Mercy Babu and Others v. United India Insurance Co. Ltd. (MACA No. 2133 of 2015)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943 MACA NO. 2133 OF 2015 [AGAINST THE AWARD DATED 19.11.2014 IN OP(MV) NO.360/2012 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ## PATHANAMTHITTA] ## APPELLANTS/PETITIONERS IN THE OP(MV): 1 MERCY BABU AGED 41 YEARS W/O. LATE BABU VARGHESE, CHARIVUKALAYIL HOUSE, NANNUVAKADU NORTH, PATHANAMTHITTA P.O. 2 BRILLA BABU AGED 21 YEARS D/O. LATE BABU VARGHESE, CHARIVUKALAYIL HOUSE, NANNUVAKADU NORTH, PATHANAMTHITTA P.O. 3 BRIGITH BABU AGED 13 YEARS (MINOR), S/O. LATE BABU VARGHESE, CHARIVUKALAYIL HOUSE, NANNUVAKADU NORTH, PATHANAMTHITTA P.O. 4 SKARIAH VARGHESE AGED 83 YEARS S/O. SKARIAH, CHARIVUKALAYIL HOUSE, NANNUVAKADU NORTH, PATHANAMTHITTA P.O. 5 CHINNAMMA VARGHESE AGED 80 YEARS W/O. SKARIAH VARGHESE, CHARIVUKALAYIL HOUSE, NANNUVAKADU NORTH, PATHANAMTHITTA P.O. ( DECEASED) LEGAL REPRESENTATIVES RECORDED IT IS RECORDED THAT THE APPELLANTS 1 TO 3 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANTS 4 AND 5 IN VIEW OF THE MEMO DATED 28/06/2021 AS PER THE ORDER DATED 14/7/2021 IN MACA 2133/2015. MACA No.2133 of 2015 2 BY ADVS. T.K.BIJU (MANJINIKARA) ANNIE M.ABRAHAM ## RESPONDENT/3RD RESPONDENT IN OP(MV): THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED, KIZHAKKEDATHU BUILDINGS, PATHANAMTHITTA - 689 647. BY ADVS. SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.2133 of 2015 3 ## JUDGMENT The petitioners in OP(MV)No.360 of 2012 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta are the appellants herein. 2. The aforesaid claim petition was filed by them seeking compensation for the death of one Babu Varghese, the husband of the 1[st] appellant, father of the 2[nd] and 3[rd] appellants and the son of the 4[th] and 5[th] appellants. The 4[th] ad 5[th] appellants in this appeal passed away during the pendency of the appeal and appellants 1 to 3 were declared as the legal representatives of the said appellants. According to the appellants, the deceased was aged 44 years and was a driver with a monthly income of Rs.8,000/-. The accident occurred when an autorikshaw driven by the deceased collided with a car driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. As compensation, they claimed an amount of Rs.9,95,000/-. 3. The 3[rd] respondent-Insurance Company alone MACA No.2133 of 2015 4 contested the matter by filing a written statement wherein they admitted the coverage of policy in respect of the offending vehicle. However, they disputed the negligence and quantum of compensation. From the side of the appellants PW1 and PW2 were examined. Exhibits A1 to A10 were marked on the side of the appellants. No evidence was adduced from the side of the respondents. 4. After the trial, the Tribunal held that the accident occurred due to the negligence of the 1[st] respondent and the 2[nd] and 3[rd] respondents were, therefore, held to be liable for paying the compensation. The quantum of compensation was fixed as Rs.11,61,000/- and the 3[rd] respondent was directed to deposit the said amount along with the interest at the rate of 9% per annum. Being dissatisfied with the said compensation, this appeal is filed. 5. Heard both sides. The learned counsel for the appellants would submit that the quantum of compensation awarded by the Tribunal is very low. According to him, the monthly income fixed by the Tribunal was only Rs.5,000/- as against the claim of Rs.8,000/-. MACA No.2133 of 2015 5 6. Per contra, the learned counsel for the Insurance Company would point out that the Tribunal has awarded excess amount under the head of loss of consortium which is Rs.1,00,000/- and an amount of Rs.2,00,000/- has been granted under the head of loss of love and affection. According to the learned counsel, in the light of the judgment rendered by the Hon’ble Supreme Court in United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others (AIR 2020 SC 3076), no amount ought to have been granted under the head of loss of love and affection, when compensation is awarded under the head of loss of consortium. 7. When we consider the question of compensation under the head of loss of dependency, the Tribunal proceeded to determine the compensation by taking the monthly income as Rs.5,000/-. It is true that, there is no proper document to substantiate the income of the deceased. It is the case of the appellants that the deceased was a driver. The said fact is evident from the accident itself, as he was driving the autorikshaw involved in the accident at the relevant time. From the MACA No.2133 of 2015 6 said aspect, it is evident that he is a driver by profession. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236], the Hon’ble Supreme Court was pleased to fix the monthly income of a coolie as Rs.4,500/- in respect of an accident occurred in the year, 2004. Similarly in Syed Sadiq v. Divisional Manager, United Indian Insurance Company Limited [(2014)2 SCC 735], Rs.6500/- was fixed as the monthly income of a vegetable vendor in respect of an accident occurred in the year, 2008. Considering the principles laid down by the Hon’ble Supreme Court in the aforesaid judgments, an amount of Rs.8,000/- as claimed by the appellants as the monthly income of the deceased in respect of an accident occurred in the year 2012, cannot be treated as excessive. In such circumstances, I am inclined to fix the monthly income as Rs.8,000/-. Since the deceased comes within the age group of 40-50, an addition of 25% of his income as future prospects is to be made, as laid down by the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi[2017(4)KLT 662], When compensation for MACA No.2133 of 2015 7 loss of dependency is re-worked, with the above revised criteria, it comes to Rs.12,60,000/- (Rs.(8000+25%)x12x14x3/4). The Tribunal has already awarded an amount of Rs.8,19,000/- and hence the balance amount receivable by the appellants under this head comes to Rs.4,41,000/-. 8. When we examine the other heads, it can be seen that the Tribunal has awarded an amount of Rs.1,00,000/under the head of loss of consortium. As per the principles laid down in Satwinder Kaur’s case (supra) the wife is entitled for spousal consortium, children are entitled for parental consortium and the parents are entitled for filial consortium. The compensation to be awarded under these heads is fixed as Rs.40,000/- each. In such circumstances, the amount of Rs.1,00,000/awarded by the Tribunal under the head of spousal consortium is to be set aside. Instead of that, all the petitioners shall be entitled for compensation for spousal, parental and filial consortium at the rate of Rs.40,000/- each which comes to Rs.2,00,000/-. Even though the 4[th] and 5[th] petitioners are not alive, being MACA No.2133 of 2015 8 the legal representatives of the deceased petitioners, the appellants herein, are entitled for the amounts awarded as filial consortium, to the deceased appellants. 9. Regarding the amount under loss of love and affection, I find some force in the contention of the learned counsel for the Insurance Company in this regard. In Satwinder Kaur’s case (supra) the Hon’ble Supreme Court held that when compensation is awarded under the head of loss of consortium, no separate amount needs to be awarded under the head of loss of love and affection, as the amount awarded under the loss of consortium takes care of the head of loss of love and affection as well. In such circumstances, the amount of Rs.2,00,000 awarded under the head of loss of love affections is set aside. The amount awarded under the head of funeral expenses is Rs.25,000/- which is in excess of Rs.10,000/-. However, I am not interfering with the said amount on the reason that the amount awarded under the head of loss of estate is only 5,000/which is lesser by Rs.10,000/-. MACA No.2133 of 2015 9 In the above circumstances, the appellants are found entitled for an additional amount of Rs.3,41,000/(Rupees Three Lakhs and Fortyone thousand only) [Rs.4,41,000+2,00,000-(2,00,000+1,00000)]. The Insurance Company shall deposit the said amount along with interest at the rate of 9% per annum and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A.,JUDGE pkk