National Insurance Company Limited v. Smitha & others (MACA No.679 of 2014)

M.A.C.A.No.679/2014 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943_ ## _MACA NO. 679 OF 2014_ _AGAINST THE ORDER/JUDGMENT IN OPMV 125/2012 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD APPELLANT/S:_ _NATIONAL INSURANCE COMPANY LIMITED, KALPETTA NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G ROAD, KOCHI 35._ _BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW_ ## _RESPONDENT/S:_ _1 SMITHA, W/O.VIJAYAKUMAR, PULAMOOLA AMBEDKAR BHAVAN, CHERUKATTOOR, KAPPUNCHAL P.O, PANAMARAM, MANANTHAVADI TALUK 673 318._ _2 VIJISHA M., D/O.VIJAYAKUMAR, PULAMOOLA AMBEDKAR BHAVAN, CHERUKATTOOR, KAPPUNCHAL P.O, PANAMARAM, MANANTHAVADI TALUK 673 318._ M.A.C.A.No.679/2014 2 _VIDYA M., D/O.VIJAYAKUMAR, PULAMOOLA AMBEDKAR BHAVAN, 3 CHERUKATTOOR, KAPPUNCHAL P.O, PANAMARAM, MANANTHAVADI TALUK 673 318._ _4 APPAYAN V.C, PULAMOOLA AMBEDKAR BHAVAN, CHERUKATTOOR, KAPPUNCHAL P.O, PANAMARAM, MANANTHAVADI TALUK 673 318._ _5 JANAKI M., W/O.APPAYAN, PULAMOOLA AMBEDKAR BHAVAN, CHERUKATTOOR, KAPPUNCHAL P.O, PANAMARAM, MANANTHAVADI TALUK 673 318._ _BY ADVS. SRI.ABRAHAM P.GEORGE SMT.M.SANTHY SRI.K.VINODKUMAR 70789_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.679/2014 3 ## **JUDGMENT** This is an appeal filed by the insurance company challenging the quantum of compensation awarded by the Tribunal. 2. The original petition was filed by the respondents 1 to 5 in this appeal, seeking compensation for the death of one Vijayakumar due to the injuries sustained in a motor accident occurred on 07.11.2011. According to the respondents, the accident occurred when the motor cycle driven by the deceased was hit by an Omni van bearing Registration No.KL-12/C-1907, driven by the 1[st] respondent in the claim petition, owned by the 2[nd] respondent in the claim petition and insured with the appellant herein. According to the respondents /petitioners, the deceased was working as a cook in a tribal hostel and was aged 44 years at the time of accident. The monthly income claimed was Rs.12,846/- and the total compensation claimed was Rs.15,00,000/-. 3. The appellant - Insurance company alone contested the matter by filing a written statement. Even though they accepted the coverage of policy, they disputed the liability on various grounds M.A.C.A.No.679/2014 4 and quantum of compensation was also disputed by them. The evidence consists of Exts.A1 to A10 from the side of the respondents/petitioners and no evidence was adduced from the side of the appellant. 4. After the trial, the Tribunal found that the accident occurred due to the negligence of the driver of the Omini van and being the insurer, the appellant was found responsible to pay the compensation. Quantum of compensation is fixed as Rs.21,00,400/and the appellant was directed to deposit the said amount along with interest at the rate of 7.5% per annum. Being aggrieved by the quantum of compensation, the present appeal is filed. 5. Heard the learned Senior counsel for the appellant and the learned counsel for the respondents. The learned Senior counsel contended that the quantum of compensation awarded by the Tribunal is on higher side and requires interference by this Court. He points out that the amount awarded under the head of loss of love and affection, which is Rs.1,00,000/- could not have been granted by the Tribunal. This is particularly because, an amount of Rs.1,00,000/- has already been awarded by the Tribunal under the M.A.C.A.No.679/2014 5 head of loss of consortium. He further points out that, the deceased was an employee aged 44 years who was supposed to retire from the service at the age of 56 years. In such circumstances, the Tribunal should have adopted split multiplier, taking into account his date of retirement, as he would not have received the monthly income at the rate as determined by the Tribunal, for the entire period covered by the multiplier, even if he was alive. 6. On the other hand the learned counsel for the respondents contends that the Tribunal committed a mistake while computing compensation as the deduction made by the Tribunal towards personal expenses was[1] /3 of the monthly income, whereas going by the settled principles, the appropriate deduction should have been limited to ¼[th] thereof . 7. As regards the contention of the learned Senior counsel for the appellant that, this is a case in which split multiplier should be taken, is having some force, it is evident that he is in Government Service, and he was supposed to retire at the age of 56 years. Therefore, it is a case where split multiplier should have been applied, since he would not have received the income as per Ext A7 M.A.C.A.No.679/2014 6 salary certificate after his retirement. However, the question that arises is as to whether any interference is warranted in the amount of compensation in this case on that ground. This is particularly because of the the fact that, as pointed by the learned counsel for the respondents, the proper deduction that should have been made by the Tribunal towards personal expenses of the deceased is only ¼ and not[1] /3 . This is because, the deceased left behind five dependent family members, who are the wife, children and parents of the deceased. Even though the Learned Counsel for the Insurance Company contended that, the children are aged 23 and 21 years respectively and therefore they cannot be treated as dependents, I am not inclined to accept the said contention. It is noticed that, the children who are respondents 1 and 3 in the appeal, are daughters and there is no material before me indicating that they are married or otherwise employed and were not depending upon the deceased. In such circumstances, even if it is decided to re-work the compensation by adopting split multiplier method, the contention of respondents as to the improper deduction cannot be ignored. When, re-working the compensation based on M.A.C.A.No.679/2014 7 the above observations, certainly the amount would be more than the what is awarded by the Tribunal. In the light of the above, I am of the view that the contentions raised by the appellant in this regard need not be considered. 8. The next contention of the appellant is relating to the compensation granted under the head of loss of love and affection. It is true that when compensation awarded under the head of loss of consortium, no amount under the separate head of loss of love and affection can be granted and this is held by the Hon’ble Supreme Court in **United India Insurance Co. Ltd. V. Satinder Kaur @ Satwinder Kaur and other [2020 (3) KHC 760].** Similarly, the learned counsel for the appellant contented that the amount of Rs.1,00,000/- granted towards loss of spousal consortium is on higher side. However, going by the principles laid down by the Hon’ble Supreme Court in **Satwinder Kaur** (supra) all the claimants herein are entitled for compensation for loss of consortium; i.e. spousal consortium for the wife, filial consortium for the parents and parental consortium for the children, at the rate of Rs.40,000/- each. In this case, the Tribunal has already awarded an M.A.C.A.No.679/2014 8 amount of Rs.2,00,000/- under the heads of loss of consortium and loss of love and affection, taken together. Thus the entitlement of the respondents/petitioner for compensation for, spousal, filial and parental consortium shall be at the rate of Rs.40,000/- each, which makes out to Rs.2,00,000/-. Therefore, the revision of the amount in the light of principles laid down by the Hon’ble Supreme Court in **Satwinder Kaur** (supra) would not make any difference as far as quantum of compensation awarded under the above heads are concerned. Therefore, no interference is warranted on that ground. Similarly, the learned cousnel for the appellant further points out that the Tribunal has awarded an amount of Rs.25,000/- towards funeral expenses, which is in excess by Rs.10,000/-. However, it is to be noted that the amount awarded by the Tribunal under the head of loss of estate is only Rs.5,000/-, whereas the amount payable under the said head as per the decision rendered by the Hon’ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** is Rs.15,000/- and this is lesser by Rs.10,000/-. Thus, the excess amount granted by the Tribunal under the head of funeral expenses can be adjusted against M.A.C.A.No.679/2014 9 the lessor amount of compensation granted under the head of loss of estate. In such circumstances, interference of this Court under these heads are also not warranted. In the above circumstances, I do not find any merits in the above appeal and it is accordingly dismissed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/6.9.21