New India Assurance Co. Ltd. v. Jijimol Vinod and Abhi V. Srambickal

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938 MACA.No. 2672 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 919/2009 of MACT, PATHANAMTHITTA DATED 12-04-2016 APPELLANT(S)/RESPONDENT NO.2: -------------------------------------- THE NEW INDIA ASSURANCE CO. LTD. POOVATHOOR BUILDING, CHENGANNUR P.O., ALAPPUZHA DISTRICT, REPRESENTED BY ITS MANAGER. BY ADVS.SRI.K.K.M.SHERIFF SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH ## RESPONDENT(S)/PETITIONERS AND RESPONDENT NO.1: ----------------------------------------------------------- ## 1. JIJIMOL VINOD W/O. LATE B.K.VINOD, SRAMBICKAL HOUSE, MUTTAR P.O., MUTTAR VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT-685710 ## 2. ABHI V.SRAMBICKAL S/O. LATE B.K.VINOD, SRAMBICKAL HOUSE, MINOR, REPRESENTED BY GRANDFATHER AND NEXT FRIEND BOSS J.SRAMBICKAL, S/O. THAMPI, SRAMBICKAL HOUSE, MUTTAR P.O., MUTTAR VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT-685710 R1-R2 BY ADV. SRI.MATHEW JOHN (K) R1-R2 BY ADV. SRI.DOMSON J.VATTAKUZHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.2672 OF 2016 ==========================** Dated this the 27[th] day of September, 2016 ## **JUDGMENT** _Ravikumar, J._ The second respondent in O.P.(MV).No.919 of 2009 on the files of the Motor Accidents Claims Tribunal, Pathanamthitta comes up in appeal challenging the award passed thereon raising various grounds. Appellant is the insurer of the offending vehicle bearing Reg.No.KL09-L-576 involved in the accident. The respondents herein were the petitioners therein. They filed the claim petition under section 166 of the Motor Vehicles Act seeking compensation for the death of the husband of the first respondent who is the father of the second respondent. They claimed a total compensation of `28,54,500/whereas the Tribunal as per the impugned award, granted a total compensation of `15,15,000/- with interest at the rate of 9% per **M.A.C.A.2672/2016** 2 annum from the date of the petition till realisation. 2.Before the Tribunal, both sides did not adduce any oral evidence and on the side of the respondents therein, no documentary evidence was also adduced. On the side of the respondents herein/petitioners therein, Exts.A1 to A9 were got marked. The Tribunal, on appreciation of the evidence on record and rival contentions, passed the impugned award as aforesaid. 3.The main grievance of the appellant is that the Tribunal has granted `1,00,000/- as compensation for 'loss of consortium' to the first petitioner/first respondent herein and in addition to that, `1,00,000/- was granted to her under the head 'loss of love and affection'. It is the contention that granting compensation of `1,00,000/- each under the heads 'loss of consortium' and 'loss of love and affection' would tantamount to duplication of heads and essentially, the factors love and affection did form part of the **M.A.C.A.2672/2016** 3 ingredients for the grant of compensation under the head 'loss of consortium'. It is the further contention that the Tribunal also erred in granting `1,00,000/- to the second petitioner/the second respondent herein under the head 'care and guidance to minor' besides granting him an amount of `1,00,000/- towards 'loss of love and affection'. After hearing the learned counsel and perusing the impugned award and also considering the ingredients forming the heads 'loss of consortium' and 'loss of love and affection', we have no hesitation to hold that the elements of love and affection also form part of the ingredients of the head 'loss of consortium'. True that in terms of the decisions of the Hon'ble Apex Court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54]** and **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** only the surviving spouse is entitled to get compensation under the head 'loss of consortium' and it is rightly granted to the first petitioner. Going by **Rajesh** 's case, `1,00,000/- shall be the minimum amount of compensation payable under that head. When it was so granted to the **M.A.C.A.2672/2016** 4 first petitioner who is the widow of deceased Vinod, the Tribunal ought not have granted further amount of `1,00,000/- under the head 'loss of love and affection' for the aforementioned reason. It is also true that when once taking note of the loss of love and affection an amount of `1,00,000/- is granted to the minor child of the deceased, granting a further amount of `1,00,000/- under the head loss of care to the said minor child would result in duplication of heads and certainly, the entitlement is to be confined to one among them. But, at the same time, while considering the question whether the impugned award invites an interference owing to such mistakes crept in identification of the heads and consequential quantification of compensation, the crucial aspect to be looked into is whether what is granted by the Tribunal is 'just compensation' in terms of the provisions under section 168, M.V.Act. If it is exorbitant, certainly, the award would invite interference and if what is granted is just compensation, then despite the duplication the award is to be kept in tact. In that view of the matter, it is only relevant to refer to certain other aspects borne out **M.A.C.A.2672/2016** 5 from records. The Accident occurred on 4.4.2009 and deceased Vinod was then aged only 33 years. Though it is stated in the claim petition that deceased Vinod was a Store Keeper and was earning an amount of `19,350/- per month, the petitioners had not adduced any evidence to establish such averments regarding his occupation and income. But at the same time, even it is taken that he was eking his livelihood by doing coolie activities or any kind of manual works, the fixation of monthly income by the Tribunal for calculation purpose can only be taken as too low. Taking note of the year of the accident and age of the deceased and also the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** for guidance, one can only say that the said fixation is on the lower side. We are of the view that the Tribunal ought to have taken the monthly income more than `5,000/-. The accident in question had occurred about five years since the accident involved in **Ramachandrappa** 's case. In such circumstances, if the amount of monthly income is taken as `7,000/- **M.A.C.A.2672/2016** 6 and then an addition is made to the said income taking into account the future prospects which the deceased would have had but for his untimely death, the compensation under the head loss of dependency would have been more than `13,00,000/-. Indisputably, in this case, the first respondent/first petitioner was aged only 28 years at the time of the death of Vinod. The second respondent herein was then aged only 1½ years. Taking note of all such aspects, we have no hesitation to hold that the Tribunal granted just compensation though the manner of its quantification is infected with aforementioned deformities. When once it is found what is granted by the Tribunal is just compensation in terms of section 168, M.V.Act, no appellate interference is invited. In that view of the matter, this appeal has to fail and accordingly, it is dismissed. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** ## **Sd/-** ## **K.P.JYOTHINDRANATH (JUDGE)** ## **spc/** **M.A.C.A.2672/2016** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.2672/2016** 8 **JUDGMENT September, 2010**