Shanija and Others v. The New India Assurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 166 OF 2011`** ``` AGAINST THE AWARD DATED 19.10.2009 IN OP(MV) 200/2005 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1SHANIJA W/O LATE VIJAYAN @ MANI, AGED 28 YEARS. 2VINDUJA AGED 7 YEARS, MINOR, D.O.B.21/05/1997, D/O.LATE VIJAYAN @ MANI. 3VIJISHA AGED 5 YEARS, MINOR D.O.B. 29/12/1998 4VAISHNAV AGED 3 YEARS D.O.B. 08/08/2001 MINORS ARE REPRESENTED BY THEIR MOTHER AND LEGAL GUARDIAN, SHANIJA. 5LAKSHMI W/O.LATE AYYAPPAN (ALL ARE RESIDING AT KAYAMATIL HOUSE, CHENAKKALANGADI POST, KOZHIKODE). ``` ``` BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN ``` ``` MACA NO. 166 OF 2011 ``` ``` 2 ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` *1T.K.SALEEM (DELETED) S/O.SAIDALIKUTTY, THEKKEPPEDIYAKKAL, KOLATHIL HOUSE, PRIYAPURAM POST, THANOOR - VIA, MALAPPURAM, PIN - 676 505. ``` ``` 2M.K.ASKER S/O.MOIDEENKUTTY MOORINKUNHARAMANTAKATH, NADAKKAVU, THANOOR POST, MALAPPURAM PIN - 676 505. ``` ``` 3THE NEW INDIA ASSURANCE CO.LTD. DIVISIONAL OFFICE, K.H.BUILDING, THAZHEPALAM, TIRUR, MALAPPURAM - 676 505. ``` ``` *(THE NAME OF THE FIRST RESPONDENT DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 15/12/2016 IN IA 4207/2016 IN MACA 166/2011) ``` ``` BY ADVS. M.JACOB MURICKAN DINESH MATHEW J.MURICKEN -R3 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 166 OF 2011 ``` ``` 3 ``` ## **JUDGMENT** The appellants are the petitioners in O.P.(M.V.) No.200/2005 on the files of the Principal Motor Accident Claims Tribunal, Kozhikode. The said claim petition was submitted by them seeking compensation for the death of one Vijayan, son of Mani, in a motor accident that occurred on 22.08.2004. 2. The accident occurred when the mini lorry driven by him was hit by a bus bearing Registration No.KL -10 D 9779. The said bus was owned by the 1[st] respondent, driven by the 2[nd] respondent and was insured with the 3[rd] respondent. According to the appellants, the deceased was a driver by profession, with a monthly income of Rs.6,000/-. He was aged 35 years at the time of accident. The claim petition was submitted in such circumstances. 3. The 3rd respondent/Insurance Company resisted the claim by contending that the accident occurred due to negligence on the part of the deceased himself. However, they admitted the coverage of Insurance policy over the bus. The said claim petition ``` MACA NO. 166 OF 2011 ``` ``` 4 ``` was tried along with some other claim petitions, which arose in respect to the very same accident and were disposed of by a common award. 4. The evidence in the said claim petitions consists of Ext.A1 to A96 and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the bus and being the insurer of the said vehicle, the 3rd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.4,19,000/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 7% per annum from the date petition till realization with costs. This appeal is submitted by the appellants in such circumstances seeking enhancement of the compensation. 5. Heard Sri.V.S.Chandrasekharan, learned counsel for the appellants and Sri.Dinesh Mathew J.Muricken, learned counsel for the 3[rd] respondent Insurance Company. 6. The only dispute in this appeal relates to the quantum of ``` MACA NO. 166 OF 2011 ``` ``` 5 ``` compensation. The learned counsel for the appellants would contend that the amount awarded by the Tribunal is on the lower side, but the same is objected by the learned counsel for the 3[rd] respondent. However, after examining the materials placed on record, I find some force in the contention of the learned counsel for the appellants. It is to be noted that the Tribunal has accepted the monthly income of the deceased as Rs.3,000/- only, which is on the lower side. Of course, it is true that no evidence was adduced by the appellants to substantiate the income of the deceased, but it is to be noted that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd.[2011 (13) SCC 236]** the Honourable Supreme Court was pleased to take the monthly income as Rs.4,500/- for an ordinary employee without any skills, in respect of an accident occurred in the year 2004. Therefore, I am of the view that the said amount can be accepted in this case as well, as the accident in this case occurred in the year 2004. 7. Another aspect to be noticed is that the Tribunal did not take into account the future prospects of the deceased. As he was ``` MACA NO. 166 OF 2011 ``` ``` 6 ``` aged 35 years at the time of the accident, 40% of the monthly income ought to have been added in the light of the observations made in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)].** Similarly, as he left behind five dependents, the deduction towards personal expenses should have been ¼. Thus, while re-assessing the compensation for loss of dependency with the above criteria, the amount would come to Rs.9,07,200/-[(4500+40%) x 12 x 16 x ¾]. The amount already awarded by the Tribunal is Rs.3,84,000/- and thus the additional amount would come to Rs.5,23,200/-. 8. The amount awarded by the Tribunal towards funeral expenses was Rs.3,000/- whereas the actual amount should have been Rs.15,000/-. Thus a further sum of Rs.12,000/- is awarded under the said head. Similarly, a further sum of Rs.5,000/- is granted towards loss of estate as the Tribunal granted only Rs.10,000/under the said head. 9. Another major head which requires attention is loss of consortium. The appellants, being the wife, three children and the ``` MACA NO. 166 OF 2011 ``` ``` 7 ``` mother of the deceased, are entitled for compensation for loss of consortium at the rate of Rs.40,000/- each in the light of the observations made by the Honourable Supreme Court in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760].** Thus, the amount under the said head will come to Rs.2,00,000/-, out of which Rs.10,000/- was already awarded by the Tribunal. At this juncture, the learned counsel for the Insurance Company would point out that the Tribunal awarded a further sum of Rs.10,000/- under the head of loss of love and affection, which has to be adjusted against the compensation for loss of consortium in the light of the observations made by the Honourable Supreme Court in **Satinder Kaur** _(supra)._ The said contention has to be accepted as no separate compensation needs to be granted under the head of loss of love and affection when compensation for loss of consortium is awarded. Therefore, the said amount can be set off against the additional amount awarded under the head of loss of consortium. Thus, additional compensation under ``` MACA NO. 166 OF 2011 ``` ``` 8 ``` the head of loss of consortium would come to Rs.1,80,000/-. Thus, the total additional compensation receivable by the appellants are found to be Rs.7,20,200/- (523200+12000+5000+180000). In the light of the above said observations and findings, this appeal is allowed. The award dated 19.10.2009 in O.P.(MV).No.200 of 2005 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode is hereby modified by granting additional compensation of Rs.7,20,200/- (Rupees seven lakhs twenty thousand and two hundred only). The said amount shall be deposited by the 3[rd] respondent with interest at the rate as ordered by the Tribunal with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that as the appeal was filed with a delay of 211 days, the appellants shall not be entitled to interest for the additional amount pertaining to the period of delay. **Sd/ZIYAD RAHMAN A.A. JUDGE** scs/DG