Sajeev and Bhavani Amma v. The New India Assurance Co. Ltd. and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 1[ST] DAY OF DECEMBER 2023/10TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 113 OF 2012`** ## **`OPMV 1639/2001 OF ADDITIONAL MOTOR ACCIDENT CLAIMS`** ## **`TRIBUNAL , MAVELIKKARA`** ## **`APPELLANTS/PETITIONERS 3 & 5:`** - `1 SAJEEV, PERUMPALLATHU, PULLIKKANAKKU P.O., PULLIKKANAKKU.` - `2 BHAVANI AMMA, PERUMPALLATHU, PULLIKKANAKKU P.O., PULLIKKANAKKU.` ``` BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SMT.NAVA VARGHESE ``` ## **`RESPONDENTS/RESPONDENTS & 2ND PETITIONER:`** - `1 RAJU, KOYICKAL THARAYIL VEETTIL, PULLIKKANAKU MURI, KRISHNAPURAM-690533.` - `2 VIJAYAN C., KALLECKAL KIZHAKKATHIL, NEAR M.S.M.COLLEGE, KAYAMKULAM-690502.` - `3 THE NEW INDIA ASSURANCE CO.LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, COCHIN682001.` - `4 SREEKUMAR, PERUMPALLATHU, PULLIKKANAKKU P.O., PULLIKKANAKKU-690537.` ``` BY ADVS. P.J.JOE PAUL SRI.RENIL ANTO KANDAMKULATHY ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.113/2012 : 2 : ## JUDGMENT The appellants were the petitioners 3 and 5 in OP(MV) No.1639/2001 on the files of the Motor Accident Claims Tribunal, Mavelikkara. 2. They submitted the aforesaid claim petition along with two other persons, i.e, the mother and grandmother of the appellants. The claim petition was submitted by them seeking compensation for the death of one Vijayakumaran Pillai, who died due to the injuries sustained in a motor accident that occurred on 29.03.2005. The original claimants were the wife, children and the mother of the deceased. The accident occurred when the bicycle ridden by the deceased was hit by an autorickshaw bearing registration No.KL-4B-4015 driven by the 1[st] respondent in a rash and negligent manner. The said autorickshaw was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. During the pendency of the claim petition, the 1[st] and 4[th] petitioners died and the appellants herein filed I.A. No.1049/2001 to implead additional 5[th] respondent, the mother of the deceased, and also to record petitioners 2 and 3 as the legal heirs. M.A.C.A. No.113/2012 : 3 : 3. According to the appellants, the deceased was working as a peon in NSS High School, Pulikkanakku, which was an Aided School. The monthly income claimed was Rs.5,000/-. The claim petition was submitted in such circumstances. 4. The 3[rd] respondent insurance company submitted a written statement admitting the coverage of the policy in respect of the autorickshaw. However, they disputed the negligence as well as the quantum of compensation. 5. The evidence in this case consists of Exts.A1 to A10 from the side of the appellants, and no evidence was adduced from the side of the respondents. After the trial, the tribunal found that the accident occurred due to negligence on the part of the 1[st] respondent in driving the autorickshaw. Therefore, the 3[rd] respondent, the insurer, was held liable to pay the compensation. The quantum of compensation was fixed as Rs.5,17,000/-, but the tribunal deducted 10% of the said award, which was set apart for the 4[th] petitioner. The reason for the same was that, even though the 4[th] petitioner died, no steps have been taken to implead the legal heirs of the said petitioner, and therefore, the claim on her part was abated. Accordingly, an amount of Rs.4,65,300/- was directed M.A.C.A. No.113/2012 : 4 : to be deposited by the 3[rd] respondent insurance company, being 90% of the award with interest at the rate of 7.5% from the date of petition till realization with a cost of Rs.3,000/-. Moreover, the Tribunal also found that violation of policy conditions on the part of the insured and therefore, the 3[rd] respondent was permitted to recover the amount of compensation from the respondents 1 and 2. The appellants submit this appeal in such circumstances seeking enhancement of compensation. 6. Heard Sri. George Varghese Perumpallikuttiyil, the learned counsel appearing for the appellants and Sri. Renil Anto Kandamkulathy, the learned counsel appearing for the 3[rd] respondent insurance company. 7. The main contention put forward by the learned counsel for the appellant is with regard to the quantum of compensation awarded particularly under the head of loss of dependency. It was pointed out that even though the monthly income was correctly taken, the tribunal did not award any amount towards future prospects. Similarly, the tribunal also applied a split multiplier, taking note of the remaining period of his service as a peon and calculated the compensation. According to him, as per the M.A.C.A. No.113/2012 : 5 : observations made by the Hon’ble Supreme Court in Jayasree N and others v. Cholamandalam MS General Insurance Company Ltd. [2021 (6) KHC 163], the compensation has to be calculated on the basis of the income and multiplier applicable with reference to the age of the deceased, at the time of the death and the split multiplier as was adopted by the tribunal would not proper. 8. After considering the materials placed on record, I find force in the said contention. As far as the question of split multiplier is concerned, the position of law in this regard is well settled in Jayasree’s case (supra) , in which it was categorically held that the compensation has to be calculated on the basis of the actual income and multiplier applicable to the age of the deceased. Therefore, the contention of the appellant in this regard is accepted. Another aspect is that the tribunal has not made any additions towards future prospects as well, which is against the principles laid down in National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662]. As the deceased was aged 48 years at the time of the accident and was under regular employment with monthly income, the proper addition was 30%. Similarly, the deduction made by the tribunal towards the personal expenses of the deceased was 1/3. M.A.C.A. No.113/2012 : 6 : However, it is discernible from the award that, the deceased left behind four dependents who were the wife, two children and the mother. Therefore, the proper deduction was 1/4. Thus, while reassessing the compensation with the above-revised criteria, the amount under the head of loss of dependency would come to Rs.7,60,500/- [(5000+30%) x12x13x3/4]. The amount already awarded by the tribunal is Rs.4,72,000/- thus, the total additional compensation would come to Rs.2,88,500/-. 9. When moving on to the other heads, it can be seen that the tribunal has awarded only an amount of Rs.5,000/- under the head of funeral expenses, whereas the actual amount is Rs.15,000/- as per Pranay Sethi’s case . Thus, a further amount of Rs.10,000/- is awarded. Similarly, towards loss of estate, the amount awarded by the tribunal is Rs.3,000/-, whereas it was Rs.15,000/- as per Pranay Sethi’s case. Therefore, a further sum of Rs.12,000/- is awarded under the said head. 11. The next aspect is the compensation for the loss of the consortium. As per Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130] and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur M.A.C.A. No.113/2012 : 7 : [(2021) 11 SCC 780], all the petitioners who were wife, two children and the mother of the deceased were entitled to the compensation for loss of consortium at the rate of Rs.40,000/- each. The tribunal awarded only Rs.15,000/- under the said head. However, in addition to the above, the tribunal awarded a further amount of Rs.20,000/- under the head of loss of love and affection. It is also a well-settled position, as per Satinder Kaur (supra) that, when compensation is awarded for loss of consortium, no separate compensation needs to be granted for love and affection. Therefore, Rs.20,000/- awarded by the tribunal towards love and affection can be set off against the additional compensation granted by this Court under the head of loss of consortium. Thus the additional compensation under the head of loss of consortium would come to Rs.1,25,000/-. In addition to that, a further sum of Rs.5,000/- is awarded towards the pain and suffering suffered by the deceased. Thus, the total additional compensation is determined to be Rs.4,40,500/- (288500 + 10000 + 12000 + 125000 + 5000). In the result, this appeal is allowed. The award dated 15.09.2011 in OP(MV) No.1639/2001 passed by the Motor Accident M.A.C.A. No.113/2012 : 8 : Claims Tribunal, Mavelikkara, is hereby modified by granting an additional compensation of Rs.4,40,500/- (Rupees four lakhs forty thousand five hundred only). However, even though 10% of the total compensation is apportioned by the tribunal towards the 4[th] petitioner, who was no more, her legal heirs were not impleaded in the party array. Therefore, it was held by the tribunal that the claim of her was abated. This Court did not interfere with the said finding and hence the claimants shall be entitled to recover an amount of Rs.3,96,450/-, being 90% of the amount, from the 3[rd] respondent herein with interest at the rate of 7.5% per annum from the date of petition till realization with proportionate costs. However, it is further clarified that since this Court did not interfere with the finding of the tribunal with regard to the violation of policy conditions and the right of recovery granted to the 3[rd] respondent from the registered owner of the said vehicle, the 3[rd] respondent shall be entitled to recover the said compensation from the 1[st] and 2[nd] respondents, subject to the condition mentioned in para 24(5) of the award passed by the Tribunal. Sd/- ZIYAD RAHMAN A.A. JUDGE ncd/