SHEELA P.P. and MINISHA K. and SHIJIL K. v THE MANAGER, ORIENTAL INSURANCE CO. LTD.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA,`** ## **`1944`** ## **`MACA NO. 483 OF 2015`** # **`AGAINST THE ORDER/JUDGMENTOPMV 404/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY`** ## **`APPELLANT/S:`** ``` 1SHEELA P.P., AGED 40 YEARS D/O.KUMARAN,GREESHMA NIVAS,NEAR ELEYAVOOR COLONY,VARAM.P.O,KANNUR DISTRICT. ``` - `2 MINISHA.K, AGED 21 YEARS D/O.LATE ANIL KUMAR,GREESHMA NIVAS,NEAR ELEYAVOOR COLONY, VARAM.P.O,KANNUR DISTRICT.` ``` 3SHIJIL.K, AGED 19 YEARS S/O.LATE ANILKUMAR,GREESHMA NIVAS,NEAR ELEYAVOOR COLONY, VARAM.P.O,KANNUR DISTRICT. BY ADV SRI.M.V.AMARESAN ``` ## **`RESPONDENT/S:`** ``` THE MANAGER ORIENTAL INSURANCE CO.LTD.,DIVISIONAL OFFICE,2ND FLOOR,UNITY COMPLEX,S.N.PARK ROAD,KANNUR,PIN- 670001. ``` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.PREETHY R. NAIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- M.A.C.A No. 483 of 2015 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== M.A.C.A No. 483 of 2015 ============================================================= Dated this the 28[th ] day of November, 2022 ## **JUDGMENT** This appeal is filed against the award dated 30.11.2012 in OP(MV) No.404/2008 on the file of the Motor Accidents Claims Tribunal, Thalassery. Appellants are the legal heirs of deceased Anilkumar, who died in a motor accident. ## 2. Short facts are like this: On 03.07.2007 at about 7.30 pm, while the deceased was standing in front of Elayavoor Panchayat Office, a mini lorry bearing registration No.KL-13/G-5795 came from Kannur side in a rash and negligent manner, dashed against the person of the deceased and he sustained very serious bodily injuries. Immediately after the accident the deceased was removed to -3- M.A.C.A No. 483 of 2015 Koyili Hospital and he succumbed to the injuries on the same day. The appellants are the wife and children of the deceased. 3. Before the Tribunal, Exts.A1 to A14 were marked and two witnesses were examined on the side of the claimants. After going through the evidence and documents, the Tribunal found that the accident occurred because of the rash and negligent riding on the part of the 1[st] respondent and respondents 1 to 3 are liable. As far as the quantum of compensation is concerned, the Tribunal fixed a total amount of Rs.8,77,300/-. Aggrieved by the quantum of compensation, this appeal is filed by the claimants. 4. Heard the counsel for the appellants and the learned Senior Counsel Adv.Sri.Mathews Jacob, who is instructed to appear on behalf of the 3[rd] respondent. 5. The learned counsel for the appellants submitted that the quantum of compensation fixed by the Tribunal is too low -4- M.A.C.A No. 483 of 2015 and submitted that the notional income fixed by the Tribunal is not in accordance to the dictum laid down by the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd., [(2011) 13 SCC 236]** . The counsel also submitted that there are three legal heirs and they are entitled Rs.40,000/- each towards loss of consortium and only an amount of Rs.25,000/- is awarded. It is also the contention of the appellants that towards funeral expenses, only Rs.10,000/- is allowed, but the appellants are entitled for Rs.15,000/-. The Senior Counsel, who appeared for the 3[rd] respondent submitted that when there is sufficient amount granted for the loss of dependency, the Tribunal erred in allowing loss of love and affection and pain and suffering. The Senior Counsel submitted that the said part of the award may be set aside. 6. After hearing both sides, I think the claimants are entitled some enhancement as far as the compensation is -5- M.A.C.A No. 483 of 2015 concerned. In **Ramachandrappa’s case** (supra), the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, as Rs.4,500/- per month. Following the ratio in the decision cited above and keeping in mind the fact that the accident occurred in the year 2007, I am of the firm opinion that the notional income of the deceased can safely be fixed as Rs.6,000/- per month. Following the principles laid down in _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662(SC)], and considering that the deceased was aged 34 years on the date of his death, the appellants are entitled to future prosepcts at 40%. Then the amount would be Rs.8,400/- (6,000 + 2,400 [6,000x40/100=2,400]) Admittedly, the appellants are the wife and children of the deceased, who are three in number. 1/3[rd ] of the income of the deceased has to be deducted towards the personal living expenses of the deceased. The multiplier taken by the Tribunal as 16 is correct considering the age of the deceased. -6- M.A.C.A No. 483 of 2015 Therefore, the loss of dependency would be like this: 8,400 x 2/3 x 12 x 16 = 10,75,200/-. The Tribunal granted only Rs.7,48,800/under the head loss of dependency. Therefore, the appellants are entitled an enhanced amount of **Rs.3,26,400** /- (10,75,200 – 7,48,800/-) towards loss of dependency. 7. In **Pranay Sethi’s case** (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, 'funeral expenses', 'loss of estate' and 'loss of consortium' at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 8. In the instant case, the Tribunal has only awarded an amount of Rs.10,000/- towards 'funeral expenses', Rs.5,000/towards 'loss of estate' and Rs.25,000/- towards 'loss of consortium'. Therefore, following the law in **Pranay Sethi’s case** (supra), I enhance the compensation under the heads 'funeral expenses' by a further amount of Rs.5,000/-, 'loss of estate' by a -7- M.A.C.A No. 483 of 2015 further amount of Rs.10,000/- and 'loss of consortium' by a further amount of Rs.95,000/- i.e., Rs.40,000/- each to the appellants 1 to 3. (i.e., 40,000 x 3=1,20,000-25,000). 9. In **New India Assurance Company Ltd. v. Somwati & Ors. [2020 (9) SCC 644]** , the Hon'ble Supreme Court has held that once compensation under the head 'loss of consortium' is awarded, no amount can be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. Similarly, **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others [2020(3)KHC 760],** the Hon'ble Supreme Court has held that in the case of death, no amount can be awarded under the head 'pain and sufferings'. Accordingly, I set aside the amounts of Rs.55,000/- and Rs.25,000/- awarded under the above two heads. Therefore, there is a decrease of Rs.80,000/- (55,000 + 25,000) from the enhanced -8- M.A.C.A No. 483 of 2015 amount. The enhanced amount entitled by the appellants are like this: Loss of dependency - 3,26,400/Loss of consortium 95,000/Loss of Estate 10,000/Funeral Expenses 5,000/ 4,36,400/- From the above amount Rs.80,000/- should be deducted. Therefore, the appellants are entitled only an enhanced amount of **Rs.3,56,400/-** (4,36,400 – 80,000). In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.3,56,400/- with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit, after deducting interest for a period of 600 days, that is the period of delay in filing the appeal and as ordered by this Court on 06.11.2021 in C.M.Appln No.1 of 2015. The 3[rd] respondent/ insurer is ordered -9- M.A.C.A No. 483 of 2015 to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest deceased within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants 1 to 3 in the ratio of 50:25:25 and in accordance with law, after deducting their liability, if any, towards payment of court fee. **SD/-** **P.V.KUNHIKRISHNAN** **JUDGE** das