Reliance General Insurance Co. Ltd. v Kanakamma and Sasidharan A.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938** ## **MACA.No. 1361 of 2012 ()** **------------------------OPMV. NO.421/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA. .......** **APPELLANT/3RD RESPONDENT:** **------------------------------------------------** **RELIANCE GENERAL INSURANCE CO. LTD., THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM.** ## **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA).** **RESPONDENTS/PETITIONER:** **--------------------------------------------** **1. KANAKAMMA, W/O. SASIDHARAN, ALACKAL KUNNEL HOUSE, AMBARANIRAPPEL, MEENACHIL TALUK, PIN-689 001.** **2. SASIDHARAN A.K., S/O.KESAVAN, ALACKAL KUNNEL HOUSE, AMBARANIRAPPEL, MEENACHIL TALUK, PIN-689 001.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19-07-2016, ALONG WITH MACA NO.2008 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. **P.N.RAVINDRAN & A.MUHAMED MUSTAQUE, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.Nos.1361 & 2008 of 2012 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 19[th] day of July, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ These appeals arise from the award passed by the Motor Accidents Claims Tribunal, Pala on 22.3.2012 in O.P.(M.V.) No.421 of 2001. The appellant in M.A.C.A.No.1361 of 2012 is the third respondent and the appellants in M.A.C.A. No.2008 of 2012 are the claimants therein. The claimants in O.P.(M.V.) No.421 of 2009 are the parents of late Sudeesh, a carpenter by profession, who sustained fatal injuries in a motor accident that took place on 7.2.2009. The claimants had in the claim petition averred that the victim of the accident was a carpenter earning a monthly income of Rs.8,000/-. They had claimed in all the sum of Rs.8,00,000/- as compensation under various heads. After considering the rival contentions, the Motor Accidents Claims Tribunal held that the accident took place on account of the negligence of the first respondent, driver. The tribunal thereafter awarded a total sum of Rs.2,94,056/- as compensation as shown below: ## **M.A.C.A Nos.1361 & 2008 of 2012** ## **-:2:-** |**Sl.No**.|**Heads of claim**|**Amount**<br>**awarded**<br>**(in Rupees)**<br>**`**| |---|---|---| |1|Transportation to hospital|1,500/| |2|Damage to clothing|500/-| |3|Extra-nourishment|2,000/-| |4|Medical expenses|13,556/| |5|Bystander expenses|500/-| |6|Funeral expenses|2,500/-| |7|Loss of dependency|2,56,000/-| |8|Pain and suffering|7,500/-| |9|Loss of Estate|5,000/-| |10|Loss of love and affection|5,000/-| ||Total|2,94,056/-| 2. In view of the fact that the third respondent insurer had not pleaded or proved breach of policy conditions, the policy being admitted, it was directed to satisfy the award. The claimants have dissatisfied with the quantum of compensation awarded by the tribunal, filed M.A.C.A.No.2008 of 2012. The insurer has, as stated above, filed M.A.C.A.No.1361 of 2012 mainly contending that as the victim was a bachelor, one half of the monthly income should have been deducted for personal expenses instead of one third, as was done by the tribunal. 3. We heard Smt.K.S.Santhi, learned counsel appearing for the insurer and Sri.Anil Aby Jose, learned counsel appearing for the ## **M.A.C.A Nos.1361 & 2008 of 2012** ## **-:3:-** claimants. The claimants are the parents of a 26 year old carpenter. They had in the claim petition averred that he was earning a monthly income of Rs.8,000/- and that he had taken a loan to renovate the house where they are residing. The mother of the victim, the first claimant was examined as PW1. She had in the affidavit filed by her in lieu of chief examination stated that the victim was employed as a carpenter and was earning a monthly income of more than Rs.8,000/-. The tribunal has on the reasoning that there is no documentary evidence to show that the victim was earning a monthly income of Rs.8,000/- estimated his income as Rs.4,000/- per month. The tribunal, thereafter proceeded to award compensation for loss of dependency and in that process, it took into account the age of the mother for the purpose of selecting the multiplier. The tribunal however deducted only one third of the monthly income thus arrived by it for computing the compensation payable under the head loss of dependency. In our opinion, as the testimony tendered by PW1, the mother of the victim was in consonance with the statement in the claim petition and there was no serious challenge to her testimony, the tribunal ought to have taken the monthly income of the victim as Rs.4,500/-. It is now well settled by a series of decisions of the Apex Court, including the decision in **Rajesh v.Rajbir Singh** [2013 (3) KLT ## **M.A.C.A Nos.1361 & 2008 of 2012** ## **-:4:-** 89 (SC)] that even in the case of persons in the unorganized sector, future prospects can be taken into account. It is also now well settled by a series of decisions of the Apex Court that for selecting the multiplier, the age of the victim has to be taken into account. Since the victim in the instant case was aged below 40 years, 50% of his monthly income has to be taken into account for the purpose of computing future prospects. As the victim was a bachelor, 50% of his monthly income will have to be deducted towards personal expenses. Computed applying the aforesaid principles, the compensation payable to the claimants under the head loss of dependency will be Rs.4,500x150%=Rs.6750x12x17x1/2=Rs.6,88,500/-. The tribunal has in the instant case awarded only Rs.2,56,000/-. We accordingly award to the appellants/claimants an additional compensation of Rs.4,32,500/- under the head loss of dependency. 4. The tribunal has awarded to the claimants only Rs.2,500/as compensation under the head funeral expenses. The Apex Court has in **Rajesh v.Rajbir Singh's** (supra) held that in the absence of evidence to the contrary for higher expenses, a minimum amount of Rs.25,000/- should be awarded under that head. We, accordingly award an additional sum of Rs.22,500/- as compensation under the head funeral expenses. The tribunal has awarded to the unfortunate ## **M.A.C.A Nos.1361 & 2008 of 2012** ## **-:5:-** parents of the victim of a motor accident, only Rs.7,500/- as compensation under the head pain and suffering. The Apex Court and this court has a rule of the thumb been awarding Rs.10,000/- as compensation under that head. We accordingly award a further sum of Rs.2,500/- as compensation under the head pain and suffering. The tribunal has awarded only Rs.5,000/- as compensation under the head loss to the estate. It has come out in evidence that the victim had taken a loan from State Bank for the purpose of renovating his house. It has also come out in evidence that he was gainfully employed as a carpenter, and was aged only 26 years. We are therefore of the opinion that on a modest estimate, the sum of Rs.10,000/- can be awarded under the head loss to the estate. We accordingly award a further sum of Rs.5,000/- as compensation under the head loss to the estate. The tribunal has awarded only Rs.5,000/- as compensation for loss of love and affection to the parents of a 26 year old victim. Taking the cue from the decision of the Apex Court in **Amrit Bhanu Shali and Others v. National Insurance Company Ltd. and others** [(2012) 11 SCC 738], we award to the appellants a further sum of Rs.95,000/- as compensation under the head loss of love and affection. The compensation awarded under the other heads does not in our opinion call for any enhancement. ## **M.A.C.A Nos.1361 & 2008 of 2012** ## **-:6:-** We accordingly allow M.A.C.A.No.2008 of 2012 in part and award to the appellants/claimants an additional compensation of Rs.4,32,500 + Rs.22,500/- + 2,500 + Rs.5,000 + Rs.95,000 = Rs.5,57,500/-. The third respondent insurer shall deposit the said amount together with interest at 9% per annum from the date of petition till the date of deposit within three moths from today. Upon such deposit bing made, the amount deposited shall be kept in fixed deposit in the joint name of the claimants. The claimants shall within a period of two months from today file an affidavit before the Motor Accidental Tribunal and state whether the loan availed by the victim to renovate their house has been repaid. If the loan has not been repaid, the amount deposited pursuant to this judgment shall be used to defray the expenses for repayment of that loan and the balance amount if any shall be kept in fixed deposit in the joint names of the parents of the victim for a period of two years with a provision to withdraw the interest accruing on the said deposit every quarter. As regards M.A.C.A.No.1361 of 2012, though we are of the opinion that the tribunal committed an error in deducting only one third of the monthly income of the victim towards his personal expenses, there is no scope for interference with the impugned award at the instance of the insurer, since we have in M.A.C.A.No.2008 of 2012 held that over ## **M.A.C.A Nos.1361 & 2008 of 2012** ## **-:7:-** and above the compensation awarded by the tribunal, the claimants are entitled to a further sum of Rs.5,57,500/- as compensation. No relief can therefore be granted in M.A.C.A.No.1361 of 2012. It is accordingly closed. The parties shall bear their respective costs in this court. ## **P.N.RAVINDRAN JUDGE** **A.MUHAMED MUSTAQUE** **JUDGE** **jm/**