Sobha and others v. Nanu and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` SATURDAY, THE 20[TH] DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943 MACA NO. 3765 OF 2018 ``` ``` AGAINST THE AWARD DATED 23.06.2018 PASSED IN OP(MV) 651/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA, KOZHIKODE ``` ## **`APPELLANTS/PETITIONERS:`** ## **`1 SOBHA`** ``` AGED 50 YEARS W/O.BALAKRISHNAN, THADATHIL HOUSE, KALPATHUR P.O., NOCHAD PANCHAYATH, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 524. ``` ## **`2 SHEEBA`** ``` AGED 42 YEARS ``` ``` W/O. LATE BABU, VADAKEY MAYILADAITHARAMAL HOUSE, JANAKIYAMUKKU, KIZHPPAYUR P.O., MEPPAYUR, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 524. ``` - **`3 ANUSREE`** ``` AGED 20 YEARS D/O. LATE BABU V.M., VADAKEY MAYILADAITHARAMAL HOUSE, JANAKIYAMUKKU, KIZHPPAYUR P.O., MEPPAYUR, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 524. ``` ## **`4 AMAL`** ``` AGED 14 YEARS S/O. LATE BABU V.M., VADAKEY MAYILADAITHARAMAL HOUSE, JANAKIYAMUKKU, KIZHPPAYUR P.O., MEPPAYUR, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 524. ``` ``` MINOR REPRESENTED BY THE 2ND APPELLANT MOTHER, SHEEBA, AGED 42 YEARS, W/O. LATE BABU. ``` ## **`BY ADVS.`** ``` ABU MATHEW SRI.AJU MATHEW ``` ``` MACA NO. 3765 OF 2018 ``` ``` 2 ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 NANU`** ``` AGED 46 YEARS S/O. KANARAN, MELATH HOUSE, KEEZHPAYYUR P.O., MEPPAYUR VIA, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673 524. ``` ``` 2TATA AIG GENERAL INSURANCE COMPANY LTD., 15TH FLOOR, TOWER A, PENINSULA BUSINESS PARK, GANPATRAO KADAM MARG, OFF SENAPATI, BAPAT MARG, LOWER PAREL, MUMBAI, 400 013, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE. ``` ``` 3KUNHIMON @ KUNHIRAMAN, AGED 55 YEARS S/O. LATE KUNHIKANNAN NAIR, VADAKEY MAYILADAITHARAMAL JANAKIYAMUKKU, KIZHPPAYUR P.O., MEPPAYUR, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 524. ``` ``` BY ADV ``` ``` SRI.R.AJITH KUMAR (128/84) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 20.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3765 OF 2018 ``` ``` 3 ``` ## **`JUDGMENT`** This is an appeal submitted by the petitioners in O.P.(MV) No.651 of 2015 of the Motor Accidents Claim Tribunal, Vatakara. The claim petition was submitted by them seeking compensation for the death of one Kunhimadhavi Amma due to the injuries sustained to her in a motor accident occurred on 18.02.2015. The accident occurred when an auto taxi bearing Reg.No.KL-56-K-9238 owned and driven by the 1[st] respondent hit her while she was walking through the road. Consequent to the injuries, she died on 21.02.2015 while undergoing treatment in the hospital. The deceased was aged 66 years and working as a coolie with a monthly income of Rs.10,000/-. The 1[st] appellant is the daughter of the deceased, the 2[nd] appellant is the wife of the predeceased son of the deceased and the appellants 3 and 4 are the children of the predeceased son of the deceased. As compensation, an amount of Rs.8 Lakhs was sought for. 2. The 3rd respondent did not appear. The 1[st] respondent filed a written statement admitting the accident but disputed the negligence. It was also pointed out that the vehicle was covered with a valid insurance policy and therefore, if at all any amount is found to be payable, that has ``` MACA NO. 3765 OF 2018 ``` ``` 4 ``` to be recovered from the insurance company. 3. The 2[nd] respondent insurance company filed a written statement disputing the negligence and the quantum of compensation claimed. However, the coverage of policy was admitted by them. 4. Evidence in this case consists of oral evidence of PW1 who is the 1[st] appellant and Exts.A1 to A6 were marked. No evidence was adduced from the side of the respondents. After the trial, the Tribunal passed an Award allowing a total compensation of Rs.3,56,000/- (Rupees three lakh fifty six thousand only) and the 2[nd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum. Being dissatisfied with the quantum of compensation this appeal is filed. 5. Heard Sri.Aju Mathew, learned counsel for the appellants and Sri.R.Ajith Kumar, learned counsel for the 2[nd] respondent Insurance Company. 6. Learned counsel for the appellant contends that the amount awarded by the Tribunal is grossly inadequate, particularly under the head of ‘Loss of dependency’. On the other hand, the learned counsel for the Insurance Company would support the findings in the award, by pointing out that reasonable amount has been awarded by the Tribunal ``` MACA NO. 3765 OF 2018 ``` ``` 5 ``` and no interference is warranted. 7. When we come to the question of adequacy of compensation, the first aspect to be considered is the monthly income fixed by the Tribunal. The amount taken by the Tribunal is Rs.6,000/-. The year of accident being 2016, I am of the view that Rs.6,000/- as monthly income is on lower side. Going by the principles laid down by the Supreme Court in _**Syed Sadiq v. Divisional Manager, United India Insurance Company**_ [(2014) 2 SCC 735] and _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd**_ [(2011) 13 SCC 236] under no circumstance, the said amount can be lesser than Rs.10,000/-, in respect of an accident occurred in the year 2015. In such circumstances, I am of the view that the monthly income claimed by the appellants, which is Rs.10,000/- can be accepted as such. At this juncture, learned counsel for the insurance company would point out that, the Tribunal made deduction of only ¼ towards personal expenses while computing the compensation. According to the learned counsel for the insurance company, none of the parties can be said to be actually dependent upon the deceased, on account of their relationship as well as their age factor. As regard to the first appellant who is the daughter of ``` MACA NO. 3765 OF 2018 ``` ``` 6 ``` the deceased, it is to be noted that, she was aged 47 years and cannot be said to be a person completely depending upon the income of the deceased. The other appellants are the wife and children of the predeceased son of the deceased. They also cannot be said to be a dependent on the deceased, who was aged 66 years at the time of her death. Even though the learned counsel for the appellant would seriously oppose the said contention by specifically referring to the deposition of PW1, I find some force in the contention of the learned counsel for the insurance company. Considering the advanced age of the deceased, under no circumstances, it can be concluded that they were completely dependent upon the deceased for their livelihood. Of course, the appellants will be entitled for compensation for loss of dependency even in the absence of complete financial dependence upon the deceased, but while considering the question of deduction towards personal expenses, the same has some relevance. In my view, in the facts and circumstances of the case, a deduction of 1/3 is reasonable and to that extent the finding of the Tribunal is to be interfered. In such circumstances, with the above revised monthly income and the revised criteria as to the deduction, the amount receivable by the appellant under the head of ‘Loss of ``` MACA NO. 3765 OF 2018 ``` ``` 7 ``` dependency’ is fixed as Rs.4 Lakhs (10000 x 12 x 5 x 2/3). The Tribunal has already awarded an amount of Rs.2,70,000/- (Rupees two lakhs seventy thousand only) under this head and hence the additional amount entitled to by the appellant is Rs.1,30,000/- (Rupees one lakh thirty thousand only). 8. The other head on which interference is warranted is ‘Pain and sufferings’. It was pointed out that the accident occurred on 18.02.2015 and she died on 21.02.2015 while undergoing treatment. Considering this aspect, an amount of Rs.10,000/- can be reasonably fixed as compensation for ‘Pain and sufferings’. Even though the learned counsel for the appellant pointed out that no amount is awarded under the head ‘Loss of consortium’, I am not inclined to accept the same in view of the fact that an amount of Rs.50,000/- is already awarded under the head of loss of love and affection. Even if the principles laid down in _**United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other**_ [ 2020 (3) KHC 760] is applied, only the 1[st] appellant can be held to be entitled for compensation for ‘Loss of consortium’, which is for an amount of Rs.40,000/-. It was also held in the said judgment that no additional amount needs to be granted for ``` MACA NO. 3765 OF 2018 ``` ``` 8 ``` ‘Loss of love and affection’. In the light of the aforesaid observations of the Hon’ble Supreme Court, the actual entitlement would be only for Rs.40,000/- but, even though in a different head, the appellants were awarded Rs.50,000/- for ‘Loss of love and affection’. In totality of facts and circumstances of the case and also in the light of the observations made as above, I am not interfering in the award of Rs.50,000/- under the head of ‘Loss of love and affection’. The amount of ‘Loss of consortium’ can be adjusted as against the amount under the head of ‘Loss of love and affection’. So no modification is warranted under the head of ‘Loss of love and affection’ or ‘Loss of Consortium’. Thus the total amount entitled by the appellants in addition to the amounts awarded by the Tribunal is fixed as Rs.1,40,000/- and the said amount shall be deposited by the 2[nd] respondent insurance company along with interest and cost as ordered by the Tribunal within a period of three months from the date of receipt of this judgment. Apportionment of the additional amount shall be done in proportion as ordered by the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` SCS