National Insurance Company Ltd. v. P.C. Mathai and Others

M.A.C.A.No.662/14 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943_ ## _MACA NO. 662 OF 2014_ _AGAINST THE ORDER/JUDGMENT IN OPMV 1870/2005 OF ADDITIONAL_ _DISTRICT COURT& MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA, PATHANAMTHITTA_ ## _APPELLANT/S:_ _NATIONAL INSURANCE COMPANY LTD., PATHANAMTHITTA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM._ _BY ADVS. SRI.LAL GEORGE SMT.LAKSHMI V.PARAMESWARAN_ ## _RESPONDENT/S:_ _1 P.C.MATHAI, AGED 65 YEARS, S/O.CHERIAN, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547. 2 ANNAMMA MATHAI, AGED 60 YEARS, W/O.P.C.MATHAI, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547. 3 LALY MATHEW, AGED 42 YEARS, D/O.P.C.MATHEW, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547._ M.A.C.A.No.662/14 2 _4 LILLY MATHEW AGED 39 YEARS D/O.P.C.MATHEW, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547._ _5 LIZY MATHEW, AGED 37 YEARS, D/O.P.C.MATHEW, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547._ _6 JOSHY THOMAS, S/O.JOSHY, THENAPPACHIRA HOUSE, CHARAMANGALAM MURI, KANJIKKUZHY VILLAGE, ALAPPUZHA DISTRICT - 688 001._ _7 T.V.GEORGE, S/O.CHACKO, THUMPAKARA HOUSE, KANAKARI P.O., KOTTAYAM - 686 632._ _BY ADVS. SRI.ARUN.B.VARGHESE SRI.JAYKAR.K.S. SRI.E.M.MURUGAN SRI.P.RAKESH VAIKOM SMT.THANKOM.G_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.662/14 3 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943_ ## _CO NO. 48 OF 2021_ _AGAINST THE ORDER/JUDGMENT IN MACA 662/2014 OF HIGH COURT OF_ _KERALA_ ## _PETITIONER/S:_ _1 P.C.MATHAI, AGED 65 YEARS, S/O.CHERIAN, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547. 2 ANNAMMA MATHAI, AGED 60 YEARS, W/O.P.C.MATHAI, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547. 3 LALY MATHEW, AGED 42 YEARS, D/O.P.C.MATHEW, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547. 4 LILLY MATHEW AGED 39 YEARS D/O.P.C.MATHEW, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547. 5 LIZY MATHEW, AGED 37 YEARS, D/O.P.C.MATHEW, CHELLATHU KALAYIL, KADAPARA P.O., KUMBANADU - 689 547._ _BY ADV ARUN.B.VARGHESE_ M.A.C.A.No.662/14 4 ## _RESPONDENT/S:_ - _1 NATIONAL INSURANCE COMPANY LTD., PATHANAMTHITTA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM._ _2 JOSHY THOMAS, S/O.JOSHY, THENAPPACHIRA HOUSE, CHARAMANGALAM MURI, KANJIKKUZHY VILLAGE, ALAPPUZHA DISTRICT - 688 001._ - _3 T.V.GEORGE, S/O.CHACKO, THUMPAKARA HOUSE, KANAKARI P.O., KOTTAYAM - 686 632._ _BY ADVS. LAL GEORGE E.M.MURUGAN_ _THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR_ _ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.662/14 5 ## **JUDGMENT** This appeal is filed by the insurance company challenging the quantum of compensation awarded in O.P(MV) No.1870 of 2005 by the Motor Accidents Claims Tribunal, Pathanamthitta. The claim petition was filed by the respondents 1 to 5 in this appeal seeking compensation for the death of one Liju, who is the son of respondents 1 and 2 and the brother of respondents 3 to 5. According to the claimants, the death of the deceased was due to the injuries sustained in a motor accident occurred on 13.06.2005, when the scooter ridden by the deceased was hit by a tanker lorry driven by the 6[th] respondent, owned by the 7[th] respondent and insured with the appellant. 2. The insurance company alone contested the matter by filing a written statement, wherein they had admitted the coverage of policy but disputed the liability on various grounds. The quantum of compensation was also disputed by them. Evidence in this case consists of Exts.A1 to A8 from the side of the respondents 1 to 5 and no evidence was adduced by the M.A.C.A.No.662/14 6 appellant. After the trial, the Tribunal passed an award allowing a total compensation of Rs.7,47,500/- and since it was found that the accident occurred due to the negligence of the 6[th] respondent herein, the appellant was directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition. Being aggrieved by the quantum of compensation, the appellant/3[rd] respondent filed this appeal. 3. The respondents 1 to 5 herein have filed cross objection No.48 of 2021 along with petition to condone the delay of 2333 days in filing the same. I have dismissed the said application for condoning the delay, by way of separate order. 4. Heard both sides. 5. The learned counsel for the insurance company contended that the Tribunal committed an error by making an addition of 50% towards future prospects of the deceased. He relies on the judgment of the Honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017)** **16 SCC 680]** to contend that the proper addition should have been 40% as the deceased was aged 28 years as on the M.A.C.A.No.662/14 7 date of accident. He would further point out that the Tribunal has awarded an amount of Rs.2,50,000/- under the head of loss of love and affection to the parents and sisters, which is against the principles laid down by the Honourable Supreme Court in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [2020 (3)** **KHC 760].** Similarly, the amount awarded under the head of funeral expenses is Rs.25,000/-, wherein the actual amount should have been Rs.15,000/- only. 6. On the other hand, the learned counsel for the respondents 1 to 5 would point out that the monthly income taken by the Tribunal is only Rs.3,000/- which is extremely on lower side. Similarly, the amount awarded under the head of loss of estate is Rs.5,000/-. The proper amount under this head is Rs.15,000/- as per the principles laid down in **National Insurance Company Ltd. v. Pranay** ## **Sethi [(2017) 16 SCC 680].** 7. When considering the materials before this Court, 8 M.A.C.A.No.662/14 it can be seen that the contention as to the addition made by the Tribunal towards future prospects is having some force. As per **Pranay Sethi** (supra), it has been categorically held that if the deceased is a self-employed person, the addition that should be made is 40% and 50% is stipulated only in respect of regular salaried persons. In this case, there is no evidence that the deceased was a regular salaried person and hence the proper deduction should have been 40%. However, I am not inclined to interfere with the award on that ground on the reason that, as rightly pointed out by the learned counsel for the respondents 1 to 5, the monthly income taken by the Tribunal is very low. Even as per the judgment in **Pranay Sethi** (supra), in respect of a coolie, the Honourable Supreme Court was pleased to fix the monthly income as Rs.4,500/- in respect of an accident occurred in the year 2004. In such circumstances, I am not inclined to interfere with the finding of the tribunal in making addition of 50%. This is particularly because, the provisions in the M.A.C.A.No.662/14 9 Motor Vehicles Act, being a welfare legislation, there is duty caste upon the courts to ensure that, the victim of a motor accident gets “just compensation”. I have already found that, the monthly income taken by the Tribunal is very low and hence a deduction in the compensation under the head of loss of dependency would result in gross injustice to the victims and it would be against the mandate for ensuring “just compensation”. 8. Another contention of the learned counsel for the appellant is regarding the amount granted under the head loss of love and affection. It is true that going by the principles laid down by the Honourable Supreme Court in **Satwinder Kaur** (supra), the entitlement of the parents in respect of death of their daughter is compensation for loss of filial consortium at the rate of Rs.40,000/- each. It was also held in **Satwinder Kaur** (supra) that when an amount is granted under the head of loss of consortim, no further amount is to be granted under the head of loss of love and 10 M.A.C.A.No.662/14 affection. Similarly, aforesaid decision does not contemplate any compensation either under the head of consortium or for loss of love and affection towards siblings. However, even though the said contention is having some force, in the peculiar circumstance of the case, I am not inclined to accept the same. This is because of the fact that, the deceased was aged 28 years at the time of the accident and the total amount granted by the Tribunal is only Rs.7,47,500/-. Considering the fact that it is an accident occurred in the year 2005, when total amount of compensation is taken into consideration, under no circumstances the same can be treated as unreasonable. In such circumstances, as the total amount awarded by the Tribunal is very reasonable and in tune with the peculiar facts and circumstances of the case, I am not inclined to entertain the contention put forward by the appellant. Similarly, with regard to the funeral expenses, it is to be noted that, as rightly pointed out by the learned counsel for M.A.C.A.No.662/14 11 the appellant, the said amount is excess by Rs.10,000/-. However, it is to be noted that under the head of loss of estate, only Rs.5,000/- is granted, which is lessor by Rs.10,000/-. In such circumstances, no interference is warranted under that head also. In the above circumstances, considering the fact that the amount awarded by the Tribunal is reasonable, I deem it appropriate to dismiss this appeal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/29.9.21