P. Gopalan v. Shamith; Ranjith Payyanattu Payyanattu House Irinvavu Irinvavu P.O., Kannur District; The Oriental Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ## **`MACA NO. 501 OF 2013`** ``` AGAINST THE AWARD DATED 25.8.2012 IN OP(MV)NO.804/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ``` ## **`APPELLANT/PETITIONER:`** ``` P.GOPALAN, S/O.P.CHAMI, POOSARI HOUSE, PUZHATHI HOUSE, AMSOM DESOM KOTTALI P.O., KANNUR DISTRICT. BY ADV SRI.CIBI THOMAS ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SHAMITH, PODIKUNDU, KANNUR DISTRICT.` - `2 RANJITH PAYYANATTU PAYYANATTU HOUSE IRINVAVU IRINVAVU P.O. KANNUR DISTRICT.` ``` 3THE ORIENTAL INSURANCE CO.LTD. MARINA SHOPPING COMPLEX, TALIPARAMBA. ``` ``` SRI.A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `MACA NO. 501 OF 2013` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 501 of 2013 th Dated this the 30 day of January, 2024 ## JUDGMENT The appellant was the petitioner in OP(MV)No.804/2007 on the files of the Motor Accidents Claims Tribunal, Thalassery. 2. The said claim petition was submitted by the appellant, seeking compensation for the death of his wife, due to the injuries sustained to her in a motor accident that occurred on 08.02.2007. According to the appellant, the accident occurred when the deceased was knocked down by a car bearing registration No. KL-13C-3614, driven by the first respondent. The second respondent was the owner and the third respondent was the insurer of the said vehicle. The deceased was aged 43 years at the time of the accident and according to her she was an employee in a manufacturing unit with a monthly income of Rs.5000/-. The claim petition was submitted in such circumstances. 3. The third respondent Insurance Company alone contested the matter by filing a written statement, wherein they admitted the existence of valid policy of the offending vehicle. `MACA NO. 501 OF 2013` 3 However, they contended that there was violation of policy conditions on the part of the insured. The quantum of compensation was also disputed. 4. The evidence in this case consists of Exts.A1 to A8 from the side of the appellant, and Exts.B1 and B2 were marked from the side of the respondents. 5. After the trial, the Tribunal found that the accident occurred due to the negligence on the part of the driver of the car and being the insurer, the third respondent-Insurance Company was held liable to pay the compensation. The contention of the third respondent about the violation of policy conditions was also rejected. The quantum of compensation was fixed as Rs.3,08,550/- and the third respondent was directed to deposit the said amount along with interest @ 7.5% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted in such circumstances by the appellant seeking enhancement of compensation. 6. Heard Adv.Sri.Cibi Thomas, the learned counsel appearing for the appellant and Adv.Sri.A.R.George, the learned counsel appearing for the third respondent-Insurance Company. 7. The only question that arises for consideration is `MACA NO. 501 OF 2013` 4 whether the amount awarded by the tribunal requires reconsideration or not. The learned counsel for the appellant submits that even though, the monthly income of Rs.5000/- was claimed, the tribunal accepted only Rs.3,000/- which is on the lower side. On perusal of the records, I find some force in the said contentions. It is to be noted that, the accident occurred in the year 2007. In Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] the Hon’ble Supreme Court was pleased to fix the monthly income of an ordinary worker as Rs.4500/- for an accident occurred in the year 2004. Therefore, the monthly income of Rs.5000/-as claimed by the appellant can be treated as reasonable amount. Accordingly, the said amount is accepted. As the deceased was aged 43 years at the time of accident, 25% of the monthly income is to be added towards future prospects and the multiplier applicable was 14 in the light of National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]. 8. The learned counsel for the Insurance Company contended that, the deduction of personal expenses would have been one half of the monthly income considering the fact that, the appellant left behind only one dependant. However, I am not `MACA NO. 501 OF 2013` 5 inclined to accept the said contention. This is particularly because, the deceased was none other than the spouse of the appellant. Of course, it is true that, in Sarla Varma & Ors V.Delhi Trnsport Corporation [(2009) 6 SCC 121] and National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], the Hon’ble Supreme Court was pleased to allow the deduction of one half of the income in case of bachelor towards personal expenses. However, the said criteria cannot be applied in a case of death of a spouse. As far as the bachelor is concerned, the main reason for adopting the deduction of 50% of the income is that, in the near future he is likely to get married. Thereupon, contribution of such persons to the dependent parents would be substantially reduced. As far as the case of death of a spouse is concerned, such a situation never arises. Moreover, the perosnal expenses of the wife living with the husband under the same roof, cannot be taken as one half of the income in any circumstances, as the most of the expenses, which she incurres, would be common expenses shared by her with the husband. Of course, it is true that, in Sujatha P.V. v. Oriental Insurance Company Ltd. [2017(5)KHC 568], this Court held that, in such cases, the proper deduction can only be one `MACA NO. 501 OF 2013` 6 half of the income which is the standard deduction contemplated under section 166 of the Motor Vehicles Act. However, the factual scenario existed in this case is different, and hence, a different yardstick has to be applied in the present case by deviating from the method that was adopted by this Court in Sujatha’s case (supra). It is to be noted that, in Sujath’s case (supra) , the dependent spouse was getting a family pension, after the death of the deceased therein and that was one of the reasons for making deduction of 50%. In this case, no such situation. Moreover, in Reliance General Insurance Co Ltd v. Raveendran C.K (2024(1) KLT 667), this court specifically considered the question of deduction in the case of death and after referring to Sujatha’s case (supra) it was found that, in such case the deduction should be the standard deeduction of rd 1/3 . Therefore, I am not inclined to accept the contention put forward by the learned counsel for the third respondent in this regard and it is held that a proper deduction can only be one third towards personal expenses. Thus, while reassessing the compensation with the above criteria, the compensation for loss of dependency would come to Rs.7,00,000/- (5000 + 25%) X 12 X 14 X 2/3). The amount already awarded by the Tribunal is `MACA NO. 501 OF 2013` 7 Rs.2,64,000/- and thus the additional compensation would come to Rs.4,36,000/-. 9. The tribunal awarded an amount of Rs.5000/- towards loss of estate, whereas the proper amount should have been is Rs.15,000/- in the light of the National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]. Therefore, a further sum of Rs.10,000/- is awarded. Similarly, the amount awarded towards funeral expenses was only Rs.10,000/- whereas the actual amount was Rs.15,000/-. Accordingly, Rs.5000/- was awarded under this head. 10. The next head which requires consideration is loss of consortium. The appellant being the husband of the deceased, is entitled to Rs.40,000/- under this head. The amount already awarded by the tribunal is only Rs.10,000/-. Besides the same, the tribunal also granted an amount of Rs.5000/- towards loss of love and affection. It was held in United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760], when compensation for loss of consortium is awarded, no separate amount is to be granted for loss of love and affection. Therefore, the amount awarded by the Tribunal for loss of lvie and affection, can be adjusted towards the amount awarded for `MACA NO. 501 OF 2013` 8 loss of consortium. This would result in an additional compensation of Rs.25,000/- under the said head. Accordingly, the total additional compensation is determined as Rs.4,76,000/(Rupees Four lakhs seventy six thousand only) (4,36,000 + 25,000 + 10,000 + 5000). In the light of the aforesaid observations and findings, this appeal is allowed, the award dated 25.08.2012 in OP(MV)No.804/2007 passed by the Motor Accidents Claims Tribunal, Thalassery is hereby modified by granting an additional compensation of Rs.4,76,000/- (Rupees Four Lakhs Seventy Six thousand only). The third respondent is directed to deposit the said amount along with interest @ as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV