Raheem and Others v. The Oriental Insurance Company Ltd and Bichipathu W/o Late Marakkar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 MACA NO. 2594 OF 2017** **OPMV.NO.50/2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **KOZHIKODE** ## **APPELLANTS/PETITIONERS:** - **1 RAHEEM, S/O MUHAMMEDKUTTY, 50 YEARS, THIRUNILAMPARAMBU, KARUNTIYIL PARAMBU, P O KOLATHARA, KOZHIKODE.** - **2 SAFEER, S/O RAHEEM, 24 YEARS, THIRUNILAMPARAMBU, KARUNTIYIL PARAMBU, P O KOLATHARA, KOZHIKODE.** - **3 SALEEK, S/O RAHEEM, 23 YEARS, THIRUNILAMPARAMBU, KARUNTIYIL PARAMBU, P O KOLATHARA, KOZHIKODE** - **4 SHAHLA, D/O RAHEEM, 21 YEARS, THIRUNILAMPARAMBU, KARUNTIYIL PARAMBU, P O KOLATHARA, KOZHIKODE** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SRI.S.JAYAKUMAR SMT.LEKSHMI SWAMINATHAN SMT.MARIAN G.M.THARAKAN** ## **RESPONDENTS/RESPONDENTS 3 & 4:** **1 THE ORIENTALINSURANCE COMPANY LTD DIVISIONAL OFFICE, PALAKKAD, SHOBHA TSM COMPLEX, R.S ROAD, (OPP.TOWN RAILWAY STATION), PALAKKAD-678601** M.A.C.A.No.2594 of 2017 2 **2 BICHIPATHU W/O LATE. MARAKKAR, 61 YEARS, VALAPPIL HOUSE, P.O.BEYPORE, KOZHIKODE-673015.** **BY ADV SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2021, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING:** M.A.C.A.No.2594 of 2017 3 ## **SOPHY THOMAS, J.** **-------------------------------------------------** **M.A.C.A.No.2594 of 2017 -------------------------------------------------** Dated this the 23[rd] day of December, 2021 ## **J U D G M E N T** The appellants are the legal heirs of the deceased. They filed O.P(M.V).No.50 of 2013 under Section 140 r/w Section 166 of the Motor Vehicles Act before the Principal Motor Accidents Claims Tribunal, Kozhikode. The deceased was a 43 year old lady and on 13.06.2012 at about 11.30 a.m. while she was walking through the side of Ramanattukara road, she was hit by a lorry causing serious injuries. On 11.07.2012, she succumbed to the injuries. The lorry owned by the first respondent was driven by the 2[nd] respondent, and at the time of accident, it was insured with the 3[rd] respondent Oriental Insurance Company. 2. Respondents 1 and 2 remained ex-parte. The 3[rd] respondent admitted the accident and the policy. The 4[th] respondent is the mother of the deceased. No oral M.A.C.A.No.2594 of 2017 4 evidence was adduced from either side. Exts.A1 to A6 were marked. 3. After analysing the facts and evidence, the Tribunal awarded compensation of Rs.5,11,000/- with interest @ 8% from the date of petition till date of deposit. 4. The petitioners challenged the award mainly on three grounds. The deceased was a 43 year old Tailor, and the Tribunal took her notional income @ Rs.3,500/- though she was actually earning monthly income of Rs.10,000/-. So the loss of dependency assessed by the Tribunal is to be revised. Towards funeral expenses and loss of estate Rs.15,000/- each with 10% hike had to be awarded as per the decision in **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680]** . The bystander expenses was not granted by the Tribunal. 5. The Tribunal found that no evidence was adduced by the petitioners to prove that the deceased was a M.A.C.A.No.2594 of 2017 5 Tailor. Admittedly she was a 43 year old lady. Even if she was treated as a house wife, in the year 2012, going by the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** a notional income of Rs.8,500/- can be fixed. Since she was having dependent family members 5 in number, 1/4[th] has to be deducted towards personal and living expenses. The multiplier applicable is 14 as she was aged 43. So the loss of dependency would be 8500x12x14x3/4=10,71,000/-. Deducting the amount already awarded, i.e., Rs.4,41,000/-, petitioners are entitled to - get Rs.6,30,000/ under the head loss of dependency. 6. Going by **Pranay Sethi** 's case (supra) towards funeral expenses and loss of estate Rs.15,000/- each is to be awarded. Petitioners were awarded only Rs.8000/and Rs.10,000/- respectively towards funeral expenses and loss of estate. So they are entitled to get the difference of Rs.7,000/- towards funeral expenses and M.A.C.A.No.2594 of 2017 6 Rs.5,000/- towards loss of estate. So the enhancement - under those heads will come to Rs.12,000/ . 7. Towards loss of consortium only Rs.10,000/- was awarded by the Tribunal. But the Apex Court in **New India Assurance Company Limited and others v. Somwathi and Others [2020 KHC 6530]** held that in legal parlance consortium is a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. So it is certainly not the law that consortium is only payable as a spousal consortium. Apart from spousal consortium, parental and filial consortium are payable in fatal accident claim. In the case in hand, appellants are spouse and children of the deceased and the second respondent is the mother of the deceased. Going by the decision of the Apex Court, the petitioners as well as M.A.C.A.No.2594 of 2017 7 the second respondent are eligible for loss of consortium @ Rs.40,000/- each. So under the head loss of consortium, the appellants and 2[nd] respondent are entitled to get Rs.40,000/- each amounting to Rs.2,00,000/- in total. When compensation is awarded for loss of consortium, the appellants are not entitled to get any amount for loss of love and affection. So Rs.25,000/- awarded towards loss of love and affection is to be deducted from the award amount. So the balance payable is Rs.1,75,000/-. 8. So the appellants are entitled to get enhanced compensation of Rs.8,17,000/(Rs.6,30,000/+ Rs.12,000/- Rs.1,75,000/-). 9. The 3[rd] respondent Insurer is directed to deposit the enhanced compensation in the Bank account of the appellant with interest at the rate of 9% from the date of petition till the date of deposit, (excluding 1212 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this 8 M.A.C.A.No.2594 of 2017 judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities if any of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is disposed of as above and no order as to costs. Sd/- **SOPHY THOMAS, JUDGE** **AS**