Sindhu, D/o Saraswathy Ambadiyil, TekkevilA, Mundackal, Kollam; Abhishek Ambadi; Retnamma v. Divisional Manager, National Insurance Co. Ltd., Kollam-691001

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 14TH DAY OF DECEMBER 2017 / 23RD AGRAHAYANA, 1939** **MACA.No. 46 of 2015** **AGAINST THE AWARD IN OPMV 1915/2011 of M.A.C.T.,KOLLAM DATED 14-02-2014** **APPELLANT(S)/PETITIONERS** **1 SINDHU, D/O.SARASWATHY AMBADIYIL, TEKKEVILA, MUNDACKAL, KOLLAM.** **2 ABHISHEK AMBADI** **S/O.RAMANAN @ AMBADI, AGED 4 YEARS, AMBADIYIL, TEKKEVILA, MUNDACKAL, KOLLAM (MINOR REPRESENTED BY THE 1ST APPELLANT MOTHER)** **3 RETNAMMA, D/O.PANCHAMI, AGED 70 YEARS, AMBADIYIL, TEKKEVILA, MUNDACKAL, KOLLAM.** **BY ADVS.SRI.PRATHEESH.P SMT.S.SEETHA** **RESPONDENT(S)/3RD RESPONDENT:** **DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., KOLLAM-691 001** **BY ADV.SRI.RAJAN P.KALIYATH** **BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKK/140218** ## C.T. RAVIKUMAR & MARY JOSEPH, JJ. ========================= MACA No.46 of 2015 ========================= Dated this the 14[th] day of December, 2017 ## J U D G M E N T ## Mary Joseph, J. The legal representatives of one Remanan @ Ambadi, who died in a motor accident, occurred on 30.05.2010, have approached this Court in the captioned appeal. Their grievance was that adequate compensation has not been awarded by the Motor Accidents Claims Tribunal, Kollam, (for short 'the Tribunal') in the claim petition preferred by them as OP(MV) No.1915/2011. 2. The accident which led to the filing of the claim petition as OP(MV) No.1915/2011 was occurred at 4.30 p.m. on 30.05.2010 while Remanan @ Ambadi was travelling in a motor cycle bearing Reg. No.KL-2/AC 5024, as pillion rider through Kollam-Thiruvananthapuram National Highway. When reached at Pattarumukku near Kottiyam junction, a Maruti car bearing Reg. No.KL-2/AC 8029 hit on the motor cycle due to the rash and negligent driving by its driver. Sri.Remanan @ Ambadi MACA NO.46 OF 2015 2 sustained fatal injuries in the accident and succumbed to those after two days. Arraying the owner of the said vehicle as the first respondent, its driver as the second respondent and its insurer as the third respondent, the claim petition was filed before the Tribunal, seeking a compensation of `15,00,000/- by the widow, minor child and mother of the deceased, as his legal representatives. . 3. Before the Motor Accidents Claims Tribunal, on entering appearance by the third respondent, a written statement was filed admitting insurance coverage of the car with them at the relevant time of the accident. The Tribunal, after appreciation of oral evidence of the wife of the deceased as PW1 and documentary evidence adduced as Exts.A1 to A16, found the second respondent/the driver of the car as rash and negligent and responsible for the accident. The Tribunal has also arrived at a compensation of `8,82,562/- based on the materials on record and directed the third respondent, insurer of the car to pay the same with interest at the rate of 9% per annum from the date of the claim petition till the date of realisation. The interim award amount already paid was directed to be deducted therefrom. A MACA NO.46 OF 2015 3 further direction was also issued to the third respondent to deposit the said sum with interest within the time limit stipulated therein. It is aggrieved by the quantum of compensation so awarded by the Tribunal, that the petitioners have approached this Court in the captioned appeal. 4. Sri.Pratheesh P., the learned counsel advanced arguments on behalf of the petitioners. It is contended by the counsel that the Tribunal has taken the monthly income of the deceased as `5,000/-. According to him, even though a plea was made originally by the petitioners that the deceased was earning `5,000/-, an application was moved later on, seeking amendment in the petition regarding the monthly income by substituting `12,000/- in the place of `5000/-. According to him, the deceased being a man aged 36 years and maintaining a family consisting of four members including him, the Tribunal ought to have allowed the prayer seeking amendment of the claim petition and substituted the monthly income of `12,000/in the place of `5,000/- and to have computed the compensation for dependency on its basis. 5. The learned counsel has contended that the MACA NO.46 OF 2015 4 compensation arrived at by the Tribunal under the head 'loss of dependency' is too low, on account of the calculation of compensation by adopting `5,000/- as the monthly income of the deceased. The learned counsel seeks for interference by this court in the matter. The counsel has also invited our attention to the fact that though the deceased was alive with the fatal injuries for two days prior to his death, the Tribunal failed to award any sum under the head 'pain and suffering'. The counsel seeks for interference on that count also. 6. Having heard the arguments advanced by the learned counsel for the petitioners and the third respondent and gone through the documentary evidence on record, we feel it appropriate to interfere with the impugned award on the grounds projected as above. 7. As stated hereinabove, the wife of the deceased was examined as PW1 before the Tribunal. Ext.A8 is the salary certificate dated 28.10.2008 produced by the petitioners wherein the salary of the deceased was shown as `7,000/-. The contention of the learned counsel was that in utter disregard of the same, the Tribunal fixed the monthly income as `5,000/-. In MACA NO.46 OF 2015 5 the impugned award, the Tribunal has stated that the signatory of Ext.A8, who according to the petitioner was the employer of the deceased, was not examined for proving the same. Oral evidence was tendered by PW1, the wife of the deceased to the effect that the deceased was maintaining a family consisting of herself, a minor child and mother. It is contended that the sustenance of a family consisting of four members is impossible with the monthly income of `5,000/-, since the cost of living in the year 2010 was high. There is absolutely nothing available to conclude that the amendment with respect to income sought by the petitioners was allowed by the Tribunal. The fact that the accident was occurred in the year 2010 is not disputed. The fact that the deceased was maintaining a family consisting of four members is also well established from the oral evidence of PW1. In the said circumstances, we feel it just and proper to take `7,000/- as the monthly income of the deceased for the purpose of computation of compensation. Since the family of the deceased consists of four members, 1/3[rd] needs to be deducted towards his living and personal expenses. The multiplier of 15 adopted by the Tribunal being appropriate to the age of the deceased, is not interfered MACA NO.46 OF 2015 6 with. When computation is done by taking the annual monthly income after deducting 1/3[rd] therefrom and the multiplier of 15, the compensation payable under that head would be `8,40,000/- (`7,000/-x12x15x2/3). It seems from the impugned award that `6,00,000/- is already awarded by the Tribunal under that head. Therefore, on deducting that from the sum now arrived at by us, the compensation payable in addition under the head 'loss of dependency' would be `2,40,000/-. 8. Another argument advanced by the learned counsel was that though the deceased survived for two days, after sustaining fatal injuries in the accident, compensation was not granted under the head 'pain and suffering'. According to the learned counsel, the factum of death after two days is well evidenced by Ext.A6, the copy of the Post-mortem Certificate, marked in evidence in the case. Even in the case of instantaneous death after the accident, compensation is granted under the head pain and suffering. Therefore, the death of the deceased in the case on hand having been occurred after two days of the accident, there is every justification for us to grant `10,000/- under the head pain and suffering. Since interference is not called for under MACA NO.46 OF 2015 7 any other heads, those are maintained. 9. The learned counsel for the third respondent urged at this juncture that compensation awarded under the heads 'funeral expenses' and 'loss of consortium' relying upon Rajesh & others v. Rajbir singh & others [2013 ACJ 1403] need interference in view of the decision of the constitutional Bench of the Apex Court in National Insurance Company Limited v. Pranay Sethi [2017(4)KLT 662]. In the said decision, it has been held by the Apex Court that the decision in Rajesh's case supra cannot be treated as a binding precedent in view of non-consideration in the said case, of the earlier dictum of the court in Reshma Kumari & Others v. Madan Mohan & Another [(2013 )9 SCC 65]. It is relevant to notice that neither any appeal nor any cross objection has been preferred by the third respondent against the award under challenge. In such circumstances, the above argument of the learned counsel for the third respondent will not sustain and it is not just and proper for us to interfere with the impugned award, with reference to the compensation granted by the Tribunal, under the heads 'funeral expenses' and 'loss of consortium'. MACA NO.46 OF 2015 8 In the result, MACA stands allowed and the petitioners are found entitled to get an additional sum of `2,50,000/- (Rupees Two lakhs fifty thousand only) with interest at the rate of 8% p.a. from the date of the claim petition till the date of realisation. The third respondent shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/C.T.RAVIKUMAR, JUDGE Sd/MARY JOSEPH, JUDGE SKK //TRUE COPY// P.A. TO JUDGE