Radha and others v. Bajaj Allianz General Insurance Company Ltd.

_**MACA. No.2949/2016**_ _**1**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17453 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` TUESDAY, THE 18[TH] DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946 MACA NO. 2949 OF 2016 ``` ``` AGAINST THE AWARD DATED 24.03.2012 IN OPMV NO.462 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1RADHA AGED 62 YEARS, W/O KUTTYCHAMI, ``` ``` 2RAVEENDRAN @ RAVICHANDRAN AGED 43 YEARS, S/O KUTTYCHAMI, ``` - **`3 PRABHAKARAN`** ``` AGED 40 YEARS, S/O KUTTYCHAMI, ``` ``` APPELLANTS ARE RESIDING AT PADAPADAM HOUSE, PADINJATTUMURI, PAZHAMBALACODE P.O. PALAKKAD DIST. ``` ## **`BY ADV. SRI.BABY MATHEW`** ## **`RESPONDENT/RESPONDENT:`** ``` BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD 3RD FLOOR, FINANCE TOWER, KALOOR, COCHIN- 682 017 INSURER OF EICHER LORRY REG NO.KL-8/AK-7543 (POLICY NO.OG-09-1607-1803-00000407) ``` ``` BY ADVS. RINU S ASWAN GOPIKA H.H(K/1398/2020) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**MACA. No.2949/2016**_ _**2**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17453`** ## J U D G M E N T Dated this the 18[th] day of February, 2025 The petitioners in O.P.(M.V.) No.462/2009 on the file of the Motor Accident Claims Tribunal, Palakkad are the appellants herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The O.P. was filed under under Section 166 of the Motor Vehicles Act, 1988, by the wife and children of the deceased by name Kutty Chami, who died in a motor vehicle accident that occurred on 19.1.2009. According to them, on 19.1.2009 at about 6.45 a.m., while the deceased was walking along the road after selling milk to the milk society at Pazhambalacode, a lorry bearing registration No.KL-8AK7543 driven by the 2[nd] respondent in a rash and negligent manner hit him down and as a result of which he sustained serious injuries and he succumbed tot he injuries on the same day. 3. The 1[st] respondent is the owner, the 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. _**MACA. No.2949/2016**_ _**3**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17453`** According to the petitioners, the accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. was Rs.2,50,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of documentary evidence Exts.A1 to A8. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs.1,27,000/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners preferred this appeal. 8. Now the point that arises for consideration is the following: - _Whether the quantum of compensation awarded by the_ _Tribunal is just and reasonable?_ _**MACA. No.2949/2016**_ _**4**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17453`** 9. Heard Sri. Baby Mathew, the learned Counsel appearing for the petitioners/appellants, and Smt. Raji T. Bhaskar, the learned Standing Counsel for the 3[rd] respondent. 10. The Point: In this case the accident as well as valid policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioners is regarding the income of the deceased as fixed by the Tribunal. According to him, the deceased was rearing cows and earning Rs.4,000/- per month, but the Tribunal fixed his monthly income at Rs.2,000/-. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [2011 (13) SCC 236], the notional income of a coolie, during the year 2009 will come to Rs.7,000/-. Therefore, the learned counsel prayed for fixing the notional income of the petitioner at Rs.7,000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. Since the notional income of a coolie, in the year 2009 will come to Rs.7,000/-, in order to award just _**MACA. No.2949/2016**_ _**5**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17453 ``` and reasonable compensation, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in **Ramachandrappa (supra)** , the notional income of the petitioner is liable to be fixed as that of a coolie, at Rs.7,000/-. 12. Since on the date of accident, the deceased was aged 78 years, there is no scope for any future prospects as held in the decision in **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 5, as held in **Sarla Verma v. Delhi Transport Corporation,** [(2009) 6 SCC 121]. Since the deceased was married who left behind 3 dependents, towards personal and living expense, 1/3 of the income is liable to be deducted, as held in **Sarla Verma** (supra). In the above circumstances, the loss of dependency will come to Rs.2,80,000/-. 13. The learned counsel for the petitioner would argue that the Tribunal has not awarded any compensation on the head 'pain and suffering', 'damage to clothing', 'transportation' and also that compensation awarded on the head loss of estate, consortium and dependency are on the lower side. On the other hand the learned _**MACA. No.2949/2016**_ _**6**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17453`** counsel for the the 3[rd] respondent would argue that petitioners 2 and 3 cannot be treated as dependents of the deceased. 14. In **National Insurance Company Ltd. v. Birender** [2020 (2) KLT 182 (SC)], in paragraph 15 the Hon'ble Supreme Court held that: _“15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."_ 15. In the instant case, in addition to the children, the widow is also a claimant. In the above circumstances, even if it is assumed that _**MACA. No.2949/2016**_ _**7**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17453`** petitioners 2 and 3 are not dependents of the deceased, the widow being one of the claimants, she is entitled to claim compensation on the head 'loss of dependency', irrespective of the claim of the petitioners 2 and 3. At the same time, the petitioners being the widow and children of the deceased, all of them are entitled to get compensation on the head 'loss of consortium'. 16. The Tribunal has awarded Rs.5,000/- towards loss of estate, Rs.2,000/- towards funeral expenses and Rs.10,000/- towards love and affection. The Tribunal has not awarded any compensation towards 'loss of consortium'. In the light of the decision in **Pranay Sethi** (supra), the appellants are entitled to get a consolidated sum of Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral expenses, and the dependents are entitled to get a sum of Rs.40,000/-each towards loss of consortium, with an increase of 10% in every three years. Therefore, towards loss of estate and funeral expense they are entitled to get a sum of Rs.18,150/each. Towards loss of consortium, the petitioners together are entitled to get a sum of Rs.1,45,200/-(48,400 x 3). _**MACA. No.2949/2016**_ **==> picture [57 x 57] intentionally omitted <==** _**8**_ ``` 2025:KER:17453 ``` 17. Since compensation for loss of consortium was given, further compensation for love and affection cannot be granted, in view of the decision in **New India Assurance Company Ltd. v. Somwati and Others,** (2020)9 SCC 644. Therefore, the compensation awarded towards love and affection is to be deducted. 18. Towards the head ‘pain and sufferings’, 'transport to hospital' and 'damage to clothing and articles', the Tribunal has not awarded any compensation. The deceased died in this case on the date of the accident. In the above circumstances, I hold that the petitioners are entitled for Rs.25,000/- towards the head 'pain and suffering', Rs.2,000/- towards 'transport to hospital' and Rs.1,000/- towards 'damage to clothing'. 19. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 20. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.4,89,500/-, as modified and recalculated above and given in the table below, for easy reference: _**MACA. No.2949/2016**_ _**9**_ **==> picture [57 x 57] intentionally omitted <==** ## **`2025:KER:17453`** |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded**<br>**by Tribunal (in**<br>**Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of dependency|1,00,000/-|2,80,000/-| |2|Loss of consortium|10,000/-|1,45,200/-| |3|Love and affection|10,000/-|Nil| |4|Loss of estate|5,000/-|18,150/-| |5|Funeral expenses|2,000/-|18,150/-| |6|Pain and suffering|Nil|25,000/-| |7|Transport to hospital|Nil|2,000/-| |8|Damage to clothing& articles|Nil|1,000/-| ||**Total**|**1,27,000/-**|**4,89,500/-**| ||Enhanced Rs.3,62,500/-||| 21. In the result, this Appeal is allowed in part, and the 3[rd] respondent is directed to deposit a total sum of Rs.4,89,500/- (Rupees four lakh eighty nine thousand five hundred only), less the amount already deposited, if any, along with interest @ 8% per annum from the date of the petition till realisation/deposit, excluding interest for a period of 1400 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. 22. On depositing the aforesaid amount, the Tribunal shall _**MACA. No.2949/2016**_ _**10**_ **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:17453 ``` disburse the entire amount to the petitioners, in the ratio fixed by the Tribunal, excluding court fee payable, if any, without delay, as per rules. Sd/C. PRATHEEP KUMAR, JUDGE sou.