Prasanna and Prasannan v. Krishna Kumar, P. Vijayakumar and Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939 MACA.No. 2365 of 2013 AGAINST THE AWARD DATED 09-11-2011 IN OP(MV)NO.975/2007 of MACT ALAPPUZHA APPELLANT(S): ------------ 1 PRASANNA, D/O.RAMANI, CHALINTE PADEETATHIL, KARUVATTA, WARD NO.13, KARUVATTA P.O, ALAPPUZHA. 2 PRASANNAN, S/O.RAMANI, PUTHENPARAMBU, KOTTARAVALAV, HOTTAPPALLY, WARD NO.1V, PURAKKAD, ALAPPUZHA. BY ADV.SRI.T.G.RAJENDRAN RESPONDENT(S): 1. KRISHNA KUMAR, S/O.AEVAN, PATHAYAPURACKAL, CHENGANIYOOR, ANSATHI, 679 102. 2. P.VIJAYAKUMAR, S/O.ACHUTHAN NAIR, SREEDEVI NILAYAM, UMMANERIL P.O, KADAMPUZHIPURAM, OTTAPPALAM 679 101. 3. ORIENTAL INSURANCE CO.LTD., REP.BY ITS BRANCH MANAGER, PALAKKAD 678 008. R3 BY ADV. SRI.M.JACOB MURICKAN BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** ## **M.A.C.A.No.2365 of 2013(E)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 10[th] day of January, 2018_ ## **J U D G M E N T** The appellants are the petitioners in O.P.(MV) No.975 of 2007 of the Motor Accidents Claims Tribunal, Alappuzha. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988 _(hereinafter referred to as 'the M.V. Act')_ claiming compensation for the death of 'Ramani', who is the mother of petitioners 1 and 2. The parties are referred to as in the Original Petition. According to the petitioners, their mother 'Ramani' died in a motor accident caused by Tata Sumo car owned by the 2[nd] respondent, driven by the 1[st] respondent and insured with the 3[rd] respondent. According to them, she was a farm worker aged 57 years. On 22.01.2007, while she was walking through the Kollam-Alappuzha NH road, she was hit by the ## **M.A.C.A.No.2365 of 2013(E)** ## **-: 2 :-** Tata Sumo car bearing No.KL 4E/3356. Though she was taken to hospital, she succumbed injuries suffered by her on the same day itself. The accident was caused by the rash and negligent driving of the Tata Sumo car by the 1[st] respondent and the 2[nd] respondent is vicariously liable to pay compensation to the petitioners for the death of their mother. Since aforesaid Tata Sumo car was insured with the 3[rd] respondent, the 3[rd] respondent is liable to indemnify the 2[nd] respondent. The petitioners claimed an amount of Rs.2,92,000/- towards compensation for the death of the deceased. Respondents 1 and 2 remained _ex parte._ 2. The 3[rd] respondent Insurance Company filed a counter statement, disputing all the averments in the petition; but admitted the insurance coverage of the vehicle. 3. On the rival pleadings, both parties ## **M.A.C.A.No.2365 of 2013(E)** ## **-: 3 :-** adduced evidence and on appreciation of the evidence, the Tribunal passed the impugned award granting a compensation of Rs.2,22,036/- to the petitioners. The inadequacy of the quantum of compensation under various heads of claim are challenged in this appeal filed by the petitioners. 4. Heard the learned counsel for the petitioners and the learned counsel for the respondents. 5. The sum and substance of the arguments advanced by the learned counsel for the petitioners is that the monthly income taken by the Tribunal is not in consonance with the observation laid down by the Hon'ble Apex Court in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236]. So also, it is contended that the amount granted under the heads of claim 'funeral expenses','loss of estate' and 'pain and ## **M.A.C.A.No.2365 of 2013(E)** ## **-: 4 :-** suffering' are also inadequate and disproportionate. 6. Per contra, the learned counsel for the respondent Insurance Company advanced arguments to justify the determination of compensation under different heads of claim. 7. In view of the arguments at the Bar, the sole question that arises for consideration is, is the Tribunal justified in fixing the quantum of compensation under different heads of claim? According to the petitioners, the mother was a coolie worker aged 57 years at the time of death. Though they claim that she was a coolie worker, no evidence was adduced to prove her monthly income from the coolie work. If there is no reliable evidence to prove the monthly income, the Tribunal could have taken notional income as observed by the Hon'ble Apex Court in _**Ramachandrappa v. Manager,**_ **M.A.C.A.No.2365 of 2013(E)** **-: 5 :-** _**Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236]. In the aforesaid decision, the Hon'ble Apex Court held that in the absence of concrete evidence to prove the monthly income of a labourer, Rs.3,500/- to 4,500/- can be taken as the notional income. Having regard to the observation made in the aforesaid decision, the notional income of the deceased can be taken as Rs.4,000/- per month. But, it has come out in evidence from Ext.A3 that she was about 60 years at the time of her death. Considering the said fact,[1] /3 of the monthly income must be deducted for her personal living expense for the remaining period of her life span. After deducting[1] /3, the monthly income would stand fixed as Rs.2,667/-. 8. Further, as pointed out by the learned counsel for the appellant, the amount granted under 'funeral expense', 'pain and sufferings' and 'loss ## **M.A.C.A.No.2365 of 2013(E)** ## **-: 6 :-** of estate' are inadequate, in view of the decision of the Hon'ble Apex Court in _**National Insurance Company v. Pranay Sethi & Ors.**_ [2017(5) KHC 350]. In the instant case, Rs.5,000/- was granted under 'funeral expense', Rs.10,000/- and Rs.5,000/respectively were granted under 'loss of estate' and 'pain and sufferings'. In view of the aforesaid decision, the amount granted under 'funeral expenses', 'loss of estate' and 'pain and sufferings' would stand enhanced and modified to Rs.15,000/- each. 9. Coming to 'loss of dependency', this Court has already found that monthly income of the deceased after deducting the personal living expenses would be Rs.2,667/-. Therefore, the petitioners are entitled to get a total compensation of Rs.2,88,036/-(Rs.2,667x12x9) for 'loss of dependency'. In the above analysis, the total amount **M.A.C.A.No.2365 of 2013(E)** ## **-: 7 :-** of compensation payable to the petitioners under all the heads of claim would stand enhanced to Rs.3,55,036/- (Rs.2000 + 15,000 + 2,88,036 + 20,000 + 15,000 + 15,000)(Rupees three lakhs fifty five thousand and thirty six only) and the award is modified accordingly. 10. If the amount deposited by the Insurance Company is in accordance with the impugned award, the Insurance Company is liable to pay the balance amount only. The remaining portion of the impugned award will stand undisturbed and operative as such. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL** **JUDGE** //True copy// DST P.A. To Judge