New India Assurance Company Limited v. Santosh Kumar C.K., Leena Rani G., Sreechand S. Sastha Vilas

MACA No.2987 of 2015 1 # IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943 MACA NO. 2987 OF 2015 AGAINST THE AWARD IN OP(MV) No.632/2011 DATED 1-6-2015 OF THE ADDITIONAL M.A.C.T JUDGE-IV, PATHANAMTHITTA ## APPELLANT/3RD 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.) SRI.P.JACOB MATHEW ## RESPONDENT/CLAIMANTS: 1 SANTHOSH KUMAR C.K SASTHA VILAS, PERINGALA P.O., NADAKAVU, KAYAMKULAM688 320. 2 LEENA RANI G. SASTHA VILAS, PERINGALA P.O., NADAKAVU, KAYAMKULAM688 320. 3 SREECHAND S. SASTHA VILAS, PERINGALA P.O., NADAKAVU, KAYAMKULAM688 320. BY ADVS. SMT.ANNIE M.ABRAHAM SRI.T.K.BIJU MANJINIKARA THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.2987 of 2015 2 ## JUDGMENT This is an appeal filed by the Insurance Company challenging the award passed by the Additional Motor Accidents Claims Tribunal-IV, Pathanamthitta in OP(MV)No.632 of 2011 dated 1-6-2015. (The parties are referred to in this judgment according to their status in the claim petition) 2. The claim petition is filed by the respondents in the appeal seeking compensation for the death of one Sreechind S, due to the injuries sustained to him in a motor accident occurred on 3.12.2010. The accident occurred when the scooter ridden by the deceased was hit by a KSRTC bus insured with the 3[rd] respondent. The deceased was an Engineering student and was aged 20 at the time of the accident. The compensation sought for by the respondents/ claimants was Rs.13 lakhs. 3. The respondent No.1 in the claim petition filed a written statement disputing the negligence on the part of the driver of the KSRTC bus. According to the 1[st] respondent, accident occurred due to the rash and negligent driving of the deceased himself. The 2[nd] respondent also filed a written MACA No.2987 of 2015 3 statement raising similar contentions by attributing the negligence on the deceased himself. 4. The appellant/3[rd] respondent filed a written statement admitting the coverage of policy but disputed the liability on various grounds. The quantum of compensation was also seriously disputed by them. The said claim petition was tried along with OP(MV)No.59 of 2012 which was filed by the pillion rider of the motor cycle, which the deceased was riding, seeking compensation for the injuries sustained to him. 5. The evidence in this case consists of Exts.A1 to A10 from the side of the claim petitioners. No evidence was adduced from the side of respondents. After the trial, both the above claim petitions were allowed by the Tribunal holding that the accident occurred due to the rash and negligent driving of the 2[nd] respondent in the claim petition and accordingly, being the insurer of the vehicle, the appellant/3[rd] respondent was directed to deposit the compensation. The quantum of compensation awarded in OP(MV)No.632 of 201 was fixed as Rs.46,17,000/-. This appeal is filed by the Insurance Company being aggrieved by the quantification of compensation. 6. Heard the learned Senior Counsel Sri. Mathews Jacob who is appearing for the appellant-Insurance Company and also Sri.T.K.Biju, the learned counsel for the respondents. MACA No.2987 of 2015 4 7. The first submission made by the learned Senior Counsel is that, the monthly income taken by the Tribunal is Rs.20,000/- which is extremely on a higher side. The deceased was only a student without any income and merely because of the reason that he was pursuing his engineering studies, the monthly income at such a higher rate should not have been fixed. On the other hand, the learned counsel for the respondents opposes the said contention by relying upon the judgments in National Insurance Company Ltd.,Chennai v. Fathimath Zuhara @ Zuhra Razak (2016(3) KLT 459), Ramakrishnapillai K. and Others v. New India Assurance Co.Ltd.(2015(3)KLJ 750) and Joginder Singh & Another v. ICICI Lombard General Insurance Company (AIR 2019 SC 3814). 8. In Joginder Singh(supra), the Honourable Supreme Court,fixed the monthly income of the deceased therein, who was student of Airhostess Training program in Frankfinn Institute, Chandigarh, as Rs.15,000/-. This was in respect of an accident occurred in the year, 2009. However, it is evident from the reading of the said judgment that, the monthly income of the deceased was not at all an issue within the consideration of the Hon’ble Supreme Court. On other hand, in that case, the Tribunal itself has taken the monthly income as Rs.15,000/- and this was not apparently challenged by the Insurance Company in the appeal before the Hon’ble MACA No.2987 of 2015 5 Supreme Court. The issues which were raised and considered by Hon’ble Supreme Court were something else and not in connection with the monthly income of the deceased. Another judgment relied upon by the learned counsel for the respondents is that of Ramakrishnapillai K .(supra). In the said judgment, a B.Tech 4[th] semester student was died in an accident occurred on 10.3.2006. After referring to various judgments including that of a Division Bench of High Court of Andra Pradesh (2011 ACJ 1702), this Court has fixed the monthly income as Rs.12,000/-. Yet another decision is reported in National Insurance Company Ltd.,Chennai v. Fathimath Zuhara @ Zuhra Razak (2016(3) KLT 459), wherein the Division Bench of this Court taken the monthly income of an engineering student as Rs.12,000/- in respect of an accident occurred on 10.9.2005. In this case, the Tribunal relied upon a judgment rendered by the High Court of Madras in Managing Director, Metropolitan Transport Corporation v. S. Mariam Beeve and Another (2014 ACJ 2693) wherein in respect of an MBBS student, the monthly income was fixed as Rs.12,000/-. When considering all the above judgments, this Court is of the view that when there are judgments rendered by Division Bench of this Court fixing the monthly income of an engineering student at a particular rate that has to be accepted. However, in the above judgments of this Court, the MACA No.2987 of 2015 6 accident occurred in the year 2005 and 2006. In this case, the accident ocured in the year 2010. Therefore, considering the date of accident and also taking into account the increased prospects of job opportunities for engineering graduates and also in the probable increase in monthly income by passage of time, some addition has to be made, from the monthly income taken by this court in the above cited judgments. While taking those facts into consideration, this Court is of the view that Rs.16,000/- would be a reasonable figure to be determined as monthly income of the deceased, instead of Rs 20,000/- fixed by the Tribunal. 9. Another contention put forward by the learned Senior Counsel for the Insurance Company is that even though it is a well settled position of law that while calculating the compensation for the death of a bachelor, towards personal expenses of the deceased, 50% of the income should be deducted. But the deduction made by the Tribunal in this case is only 1/3. As per the principles laid down by the Hon’ble Supreme Court in various judgments including the decision in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT 662], the proper deduction to be made in a case of bachelor should be 50% and therefore, the amount awarded is to be modified on that ground also. Similarly, the learned Senior Counsel further points out that, an addition of 50% towards MACA No.2987 of 2015 7 future prospects made by the Tribunal in the income is also against the settled position of law. This submission is also to be accepted, in the light of the settled principles in Pranay Sethi’s case(supra). As per the said decision, the permissible addition on this ground is only 40%. 10. Similarly, it can be seen that Rs.1,50,000 has been granted towards loss of love and affection. Going by the principles laid down by the Hon’ble Supreme Court in United India Insurance Company Vs. Satinder Kaur @ Satwinder Kaur and others {2020(3) KHC 760) , parents are entitled to filial consortium at the rate of Rs 40,000/- each, for the loss of their son/daughter. It is also held in the said decision that when the compensation under the head of loss of consortium is awarded, no further compensation is to be awarded under the head of loss of love and affection. Therefore, the actual compensation to be awarded to the claimants 1 and 2 is Rs.40,000/- each for loss of filial consortium. However, as the 3[rd] claimant, who is the brother of the deceased, is not entitled for compensation under the head of loss of consortium, he can be granted compensation for loss of love and affection. As per the decision of Satwinder Kaur (supra), the restriction in granting compensation for loss of love and affection is only when an amount is awarded for loss of consortium. In this case, as no amount is awarded to the 3[rd] MACA No.2987 of 2015 8 claimant under the said head, he can be granted compensation for loss of love and affection. This is particularly so, as the loss sustained to a sibling due to accident, is also a matter to be taken into consideration while adjudicating quantum of compensation. Regarding the amount to be granted to the 3[rd] claimant, the brother of the deceased, under the head of loss of love and affection, this Court is of the view that, Rs.40,000/- would be reasonable. Therefore, the amount of Rs.1,50,000/- granted under the head of loss of love and affection is revised as Rs.1,20,000 (Rs.40,000x3) by treating it as the compensation for consortium to parents and love and affection to the brother. 11. While reworking the compensation in the light of the above findings, the compensation for loss of dependency, would come to Rs.24,19,200/- (Rs.(16,000+6400)x12x18x1/2) instead of Rs.43,20,000/-. An amount of Rs.1,00,000/- is seen granted under the head of loss of estate. The amount payable under this head is Rs.15,000/-going by the principles laid down in Pranay Sethi’s case (supra). Therefore, an amount of Rs.85,000/- has to be deducted. An amount of Rs.25,000/- is seen granted by the Tribunal towards funeral expenses. The actual amount payable under this head is Rs.15,000/- and therefore the excess amount of Rs.10,000/- granted by the Tribunal under this head has to be deducted. MACA No.2987 of 2015 9 In the above circumstances, the compensation receivable by the claimants is re-fixed as Rs.26,01,200/- (Rupees Twentysix Lakhs One thousand and Two hundred only(24,19,200+20,000+25,000+1000+1000+40,000+15000+ 80,000 ) instead of Rs.46,17,000/-. The said amount shall be deposited by the appellant/Insurance Company along with interest at 9% per annum from the date of receipt of copy of this judgment. The appeal is disposed of as above. ## Sd/- ZIYAD RAHMAN A.A. JUDGE pkk