Sindhu and Others v. National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944** ## **MACA NO. 244 OF 2016** **AGAINST THE AWARD DATED 13.11.2013 IN OPMV 532/2010 OF** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANTS/PETITIONERS:** - **1 SINDHU AGED 30 YEARS W/O.LATE ANIL KUMAR.** - **2 ASHILY ANIL (MINOR) AGED 8 YEARS D/O.LATE ANIL KUMAR, DOB 15/10/2007 RERPESENTED BY HER MOTHER AND LEGAL GUARDIAN SINDHU** - **3 ANIRUDH (MINOR) AGED 6 YEARS S/O.LATE ANIL KUMAR, DOB 22/09/2009 REPRESENTED BY HIS MOTHER AND LEGAL GUARDIAN SINDHU** - **4 VASU AGED 72 YEARS S/O. PACHER,** - **5 NALINI AGED 69 YEARS W/O. VASU, ALL ARE RESIDING AT MALAYIL HOUSE, KALLANODE P.O, KAKKAYAM (VIA) KOYILANDY TALUK, KOZHIKODE** **BY ADV SRI.AVM.SALAHUDIN** ## **RESPONDENT/3RD RESPONDENT:** **NATIONAL INSURANCE CO.LTD.** **DIV. NO. 10,FLAT NO 101,N-1,BMC HOUSE, CONNAUGHT PLACE,NEW DELHI 110 001** **BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 244 OF 2016** **2** ## **JUDGMENT** The appellants are the claimants in OP(MV) No. 532/2010 on the files of the Motor Accidents Claims Tribunal, Vatakara (‘Tribunal’ for short). 2. The afore Original Petition was filed by the appellants seeking compensation for the unfortunate death of Late Anil Kumar – who is the husband of the first among them, father of appellants 2 and 3 and son of appellants 4 and 5 – caused on account of the road accident on 18.08.2009, while the motor cycle in which he was riding as a pillion, was hit by the offending vehicle driven in a rash and negligent manner. Late Anil Kumar fell onto the road and sustained injuries, succumbing to it, ten days later. The claimants thus sought an amount of Rs.12,00,000/- towards compensation, but which has been allowed by the learned Tribunal only to a sum of Rs.7,75,074/-; and they assail it as being inadequate. 3. Smt.A.R.Divya – learned counsel for the appellants, vehemently argued that there is substantial evidence on record to establish that the deceased was working as a ‘Toddy Worker’; earning Rs.600/- per day; and **MACA NO. 244 OF 2016** **3** therefore, that the Tribunal ought to have reckoned the figure of Rs.18,000/- as his monthly income, while computing the compensation for ‘Loss of Dependency’. She then argued that, the compensation allowed by the Tribunal under the head ‘Funeral Expenses' is very low; while amounts ought to have been granted for ‘Loss of Estate’, which has been denied. She concluded her submissions saying that the compensation awarded by the Tribunal under the head ‘Loss of Consortium’ is woefully inadequate because it is allowed only a sum of Rs.35,000/-, that too, in favour of the first appellant alone, perhaps being under the impression that the children and parents of the deceased are not entitled to; further pointing out that, as per **National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 6621]** a minimum amount of Rs.40,000/- per head ought to have been granted. She thus prayed that this appeal be allowed. 4. In response, Smt.Latha Susan Cherian – learned Standing Counsel for the Insurance Company, argued that the evidence produced by the claimants to prove the income of the deceased obtain no probative value and cannot be relied upon at all; and therefore, that the learned Tribunal was completely without error in having adopted the notional **MACA NO. 244 OF 2016** **4** income of Rs.4,500/-. She then argued that, since no amount has been claimed by the appellants under the head ‘Loss of Estate’, the Tribunal was without error in having not granted it. She concluded saying that, in any event, the Tribunal could not have granted any amount under the head ‘Mental Pain and agony’ and, therefore, prayed that same be deleted. 5. I have considered the afore rival submissions, on the touchstone of the evidence on record, which I have analyzed very carefully. 6. On the question of notional income of the deceased, the pleadings show that, what was claimed by the appellants is Rs.18,000/- per month . They did this on the basis of Ext.A6 certificate, which is sought to be proved through the evidence of PW2; in addition to the evidence of PW1, who is the wife of the deceased. However, Ext.A6 is a certificate issued by PW2 - who is the Secretary of the Society of Toddy Workers – which records that the deceased was earning Rs.600/- per day. But it does not state how many days the deceased would have worked and what was the monthly income that he could have earned, even reckoning this figure to be true. Obviously, therefore, the learned Tribunal was without error in not having relied upon Ext.A6 or **MACA NO. 244 OF 2016** **5** the evidence of PW2 and to then proceed to fix the notional income. However, while doing so, it ought to have been guided by the postulations in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** and **Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT Online 1012 9SC)].** In the former judgment, the notional income of a person with unascertainable income, or who was a 'Coolie' in the year 2009, is mandated to be a minimum of Rs.7,000/-; and in the latter judgment, the Honourable Supreme Court further says that, in the case of a person who was involved in technical avocation, a more robust view ought to be adopted. The learned Tribunal has reckoned only Rs.4,500/- as the notional income of the deceased, which, by any standard, is woefully short. I, therefore, propose to adopt the notional income of the deceased to be Rs.7,500/-, being guided by the sum total of the ratio of afore two judgments, particularly because a Toddy Worker certainly is not a “Coolie”, but involving a more technical expertise. Since the appellant was only 32 years of age at the time of the accident, 40% Future Prospects will require to be added to his income, as per **Pranay Sethi** (supra). Undoubtedly, one-fourth from this **MACA NO. 244 OF 2016** **6** have to be deducted towards personal expenses of the deceased, since he is survived by the appellants, who are four in number and who are financially depended upon him, being his wife, his two children and his mother. 7. That said, the compensation awarded by the Tribunal under the head 'Funeral Expenses' has to be increased because, **Pranay Sethi** (supra) authorises a minimum of Rs.15,000/-; while a similar amount is entitled to the claimants under the head 'Loss of Estate', even if it has not been asked specifically. Similarly, in the case of 'Loss of Consortium', appellants are entitled to Rs.40,000/- each, as per **Pranay Sethi** (supra); though the compensation awarded by the Tribunal under the head 'Pain and Suffering', to a sum of Rs.25,000/-, will have to be deleted. In the afore circumstances, this appeal is partly allowed in the following manner: a) The compensation under the head 'Loss of Dependency' is enhanced to Rs.15,12,000/-, instead of Rs.6,91,200/- now awarded by the Tribunal, reckoning the notional income of the deceased to be Rs.7,500/- per month, with 40% Future Prospects added to it and deducting onefourth towards his personal expenses, as correctly done by **MACA NO. 244 OF 2016** **7** ## the Tribunal. b) The compensation under the head 'Funeral Expenses' is enhanced to Rs.15,000/-; and an additional amount of Rs.15,000/- is granted under the head 'Loss of Estate', as per **Pranay Sethi** (supra). c) The compensation under the head 'Loss of Consortium' is enhanced to Rs.2,00,000/-, instead of Rs.35,000/- awarded by the Tribunal, reckoning Rs.40,000/each to the appellants. d) The compensation under the head 'Mental Pain and Agony' of Rs.25,000/- awarded by the Tribunal is deleted. e) In all other heads, the compensation awarded by the Tribunal remains unaltered. Consequently, the appellants will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% as awarded by the Tribunal, 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 before it. Needless to say, while computing the interest as afore, a period of 676 days - being the delay in filing this appeal - **MACA NO. 244 OF 2016** **8** 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/-DEVAN RAMACHANDRAN, JUDGE** lsn