They thus impugn the Award as being inadequate. ``` ``` 3.Sri.T.K.Koshi – learned counsel for the ``` ``` appellants, vehemently argued that the learned Tribunal has erred in taking the notional income of the deceased to be a mere Rs.10,000/-, being guided by the judgment of the Hon’ble Supreme Court inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited. ``` ``` [(2011) 13 SCC 236], because what is postulated ``` ``` therein is the figure which is eligible to a person whose income is unascertainable or that of ``` ``` a person working as a “Coolie”. He argued that his client, as is evident from Ext.A9 Certificate, was a Pastor of a Church and additionally engaged in agriculture, which ``` ``` MACA NO. 4444 OF 2019 ``` ``` 4 ``` ``` assertions have not been disputed by the Insurance Company in any manner whatsoever. He, therefore, prayed that a figure higher than what has been taken by the learned Tribunal be adopted, conceding that it has already granted ``` ``` 10% future prospects in terms of the judgment in ``` ``` National Insurance Company Ltd. v. Pranay Sethi ``` ``` [2017 (4) KLT 662]. ``` ``` 4.Sri.T.K.Koshi, thereafter submitted that ``` ``` the compensation awarded under the head “Loss of Consortium” is too meagre because the learned Tribunal appears to have been under the ``` ``` impression that said sum is eligible only to the 1[st] appellant, who is the wife of the deceased and not to others. He argued that when all the appellants were depended upon the deceased at the time of the accident, each of them is entitled to Rs,40,000/-, as per Pranay Sethi(supra). He ``` ``` MACA NO. 4444 OF 2019 ``` ``` 5 ``` ``` thus prayed that this appeal be allowed. ``` ``` 5.In response, Sri.Sebastian Francis – ``` ``` learned counsel for the Insurance Company, argued ``` ``` that the computations adopted by the Tribunal are ``` ``` without any error, especially because, even though compensation under the head “Loss of ``` ``` Consortium” has been awarded only to the 1[st] appellant, the others have been compensated under various other heads including “Love and ``` ``` Affection” and “Pain and Sufferings”. He ``` ``` submitted that if the appellants insist that each ``` ``` of them be compensated under the Head “Loss of ``` ``` Consortium”, then the sums awarded by the ``` ``` Tribunal under the heads “Love and Affection” and ``` ``` Pain and Sufferings” will have to be deleted, as per the ration in United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780]. He thus prayed that this appeal be ``` ``` MACA NO. 4444 OF 2019 ``` ``` 6 ``` ``` dismissed. ``` ``` 6.I have examined the afore rival ``` ``` contentions of the parties and have tested them ``` ``` on the worth of the evidence on record – copies ``` ``` of which have been made available to this Court ``` ``` by the learned counsel for the parties across ``` ``` the Bar, with the express consent that they can ``` ``` be acted upon, without dispute. ``` ``` 7.I will first deal with the issue ``` ``` relating to the notional income of the deceased. ``` ``` The only evidence on record to prove that the ``` ``` deceased was not merely a “Coolie”, as defined by the Hon’ble Supreme CourtRamachandrappa ``` ``` (supra), is Ext.A9. This is an identity card ``` ``` issued by the “Indian Pentecostal Church”, certifyingthatthedeceasedwasa ``` ``` Minister/Pastor. Though this by itself cannot ``` ``` prove the income of the deceased, there is a ``` ``` MACA NO. 4444 OF 2019 ``` ``` 7 ``` ``` further claim in the petition filed by the ``` ``` appellants, that he was also an agriculturist. ``` ``` This has not been controverted by the Insurance ``` ``` Company in any manner; and it is equally true that this has not been substantiated in any manner by the appellants either. ``` ``` 8.However, when there is some evidence to show that the deceased was not merely a “Coolie” ``` ``` or a person with an unascertainable income, I am ``` ``` of the view thatRajani v. Oriental Insurance ``` ``` Company Limited [2022 (5) KLT OnLine 1012 (SC)] should guide my way in deciding his notional income. This judgment specifically declares that, in the case of a person who is not a “Coolie” or one who is engaged in skilled work or agriculture, a more robust view must be taken. I am, therefore, of the firm opinion that it will be justified for this Court to adopt ``` ``` MACA NO. 4444 OF 2019 ``` ``` 8 ``` ``` Rs.11,000/- as the notional income of the deceased, which is a mere Rs.1,000/- more than ``` ``` what has been postulated inRamachandrappa (supra). Of course, 10% future prospects has to be added to this, as is admitted by the learned Standing Counsel for the Insurance Company also. ``` ``` 9.Turning to the question of compensation for “Loss of Consortium”, the learned Tribunal ``` ``` has awarded only Rs.40,000/- under that head to ``` ``` the 1st appellant, denying it to others. This is ``` ``` peremptorily wrong because, Pranay Sethi (supra) ``` ``` makes it indubitable that the compensation under ``` ``` this head has to be given to the wife, children ``` ``` and parents of the deceased, for loss of ``` ``` “Spousal Consortium”, “Parental Consortium” and ``` ``` “Filial Consortium”. The said judgment also ``` ``` authorises an amount of Rs.40,000/- each and I ``` ``` am of the view that this cannot be denied to any ``` ``` MACA NO. 4444 OF 2019 ``` ``` 9 ``` ``` of the appellants. ``` ``` 10.That said, however, when this Court is granting compensation as afore, the sums awarded by the learned Tribunal under the heads “Loss of Love and Affection” and “Pain and Sufferings” will have to be deleted, in terms of the judgment inSatinder Kaur @ Satwinder Kaur (supra). ``` ``` In the afore circumstances, this appeal is partly allowed in the following manner: ``` ``` a)The compensation under the head “Loss of Dependency” is enhanced to Rs.11,97,900/-, instead of Rs.10,89,000/-, reckoning the ``` ``` notional income of the deceased to be Rs.11,000/- and 10% future prospects added to it and reducing one- fourth towards his personal expenses. ``` ``` MACA NO. 4444 OF 2019 ``` ## `10` ``` b)The compensation under the head “Loss of Consortium” is enhanced to Rs.2,20,000/-, from Rs.40,000/- now granted by the learned Tribunal, granting Rs.40,000/- each to the appellants in terms of Pranay Sethi (supra). ``` ``` c) The compensation awarded by the Tribunal under the head “Love and Affection” and “Pain and Sufferings” are deleted. ``` ``` In all other heads, the compensation awarded by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled to recover the compensation, as enhanced by this Court, from the respondent – Insurance Company, along with interest at the rate of 9% from the date of filing of the claim until it is realised. However, while calculating the interest, the period of 196 days - being the delay caused ``` ``` MACA NO. 4444 OF 2019 ``` ``` 11 ``` ``` by the appellants in filing this appeal - shall ``` ``` stand excluded. ``` ``` The appellants will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` SAS ```