New India Assurance Co. Ltd. v. Sabeena and Lana Fathima (minor)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943 ## MACA NO. 506 OF 2016 [AGAINST THE AWARD IN OP(MV) NO. 1406/2011 DATED 13.08.2015 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS ## TRIBUNAL-1,PATHANAMTHITTA] ## APPELLANT/2ND RESPONDENT: THE NEW INDIA ASSURANCE COMPANY LIMITED PATHANAMTHITTA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS. SRI.MATHEWS JACOB (SR.) ## RESPONDENT/S: 1 SABEENA W/O SHANAVAS, PALLIPADINJATTETHIL, ANGAMOOZHI P.O., PIN:68964. 2 LANA FATHIMA (MINOR) D/O SHANAVAS, PALLIPADINJATTETHIL, ANGAMOOZHI P.O., PIN:689645 REPRESENTED BY HER MOTHER IST RESPONDENT. BY ADV SRI.A.N.SANTHOSH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.506 of 2016 2 ## JUDGMENT This appeal is filed by the Insurance Company challenging the quantum of compensation in OP(MV)No.1406 of 2011 on the file of the Additional Motor Accidents Claims Tribunal-1, Pathanamthitta. 2. The claim petition was filed by respondents in the appeal who are the wife and child of one Shanavas, who died due to the injuries sustained in a motor accident occurred on 3.12.2011. According to the claimants/respondents, the deceased was aged 36 years and was a driver by profession. In addition to that, he was also conducting a medical shop and the total monthly income claimed was Rs.25,000/-. The amount of compensation claimed was Rs.44,37,000/(Even though the original claim was Rs.16,75,000/-, the same was later amended as Rs.44,37,000/-). 3. The appellant-Insurance Company who is the 2[nd] respondent in the claim petition filed a written statement admitting the coverage of policy but disputed the liability on various grounds. The age, MACA No.506 of 2016 3 occupation, income of the deceased and the negligence were disputed. In the trial followed, the 1[st] respondent was examined as PW1 and Exts. A1 to A11 were marked. No evidence was adduced from the side of the appellant. After the trial, the Tribunal passed an award allowing an amount of Rs.35,87,000/- as compensation and the Insurance Company was directed to deposit the said amount along with interest at the rate of 9% per annum. Being aggrieved by the quantum of compensation as above, this appeal is filed. 4. Heard both sides. 5. The learned Senior Counsel for the appellant, Sri.Mathews Jacob mainly contended that, the Tribunal committed an error while fixing the monthly income as 18,000/- and also in making an addition of 50% towards future prospects. In response to the said contention, the learned counsel for the respondents would contend that with respect to the monthly income, it has come out in the evidence of PW1, the wife of the deceased, that the deceased was conducting a medical shop and consequent to his MACA No.506 of 2016 4 death, the said shop was closed. She would rely upon Exts.A8 and A9 certificates issued by the President of Seethathode Grama Panchayat and also by the Drugs Controller in support of her contentions. On perusal of the said documents, I find that, the contention raised by the learned counsel for the respondents is having some force. When there are documents supporting the claim of the respondents, showing the business of the deceased, validity of which are not seriously challenged, I do not find any grounds to disregard the same. The Tribunal, has appreciated the said evidence and fixed the monthly income based on the same. I am unable to find any discrepancy in fixing the monthly income as Rs 18,000/-. In such circumstances, I am not inclined to interfere with the monthly income fixed by the Tribunal. However, I find some force in the contention put forward by the learned Senior Counsel with regard to the addition made by the Tribunal towards future prospects. As per the decision of the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT MACA No.506 of 2016 5 662], in respect of persons who are self-employed, the proper addition to be made is 40% and 50% addition is contemplated for regular salaried persons. As the deceased was a self-employed person, the proper deduction should be 40% and not 50% as taken by the Tribunal. In such circumstances, the loss of dependency has to be re-worked by making the addition towards future prospects as 40% and this would come to Rs.30,24,000[(18,000+7200)x12x15x2/3]. Thus, the excess amount awarded by the Tribunal under this head is Rs.2,16,000/-. 6. Other heads to which the Learned Senior Counsel brought the notice of this Court are the amounts awarded under the heads of loss of consortium, loss of love and affection, loss of estate and funeral expenses. It is seen that, an amount of Rs.1 lakh was granted under the head of loss of consortium. However, as per the principles laid down in Pranay Sethi’ case (supra) and United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others (AIR 2020 SC 3076), the 1[st] respondent MACA No.506 of 2016 6 is entitled for spousal consortium at the rate of Rs.40,000/- whereas the 2[nd] respondent is entitled for parental consortium at the same rate. The amount of Rs.1 lakh granted under the head of loss of consortium is, therefore, re-fixed as Rs.80,000 (Rs.40,000 x 2). In Satwinder Kaur’s case (super), it was further held by the Hon’ble Supreme Court that, when compensation is awarded under the head of loss of consortium, no separate amount is to be granted under the head of loss of love and affection. As rightly pointed out by the learned Senior Counsel, in this case, an amount of Rs.1 lakh is seen granted under this head and the same is set aside. It is also seen that, an amount of Rs.1 lakh is granted under the head of loss of estate which is extremely high as according to the principles laid down in Pranay Sethi’ case (supra), the eligible amount under this head is Rs.15,000/-. Therefore, an amount of Rs.85,000/- is to be deducted from the total amount of compensation awarded by the Tribunal. Similarly, the amount awarded under the head of funeral expenses MACA No.506 of 2016 7 is excessive by Rs.10,000/- and this is also to be deducted. The learned Senior Counsel further points out that, by relying upon the observations contained in Satwinder Kaur’s case (super), an amount of Rs.20,000/- granted under the head of pain and suffering is unwarranted and hence to be deducted. However, I am not interfering with the said amount, taking into account of the fact that substantial deductions have already been made under the other heads. The deceased left behind a wife aged 27 years only and a daughter just aged 10 months. Considering the factual situation in this case, I do not deem it appropriate to interfere with the compensation granted under the head of pain and suffering in this case. In the light of the findings mentioned above it is found that, the excess amount awarded by the Tribunal would come to Rs.4,31,000 [Rs.216000+20000+85000+10000+100000]. Accordingly the total amount of compensation receivable by the respondents is re-fixed as Rs.31,56,000/- (Rupees MACA No.506 of 2016 8 Thirtyone Lakhs and Fifty six thousand only) [Rs.35,87,000-4,31,000]. The appellant- Insurance Company shall deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realisation. It is reported that 50% of the said amount has been deposited by the appellant in compliance of the condition imposed by this Court while granting stay of proceedings. In the light of the above, the Insurance Company shall deposit the balance amount after adjusting the payments already affected by them. The appeal is disposed of as above. Sd/ZIYAD RAHMAN A.A., JUDGE pkk