Ramani and Others v. Dalu John and National Insurance Company 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. 3420 OF 2016`** ``` AGAINST THE AWARD DATED 15.12.2015 IN OP(MV)NO.1465/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1RAMANI, W/O LATE KUTTAN, KIDANGETH HOUSE, URUMBANKUNNU DESOM, PERAMBRA VILLAGE. ``` - `2 RAKHI, D/O LATE KUTTAN, KIDANGETH HOUSE, URUMBANKUNNU DESOM, PERAMBRA VILLAGE.` - `3 MURUGAN, S/O LATE KUTTAN, KIDANGETH HOUSE, URUMBANKUNNU DESOM, PERAMBRA VILLAGE.` - `4 RANJI, D/O LATE KUTTAN, KIDANGETH HOUSE, URUMBANKUNNU DESOM, PERAMBRA VILLAGE.` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTD/RESPONDENTS 2 & 3:`** ``` 1DALU JOHN, CHERAPARAMBIL HOUSE, KOOVAPADY P.O, PERUMBAVOOR 683 544. ``` ``` 2NATIONAL INSURANCE COMPANY LTD, NELLAI COMPLEX, NORTH OF IRON BIDGE, ALAPPUZHA 688 001. ``` ``` SMT.DEEPA GEORGE FOR R2 ``` ``` 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. 3420 OF 2016` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 3420 of 2016 th Dated this the 30 day of January, 2024 ## JUDGMENT The appellants are the petitioners in OP(MV)No.1465/2011 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. 2. The said claim petition was submitted by the appellants seeking compensation for the death of one Ranjith, due to the injuries sustained to him in a motor accident that occurred on 28.05.2011. The accident occurred when the autorickshaw driven by him was hit by a tourist bus bearing registration No.KL-4-W-1881, driven by the first respondent in a rash and negligent manner. The second respondent was the owner of the said vehicle and it was insured with the third respondent. According to the appellants, the deceased was aged 26 years at the time of the accident and he was an autorickshaw driver. He was also a professional football player. He also participated in State and National level competitions. The monthly income claimed was Rs.20,000/-. The deceased was the son of the first appellant and the brother of the `MACA NO. 3420 OF 2016` 3 appellants 2 to 4. The claim petition was submitted in such circumstances. 3. The third respondent alone resisted the claim by filing a written statement. They denied the negligence on the part of the driver of the tourist bus. However, they admitted the coverage of policy. The quantum of compensation was seriously disputed. 4. The evidence in this case consists of Exts.A1 to A16 from the side of the appellant and no evidence was adduced from the side of the respondents. 5. After the trial, the Tribunal came to the conclusion that, the accident occurred due to the negligence on the part of the first respondent in driving the bus and being the insurer of the said vehicle, the third respondent-Insurance Company was held liable to pay the compensation. The quantum of compensation was fixed as Rs.9,35,000/- (Rupees nine lakhs thirty five thousand only) and the third respondent was directed to deposit the said amount along with interest @ 8% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. `MACA NO. 3420 OF 2016` 4 6. Heard Adv.Sri.S.N.Santhosh, the learned counsel appearing for the appellants and Adv.Smt.Deepa George, the learned counsel appearing for the second respondent-Insurance Company. 7. The only question that arises for consideration is whether the amount awarded by the tribunal is reasonable or not. When considering the quantum of compensation fixed by the tribunal, I find that under the head of loss of dependency, a meagre amount was awarded. The learned counsel for the third respondent pointed out that, on several heads, such as funeral expenses, pain and suffering, loss of love and affection and, shock and anxiety etc.., excess amounts were awarded by the tribunal. 8. As far as the amount awarded under the head of loss of dependency is concerned, it is to be noted that the tribunal assessed the compensation by fixing the monthly income as Rs.5000/-, which appears to be on the lower side. Evidently, he was an autorickshaw driver and the fact that at the time of the accident, he was driving the autorickshaw clearly establishes the same. Besides the same, he was a graduate, as discernible from Ext.A6 and Exts.A8 to A16 certificates clearly established `MACA NO. 3420 OF 2016` 5 that he was a professional football player who participated in various events at the State and National level competitions. Of course, it is true that there is no evidence adduced to substantiate the monthly income which he used to earn. However, when the method of computation of monthly income is adopted, as per the principles laid down in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] and Syed Sadiq V. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], it can be seen that even for an ordinary worker, the monthly income could be fixed as Rs.4500/- for the accident occurred in the year 2004. The usual method that is adopted is to determine the monthly income for the subsequent years, is to make an addition to Rs.500/- per year . If that be so, for an ordinary worker, the monthly income for the year 2011 can be fixed as Rs.8000/-. However, in this case, there is evidence that he was a professional football player, and he was a graduate as well. Therefore, possibility of he getting good employment with a higher income could not have been ruled out. As he died at the age of 26 years it resulted in great loss to the dependents. Therefore, I am of the view that a slightly higher monthly `MACA NO. 3420 OF 2016` 6 income should have been taken by the tribunal, and in the facts and circumstances of the case, I deem it appropriate to fix it at Rs.10,000. 9. As the deceased was only 26 years old, 40% of the monthly income is to be added towards personal expenses, and at the same time 50% is to be deducted as he died as a bachelor. The multiplier applicable is '17'. Thus, while reassessing the compensation with the revised criteria, the quantum of compensation for loss of dependency would come to Rs.14,28,000/- [(10,000+40%) x 12 x 17 x 1/2]. The amount already awarded by the Tribunal under this head is Rs.7,65,000/- and thus the additional compensation comes to Rs.6,63,000/-. 10. Besides the same, a further amount of Rs.5,000/- is awarded towards loss of estate as the amount awarded by the Tribunal under this head was only Rs.10,000/-. 11. The learned counsel for the 3rd respondent/insurer, points out that the tribunal awarded excess compensation in funeral expenses, which was 25,000/- whereas the proper amount in the light of National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] was Rs. 15,000/-. `MACA NO. 3420 OF 2016` 7 Therefore, Rs.10,000/- is ordered to be deducted. Similarly, towards pain and suffering, an amount of Rs.25,000/- is granted. It is discernible from the records that the death of the deceased was an instantaneous one; therefore, only a notional amount needs to be granted. Therefore, it is refixed as Rs.10,000/- and this would result in a reduction of Rs.15,000/-. The tribunal awarded a further amount of Rs.25,000/- under the head of shock and anxiety, whereas the same was not warranted, considering the other amounts awarded under the other heads. This is directed to be deleted. Similarly, the tribunal awarded a further sum of Rs.80,000 towards the loss of love and affection. In the light of United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780] and Magma General Insurance Co.Ltd. v. Nanu Ram & Others [2018 (3) KLT Online 3095 (SC)] , the 1st appellant being the mother of the deceased was entitled to compensation for loss of consortium at the rate of Rs.40,000/-. It is also held in Satinder Kaur (supra) that when compensation is awarded for loss of consortium, no further amount needs to be granted for loss of love and affection. Therefore, the same has been readjusted as Rs.40,000/- under the head of loss of consortium. `MACA NO. 3420 OF 2016` 8 This would result in a reduction of Rs. 40,000/-. Thus, the total additional compensation would come to Rs.5,78,000/– [(6,63,000+5,000) (10,000+25,000+40,000+15,000)]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 15.12.2015 passed by the Motor Accidents Claims Tribunal, Irinjalakuda, in O.P(M.V) No.1465/2011 is hereby modified by granting an additional compensation of Rs.5,78,000/- (Rupees five lakh seventy eight thousand only) and the said amount shall be deposited by the rd 3 respondent with interest at the rate as ordered by the Tribunal and with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. **==> picture [25 x 12] intentionally omitted <==** ZIYAD RAHMAN, A.A, JUDGE rpk/R.AV