National Insurance Company Limited v. Thomas, Mariamma, Tonson

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941** ## **MACA.No. 630 of 2013** **AGAINST THE AWARD IN OPMV 2042/2006 of SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR DATED 23-11-2012** ## **APPELLANT/3RD RESPONDNET :** **NATIONAL INSURANCE CO.LTD. AMBIKA ARCADE, M.G ROAD, THRISSUR, REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, KOCHI - 682 035.** ## **BY ADV. SRI.A.A.MOHAMMED NAZIR** ## **RESPONDENTS/PETITIONER 1 TO 3:** |**1**|**THOMAS**| |---|---| ||**S/O.DEVASSY, ALAPPAT PONTHAKKAN HOUSE, LALOOR**| ||**ELTHURUTH, THRISSUR.**| |**2**|**MARIAMMA W/O.THOMAS DO. DO.**| |**3**|**TONSON S/O.THOMAS DO. DO.**| **BY ADVS. SRI.A.R.NIMOD SRI.T.C.SURESH MENON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2019, ALONG WITH CO.58/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.630 of 2013 & C.O No.58 of 2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941** **CO.No. 58 of 2013 IN MACA. 630/2013** **AGAINST THE JUDGMENT IN MACA 630/2013 of HIGHCOURT** ## **CROSS OBJECTORS/RESPONDENTS:** **1 THOMAS, AGED 54 YEARS, S/O.DEVASSY 2 MARIAMMA, AGED 51 YEARS, W/O. THOMAS 3 TONSON, AGED 29 YEARS, S/O. THOMAS** **BY ADV. SRI.T.C.SURESH MENON** ## **RESPONDENT/APPELLANT:** **NATIONAL INSURANCE COMPANY LIMITED** **AMBIKA ARCADE, M.G ROAD, THRISSUR, REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, KOCHI - 682 035.** **BY ADV. SRI.A.A.MOHAMMED NAZIR** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2019, ALONG WITH MACA.630/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.630 of 2013 & C.O No.58 of 2013 3 ## **M.A.C.A No.630 of 2013 & C.O No.58 of 2013** ## **J U D G M E N T** The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the quantum of compensation granted by the Tribunal. The cross-objection is by the claimants seeking enhancement of the compensation granted. 2. One Jinson aged 22 years died in a motor accident on 20.07.2006. The parents and the brother of the deceased were the claimants in the proceedings. A sum of Rs.7,00,000/- was claimed in the proceedings by way of compensation. The Tribunal, on an appraisal of the materials on record, granted to the claimants a sum of Rs.6,98,000/-. As noted, both the insurer as also the claimants are aggrieved by the quantum of compensation fixed by the Tribunal. Hence this appeal and cross-objection. 3. Heard the learned counsel for the appellant as also the learned counsel for the claimants. 4. The learned counsel for the appellant raised two contentions. The first contention was one relating to the monthly income of the deceased. According to him, the monthly income of the M.A.C.A No.630 of 2013 & C.O No.58 of 2013 4 deceased that was pleaded in the claim petition was Rs.5,000/-. It was pointed out that about six years after the institution of the claim petition, the claimants amended the pleading relating to the monthly income in the claim petition as Rs.10,000/-. According to the learned counsel, the said amendment is the outcome of an afterthought and the Tribunal, in the circumstances, should have proceeded as if the case set out by the claimants as regards the monthly income of the deceased is Rs.5,000/-. It was pointed out by the learned counsel that the deceased was working in a private firm and he has produced two salary certificates, one issued by his employer to the effect that he was earning a monthly salary of Rs.5,000/- from the firm and the other by a newspaper distributor to the effect that he was paying a sum of Rs.5,000/- per month to the deceased. According to the learned counsel, the second certificate is produced justifying the amendment made in the claim petition as referred to above and is not a genuine one. It was also pointed out by the learned counsel that at any rate, the salary certificates were not proved by the claimants. The second contention raised by the learned counsel for the appellant was as regards the manner in which compensation for loss of dependency was arrived at by the Tribunal. It was pointed out that in the matter of arriving at the compensation for loss of dependency, multiplier has been fixed by the Tribunal reckoning the age of the deceased. According to the learned counsel, since the deceased was a bachelor, M.A.C.A No.630 of 2013 & C.O No.58 of 2013 5 multiplier should have been fixed having regard to the age of the parents. 5. Per contra, the learned counsel for the claimants submitted that compensation granted by the Tribunal under various heads are grossly inadequate. It was submitted that even if the submission made by the learned counsel for the appellant is accepted, the claimants are entitled to more compensation than what is granted by the Tribunal. 6. I have considered the contentions raised by the learned counsel on either side. In the light of the decision of the Apex court in **Royal Sundaram Alliance Insurance Company Ltd.(M/s) v. Mandala Yadagari Goud and others** [2019(2) KHC 915 (SC)], the contention raised by the learned counsel for the appellant that the multiplier to be applied for computing compensation for loss of dependency has to be fixed based on the age of the parents cannot be accepted. The contention raised by the learned counsel for the appellant in this regard is, therefore, rejected. There is of course, force in the other contention raised by the learned counsel for the appellant. As pointed out by the learned counsel, it is seen that the original pleading in the claim petition as regards the income of the deceased was Rs.5,000/- per month. Had it been a case where the deceased was earning a sum of Rs.10,000/- at the relevant time, I do not find any reason why such a statement was not made in the claim M.A.C.A No.630 of 2013 & C.O No.58 of 2013 6 petition. Further, as rightly pointed out by the learned counsel, it is after about six years, the claim petition was amended to make it appear that the income of the deceased was Rs.10,000/- per month. True, a salary certificate was produced to substantiate the additional income. Ext.A10 is the certificate. In so far as the authenticity of the said document was in dispute, the claimants ought to have proved the same by examining the person who issued it. The said course has not been adopted by the claimants. In the circumstances, I am of the view that the pleading of the claimants as regards the monthly income of the deceased is liable to be taken as Rs.5,000/-. 7. As pointed out by the learned counsel for the claimants, even assuming that the income of the deceased is reckoned as Rs.5,000/-, the claimants are entitled to further compensation in the matter. In the light of the decision of the Apex court in **National Insurance Company Ltd V. Pranay Sethi** [2017(4) KLT 662 (SC), a provision has to be made for future prospects in death cases. The percentage of the income to be reckoned towards future prospects in the case of persons below the age of 40 and who are not on permanent employment is 40%. If that be so, the claimants are entitled to a total sum of Rs.7,56,000/- (Rs.5,000x140/100x12x18/2) by way of compensation towards loss of dependency. The claimants were granted only a sum of Rs.6,48,000/- under the said head. The claimants are therefore entitled to an additional compensation of M.A.C.A No.630 of 2013 & C.O No.58 of 2013 7 Rs.1,08,000/- towards loss of dependency. Further, it is seen that only a sum of Rs.5,000/- has been granted towards funeral expenses. In so far as the accident took place in the year 2006, in the light of the decision of the Apex court in **Pranay Sethi,** according to me, the Tribunal could have granted at least a sum of Rs.10,000/- under the said head. The claimants are, therefore, entitled to a further sum of Rs.5,000/- under this head. Similarly, towards compensation for loss of estate, only a sum of Rs.5,000/- has been granted. Under this head also, according to me, the claimants are entitled to a further sum of Rs.5,000/-. No compensation is seen granted towards damage to clothing. A sum of Rs.500/- should have been granted by the Tribunal towards compensation for damage to clothing. Similarly, towards pain and sufferings, only a sum of Rs.7,000/- has been granted. A further sum of Rs.3,000/- is liable to be granted to the claimants towards compensation under this head. As noted, the parents and the sibling of the deceased were the claimants. In the light of the decision of the Apex court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), the parents are entitled to compensation for filial consortium. In so far as the accident took place in the year 2006, I fix the filial consortium payable to the parents at Rs.30,000/each. Thus, the claimants are entitled to a further sum of Rs.1,81,500/-. In the result, the appeal and the cross-objection are M.A.C.A No.630 of 2013 & C.O No.58 of 2013 8 disposed of granting an additional sum of Rs.1,81,500/- to the claimants. Needless to say, the claimants will be entitled to interest for the additional amount of compensation at the rate of 7.5%. **Sd/-** **P.B.SURESH KUMAR** Mn **JUDGE**