National Insurance Co. Ltd. v. Achamma @ Valsamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941** ## **MACA.No.537 OF 2015** **AGAINST THE AWARD IN OP(MV)518/2010 DATED 29-10-2014 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR** ## **APPELLANT/5TH RESPONDENT IN THE OP:** **NATIONAL INSURANCE CO.LTD THIRUVANANTHAPURAM,REP. BY THE MANAGER, NATIONAL INSURANCE CO.LTD., KOCHI REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDINGS, PADMA JN. M.G.ROAD, KOCHI-35** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENTS/CLAIMANTS & RESPONDENTS 1 TO 4 IN OP:** - **1 ACHAMMA @ VALSAMMA W/O. LATE JOHN, AZHIKKAKATHU HOUSE, KADAKKAMON, PATHANAPURAM PO - 689695** - **2 AJ CHERIYAN S/O. LATE JOHN -DO-DO-** - **3 ANNAMMA JOHN, D/O. LATE JOHN, -DO-DO-** - **4 RACHEL JOHN, D/O. LATE JOHN, -DO-DO-** - **5 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, CHIEF OFFICE, FORT THIRUVANANTHAPURAM - 695001** - **6* MR. IDICULA RAJU, S/O JOY, PUTHEN VEEDU, KALLUMKADAVU PATHIRICKAL, PATHANAPURAM - 689 695 (DELETED) *R6 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 15/2/16 IN IA 412/16** **M.A.C.A Nos.537 & 662 of 2015** 2 **7 MR. RAMACHANDRAN NAIR S/O. APPUKKUTTAN NAIR, THINKAL BHAVAN, KOTHAKULANGARA, PANAVOOR PO, THIRUVANANTHAPURAM - 695 541.** **8 MR.SURESH KUMAR S/O. JANARDHANAN, CHARUVILA PUTHEN VEEDU, KADAKKAMON, KIZHAKKE MURI, PIRAVANTHOOR, PATHANAPURAM - 689 695 (RESPONDENTS 2 TO 4 MINORS REPRESENTED BY 1ST RESPONDENT - THEIR NEXT FRIEND AND MOTHER)** **R1 TO R4 BY ADV. SRI.ANCHAL C.VIJAYAN R7 BY ADV. SMT.M.SANTHI,** **SRI.RANJU MOHAN** **R5 BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPORATION. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2019, ALONG WITH MACA.662/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A Nos.537 & 662 of 2015** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941 MACA.No.662 OF 2015** **AGAINST THE AWARD IN OP(MV)518/2010 DATED 29-10-2014 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR** ## **APPELLANTS/PETITIONERS:-** - **1 ACHAMMA @ VALSAMMA W/O.LATE JOHN, AZHIKKAKATHU HOUSE, KADAKKAMON,PATHANAPURAM P.O., KOLLAM DISTRICT.** - **2 A.J.CHERIYAN S/O.LATE JOHN, AZHIKKATHU HOUSE, KADAKKAMON,PATHANAPURAM P.O., KOLLAM DISTRICT.** - **3 ANNAMMA JOHN D/O.LATE JOHN, AZHIKKATHU HOUSE, KADAKKAMON,PATHANAPURAM P.O., KOLLAM DISTRICT.** - **4 RACHEL JOHN D/O.LATE JOHN, AZHIKKATHU HOUSE, KADAKKAMON,PATHANAPURAM P.O., KOLLAM DISTRICT.** **BY ADV. SRI.ANCHAL C.VIJAYAN** **M.A.C.A Nos.537 & 662 of 2015** 4 ## **RESPONDENTS/RESPONDENTS:** - **1 MANAGING DIRECTOR K.S.R.T.C. CHIEF OFFICE, FORT, THIRUVANANTHAPURAM,PIN - 695 001.** - **2 IDICULA RAJU, S/O.JOY PUTHEN VEEDU, KALLUMKADAVU, PATHIRICKAL, PATHANAPURAM, KOLLAM DISTRICT. PIN - 689 695.** - **3 RAMACHANDRAN NAIR S/O.APPUKUTTAN PILLAI, THINKAL BHAVAN, KOTHAKULANGARA, PANAVOOR P.O., THIRUVANANTHAPURAM, PIN - 695 568.** - **4 SURESH KUMAR, S/O.JANARDHANAN, CHARUVILA PUTHEN VEEDU,KADAKKAMON, KIZHAKKEMURI, PIRAVANTHOOR,PATHANAPURAM, KOLLAM DISTRICT, PIN -689 695.** - **5 THE NATIONAL INSURANCE COMPANY LIMITED 2ND FLOOR, SOUNDARYA BUILDINGS, PULIMOODU,M.G.ROAD, THIRUVANANTHAPURAM, PIN -695 001.** **R5 BY ADV. SRI.A.R.GEORGE R3 BY ADVS. SRI.G.RENJU MOHAN SMT.M.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2019, ALONG WITH MACA.537/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A Nos.537 & 662 of 2015** 5 ## **J U D G M E N T** M.A.C.A. No.662 of 2015 is by the claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal and M.A.C.A. No.537 of 2015 is by the insurer in the said proceedings. 2. One John, aged 47 years died on 05.05.2006 on account of the injuries sustained by him in a motor accident on 01.05.2006. It is stated in the claim petition that he was a casual labourer. His wife and three children were the claimants in the proceedings. A sum of Rs.8,00,000/- was the claim made in the proceedings. As against the said claim, the Tribunal has granted to the claimants a sum of Rs.8,25,375/- by way of compensation. According to the claimants, the compensation granted is grossly inadequate and according to the insurer, the compensation granted is excessive. **==> picture [72 x 47] intentionally omitted <==** 3. Heard the learned counsel for the parties. 4. Though it is stated in the claim petition that the **M.A.C.A Nos.537 & 662 of 2015** 6 deceased was earning a sum of Rs.8,000/- per month, in the absence of supporting evidence, the Tribunal has reckoned the monthly income of the deceased only at Rs.3,750/- for the purpose of computing the compensation payable to the claimants for loss of dependency. 5. In the absence of any evidence in support of the plea as regards the income of the deceased, I am of the view that in the light of the decisions of the Apex Court in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited** , [(2011) 13 SCC 236] and **Syed Sadiq** v. **Divisional Manager, United India Insurance Co. Ltd.** , [(2014) 2 SCC 735], where the Apex Court has reckoned the monthly income of similarly placed persons at Rs.4,500/and Rs.6,500/- in the context of the accidents took place in the year 2004 and 2008 respectively, the monthly income of the deceased in the instant case can be certainly reckoned at Rs.5,500/-, in the context of the accident took place in 2006. In **M.A.C.A Nos.537 & 662 of 2015** 7 the light of the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], as the dependants of the deceased were four in number, one fourth of the income has to be deducted towards personal expenses, and as the deceased was aged above 40 and below 50, 25% of the income reckoned has to be added towards future prospects for arriving at the multiplicand while computing the compensation for loss of dependency. As the deceased was aged 47, the multiplier to be applied for the said purpose is '13'. If compensation for loss of dependency is arrived at on that basis, the same would come to Rs.8,04,375/- (Rs.5500x12x125/100x13x3/4). As the Tribunal has granted only a sum of Rs.5,70,375/- towards compensation under that head, the claimants would be entitled to an additional compensation of Rs.2,34,000/-. 6. It is trite that a conventional amount has to be granted in all cases of death towards compensation for pain and **M.A.C.A Nos.537 & 662 of 2015** 8 suffering. The Tribunal has granted a sum of Rs.50,000/- under that head. Having regard to the facts and circumstances of the case, I am of the view that the appropriate compensation under that head would have been Rs.15,000/-. Rs.35,000/- granted by way of compensation is, therefore, excessive. 7. In the light of the decision of the Apex Court in **Pranay Sethi** , and having regard to the fact that the accident in the instant case is one that took place in the year 2006, I am of the view that the Tribunal should have granted Rs.35,000/- to the wife of the deceased towards compensation for loss of consortium, Rs.12,500/- towards compensation for loss of estate and Rs.12,500/- towards funeral expenses, totalling to Rs.60,000/-. As the Tribunal has granted Rs.1,30,000/- under these three heads, Rs.70,000/- granted under the said heads is excessive. 8. Coming to the compensation for loss of love and affection, in the light of the decision of the Apex Court in **M.A.C.A Nos.537 & 662 of 2015** 9 **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782) and having regard to the fact that the accident in the instant case is one that took place in the year 2006, I am of the view that the children of the deceased are entitled to a sum of Rs.40,000/- each under that head, totalling to Rs.1,20,000/-. As the claimants were granted only a sum of Rs.75,000/- under that head, they are entitled to a sum of Rs.45,000/- by way of additional compensation. 9. No compensation has been granted by the Tribunal towards transportation and towards damage to clothing and articles. Even in the absence of the evidence, the Tribunal should have granted a sum of Rs.2,500/- under those two heads. 10. In short, the claimants are entitled to Rs.1,76,500/- by way of additional compensation. In the result, the appeals are disposed of granting to the claimants a sum of Rs.1,76,500/- by way of additional 10 ## **M.A.C.A Nos.537 & 662 of 2015** compensation. Needless to say, the claimants will be entitled to interest for the additional compensation at the rate of 7.5%. It is clarified that all other directions contained in the impugned award will stand. The parties will be at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. All interlocutory applications in the appeals are closed. **Sd/P.B.SURESH KUMAR, JUDGE** DK