Rincy Varghese v. Alice Oommen, Arun Abraham Oommen, Branch Manager, United India Insurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939 MACA.No. 2459 of 2014** **AGAINST THE AWARD IN OP(MV) NO.1/2005 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,-I, PATHANAMTHITTA DATED 07-08-2014** **APPELLANT/1ST PETITIONER IN THE O.P.(MV):** **--------------------------------------------** **RINCY VARGHESE,AGED 35 YEARS, W/O LATE ANISH VARGHESE OOMMEN, MANGALASSERIL HOUSE,VAKAYAR.P.O,KONNI,PATHANAMTHITTA DISTRICT. NOW RESIDING AT CHARUVILA PUTHEN VEEDU,PARAKODE NORTH,PUTHUMALA.P.O,PARAKODE,ADOOR.** **BY ADVS.SRI.T.K.BIJU (MANJINIKARA) SMT.ANNIE M.ABRAHAM** **RESPONDENTS/PETITIONERS NO.2 & 3 AND RESPONDENTS IN THE O.P.(MV):-** **-------------------------------------------------------------------** **1. ALICE OMMEN,AGED 59 YEARS, M/O.LATE ANISH VARGHESE OOMMEN,MANGALASSERIL HOUSE, VAKAYAR.P.O,KONNI,PATHANAMTHITTA DISTRICT-689698.** **2. ARUN ABRAHAM OOMMEN,AGED 29 YEARS B/O.LATE ANISH VARGHESE OOMMEN,MANGALASSERIL HOUSE, VAKAYAR.P.O,KONNI,PATHANAMTHITTA DISTRICT-689698.** - ***3. K.O.TITUS (DELETED)** **KANAYATHU HOUSE,NO.396,WARD NO.30, ELAMPAL,PUNALUR-691322.** - ***4. BIJUMON (DELETED),** **S/O.SASI,KAPPITHOTTAM PRAMPOKKIL,NELLIPPALLIL.P.O, PUNALUR-691305.** **DELETED** **--------** **R3 AND R4 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 27.05.2015 IN** **I.A. NO.1665/2015.** **5. THE BRANCH MANAGER,** **UNITED INDIA INSURANCE COMPANY LTD,PUNALUR-691305.** **R5 BY ADV. SRI.MATHEWS JACOB (SR.) R5 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = M.A.C.A.No.2459 of 2014(B)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 21[st] day of February, 2018_ ## **J U D G M E N T** The appellant is the 1[st] petitioner in O.P.(MV) No.1 of 2005 on the files of the Additional Motor Accidents Claims Tribunal-I _(hereinafter referred to as 'the Tribunal'),_ Pathanamthitta and this appeal is filed, challenging the inadequacy of the quantum of compensation determined by the Tribunal under various heads of claim and the apportionment of the compensation among the petitioners made by the Tribunal. The parties are referred to as in the Original Petition. 2. According to the appellant/1[st] petitioner, her husband by name 'Anish Varghese Oommen' met with a motor traffic accident on 12.12.2003 and he sustained grievous injuries, as a result of the accident and succumbed to the injuries on the same day. Petitioners 2 and 3 are the mother and brother **-: 2 :-** ## **M.A.C.A.No. 2459 of 2014(B)** of the deceased 'Anish Varghese Oommen'. After considering the rival pleas and the evidence on record, the Tribunal found that the accident arose out of the use of the offending motor vehicle and the same was caused by the rash and negligent driving of the offending vehicle by the 2[nd] respondent in the Original Petition. Since the offending vehicle was covered under the insurance policy issued to the 1[st] respondent and the 3[rd] respondent Insurance Company was held liable to indemnify the 1[st] respondent by paying compensation to the petitioners. No appeal has been filed, challenging the impugned award and thereby the aforesaid findings attained finality and this appeal is confined to the adequacy and correctness of the quantum of compensation and the correctness of apportionment of the compensation amount among the petitioners made by the Tribunal. ## **M.A.C.A.No. 2459 of 2014(B)** ## **-: 3 :-** 3. Heard the learned counsel for the appellant/1[st] petitioner and the learned Standing Counsel for the Insurance Company. 4. It is contended by the learned counsel for the appellant/1[st] petitioner that the monthly income determined by the Tribunal is very low and inadequate, in view of Exts.A7 to A14 documents produced by the petitioners before the Tribunal. The deceased was aged 26 years only at the time of accident and he was a business man having two business. He was conducting a hardware shop by name 'Mangalassery Hardware' and a bank by name 'Mangalassery Bank'. According to the learned counsel for the appellant, the Tribunal had omitted to look at Exts.A7 to A14, while determining the monthly income of the deceased. So also, it is contended that the quantum of compensation granted under the heads 'loss of estate', 'loss of love and ## **M.A.C.A.No. 2459 of 2014(B)** ## **-: 4 :-** affection' and 'loss of dependency' is inadequate. 5. Per contra, the learned Standing Counsel for the Insurance Company contended that the monthly income determined by the Tribunal is just and fair and there is no reason to interfere with the quantum of compensation determined under the head 'loss of dependency'. Further, it is contended that the amount granted under the head 'loss of consortium' and 'funeral expenses' is exorbitant, in view of the decision of the Supreme Court in _**National Insurance Company Limited v. Pranay Sethi and Others**_ [2017(5) KHC 350 (SC)] and the compensation granted under the said heads requires interference by this Court, if this Court redetermines the compensation. 6. In view of the arguments at the Bar, the main point to be considered is, is the Tribunal justified in determining the monthly income at `4,000/- per month? Going by the impugned award, it ## **M.A.C.A.No. 2459 of 2014(B)** ## **-: 5 :-** could be seen that the petitioners have produced Exts.A7 to A14 documents to substantiate the monthly income of the deceased at the time of accident. It is not disputed that he was running two business by name 'Mangalassery Hardware' and 'Mangalassery Bank'. Ext.A7 is the certificate from Commercial Tax Office, Pathanamthitta, Ext.A8 is the receipt which shows payment of professional tax, Ext.A9 is the receipt of professional tax, Ext.A10 is the tax receipt No.2183 showing payment of tax, Ext.A11 is the copy of Profit and Loss Account (3 Nos.) dated 31.01.2004, Ext.A12 is the statement of accounts, Ext.A13 is the application form for transport operators and Ext.A14 is the copy of Annexure-IX. But, none of the documents were examined by the Tribunal, while determining the monthly income of the deceased. I have meticulously examined the aforesaid documents and found that the deceased was **M.A.C.A.No. 2459 of 2014(B)** ## **-: 6 :-** a young business entrepreneur, who had successfully conducted two business at a time, at the time of his death. Ext.A12 statement of accounts shows the big volume of business. 7. On a combined reading of the aforesaid documents, it could be safely concluded that he was getting more than `4,000/- per month, as net profit from his business. The Tribunal is not justified in omitting Exts.A7 to A14, while determining the monthly income of the deceased. In the above view, the monthly income of the deceased will stand enhanced to `6,000/- per month. 8. Considering the 'future prospects', as per _**Rajesh v. Rajbir Singh**_ [2013 ACJ 1403], 40% of the monthly income would stand added to the monthly income of `6,000/- per month. Thus, `8,400/- is taken as monthly the income of he deceased 'Anish Varghese Oommen' at the time of accident. But,[1] /3 of ## **M.A.C.A.No. 2459 of 2014(B)** ## **-: 7 :-** the said amount would be deducted for his personal living expenses. In the above view, petitioners are given `11,42,400/-(8400 x 12 x 17 x[2] /3), as compensation under the head 'loss of dependency'. Thus, the petitioners are entitled to get an additional compensation of `3,26,400/- under the head 'loss of dependency' i.e., (11,42,400 - 8,16,000). 9. Going by the award, it is seen that `10,000/- is given for 'pain and sufferings' and `1,00,000/- is given for 'loss of love and affection'. I do not find any reason to interfere with the said amount, as the same is just and fair. But, `5,000/- is given as 'compensation for loss of estate'. In view of he decision of the Supreme Court in _**Pranay Sethi**_ 's case (supra), the said amount is inadequate and the same would stand enhanced to `15,000/-. The additional compensation payable for **M.A.C.A.No. 2459 of 2014(B)** ## **-: 8 :-** 'loss of estate' is `10,000/- 10. On the other hand the learned Standing Counsel submits that the Tribunal went wrong by granting `25,000/- for 'funeral expenses' and `1,00,000/- for 'loss of consortium'. According to the learned Standing Counsel, the petitioners were entitled to get `15,000/- only for 'funeral expenses' and `40,000/- only for 'loss of consortium', in view of the decision of the Supreme Court in _**Pranay Sethi**_ 's case (supra). 11. As rightly submitted by the learned Standing Counsel for the Insurance Company, `60,000/- was given is in excess under the head 'loss of consortium', in view of the aforesaid decision: Consequently, the compensation for 'loss of consortium' would stand reduced to `40,000/-. 12. As regards 'funeral expenses', going by the averments in the petition, it is seen that the **M.A.C.A.No. 2459 of 2014(B)** **-: 9 :-** petitioners have specifically averred all the particulars of expenses incurred for 'funeral expenses'. This Court is of the view that even though in _**Pranay Sethi**_ 's case (supra), the Supreme Court held that `15,000/- can be given under the conventional head of 'funeral expenses', in the instant case, the petitioners have succeeded in proving that they have spent an amount more than `15,000/- for 'funeral expenses'. It is specifically stated that an amount of `15,000/- was spent for transporting the dead body to the mortuary at Christian Medical Centre, Pathanamthitta and from there to General Hospital, Pathanamthitta for postmortem, keeping the dead body in mortuary and later on transporting the body from mortuary to the residence of the deceased for funeral. Further more, an amount of `20,000/- was spent for packing the dead body twice and funeral. The said claim is not **M.A.C.A.No. 2459 of 2014(B)** ## **-: 10 :-** specifically disputed by the respondents and the same stands admitted. When the petitioners specifically pleaded and proved `25,000/- spent by them to meet the 'funeral expenses' and the respondents admitted it, there is no reason to interfere with the said amount given to the petitioners as 'funeral expenses'. Thus, the appellant is entitled to get an additional compensation of `2,76,400 (3,26,400 + 10,000 - 60,000). The total compensation payable to the petitioners are `13,34,400/-(10,58,000 + 2,76,400). It is needless to say, the said amount would carry interest as stipulated by the Tribunal. 13. Further, the learned counsel for the appellant contended that the Tribunal went wrong by apportioning the compensation amount equally, without considering age of the dependants and their earning capacity. According to the averments in the **M.A.C.A.No. 2459 of 2014(B)** ## **-: 11 :-** petition, the 1[st] , 2[nd] and 3[rd] petitioners are wife, mother and brother respectively of the deceased 'Anish Varghese Oommen'. The wife, the mother and the brother were aged 25, 49 and 19 years respectively at the time of filing the petition. The mother has no case that she was depending on the deceased son only at the time of accident and she has no other children. The brother has no case that he was also fully depending on the deceased brother and he has no earning capacity at all. He is a major also. But, in the case of wife, she is unemployed and still remains as unmarried. It cannot be expected that the wife would conduct the business successfully, as that of the deceased 'Anish Varghese Oommen' and she may face with difficulty in continuing the business. Thus, having regard to the status and circumstances of each dependants, this Court is of the view that the Tribunal cannot be **M.A.C.A.No. 2459 of 2014(B)** ## **-: 12 :-** justified in apportioning the compensation equally, without considering their status and circumstance surrounded by them. The compensation amount must be apportioned in accordance with the status and living circumstance of each dependants. 14. Consequently, the 5[th] respondent Insurance Company is directed to deposit the aforesaid amount excluding the payment, if any made against the interim award, if such an award was granted under Section 140 of the Motor Vehicles Act, 1988, within two months from today, whereupon an amount of `10,00,000/- ought to be released to the 1[st] petitioner forthwith, on her application and the balance to be invested in their names in a nationalised bank for a term of three years. The released amount shall be apportioned at the rates given below: _60% of the said amount shall be given to_ ## **M.A.C.A.No. 2459 of 2014(B)** ## **-: 13 :-** _the 1[st] petitioner and the remaining shall be apportioned equally between the 2[nd] and 3[rd] petitioners._ This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL** **JUDGE** DST //True copy// P.A. To Judge