Reliance General Insurance Company Limited v. Sreelekha and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 29[TH] DAY OF JULY 2021 / 7TH SRAVANA, 1943 MACA NO. 2189 OF 2017** **AGAINST THE AWARD DATED 17.02.2017 IN OP(MV)NO.374/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA, ALAPPUZHA APPELLANT/3RD RESPONDENT:** **RELIANCE GENERAL INSURANCE COMPANY LIMITED, KOCHI NOW REPRESENTED BY ITS LEGAL-CLAIMS MANAGER, REGIONAL OFFICE, KOCHI 682 020.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 SREELEKHA, AGED 46, W/O.LATE DEVARAJAN POTTI, MOZHOOR, DEVIKA, KARALAKAM WARD, THATHAMPALLI PO, ALAPPUZHA, PIN 688 013.** **2 DEVIKA RAJ AGED 16 (MINOR), D/O.LATE DEVARAJAN POTTI, MOZHOOR, DEVIKA, KARALAKAM WARD, THATHAMPALLI PO, ALAPPUZHA, PIN 688 013.** **3 DEVANARAYANAN, AGED 12 (MINOR), D/O.LATE LATE DEVARAJAN POTTI, MOZHOOR, DEVIKA, KARALAKAM WARD, THATHAMPALLI PO, ALAPPUZHA, PIN 688 013.** **4 SREENIVASAN POTTI, AGED 73, S/O.SUBBARAYAN POTTI, SABARI NIVAS, MARUTHORVATTOM, CHERTHALA, PIN 688 545.** M.A.C.A.No.2189/2017 -:2:- **5 KAMALAKSHI AMMAL, AGED 69, W/O.SREENIVASAN POTTI, SABARI NIVAS, MARUTHORVATTOM, CHERTHALA, PIN 688 545.** **(MINOR RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR NEXT FRIEND - MOTHER 1ST RESPONDENT)** **BY ADVS.SRI.ARUN BOSE** **SRI.B.BIPIN SRI.R.REJI SRI.M.V.THAMBAN SMT.THARA THAMBAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2189/2017 -:3:- Dated this the 29[th] day of July,2021 ## **J U D G M E N T** The appellant-insurer-was the third respondent in O.P (MV) No.374/2010 on the file of the Motor Accidents Claims Tribunal,Alappuzha. The respondents in the appeal were the petitioners before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 'Devarajan Potti @ Raju Thirumeni'(deceased)-the husband of the first petitioner, the father of the M.A.C.A.No.2189/2017 -:4:- petitioners 2 and 3 and son of the petitioners 4 and 5. 3. The petitioners had averred in the claim petition that on 05.02.2010, while the deceased was riding his motorcycle through the Alappuzha-Cherthala road, when he reached the Pathirappally North Junction, he was knocked down by a motor car bearing registration No.KA-03/ML 5454(car), driven by the second respondent in a rash and negligent manner. The deceased succumbed to his injuries on the spot. The deceased was 42 and was a years of age Devaswom Shanthi under the Assistant Devaswom Commissioner, Amalappuzha Group. He was the sole breadwinner of the family and was survived by the petitioners, who were dependant on him. The car was owned by the first respondent and insured with the third respondent. The petitioners claimed a total compensation of Rs.25,62,750/- from the respondents. 4. The respondent Nos.1 and 2 did not contest the proceedings and were set _ex parte_ . M.A.C.A.No.2189/2017 -:5:- 5. The third respondent filed a written statement, admitting that the car had a valid insurance coverage. However, it was contended that the accident occurred on account of the negligence on the part of the deceased and that the amount of compensation claimed by the petitioners was on the higher side. 6. The petitioners examined PW1 and Exts.A1 to A8 were marked in evidence. The third respondent produced Ext.B1, copy of the insurance policy and marked it in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the petitioners to realise an amount of Rs.22,83,460/- with interest and costs. The third respondent was directed to pay the compensation amount. 8. Aggrieved by the impugned award, the insurer is in appeal. 9. Heard; Adv.Sri. Mathews Jacob, the learned M.A.C.A.No.2189/2017 -:6:- senior counsel appearing for the appellant/third respondent and Adv.Sri.Arun Bose, the learned counsel appearing for the respondents. 10. The sole disputed question in the appeal is now is whether the compensation awarded by the Tribunal under the conventional heads justifiable or not? 11. Ext.A5, charge-sheet filed by the police proves that the accident occurred solely on account of the negligence of the second respondent. Admittedly, the car was owned by the first respondent and insured with the third respondent. Therefore, the third respondent is to indemnify the first respondent of his liability that has arisen due to the accident. 12. The petitioners had claimed that the deceased was working as a Devaswom Shanthi under the Assistant Devaswom Commissioner, Amalappuzha Group. The petitioners produced Ext.A8, salary certificate, which was proved through PW1. It was M.A.C.A.No.2189/2017 -:7:- brought on record that the deceased was earning a monthly income of Rs.11,892/-. The Tribunal, accepting the said income as the salary of the deceased fixed the compensation for 'loss of dependency' at Rs.19,47,960/-. The said assessment is now not disputed by the learned Senior Counsel in view of the settled position of law by the Honourable Supreme Court. 13. The Tribunal arrived at the said figure, taking note of the age of the deceased who was aged 42 years as on the date of his death, the relevant multiplier at '14' , the 'future prospects' at 30% and deducted ¼[th] towards personal living expenses of the deceased, which is perfectly justifiable and correct in the light of the law laid down in _**Sarala Varma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)] and _**National Insurance Company Ltd. v. Pranay Sethi**_ [(2017) 16 SCC 680]. 14. The disputed area is with regard to the M.A.C.A.No.2189/2017 -:8:- compensation awarded under the conventional heads and the compensation awarded under the head 'pain and sufferings'. ## **Conventional heads of compensation:** 15. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 16. In the instant case, the Tribunal has awarded Rs.25,000/- under the head 'funeral expenses' and failed to award any amount under the head 'loss of estate'. Therefore, I modify the compensation by holding that the petitioners are entitled for Rs.15,000/each under the aforesaid heads, totalling to an amount of Rs.30,000/- M.A.C.A.No.2189/2017 -:9:- ## **Loss of consortium:** 17. It is seen that the Tribunal has awarded an amount of Rs.1,00,000/-under the head 'loss of consortium'. Admittedly, the petitioners are the wife, children and parents, who were all dependant on the deceased. Therefore, they are entitled to Rs.40,000/each under the heads 'spousal consortium', 'parental consortium' and 'filial consortium'. Accordingly, I award an amount of Rs.2,00,000/- under the said head of 'loss of consortium'. ## **Compensation for pain and sufferings and loss of love and affection:** 18. In _**United India Insurance Company Ltd. v. Satinder Kaur and others**_ [2020(3)KHC 760], the Hon'ble Supreme Court has held that the dependants of the deceased are not entitled for compensation under the head 'pain and sufferings'. Accordingly, I set aside the amount of Rs.5,000/- awarded under the said head. M.A.C.A.No.2189/2017 -:10:- 19. This Court in _**Kunjandy.L and others v. Rajendran and Others**_ [2020 (2) KLT 315], has held that once compensation is awarded under the head 'loss of consortium', no amount of compensation can be awarded under the head 'loss of love and affection', as it would amount to overlapping of payment of compensation. In such circumstances, I set aside the amount of Rs.2,00,000/- awarded under the head 'loss of love and affection'. 20. With respect to the amount of compensation awarded under the heads 'transport expenses' and 'damage to clothing', I find the same to be reasonable and just, which I confirm. 21. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the compensation awarded under the impugned award has to be modified as re-calculated above and given in the table below for easy reference. M.A.C.A.No.2189/2017 -:11:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Transport<br>expenses|5,000|5,000| |2|Damage<br>to<br>clothing|500|500| |3|Funeral expenses|25,000|15,000| |4|Loss of estate|Nil|15,000| |5|Compensation for<br>pain and sufferings|5,000|Nil| |6|Compensation for<br>loss of love and<br>affection|2,00,000|Nil| |7|Compensation for<br>loss consortium|1,00,000|2,00,000| |8|Compensation for<br>loss of dependency<br>in futureprospects|19,47,960|19,47,960| ||**Total**|**22,83,460**|**21,83,460**| 22. The learned senior counsel appearing for the appellant argued that in the light of the law laid down in _**Tamil Nadu State Transport Corporation Ltd. v.**_ _**S.Rajapriya & Ors.**_ [(2005)6 SCC 236], the Tribunal ought to have only awarded a maximum interest of M.A.C.A.No.2189/2017 -:12:- 7.5% per annum on the compensation amount. Nevertheless, in the impugned award interest at the rate of 9% has been awarded on the compensation amount, which is unjustifiable. Therefore, the interest portion may also be reduced. 23. Keeping in mind the ratio in the afore-cited decision, I am inclined to scale down the interest to 7.5% per annum on the total compensation amount. In the result, the appeal is allowed in part by ordering that the respondents/petitioners are only entitled to a total compensation of Rs.21,83,460/-, instead of Rs.22,83,460/-, with interest at the rate of 7.5% per annum from the date of petition till the date of deposit and proportionate costs. Needless to state that if the appellant/insurer has already deposited any amount before the Tribunal, the same shall be given credit to and the appellant need only deposit the balance amount that is due as ordered in this judgment before the Tribunal within a period of thirty M.A.C.A.No.2189/2017 -:13:- days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation amount to the respondents/petitioners in proportion and as per the conditions in the impugned award. The petitioners would be at liberty to move the Tribunal for withdrawal of the entire amount, if there is any compelling need, and the same shall be considered by the Tribunal in accordance with law. All pending interlocutory applications will stand ## closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge