Periyaswamy and others v. A.T. Varghese and New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944** **MACA NO. 3117 OF 2015** **AGAINST THE AWARD IN OPMV 1592/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANTS/PETITIONERS:** 1 PERIYASWAMY, AGED 46 YEARS, S/O.RAMAN, MULAYIVADI P.O., SEEPER COLONY, GANGAAMMEN SWAMY STREET, ATHUR TALUK, SELAM. 2 JAYAKOODI, AGED 43 YEARS, W/O.IYYAKANNU, DOOR NO.64, PERUMAL GOVIL THIRUVA, NARASIMGAPURAM P.O., ATHUR TALUK, SELAM. 3 GOURI, AGED 41 YEARS, W/O.MURUGASAN, MELBHARI STREET-30, ATHUR TALUK, SELAM. 4 SHANTHI, AGED 38 YEARS, W/O.PONNUSWAMY, DOOR NO.13/10, POYAR STREET, CHINNA SELAM P.O., VILLUPURAM DISTRICT. BY ADV SRI.T.K.SAJEEV ## **RESPONDENTS/RESPONDENTS:** 1 A.T.VARGHESE, S/O.TOMY, ARACKAL HOUSE, ALUVA EAST VILLAGE, ASHOKAPURAM KARA, PALLIKKUNNU BHAGOM, ALUVA, ERNAKULAM DISTRICT, PIN-683101. 2 NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, ALUVA, PIN-683101. BY ADV SRI.P.G.GANAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 3117 OF 2015 2 ## **JUDGMENT** This matter is of the year 2015 and has not been admitted. However, both sides are _ad idem_ that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. 2. I, therefore, admit this appeal and proceed to dispose it of finally, with the consent of both sides. 3. The legal heirs of late Raman - who unfortunately died in a road accident on 23.09.2011, when the offending vehicle hit him while he was walking on a road - have approached this Court impugning the Award of the Motor Accidents Claims Tribunal, Perumbavoor, in OP(MV) No.1592/2011, asserting that the compensation awarded thereunder is inadequate. 4. Sri.T.K.Sajeev - learned counsel for the appellants, argued that the main reason why the compensation awarded by the Tribunal is inadequate is because it has taken the notional income of late Raman to be a mere Rs.3,500/-, when his clients had claimed Rs.6,500/-, asserting that he was MACA NO. 3117 OF 2015 3 working as a “coolie”. He argued that merely because the deceased was 70 years old, it does not mean that he was incapable of working, especially since it is discernible that he was without requirement for any assistance and was very able-bodied. He then argued that the denial of compensation under the head 'loss of consortium' to the children of the deceased is unfair because, in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], it has been authorised that an amount of Rs.40,000/- each will be eligible to them towards parental consortium. He thus prayed that this appeal be allowed. 5. In response, Sri.P.G.Ganappan – learned standing counsel for the Insurance Company, submitted that the compensation awarded by the Tribunal is just and fair because the accident happened in 2011 and the fiscal standards of today could not have been applied. He then argued that, in fact, more amounts have been awarded by the Tribunal under the head 'funeral expenses'; while impermissible sums have been awarded under the heads 'pain and suffering' and 'love and affection'. He thus prayed that this appeal be dismissed; however, deleting the afore MACA NO. 3117 OF 2015 4 amounts. 6. I have considered the afore rival submissions on the touchstone of the evidence on record - copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. 7. The first issue that I propose to consider is the adequacy or otherwise of the notional income of the deceased adopted by the Tribunal. It is uncontested that the deceased was 70 years old at the time of the accident and that he was able-bodied. The appellants claimed that he was earning Rs.6,500/- which, I am of the view, should have been reckoned by the learned Tribunal, since, in ## **Ramachandrappa v. Manager, Royal Sundaram Alliance** **Insurance Company Ltd.** [(2011) 13 SCC 236], even in the case of a person whose income is otherwise unascertainable or who was working as a “coolie” in 2011, the minimum figure to be reckoned as the notional income is Rs.8,000/-. I, therefore, see no reason why the learned Tribunal did not accept the figure claimed by the appellants, in the absence of any evidence to show that he was laid up or incapable of MACA NO. 3117 OF 2015 5 working. 8. That said, since the deceased was 70 years at the time of the accident and his unfortunate death, no future prospects can be added; but since all the appellants are selfsupporting and cannot be seen to be financially dependent upon him, the percentile of reduction towards his personal expenses will have to be adopted as being 50%, as if he was a bachelor, going by **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)]. 9. Coming to the question of 'funeral expenses', no doubt that **Pranay Sethi** (supra) authorises only Rs.15,000/-; and obviously, the amount now granted by the Tribunal will have to be reduced. 10. But it has been borne in mind that the learned Tribunal has not awarded any sum under the head 'Loss of Estate', which is sanctioned by **Pranay Sethi** (supra) to a sum of Rs.15,000/-. 11. Further, the compensation awarded by the Tribunal under the heads 'pain and suffering' and 'loss of love and affection' is impermissible, as rightly argued by MACA NO. 3117 OF 2015 6 Sri.P.G.Ganappan, since **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780] settles the legal issue in this regard affirmatively. 12. Finally, on the question of consortium, certainly, each of the appellants is entitled to Rs.40,000/- each, since the deceased was their father. 13. In the afore circumstances, this appeal is allowed in the following manner: (a) The compensation under the head 'loss of dependency' is enhanced to Rs.1,95,000/-, reckoning the notional income of the deceased to be Rs.6,500/- per month and deducting ½ of the same towards his personal expenses. (b) The compensation under the head 'loss of consortium' is granted for a sum of Rs.1,60,000/-, reckoning Rs.40,000/- each in favour of the appellants. (c) The compensation under the head 'Funeral Expenses' is reduced to Rs.15,000/-, from Rs.25,000/- as awarded by the Tribunal, in terms of **Pranay Sethi** (supra). (d) An additional amount of Rs.15,000/- is awarded MACA NO. 3117 OF 2015 7 under the head 'Loss of Estate', in terms of **Pranay Sethi** (supra). (e) The compensation under the heads 'pain and suffering' and 'love and affection' as now awarded by the Tribunal is deleted. In all other respects, the Award of the Tribunal will stand intact. Needless to say, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 9% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/- DEVAN RAMACHANDRAN** ## **JUDGE** stu ## M.A.C.A.No.3117 of 2015 This Court doth order and decree that the 2nd respondent herein/2nd respondent~`''do P/ay the appellants herein/petitioners a sum of { 2,048/-(Ru\pees,Two thousand and forty eight only) being their proportionate costs in this appeal. ## Memo of costs for the aDDellant Court Fee paid : I 1®®/- `.,' Stamp on Vakalath : I 1®/- u~ Senior Advocate's Fee : I 7,375/- (Certified) ¢ Cost incurred in getting L.C judgment and decree : i 2®/-, Petition Fee : I 1®/-,, Process Fee : I 8/Total I 7,523/- Proportionate cost for the appellants in M.A.C.A.No.3117 of 2015 : I 2,®48/- (Rupees Two thousand and forty eight Only) 6,