New India Assurance Company Ltd. v. Radhamma and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944`** ## **`MACA NO. 1061 OF 2016`** ``` OP(MV)No.413/2013 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-I, PATHANAMTHITTA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, PATHANAMTHITTA REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, KOCHI. ``` ``` BY ADVS. SRI.RAJAN P.KALIYATH SMT.FRINDA PAILY ``` ## **`RESPONDENTS/CLAIMANTS:`** - **`1 RADHAMMA,AGD 54 YEARS, W/O.E.K.NARAYANAPILLAI, PULIMOOTTAM POIKAYIL HOUSE, AMARA MURI, AMARA POST, MADAPPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT.`** - **`2 MADHUSOODHANA KURUP R, AGED 51 YEARS, S/O. P.S.RAGHAVAN PILLAI, KOMBADIYIL PUTHENPURAYIL, MANJADI POST, MEENTHALAKKARA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.`** - **`3 REMADEVI R., AGED 48 YEARS, W/O. OMANAKUTTAN NAIR, KAYYALACKATHU HOUSE, KEEZHUKARA MURI, KOZHENCHERRY POST, KOZHENCHERRY VILLAGE AND TALUK, PATHANAMTHITTA DISTRICT.`** - **`4 UNNIKRISHNA KURUP R., AGED 45 YEARS, S/O. P.S. RAGHAVAN PILLAI, KOMBADAIYIL PUTHENPURAYIL, MANJADI POST, MEENTHALAKKARA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.`** MACA 1061 OF 2016 2 ``` BY ADVS. SRI.S.JAYAKRISHNAN SRI.S.PARAMESWARA PRASAD ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON 19.09.2022, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING: ``` MACA 1061 OF 2016 3 ## **J U D G M E N T** The 3[rd] respondent Insurer in OP(MV)No.413 of 2013 on the file of the Additional Motor Accidents Claims Tribunal-I, Pathanamthitta is the appellant herein. The challenge is against the excessive compensation awarded by the Tribunal with respect to the death of an 82 year old lady. 2. The legal heirs of deceased K.K.Gawrikutty Amma approached the Tribunal claiming compensation of Rs.4,87,000/- on the death of their mother in a road traffic accident occured 08.07.2012. The Tribunal awarded compensation of Rs.6,97,000/including dependency compensation, though the legal heirs were all aged above 45 years leading independent life, not depending on their mother. Smt.K.K.Gawrikutty Amma was an 82 year old pensioner and none of the legal heirs could inherit her pension. Ignoring all the relevant facts, the Tribunal MACA 1061 OF 2016 4 awarded compensation exceeding the claim and hence this appeal. 3. The death of Smt.K.K.Gawrikutty Amma in the road traffic accident occurred on 08.07.2012 is not in dispute. The appellant is admitting the fact that the accident occurred due to the rash and negligent driving of the KSRTC bus by its driver and the policy of the vehicle as on the date of accident also is not in dispute. 4. Before the Tribunal, no oral evidence was adduced from either side. Exts.A1 to A12 were marked. 5. Now let us see whether the impugned award is liable to be interfered with. 6. Admittedly deceased Smt.K.K.Gawrikutty Amma was an 82 year old pensioner as on the date of accident. Exts.A11 and A12, the pension payment order and bank statement of Smt.K.K.Gawrikutty Amma, will show that the pension credited to her account in the month of June 2012 i.e., just prior to her death was Rs.9,385/-. But the Tribunal MACA 1061 OF 2016 5 fixed her notional income at Rs.10,000/-. Since there was document to prove her monthly pension, the Tribunal need not have fixed her income notionally. So her monthly income has to be treated as Rs.9,385/-. Her legal heirs were aged more than 45 and all were leading independent life. So the Tribunal could not be justified in deducting only ¼ towards her personal expenses finding that she was having 4 dependents. Since she was aged 82, she might have been suffering from age related ailments and she might have been spending at least 50% of her monthly income for her treatment and other expenses. So towards her personal expenses, 50% ought to have been deducted. If so, her monthly income could have been taken as 4,692.5/-. Since she was aged 82, the multiplier applicable was 5. So the loss of dependency could have been assessed as Rs.2,81,550/- (9,385 x 12 x 5 x 50 / 100). The Tribunal awarded Rs.4,50,000/- under the head ‘loss of dependency’. So Rs.1,68,450/- is liable to be refunded. MACA 1061 OF 2016 6 7. Towards funeral expenses, the Tribunal awarded Rs.25,000/-. Going by the decision **National Insurance Company Ltd. v. Pranay Sethi and Others,** [2017 (4) KLT 662 (SC)], the legal heirs were eligible to a maximum amount of Rs.15,000/- only. So they have to refund the excess amount of Rs.10,000/-. 8. Towards loss of estate, the Tribunal awarded Rs.1,00,000/-, though the legal heirs were eligible to get Rs.15,000/- only. So they are liable to refund Rs.85,000/-. 9. Under the head loss of love and affection, the Tribunal awarded Rs.25,000/each to the children amounting to Rs.1,00,000/in total. Though all the claimants were grown up children, leading independent family life, loss of mother is always a loss however old she was. The love, affection, guidance and support, the children are getting from their mother, may have no substitute. So this Court is inclined to award Rs.44,000/- each to the respondents under the head ‘parental consortium’ relying on MACA 1061 OF 2016 7 the decision **United India Insurance Company Ltd. vs. Satinder Kaur** [AIR 2020 SC 3076], and **Pranay Sethi’s** case cited (Supra), amounting to Rs.1,76,000 in total. So they are eligible to get the balance Rs.76,000/- under the head ‘loss of love and affection’. 10. Towards pain and suffering, the Tribunal awarded Rs.20,000/-. Since this being a death case, the legal heirs are not eligible to get any compensation for the pain and suffering of the deceased. So, Rs.20,000/- received under that head is liable to be refunded. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|Rs.4,50,000/-|Rs.2,81,550/-|Rs.1,68,450/-|| |Funeral<br>expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-|| |Loss of estate|Rs.1,00,000/-|Rs.15,000/-|Rs.85,000/-|| 8 MACA 1061 OF 2016 |Loss of love<br>and affection|Rs.1,00,000/-|Rs.1,76,000/-||Rs.76,000/-| |---|---|---|---|---| |Pain and<br>suffering|Rs.20,000/-||Rs.20,000/-|| |Total|||Rs.2,83,450/-|Rs.76,000/-| |The amounts to be deducted is Rs.**2,07,450/-** (2,83,450 - 76,000)<br>Modified award amount is Rs.**4,89,550/-** (6,97,000 - 2,07,450)||||| |||||| 11. In the result, the compensation amount is to be modified and reduced by deducting the excess amount and adding the deficit under the head ‘loss of love and affection’, which could be calculated as Rs.4,89,550/- (Rupees Four Lakh Eighty Nine Thousand Five Hundred and Fifty only). 12. The appellant has to deposit the award amount Rs.4,89,550/- with interest at the rate of 9% per annum from the date of petition till realisation in the bank account of respondents 1 to 4 in equal share within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and MACA 1061 OF 2016 9 clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of respondents 1 to 4 towards Tax, balance court fee and legal benefit fund. In the result, the appeal is allowed to the extent as above. No order as to costs. Sd/- **SOPHY THOMAS, JUDGE** DSV/23.09.2022