Saraswathy and others v. C. Mani and National Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944 ``` ``` MACA NO. 763 OF 2012 ``` ``` AGAINST THE AWARD DATED 28.10.2011 IN O.P(M.V) NO.75/2008 OF MOTOR ACCIDENTA CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1SARASWATHY, AGED 58, W/O. LATE P.K. SIUBRAMANYAM, KAYAPPILLY HOUSE, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TALUK. 2SURESH, AGED 38, S/O. LATE P.K. SIUBRAMANYAM, KAYAPPILLY HOUSE, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TALUK. 3KUMARI, AGED 36 D/O. LATE P.K. SIUBRAMANYAM, KAYAPPILLY HOUSE, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TALUK. RESIDING AT KALLINGAL PARAMBU, MAHAKAVI BHARATHIYA ROAD, ELAMAKKARA, EDAPALLY SOUTH VILLAGE, KANAYANNOOR TALUK. 4JAYA, AGED 33 D/O. P.K. SUBRAMANYAM, KAYAPPILLY HOUSE, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TAUK. BY ADVS. SRI.FRANCIS PETER THARAKAN SRI.P.GOVIND SRI.PRAMOD KOCHUTHOMMEN.E. SRI.SUNIL N.SHENOI ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1C.MANI, S/O.CHINNAYYAN, KIZHAKKUM MURIPARAMBU HOUSE, S.R.M ROAD, KOCHI -682018. 2NATIONAL INSURANCE COMPANY LIMITED, MYDHILY MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, KOCHI-682025. BY ADV. R2 BY SMT.DEEPA GEORGE, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.763 of 2012 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 17[th ] day of February, 2023** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 28.10.2011 in O.P(M.V) No.75/2008. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 and 2 in accordance with their status before the Tribunal in the Original Petition. 3. The appellants are the legal representatives of one Mr.Subramanian who succumbed due to the injuries sustained in a motor accident occurred on 15.11.2006 at Elamakkara. Petitioners are none other than his wife and children and the Original Petition was filed by them seeking for a sum of ₹6,26,000/- as compensation. As per the averments of the petitioners, Mr.Subramanian was knocked down by a two wheeler and thus sustained fatal injuries. The owner cum rider of the two wheeler and it’s insurer were arrayed respectively as respondents 1 and 2 in the Original Petition. ``` M.A.C.A.No.763 of 2012 ``` ``` 3 ``` 4. The rider cum owner of the vehicle though served with notice did not turn up to contest the original Petition. The 2[nd] respondent appeared and filed a written statement admitting insurance coverage of the two wheeler as on date of accident under the policy issued by them. It was contended that the motor accident was resulted from the negligence of Mr.Subramanian alone and not due to the negligence of the 1[st] respondent. 5. 1[st] petitioner filed proof affidavit and marked Exts.A1 to A16. The 2[nd] respondent obtained permission from the Tribunal to avail all statutory defences. 6. On the basis of the evidence adduced, the Tribunal found that the motor accident was occurred due to the rash and negligent riding of the two wheeler by the 1[st] respondent. The Tribunal has also found that Mr.Subramanian succumbed to the fatal injuries received by him in the motor accident and the petitioners as his legal representatives are entitled to get compensation from the respondents 1 and 2 jointly and severally. ₹2,02,123/- was arrived at as the compensation payable. The 2[nd] respondent was directed to deposit the ``` M.A.C.A.No.763 of 2012 ``` ``` 4 ``` above sum with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. Proportionate cost was also allowed. 7. According to Adv.Pramod Kochuthommen, the learned counsel for the petitioners, though the petitioners raised a claim in the Original Petition that the deceased was a coolie worker earning ₹4,000/- monthly, the Tribunal failed to consider those and fixed ₹2,500/- as his monthly income on a notional basis. According to him, fixation being related to a motor accident occurred in the year 2006, is very meagre. According to him, the deceased was survived by his wife, son and two daughters and thus four members and therefore the Tribunal is justified in deducting 1/3[rd] from his monthly income in consideration of the personal expenditure of the deceased while he was alive. According to him, the Tribunal failed to award reasonable compensation as directed by the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others** [2017 (4) KLT 662 (SC)] and this Court has to interfere and award those in accordance to their entitlement of compensation. The ``` M.A.C.A.No.763 of 2012 ``` ``` 5 ``` learned counsel has also canvassed for awarding a higher sum than that was awarded by the Tribunal as compensation, since Mr.Subramanian is proved as died after three days of the motor accident which caused the injuries. 8. The learned counsel for the 2[nd] respondent contended on the contrary that in the absence of any proof regarding the job and monthly income, the Tribunal is justified in fixing the monthly income as ₹2,500/- on a notional basis. Thus, he canvassed for discarding the claim for a re-fixation of the monthly income. The learned counsel further contended that the Tribunal has also arrived at a finding that petitioners 2 to 4 are not dependents of the deceased and therefore this Court has to deduct ½ , instead of 1/3[rd] in consideration of personal expenditure, liable to be met with by the deceased, had he been alive. 9. From the cause title of the Original Petition, it is found that the 1[st] petitioner is the wife of the deceased, 2[nd] petitioner, his son and 3[rd] and 4[th] petitioners, his daughters. True that the age of petitioners 2 to 4 were shown respectively as 38, 36 and 33 years. But nowhere in the ``` M.A.C.A.No.763 of 2012 ``` ``` 6 ``` Original Petition, the status of the them, whether married or unmarried at the relevant time is stated. The Tribunal in Paragraph 10 has found that petitioners 2 to 4 cannot be treated as dependents but on what basis such a finding was arrived at is not stated. The insurer did not adduce any evidence to establish their status then as married and therefore not dependents. In the above circumstances, this Court is not inclined to accept the argument of the learned counsel for the 2[nd] respondent that the 1[st] petitioner was the sole dependent of the deceased and therefore ½ is liable to be deducted towards personal expenditure. 10. Accident being occurred in the year 2006, this Court re-fixes the monthly income as ₹4,000/-. The Tribunal adopted 8 as the multiplier for calculating compensation for loss of dependency. As per **Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.** [2010 (2) KLT 802 (SC)] the correct multiplier liable to be considered for 59 years is 9. When compensation for loss of dependency is re-assessed on the basis of the factors modified as above, ₹2,88,000/(₹4,000/- x 12 x 9 x 2/3) is arrived at. ₹1,60,000/- stands ``` M.A.C.A.No.763 of 2012 ``` ``` 7 ``` awarded by the Tribunal when adjusted against the sum arrived at now, petitioners will get ₹1,28,000/- as additional compensation. 11. As compensation towards loss of consortium the 1[st] petitioner is entitled to get ₹44,000/-. ₹2,500/- stands awarded by the Tribunal when adjusted against, the petitioner will get ₹41,500/- as additional compensation. Petitioners are entitled to get ₹16,500/- each as compensation under the heads loss of estate and funeral expenses. The Tribunal confined grant of compensation under the respective heads to ₹2,500/and ₹5,000/- respectively. Therefore, the petitioners will get ₹14,000/- and ₹11,500/- respectively as additional compensation under those heads. 12. When compensation is re-assessed in the above manner, ₹1,95,000/- (Rupees One lakh ninety five thousand only) (₹1,28,000/- + ₹41,500/- + ₹14,000/- + ₹11,500/-) is arrived at. 13. Compensation at the rate of Rs.10,000/- each was found awarded by the Tribunal under the heads loss of love and affection and pain and suffering. The petitioners are ``` M.A.C.A.No.763 of 2012 ``` ``` 8 ``` disentitled to get compensation under those heads. Therefore ₹20,000/- stands awarded in total as compensation towards pain and suffering and loss of love and affection is deducted from ₹1,95,000/- and thus ₹1,75,000/- (Rupees One lakh seventy five thousand only) [(Rs.1,28,000/- + Rs.41,500/- + Rs.14,000/- + Rs.11,500/-) - (Rs.10,000 + Rs.10,000/-)] is arrived at as the additional compensation payable. The 2[nd] respondent shall pay the additional compensation with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding 22 days, being the delay occurred in filing the appeal on hand, within two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB