National Insurance Company Limited v. Prasad, Geetha and Arun Prasad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942** ## **MACA.No.3866 OF 2016(C)** **AGAINST THE AWARD IN OPMV 539/2013 DATED 02-05-2016 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/3[RD ] RESPONDENT:** **THE NATIONAL INSURANCE CO.LTD., NEW DELHI, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENTS/CLAIMANTS:** **1 PRASAD, S/O.BHASKARAN, VADAKKEDATH HOUSE, MALAYANKAD, ERUMATHALA P.O., ALUVA, PIN-683 112. 2 GEETHA, W/O.PRASAD, VADAKKEDATH HOUSE, MALAYANKAD, ERUMATHALA P.O., ALUVA, PIN-683 112. 3 ARUN PRASAD, S/O.PRASAD, VADAKKEDATH HOUSE, MALAYANKAD, ERUMATHALA P.O., ALUVA, PIN-683 112. BY ADVS. SRI.BABU KARUKAPADATH SMT.AMRIN FATHIMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3866 OF 2016** **2** ## **JUDGMENT** **Dated this the 24[th] day of February, 2021** The appeal is filed against an award passed by Motor Accidents Claims Tribunal, Perumbavoor (for short 'the Tribunal') in OP(MV)No.539 of 2013 on 02.05.2016 fixing Rs.12,48,000/- as the sum payable to the petitioners as compensation against the claim limited by them as Rs.8,00,000/- with interest at the rate of 9% per annum from the date of the petition till realisation and proportionate costs and fixation of liability upon the 3[rd] respondent insurer to indemnify the insured. The appellant is the 3[rd] respondent in the Original Petition seeking compensation. The challenge is raised mainly on the sum awarded as compensation by the Tribunal vide the impugned award. 2. It is contended by the learned counsel for the appellant that the Tribunal has awarded Rs.25,000/- as compensation for funeral expenses. But, on the basis of the direction issued by the Apex Court in **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], the petitioners are entitled only to get Rs.15,000/- under that head. It is further contended that towards **MACA.No.3866 OF 2016** **3** loss of Love and Affection, the Tribunal awarded a sum of Rs.2,25,000/- against the claim of the petitioners for Rs.30,000/-. According to the learned counsel, the Apex Court has held in **Magma General Insurance Company Limited V. Nanu Ram Alias Chuhru Ram and Others** [(2018) 18 Supreme Court Cases 130] that the father and mother alone are entitled to get filial consortium at the rate of Rs.40,000/- each and an elder sibling of the deceased will not be entitled to get filial consortium. According to him while awarding a sum of Rs.2,25,000/- as compensation towards loss of Love and Affection, the Tribunal overlooked the direction of the Apex Court in **Magma** supra. 3. The learned counsel for the appellant has also pointed out that the deceased was only a boy aged 19 years and was painter by profession. As pleaded in the petition, the deceased was working as a painter under different persons. As held by the Apex Court in **Pranay Sethi** supra, in case of death of a self employed person, 40% can be added towards his future prospects, while assessing the compensation payable. But, the Tribunal added 50% of the monthly income to the actual **MACA.No.3866 OF 2016** **4** monthly income in the place of 40%. The Tribunal has gone wrong and also unjustified in adding 50% of the monthly income in consideration of future prospects and arriving at the compensation payable for loss of dependency. 4. It is contended by the learned counsel for the respondents herein that Rs.2,25,000/- granted by the Tribunal as compensation for loss of Love and Affection is a just and reasonable sum and interference is not called for. However, he has conceded the factum that in view of **Pranay Sethi** supra, petitioners are entitled only to get Rs.15,000/- as compensation for funeral expenses. 5. The claimants in the case on hand are parents and elder brother of a 19 year old boy who died due to the fatal injuries sustained by him in a motor accident occurred at about 10.45 p.m on 02.03.2013. The boy was riding a motorcycle bearing Registration No.KL-41/G-293 with another man as pillion rider from Vazhakulam to Malayankadu in east to west direction through Aluva-Perumbavoor road and when reached near ISRO at Nalam Mile, a car bearing Registration No.KL-4/AC-4181 driven by the 2[nd] respondent in a rash and negligent manner **MACA.No.3866 OF 2016** **5** knocked him down. He sustained injuries. While being transported to hospital, he died on the way. 6. Alleging that the accident was occurred due to the rash and negligent driving of the car by the 2[nd] respondent and claiming compensation of Rs.8,00,000/- from respondents 1 to 3 jointly and severally, the claim petition was preferred as O.P. (MV) No.539 of 2013. 1[st] and 2[nd] respondents did not turn up to contest the claim petition and therefore declared ex parte by the Tribunal. The 3[rd] respondent had filed written statement admitting insurance coverage for the car at the relevant time of the accident. Negligence of the 2[nd] respondent was denied and contended that the accident was occurred due to the negligent riding of the Motorcycle by the boy who died in the accident. The quantum claimed as compensation was also disputed. 7. Award was passed commonly in the case on hand and O.P.(MV) No.574 of 2013 based on evidence adduced in common. The pillion rider was examined as PW1 and Exts.A1 to A17 were marked. Ext.C1 was also marked as Court Exhibit. Respondents failed to adduce any evidence. On appreciation of evidence, the Tribunal found that the petitioners were entitled to **MACA.No.3866 OF 2016** **6** get Rs.12,48,000/- as compensation. The Tribunal directed the 3[rd] respondent to pay the said amount with interest at the rate of 9% per annum from the date of the petition till realisation. 8. As rightly pointed out by the learned counsel for the appellant, Rs.25,000/- was awarded by the Tribunal as compensation towards funeral expenses. In **Pranay Sethi** supra, the Apex Court has directed to pay Rs.15,000/- as compensation for funeral expenses. Without noticing that the Tribunal fixed Rs.25,000/- as compensation for funeral expenses. Therefore this Court finds it expedient to reduce Rs.10,000/- therefrom to make it at par with the direction of the Apex Court. Towards loss of Love and Affection Rs.2,25,000/was awarded by the Tribunal against the claim raised for Rs.30,000/-. The Tribunal cannot be said to be erred while fixing a higher sum as compensation than what was claimed. But, the Apex Court in **Magma** supra has directed to pay filial consortium to parents and observed that it also takes within its scope loss of love and affection. However, the elder brother is excluded form it's purview and parents alone are entitled to get it, each at the rate of Rs.40,000/-. In the case on hand both the **MACA.No.3866 OF 2016** **7** mother and father survived the minor and therefore as claimants of compensation, they are entitled to get Rs.40,000/- each as filial consortium. 9. On reassessment of compensation with the monthly income modified by adding 40% to it, in consideration of future prospects as directed by the Apex Court in **Pranay Sethi** supra, Rs.9,07,200/- (Rs.8,400 x 12 x 18 x ½) will be the compensation payable towards loss of dependency. Therefore, the total compensation payable to petitioners will come to Rs.10,28,200/-. In the absence of any challenge against, the rate of interest as fixed by the Tribunal itself is maintained. In the result, MACA stands allowed in part. The respondents/petitioners are found entitled to get Rs.10,28,200/with interest at the rate of 9% per annum from the date of the petition till the date of realisation. The appellant/3[rd] respondent shall deposit the compensation modified in the above manner within a period of two months from the date of receipt of a certified copy of this judgment. It is submitted by the learned counsel for the appellant/3[rd] respondent that 50% of the compensation fixed originally is already deposited. The Tribunal **MACA.No.3866 OF 2016** **8** shall adjust the sum if any, stands deposited, in the sum now stands payable in view of the modification. **Sd/-** **MARY JOSEPH JUDGE** NAB