National Insurance Company Ltd. v. Kochuthressiya w/o C.J. Francis and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939** ## **MACA.No. 323 of 2015** **------------------------** **AGAINST THE JUDGMENT IN OP(MV).1679/2010 of M.A.C.T.,PERUMBAVOOR DATED 19-09-2014** ## **APPELLANT/3RD RESPONDENT IN THE OP:** **----------------------------------------** **NATIONAL INSURANCE CO. LTD ALUVA, REP. BY ITS MANAGER NATIONAL INSURANCE CO. LTD., KOCHI REGIONAL OFFICE 2ND FLOOR, OMANA BUILDINGS, PADMA JUNCTION M G ROAD, KOCHI 35** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENTS/CLAIMANTS IN THE OP:** **----------------------------------** **1. KOCHUTHRESSIYA W/O.C.J.FRANCIS, CHITTUPARAMBIL HOUSE CHERANELLOOR KARA, KOOVAPPADY VILLAGE-683544.** **2. JOMON, S/O.FRANCIS,** **-DO -DO-** **3. JIMMY, S/O.FRANCIS, -DO- -DO-** **R1-R3 BY ADV. SRI.ELSON SIMON R1-R3 BY ADV. SRI.PRAMOD KOCHUTHOMMEN.E.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.323 of 2015 **-----------------------------------------------** Dated this the 3[rd] day of August, 2017 ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** ## . This appeal arises out of the Award passed by the Motor Accidents Claims Tribunal-Perumbavoor, dated 19.9.2014 in O.P. (MV)No.1679/2010, a claim petition filed by the respondents/ claimants before the Tribunal, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one C.J.Francis, the husband of the 1[st] claimant and the father of 2[nd] and 3[rd] claimants, who met with a motor accident which occurred on 6.7.2010 while he was travelling in a bus bearing registration No.KL-07/BA-7767 driven and owned by 1[st] and 2[nd] respondents before the Tribunal and insured with the appellant insurer (3[rd] respondent before the Tribunal). At the place of accident, the 1[st] respondent driver applied sudden brake, as a result of which, the deceased was thrown out of the bus and he sustained fatal injuries. He succumbed to the injuries on the M.A.C.A.No.323 of 2015 :-2-: date of accident itself. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.9,42,000/- under different heads, which was limited to Rs.9,00,000/-, for the purpose of payment of court fee. 2. Before the Tribunal, the owner and driver of the bus remained ex parte. The appellant insurer filed written statement admitting insurance coverage of the offending vehicle at the time of the accident. The insurer contended that the accident occurred due to the negligence on the part of the deceased who had not taken necessary precautions as is ordinarily taken by a passenger of a bus. They have also disputed the occupation and monthly income of the deceased and contended that the compensation claimed under different heads is highly excessive. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the claimants. The respondents before the Tribunal have not chosen to adduce any oral or documentary evidence. 4. After considering the materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash M.A.C.A.No.323 of 2015 :-3-: and negligent driving of the bus by its driver. Since the said vehicle was covered by a valid insurance policy, the appellant was held liable to indemnify the owner of the said bus. Under different heads, the Tribunal awarded a total compensation of Rs.4,03,520/- and the insurer was directed to deposit the said amount before the Tribunal together with interest at the rate of 8% per annum from the date of petition till realisation. Out of the said amount, the widow of the deceased was given 70% of the compensation amount and remaining 30% was equally apportioned among the children of the deceased. 5. Now, the appellant insurer is before this Court in this appeal contending that the compensation awarded by the Tribunal under different heads are highly exorbitant and as such it has to be scaled down in this appeal. 6. We heard arguments of the learned counsel for the appellant insurer and also the learned counsel for respondents, namely, the claimants before the Tribunal. 7. The sole issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under different heads warrants any interference. M.A.C.A.No.323 of 2015 :-4-: 8. The learned counsel for the appellant insurer would contend that the Tribunal went wrong in fixing the monthly income of the deceased notionally at Rs.4,000/- for the purpose of assessing compensation under different heads. 9. The accident is of the year 2010 and at the time of the accident, the deceased was aged 69 years. He claimed a monthly income of Rs.10,000/- as a businessman. However, no reliable materials were produced before the Tribunal in order to prove his monthly income. It was in the absence of any reliable materials, that the Tribunal took the monthly income notionally as Rs.4,000/- for the purpose of assessing compensation under different heads. 10. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Apex Court fixed the notional monthly income of a coolie who met with a motor accident in the year 2004 at `4,500/-. Considering the economic conditions prevailing as on the date of the accident in the instant case, we find no grounds to interfere with the fixation of the monthly income of the deceased notionally at Rs.4,000/- made by the Tribunal, for the purpose of assessing M.A.C.A.No.323 of 2015 :-5-: compensation under different heads. 11. Under the head 'loss of earnings' (loss of dependency), the Tribunal awarded a sum of Rs.1,60,000/-, taking the notional monthly income as Rs.4,000/-, deducting 1/3[rd] towards the personal and living expenses of the deceased and applying the multiplier of '5' applicable to the age group of the deceased. The assessment so made by the Tribunal is perfectly legal, which warrants no interference in this appeal. 12. Towards 'funeral expenses', the Tribunal awarded a sum of Rs.25,000/-, following the judgment of the Apex Court in **Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]** . The assessment so made by the Tribunal warrants no interference in this appeal. 13. Towards 'transportation to hospital and damage to clothing', the Tribunal awarded a sum of Rs.5,000/- and Rs.1,000/- respectively. Considering the fact that the accident is of the year 2010, we find that the compensation awarded by the Tribunal represents just and reasonable compensation under those heads, which warrants no interference in this appeal. 14. Towards 'pain and suffering', the Tribunal awarded a M.A.C.A.No.323 of 2015 :-6-: sum of Rs.10,000/-. In **Jyni and others v. Raphel, P.T. and others [2016(2) KHC 870(DB)]** , a Division Bench of this Court held that even in the case of instantaneous death, pain and suffering is invariably present, as in the case of survival for hours or days. In view of the law laid down in the said decision, the compensation of Rs.10,000/- awarded by the Tribunal under the head pain and suffering cannot be said to be on a higher side. 15. Towards 'loss of consortium', the Tribunal awarded a sum of Rs.1,00,000/-. At the time of accident, though the deceased was aged 69 years, his wife (1[st] claimant) was aged only 58 years. In **Rajesh** 's case supra, the Apex Court awarded a sum of Rs.1,00,000/- as compensation under the head 'loss of consortium'. In view of the law laid down in the said decision, the compensation of Rs.1,00,000/- awarded by the Tribunal under the head loss of consortium warrants no interference in this appeal. 16. Towards 'compensation for love and affection', the Tribunal awarded a sum of Rs.1,00,000/- to claimants 1 to 3, namely, the widow and two children of the deceased. Once the widow is compensated adequately by awarding compensation under the head 'loss of consortium', she is not entitled to be M.A.C.A.No.323 of 2015 :-7-: compensated under the head 'love and affection'. Therefore, the award of the Tribunal to the extent of awarding compensation under the head 'loss of love and affection' to the widow of the deceased cannot be sustained and the same is hereby set aside. 17. The deceased is survived by two sons aged 39 and 37 years respectively. In **Rajesh** 's case supra, the Apex Court awarded a sum of Rs.1,00,000/- as compensation under the head 'loss of love and affection' to the three minor children of the deceased who was aged 33 years. In the instant case, at the time of the accident, the 2[nd] and 3[rd] claimants were grown up children of the deceased. Considering their age as on the date of accident, we deem it appropriate to scale down the compensation awarded by the Tribunal under the head 'loss of love and affection' to Rs.60,000/- payable to the 2[nd] and 3[rd] claimants (2[nd] and 3[rd] respondents before the Tribunal). 18. However, we find that under the head 'loss of estate', the Tribunal has awarded only a sum of Rs.2,500/-. Considering the facts and circumstances of the case, the Tribunal should have granted a sum of Rs.10,000/-, which would represent just and reasonable compensation under this head. M.A.C.A.No.323 of 2015 :-8-: 19. In the result, the total compensation awarded in O.P. (MV)No.1679/2010 is scaled down by Rs.32,500/- (40,000-7,500) in this appeal, thereby re-fixing the total compensation payable at Rs.3,71,020/-. Since the insurance coverage of the offending vehicle is not in dispute, the appellant insurer shall deposit the balance amount payable in terms of this judgment, within a period of 2 months from the date of receipt of a certified copy of this judgment. The liability of the appellant insurer to pay the proportionate costs awarded by the Tribunal will also stand modified to the above extent. The appeal is disposed of as above. No order as to costs. All pending interlocutory applications are closed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/11.8.17 //True copy// P.A.to Judge