SMITHA and others v United India Insurance Co. Ltd.

MACA.No.1434/2015 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945_ ## _MACA NO. 1434 OF 2015_ _AGAINST THE ORDER/JUDGMENT OPMV 338/2010 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL ,PERUMBAVOOR_ ## _APPELLANT/PETITIONER IN O.P.(MV).338/2010:_ _1 SMITHA, AGED 35 YEARS, W/O.SHIJU, ARACKAL HOUSE, KARAMATTAM, PADUVAPURAM P.O, KARUKUTTY VILLAGE, ALUVA TALUK._ _2 THEERTHA SHIJU, AGED 11 YEARS, (MINOR, DATE OF BIRTH 09/10/2003), D/O.SHIJU, ARACKAL HOUSE, KARAMATTAM, PADUVAPURAM PO, KARUKUTTY VILLAGE, ALUVA TALUK, REPRESENTED BY HER MOTHER SMITHA._ _3 NIVEDHYA SHIJU, AGED 6 YEARS, (MINOR DATE OF BIRTH 08/04/209), D/O.SHIJU, ARACKAL HOUSE, KARAMATTAM, PADUVAPURAM PO, KARUKUTTY VILLAGE, ALUVA TALUK, REPRESNETED BY HER MOTHER SMITHA._ - _4 RAMAN,_ _S/O.PARAMESWARAN, ARACKAL HOUSE, KARAMATTAM, PADUVAPURAM PO, KARUKUTTY VILLAGE, ALUVA TALUK, (F/O. DECEASED SHIJU)_ _5 MALLIKA, W/O.RAMAN, ARACKAL HOUSE, KARAMATTAM, PADUVAPURAM PO, KARUKUTTY VILLAGE, ALUVA TALUK (M/O. DECEASED SHIJU)_ MACA.No.1434/2015 2 _BY ADV.SMT.ANUPAMA JOHNY_ ## _RESPONDENT/RESPONDENT NO.3 IN O.P.(MV).338/2010:_ _THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE 1V, 9/19/1, 1ST FLOOR, SOUTH END ROAD, BASAVANGUDI, BANGALORE, 493 1001._ _SC-SRI.PMM.NAJEEB KHAN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1434/2015 3 ## **J U D G M E N T** The appellants are the petitioners in O.P.(MV).No.338 of 2010 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. 2. The said claim petition was submitted by them seeking compensation for the death of one Shiju, who died due to the injuries sustained to him in a motor accident that occurred on 30.11.2009. According to them, the accident occurred when the tanker lorry driven by the deceased was hit by a Karnataka Road Transport Corporation (KSRTC) Bus. The said bus was being driven by the 2[nd] respondent in the claim petition, and the 1[st] respondent in the claim petition was the Managing Director of the KSRTC. The vehicle was insured with the 3[rd] respondent in the claim petition, the sole respondent in this appeal. The deceased was a heavy vehicle driver with a monthly income of Rs.15,000/-. He was aged 35 at the time of the accident. The claim petition was submitted in such circumstances seeking a total compensation of Rs.25,00,000/-. 3. The 1[st] respondent in the claim petition filed a written statement contending that the accident occurred due to the MACA.No.1434/2015 4 negligence of the deceased himself. The 3[rd] respondent filed a written statement admitting the insurance coverage over the said vehicle, but they disputed the liability on various grounds. They also disputed the negligence as well as the quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A5 from the side of the appellants, and Ext.B1 was marked from the side of the respondent. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.12,09,840/- and the said amount was directed to be deposited by the 3[rd] respondent Insurance Company with interest at the rate of 8% per annum with proportionate costs. This appeal is submitted by them seeking enhancement of the compensation. 5. Heard Smt.Anupama Johny, learned counsel for the petitioner and Sri.P.M.M.Najeeb Khan, learned counsel for the Insurance Company. MACA.No.1434/2015 5 6. The main contention put forward by the learned counsel for the appellant is with regard to the inadequacy of the compensation under the head of loss of dependency. The Tribunal calculated the same by taking a notional monthly income of Rs.4500/- and the main contest from the side of the appellants is on the monthly income. After examining the materials placed on record, I find some force in the said contention. Evidently, the deceased was a heavy vehicle driver. It is discernible from the documents that the deceased was driving the tanker lorry at the time when the accident occurred. The said aspect is not disputed by any of the respondents. Therefore, it can be concluded that the deceased was working as a heavy vehicle driver. The learned counsel for the appellants placed reliance upon a decision rendered by the Honourable Supreme Court in **Manusha Sreekumar v. United India Insurance Co. Ltd. [2022 (5) KLT OnLine 1024 (SC)]** , wherein the question of the monthly income of a driver was considered. In the said decision, after relying on a notification issued by the Government of Kerala as per the Kerala Motor Transport Workers’ Payment of Fair Wages Act, 1971, the MACA.No.1434/2015 6 Honorable Supreme Court fixed the Monthly income of a driver as Rs.15,000/- in respect of an accident occurred in the year 2015. In this case, the accident occurred in the year 2009, and therefore, I am of the view that when the aforesaid principles are applied, it can be fixed as Rs.12,000/- and it is ordered accordingly. 7. As the deceased was aged 35 years at the time of the accident, the multiplier to be adopted is 16, and an addition of 40% has to be made towards future prospects. The deceased left behind five dependents, and hence, the deduction towards personal expenses is to be 1/4. While reassessing the compensation with the above criteria, the compensation for loss of dependency would come to Rs.24,19,200/- [(12000+40%) x 12 x 16 x 3/4]. The amount awarded by the Tribunal is Rs 9,11,340/-; thus, the additional amount would come to Rs.15,07,860/-. 8. In addition to the above, a further sum of Rs.12,500/has to be granted under the head of loss of estate as the amount awarded by the Tribunal is only Rs.2,500/-. MACA.No.1434/2015 7 9. At the same time, it is to be noted that in certain heads, the amount awarded by the Tribunal is on the higher side. It is seen that the Tribunal has awarded an amount of Rs.1,50,000/- for loss of love and affection and granted a further sum of Rs.1,00,000/- under the head of loss of consortium. Going by the principles laid down by the Honourable Supreme Court in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** , compensation for loss of consortium has to be awarded to the parents, spouse and children at the rate of Rs.40,000/- each and therefore, the appellants are entitled to a total sum of Rs.2,00,000/- (40000 x 5) under this head. At the same time, Rs.1,50,000/- is to be deducted as it is granted under the head of loss of love and affection. In the light of the principles laid down by the Honorable Supreme Court in **New India Assurance Co.Ltd. v. Somwati and Others [(2020) 9 SCC 644]** , when compensation for loss of consortium is granted, no separate amount needs to be granted under the head of loss of love and affection. When reworking the said compensation, i.e. the MACA.No.1434/2015 8 amounts for loss of consortium and loss of love and affection, in the light of the above discussion, Rs.50,000/- has to be deducted. Similarly, an amount of Rs.25,000/- is seen granted under the head of funeral expenses, whereas the actual amount to be granted under the said head is Rs.15,000/-. Therefore, an amount of Rs.10,000/- is to be deducted as well. Thus, the total additional compensation receivable by the appellant is determined as Rs.14,60,360/[(1507860+12500)(50000+10000)]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 27.11.2014 passed by the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV).No.338 of 2010 is hereby modified by granting an additional compensation of Rs.14,60,360/- [Rupees fourteen lakhs sixty thousand three hundred and sixty only] and the respondent herein is directed to deposit the said amount along with interest 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. Sd/- ## **ZIYAD RAHMAN A.A. JUDGE** DG/16.10.23