Nimisha and Others v. Rajath and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **FRIDAY, THE 28[TH] DAY OF JUNE 2024 / 7TH ASHADHA, 1946 MACA NO. 128 OF 2019** **OPMV NO.2432 OF 2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **THRISSUR** ## **APPELLANTS/PETITIONERS:** **1 NIMISHA AGED 30 YEARS W/O.LATE SIJITH, KUNNAMKUMARATH HOUSE, PERAMANGALAM DESOM.P.O, TRISSUR(W/O. DECEASED SIJITH)** - **2 K.VIJAYAN AGED 68 YEARS S/O.VELAYUDHAN -DO- FATHER.** **3 SEETHA AGED 59 YEARS W/O.VIJAUYAN -DO -MOTHER OF DECEASED.** **4 SREJA AGED 31 YEARS D/O.K.V.JAYAN KUNNAMKUMARATH HOUSE, PERAMANGALAM.** **BY ADVS. SHEJI P.ABRAHAM SMT.THUSHARA PAILY** ## **RESPONDENTS/RESPONDENT:** **1 RAJATH AGED 30 YEARS S/O.RAJAN, 6/356, KANJANGATT HOUSE, PERAMANGALAM DESOM, THRISSUR-680545** MACA NO. 128 OF 2019 ..2.. **2 THE NEW INDIA ASSURANCE CO.LTD., BR.OFFICE, PERINCHERY BLDG, ROUND NORTH, THRISSUR-680001. REP. BY MANAGER.** **BY ADVS. SRI.K.R.ARUN KRISHNAN SRI.JITHIN BABU A SRI.DINESH MATHEW J. MURIKAN, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 128 OF 2019 **==> picture [31 x 8] intentionally omitted <==** ## “CR” ## JUDGMENT This appeal has been filed by the claimants in OP(MV) No.2432 of 2012 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents herein were the respondents before the tribunal. 2. The case of the appellants/claimants is that on 04.09.2012, the deceased, while pillion riding on a motorcycle bearing Reg.No.KL-08-X-92777 ridden by the first respondent, met with an accident, resulting in grievous injuries; and while undergoing treatment, he succumbed to the injuries. The appellants, being the legal representatives of the deceased, approached the tribunal claiming a total compensation of ₹25,00,000/-. 3. The first respondent remained ex parte before the tribunal. The second respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, Exts.A1 to A8 MACA NO. 128 OF 2019 **==> picture [31 x 8] intentionally omitted <==** were marked on the side of the appellants/claimants. No evidence was adduced by the respondents. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the rider of the offending vehicle and awarded a sum of 15,79,200/- as₹ compensation under different heads against the second respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimants have come up in appeal. 4. Heard the learned counsel for the appellants and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellants submitted that the tribunal awarded only an amount of 40,000/- as₹ compensation towards loss of consortium, which is on the lower side, and since appellants 1 to 4 were the dependents of the deceased, they are entitled for a total amount of ₹1,60,000/-. Going by the judgment in National Insurance Co.Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)], I am of the opinion that the appellants can be granted a total compensation of 1,60,000/- under this head. However, it is₹ MACA NO. 128 OF 2019 ..5.. seen that the tribunal awarded an amount of 75,000/-₹ towards loss of love and affection, which has to be adjusted with the compensation towards loss of consortium. Hence, after adjusting the amount of 75,000/- awarded towards loss₹ of love and affection and the amount of 40,000/- towards loss₹ of consortium, the appellants will be entitled to get an additional amount of ₹45,000/- under the head, loss of consortium. 6. The learned counsel for the appellants sought 20% enhancement of compensation under the conventional heads, relying on the decision in Pranay Sethi (supra), wherein the apex court held that under the conventional heads, viz., loss of estate, loss of consortium and funeral expenses, 10% enhancement of compensation has to be granted every three years. According to the learned counsel for the appellants, the judgment in Pranay Sethi (supra) was rendered in the year 2017 and since this appeal is pending before this Court for the past six years, the appellants are entitled to get 20% enhancement under the above conventional heads. The learned counsel further relied on a catena of decisions such MACA NO. 128 OF 2019 **==> picture [31 x 8] intentionally omitted <==** as, Sreedevi v. Abu [2023 (6) KLT 799]; Reliance General Insurance Co. Ltd. v. Prameela T.G. & others [2022 KHC 190]; Joseph K.J. v. K.Dhanapal [2022 KHC 1094], wherein 10% enhancement of compensation was granted by this Court under conventional heads. On a perusal of the above judgments, it is seen that this Court has not decided on the issue as to whether it is the date of the accident or the date of the judgment, that has to be taken into account for awarding 10% enhancement under the conventional heads. Hence, I am not inclined to follow the decisions relied on by the learned counsel for the appellants for awarding enhancement under the conventional heads. 7. It is true that the judgment in Pranay Sethi (supra) was rendered in the year 2017. However, while rendering the judgment, the Constitution Bench of the apex court has not specifically stated whether 10% enhancement every three years has to be calculated from the date of the accident or from the date of filing of the claim petition before the tribunal or from the date of filing appeal before the appellate court. It can only be the date of the accident. Under the Motor Vehicles MACA NO. 128 OF 2019 **==> picture [31 x 8] intentionally omitted <==** Act, compensation is payable for the accident, for which the relevant date is the date of accident. The date on which the accident occured is important while awarding compensation. Merely because this appeal was pending before this Court for the past six years, it cannot be said that the appellants will be entitled for 10% enhancement every three years, which would come to 20% enhancement in the present case since the appeal was filed in the year 2019 and the judgment is proposed to be rendered in 2024. In this case, the accident and death occured in the year 2012. I find that they are entitled for compensation under the conventional heads and the tribunal has already awarded compensation under the said heads. Following the judgment in Pranay Sethi (supra), 10% enhancement on conventional heads can be granted only in case of accidents occurred after 31.10.2020 and the further 10% enhancement can be granted only for the accident which occurred after 31.10.2023. In respect of those accidents upto 31.10.2020, the claimants will be entitled to get 15,000/-,₹ ₹40,000/and 15,000/- towards₹ loss of estate, loss of consortium and funeral expenses respectively. Therefore, I do not agree with the argument advanced by the learned counsel MACA NO. 128 OF 2019 **==> picture [31 x 8] intentionally omitted <==** for the appellants for 20% enhancement under the conventional heads and accordingly, I reject the said prayer. 8. Though the appellants claimed enhancement of compensation under other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable. Accordingly, the appeal is allowed in part and the impugned award of the tribunal is modified awarding the appellants/claimants an additional compensation of ₹ 45,000/(Rupees forty five thousand only) over and above the compensation awarded by the tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In MACA NO. 128 OF 2019 **==> picture [31 x 8] intentionally omitted <==** case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. Sd/- SHOBA ANNAMMA EAPEN JUDGE bka/-