Saraswathi T. and Others v. Aravindakshan K and The Branch Manager, National Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 MACA NO. 3534 OF 2015`** ``` AGAINST THE AWARD DATED 18.10.2014 IN OP(MV) NO.7/2013 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD ``` ## **`APPELLANTS:`** - `1 SARASWATHI T, AGED 30 YEARS, W/O.LATE DIVAKARAN M, KAVITHALAYAM, MUNDAPPALLAM, MALLAM, MULIYAR POST, KASARAGOD DISTRICT.` - `2 JANAKI, W/O.LATE KUNHIKANNAN, KAVITHALAYAM, MUNDAPPALLAM, MALLAM, MULIYAR POST, KASARAGOD DISTRICT.` - `3 VISHNU, AGED 8 YEARS, S/O.LATE DIVAKARAN M, KAVITHALAYAM, MUNDAPPALLAM, MALLAM, MULIYAR POST, KASARAGOD DISTRICT.` ``` BY ADV SRI.KODOTH SREEDHARAN ``` ## **`RESPONDENTS:`** - `1 ARAVINDAKSHAN K, S/O.AMBU K, MEETHAL HOUSE, PERIYA POST, KASARAGOD DISTRICT - 671121` - `2 THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., KASARAGOD BRANCH, KASARAGOD 671121` ``` BY ADV SRI.S.K.AJAY KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 3534/15 2 ## **`JUDGMENT`** Divakaran was unfortunately killed in a road accident on 11.09.2012, when the scooter he was riding was hit by the offending car, driven in a rash and negligent manner. The appellants, who are his wife, mother and son thereupon filed OP(MV) No.7/2013 before the Motor Accidents Claims Tribunal, Kasaragod (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of an amount of Rs.27,20,000/-; but which has been allowed only to an extent of Rs.12,91,327/-. They impugn this Award of the learned Tribunal as being inadequate. 2. Sri.Kodoth Sreedharan – learned counsel for the appellants, argued that the primary reason why the compensation has been fixed low by the learned Tribunal is because it has adopted the notional income of the deceased to be a mere amount of Rs.4,000/- per month, even though Rs.6,000/- had been claimed. He then pointed out that Ramla v. National Insurance Company Ltd. [(2019) SCC 192] declares law affirmatively that in the case of death, even the income cited by the claimants may not MACA 3534/15 3 be conclusive and that the Courts must take a pro-active approach and fix it appositely. He argued that, in such perspective, the declarations of the Honourable Supreme Court in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] would come to play, because it has postulated that, even in the case of a person whose income is otherwise unascertainable, or who is working was a ‘Coolie’, in the year 2012 – when the accident happened – the minimum figure to be adopted is Rs.8,500/-. He added that future prospects at the rate of 40% would also be attracted in this case, since the deceased was only 38 years at the time of death. He concluded his submissions saying that, since the deceased died almost a year after the accident, the compensation awarded by the Tribunal under the heads ‘Extra Nourishment’, ‘Bystander’s Expenses’ and ‘Pain and Suffering’ also deserves to be enhanced to a substantial extent. 3. – Sri.S.K.Ajay Kumar learned Standing Counsel for the Insurance Company, in response, argued that the compensation awarded by the Tribunal is without error and therefore, prayed MACA 3534/15 4 that this Appeal be dismissed. 4. I have considered the afore rival contentions on the touchstone of the evidence on record, which I have analyzed very carefully. 5. I will first deal with the adequacy of the notional income which the learned Tribunal has reckoned in favour of the deceased. 6. The claimants claimed Rs.6,000/- as the monthly income of the deceased, but the Tribunal adopted only Rs.4,000/without assigning any reason. As rightly argued by Sri.Kodoth Sreedharan, Ramla (supra) postulates that, in the case of death, it is not merely the statement of the claimants which is relevant to ascertain the income of the deceased, since they may not be fully aware of it and hence the sub total of the germane inputs will have to be kept in mind. In such scenario, Ramachandrappa (supra) certainly has an impact because, the Honourable Supreme Court has postulated therein that, in the case of a person whose income is otherwise unascertainable, or who was working as a ‘Coolie’, in the year 2011 – when the accident occurred – the MACA 3534/15 5 minimum figure to be adopted is Rs.8,000/- per month. I do not see any reason to deny this to the appellants and therefore, reckon that figure. Obviously, 40% future prospects will have to be added to this and 1/3 to be reduced as personal expenses. 7. Coming to other heads, I notice that the Tribunal has awarded Rs.25,000/- under the head ‘Funeral Expenses’ and has disallowed compensation for ‘Loss of Amenities’. National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662] authorises Rs.15,000/- under both these heads and this Court will certainly have to modify the same accordingly. 8. As far as compensation under the heads ‘Extra Nourishment’, ‘Bystander’s Expenses’ and ‘Pain and Suffering’ is concerned, I do not propose to enhance it, even though a fervent plea has been made by Sri.S.K.Ajay Kumar to delete them because this is a case of compensation for death. Though in normal circumstances, such compensation would not have been permissible, the facts of this case present a different scenario since the deceased was alive for nearly one year after the accident and had to be taken care of through prolonged hospitalisation and MACA 3534/15 6 treatment. I, therefore, affirm the findings of the Tribunal on such heads. 9. However, the compensation awarded by the Tribunal under the head ‘Loss of Earnings’ will have to be deleted in view of enhancement now granted by this Court under the head ‘Loss of Dependency’. 10. What finally remains is the compensation under the head ‘Loss of Consortium’, which I am certain each of the appellants is entitled to, as per Pranay Sethi (supra). An amount of Rs.1,20,000/- thus becomes eligible to them, instead of Rs.80,000/now awarded by the Tribunal. In the afore circumstances, this Appeal is partly allowed with the following directions: a) The appellants are entitled to an amount of Rs.13,44,000/- under the head ‘Loss of Dependency’, reckoning the notional income of the deceased to be Rs.8,000/- per month, with 40% future prospects added to it and 1/3 deducted towards personal expenses, as per Sarala Verma and Others v. Delhi Transport Corporation & Another [2010 (2) KLT 802]. MACA 3534/15 7 b) Axiomatically, the compensation under the heads ‘Loss of Earnings’ and ‘Permanent Disability’ is deleted. c) The compensation under the head ‘Funeral Expenses’ is reduced to Rs.15,000/-, from Rs.25,000/- granted by the Tribunal, as per Pranay Sethi (supra). d) An amount of Rs.15,000/- is awarded under the head ‘Loss of Amenities’ as per Pranay Sethi (supra). e) The amount of Rs.40,000/- granted by the Tribunal under the head ‘Loss of Love and Affection’ is deleted as per United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others [(2021) 11 SCC 780]. f) The compensation under the head ‘Loss of Consortium’ is enhanced to Rs.1,20,000/-, from Rs.80,000/- as awarded by the Tribunal in view of Pranay Sethi (supra). g) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, the appellants will be at liberty to recover the full compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8%, (reducing it from MACA 3534/15 8 9% granted by the Tribunal, in view of the escalation granted by this Court), from the date of claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. Needless to say, while calculating the interest as afore, a period of 165 days – being the delay in filing this Appeal – shall stand excluded. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```