Oriental Insurance Co. Ltd. v. Shyjamol Sreedharan and others

M.A.C.A.No.4275/2019 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945_ ## _MACA NO.4275 OF 2019_ _AGAINST THE ORDER/JUDGMENT OPMV 203/2017 OF IV ADDITIONAL DISTRICT COURT, THODUPUZHA/II ADDITIONAL MACT, THODUPUZHA_ ## _APPELLANT/3RD RESPONDENT:_ _THE ORIENTAL INSURANCE CO.LTD, METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER._ _BY ADV.V.P.K.PANICKER_ ## _RESPONDENT/PETITIONERS:_ _1 SHYJAMOL SREEDHARAN, W/O.LATE SINU C.G., CHAKKALAKUNNEL HOUSE, MYLAKOMBU.P.O., KUMARAMANGALAM VILLAGE-685 605, WARD NO.IX/312._ _2 ANAGHA SINU, AGED 12 YEARS, D/O. LATE SINU C.G.(MINOR), REPRESENTED BY HER MOTHER AND GUARDIAN SHYJAMOL SREEDHARAN, CHAKKALAKUNNEL HOUSE, MYLAKOMBU.P.O., KUMARAMANGALAM VILLAGE-685 605, WARD NO.IX/312._ _3 ANANNYA SINU, AGED 7 YEARS, D/O.LATE SINU C.G.(MINOR),REPRESENTED BY HER MOTHER AND GUARDIAN SHYJAMOL SREEDHARAN, CHAKKALAKUNNEL HOUSE, MYLAKOMBU.P.O.,_ M.A.C.A.No.4275/2019 2 _KUMARAMANGALAM VILLAGE-685 605, WARD NO.IX/312._ _4 GOPI, AGED 68 YEARS, S/O.MUNDAN, CHAKKALAKUNNEL HOUSE,VENGACHUVADU BHAGOM, VAZHAKULAM P.O., MANJALOOR VILLAGE-686 670, WARD NO.IX/313._ _5 KAMALAM, AGED 65 YEARS, W/O.GOPI, CHAKKALAKUNNEL HOUSE,VENGACHUVADU BHAGOM, VAZHAKULAM P.O., MANJALOOR VILLAGE-686 670, WARD NO.IX/313_ _BY ADVS. SRI.MATHEWS K.PHILIP SMT.T.MANASY_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.4275/2019 3 ## **JUDGMENT** This appeal is submitted by the Insurance Company, the 3[rd] respondent in O.P(MV).No.203 of 2017 on the file of the Addl. Motor Accidents Claims Tribunal-II, Thodupuzha. The said claim petition was submitted by the respondents herein, seeking compensation for the death of one Sinu C.G. due to the injuries sustained in a motor accident that occurred on 06.12.2016. The 1[st] respondent is the wife, the 2[nd] and 3[rd] respondents are the children, and 4[th] and 5[th] respondents are the parents of the said deceased. 2. The accident occurred when the scooter bearing registration no. KL 38E 2675, ridden by the said Sinu C.G, was hit by a car bearing registration no. KL 37A 7387, negligently driven by the 1[st] respondent in the claim petition. The 2[nd] respondent in the claim petition was the owner of the said vehicle, and it was insured with the appellant herein. The deceased was aged 42 years and was working as a salesman in a toddy shop with a monthly income of Rs.24,500/-, and seeking M.A.C.A.No.4275/2019 4 compensation for his death, the respondents filed the claim petition for an amount of Rs.44,00,000/- 3. The 1[st] and 2[nd] respondents in the claim petition filed written statements disputing the negligence on the part of the 1[st] respondent. It was also contended that the vehicle was covered with a valid insurance policy issued by the appellant herein, and therefore, if at all any amount is payable by them, the same has to be paid by the Insurance Company. The appellant Insurance Company submitted a written statement admitting the coverage of the policy but disputing the liability on various grounds. The negligence, as well as the quantum of compensation, was also disputed. 4. The evidence in this case consists of oral evidence of PW 1 and 2, Exts.A1 to A9 and X1 and X2 series. From the respondents' side in the claim petition, RW1 was examined, and Exts.B1 and B2 were marked. The Tribunal passed an award holding that the accident occurred due to the negligent driving of the 1[st] respondent in the claim petition, and therefore, it was found that the appellant, being the insurer of the vehicle, is liable M.A.C.A.No.4275/2019 5 to pay the compensation. The quantum of compensation was fixed as Rs.39,04,250/- and the appellant herein was directed to deposit the same along with interest at the rate of 9% per annum with proportionate costs. This appeal is submitted by the Insurance Company, challenging the quantum of compensation. 5. Heard Sri. V.P.K.Panicker, learned standing counsel for the Insurance Company and Smt.T.Manasi, learned counsel for the respondents. 6. The learned counsel for the appellant would mainly contend that the monthly income taken by the Tribunal to compute the compensation was on the higher side and requires reconsideration. The learned counsel brought the attention of this court to the evidence of RW1 and Exts.X1 and X2 series of documents. It is discernible from the award that the Tribunal, relying on the said documents, fixed the income of the deceased as Rs.688/- per day. The said computation was made by taking basic pay as Rs.365/- per day and daily food allowance as Rs.210/- and also taking 31% of the basic pay, which was Rs.113/- per day, towards D.A. The main contention put forward M.A.C.A.No.4275/2019 6 by the learned counsel for the appellant is that, as far as the food allowance, which comes to Rs.210/- per day, is concerned, that is something for the actual expenses and, therefore, the same should not have been taken into account, while taking the income of the deceased for the purpose of computation of the loss of dependency. According to him, since that was the actual personal consumption by the deceased, under no circumstances said amount could not have reached the respondents/claimants. The learned counsel for the respondents opposes the said contention. 7. However, after going through the records, I find some force in the contention put forward by the learned counsel for the appellant. The fact that the amount of Rs.210/- was being granted to him towards food allowance is established with the evidence of RW1 and Exts.X1 and X2 documents. Since the same was for the actual consumption of the deceased, the same cannot be taken for computing compensation for loss of dependency. However, when the said amount is excluded, the same can impact the deduction to be made while computing compensation for loss of dependency towards personal expenses. In this case, the M.A.C.A.No.4275/2019 7 deduction made by the Tribunal was 1/4 as the deceased left behind five dependents. Therefore, while excluding the amount that was being granted to the deceased towards food allowance, deduction towards personal expenses can be dispensed with. Thus, the income of the deceased would come to Rs.475/- per day, and the annual income therefore can be calculated as Rs.1,48,200/- (475 x 26 x 12). While reworking the compensation with the above revised annual income with an addition of 25% towards future prospectus, the amount would come to Rs.25,93,500/- [148200+25%x14]. 8. Besides the same, the learned counsel for the appellant would point out that Rs.2,00,000/- under the head loss of consortium and Rs.1,00,000/- were awarded towards love and affection. In the light of the principles laid down by the Honourable Supreme Court in **United India Insurance Co.Ltd. v. Sathinder Kaur [2020 SCC Online SC 410]** , if compensation for loss of consortium is already awarded, no additional amount can be awarded for loss of love and affection. Therefore, the amount granted towards loss of love and affection M.A.C.A.No.4275/2019 8 is to be deducted. It was further pointed out that Rs.50,000/- was granted towards pain and suffering. Taking note of the amounts awarded under the other heads, the said amount appears to be on the higher side. A notional figure of Rs.10,000/- can be a reasonable amount, and it is revised accordingly. Thus, in the light of the revision of the compensation as observed above, the total amount of compensation is re-fixed as Rs.30,81,750/-. |Sl No|Head of claim|Amount awarded| |---|---|---| |1.|Medical Expenses|2,39,980| |2.|Bystander’s expenses|1,000| |3.|Transportation expenses|5.270| |4.|Extra nourishment|1,000| |5.|Damage to clothing|1,000| |6.|Pain and Siuffering|10,000| |7.|Loss of dependency|25,93,500| |8.|Loss of consortium|2,00,000| |9.|Loss of estate|15,000| |10.|Funeral expenses|15,000| ||Total|30,81,750/-| In such circumstances, this appeal is allowed, and the amount of compensation receivable by the award passed by the Addl.Motor Accidents Claims Tribunal, Thodupuzha in O.P(MAC).No.203 of 2017 is hereby fixed as Rs.30,81,750/(Rupees thirty lakhs eighty one thousand seven hundred and fifty only). It is directed that the appellant shall deposit the said M.A.C.A.No.4275/2019 9 amount along with interest at the rate as ordered by the Tribunal from the date of petition till the date of realization with proportionate costs, after adjusting the amounts already deposited within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/19.9.23