SOSAMMA, SAJIN K GEORGE & NISHAMOL v. National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944** **MACA NO. 1734 OF 2015** ## **AGAINST THE AWARD IN OPMV 1691/2011 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,PERUMBAVOOR** ## **APPELLANTS(PETITIONES IN O.P.(MV) NO.1691/2011:** 1 SOSAMMA, AGED 54 YEARS, W/O SUNDARESAMENON, KANDANAD HOUSE, KARAYAMPARAMBU, KARUKUTTY PO, ANGAMALY PIN-683 576 2 SAJIN K GEORGE, 26 YEARS, S/O GEORGE@ SUNDARESAMENON, KANDANAD HOUSE, KARAYAMPARAMBU, KARUKUTTY PO, ANGAMALY PIN-683 576 3 NISHAMOL, AGED 20 YEARS, D/O SUNDARESAMENON, KANDANAD HOUSE, KARAYAMPARAMBU, KARUKUTTY PO, ANGAMALY PIN-683 576 BY ADVS. SRI.REJI GEORGE SMT.ANUPAMA JOHNY ## **RESPONDENT/(RESPONDENT NO.3 IN O.P.(mv) No.1691/2011:** NATIONAL INSURANCE CO.LTD. ST. JOSEPH'S PRESS BUILDING, VAZHATHACAUD, THIRUVANANTHAPURAM-695 014 BY ADVS. SRI.RAJESH THOMAS SRI.P.G.JAYASHANKAR - S.C. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA NO. 1734 OF 2015 ``` ``` 2 ``` ## **JUDGMENT** The petitioners in O.P. (MV) No.1691/2011 on the files of the Motor Accidents Claims Tribunal, Perumbavoor have preferred this appeal dissatisfied with the quantum of compensation awarded by the Tribunal. The parties in this appeal are referred to as per their status in the claim petition. 2. According to the petitioners, the deceased Sri. Sundaresamenon @ George, while walking through Angamaly-Chalakkudy N.H.road, was hit by a car bearing Registration No. KL-01/AX-987 owned by the 1[st] respondent Board and driven by the 2[nd] respondent and insured with the 3[rd] respondent Insurance Company resulting in serious injuries. The deceased succumbed to the injuries, the same day, on the way to the hospital. The petitioners who are the wife, son and daughter of the deceased claimed an amount of Rs.15 lakhs as compensation. ``` MACA NO. 1734 OF 2015 ``` ``` 3 ``` 3. Before the Tribunal, the 2[nd] respondent remained absent and was set exparte. The 1[st] respondent filed a written statement contending that the accident happened due to the negligence of the deceased and that the vehicle is duly insured with the 3[rd] respondent Insurance Company. The 3[rd] respondent filed a written statement admitting that the vehicle is insured with them. However, they contended that the accident happened due to the negligence of the deceased. It is also contended that the amount of compensation claimed is excessive. Before the Tribunal, Exts.A1 to A7 were marked on the side of the petitioners. No documents were marked on the side of the respondents. No oral evidence was adduced on either side. The Tribunal found that the deceased as a pedestrian had also contributed to the accident and apportioned the ratio of negligence on the side of respondent No.2 and the deceased as 90:10. The Tribunal, accordingly, assessed an amount of Rs.7,61,956/as total compensation. After deducting 10% of the amount apportioned as the contributory negligence on the part of the ``` MACA NO. 1734 OF 2015 ``` ``` 4 ``` deceased, the Tribunal found that the petitioners are entitled to receive Rs.6,85,760/- with 9% interest per annum from the date of filing the petition till realisation with proportionate costs. The split up of the compensation awarded by the Tribunal is as follows:- |Sl.N<br>o.|Head of claim|Amt. Caimed|Amount awarded| |---|---|---|---| |1.|Transport to hospital|1,00,000|5,000| |2.|Medical expenses|25,000|Nil| |3.|Damage to clothes etc|10,000|1,000| |4.|Funeral expenses|2,00,000|25,000/-| |5.|Loss of consortium|5,00,000|1,00,000| |6.|Loss of love and afection|5,00,000|1,00,000| |7.|Pain and suferings|50,000/-|10,000| |8.|Dependency and Estate|15,00,000|5,05,956| |9.|Future prospects|10,00,000|Nil| ||Total|38,60,000 limited<br>to 15,00,000|**7,61,956/-**<br>(Rs.6,85,760/-<br>being 90% of<br>7,61,956)| 4. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners have preferred this appeal. 5. Though the petitioners have challenged the finding of the Tribunal regarding contributory negligence on the part of the deceased, the learned counsel for the Insurance ``` MACA NO. 1734 OF 2015 ``` ``` 5 ``` Company has raised an objection that the said question cannot be considered in this appeal without the owner and driver of the vehicle on the party array. 6. Section 8 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 contains provisions for apportionment of liability in case of contributory negligence and provides that, 'where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.' To consider the question of negligence and who contributed to the accident and to what extent, the driver of the vehicle has to be in the party array of this appeal. In the absence of the driver on the party array, the said question cannot be re-appreciated in this appeal. Therefore, I confirm the finding regarding ``` MACA NO. 1734 OF 2015 ``` ``` 6 ``` contributory negligence entered by the Tribunal. 4. With regard to the compensation awarded under various heads, the Tribunal has taken the notional monthly income of the deceased as Rs.5,000/-. The deceased was a painter by profession. The accident occurred in the year 2011. In **Ramachandrappa** _**v**_ **. The Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13 SCC) 236),** the Hon'ble Supreme Court has taken the notional income of a casual labourer in the year 2004 as Rs.4,500/-. Taking guidance from the said decision, the notional income of the deceased can be taken as Rs.8,000/per month in the year 2011. He was aged 55 years and therefore, the multiplier to be taken is 11. There are 3 dependents and 1/3 of the income has to be deducted towards personal living expenses of the deceased. The future prospects to be added to the income is 10% considering the age of the deceased as per the dictum in **National Insurance Company Ltd.** v. **Pranay Sethi** [(2017)16 SCC 680]. On adding 10% of the income towards future ``` 7 ``` ``` MACA NO. 1734 OF 2015 ``` prospects, the monthly income would come to Rs. 8,800/-. Accordingly, I refix the compensation for loss of dependency as Rs.7,74,400/- (8,800 x12×11×2/3). Since the petitioners have already been awarded an amount of Rs.5,05,956/-, they are entitled for an enhanced compensation of Rs.2,68,444/under the said head. 5. Towards funeral expenses, the petitioners were awarded an amount of Rs.25,000/-. Going by the dictum laid down in **Pranay Sethi** (supra), the petitioners are entitled only for an amount of Rs.15,000/- under the head funeral expenses. Therefore, an amount of **Rs.10,000/-** has to be deducted. 6. Towards loss of consortium, an amount of Rs.1,00,000/- has been awarded by the Tribunal. Following the decision in **Pranay Sethi** (supra), the petitioners are entitled for an amount of Rs.1,20,000/- (40,000×3) under the head loss of consortium. Therefore, the petitioners are granted **Rs.20,000/-** (1,20,000-1,00000) more under the said head. ``` 8 ``` ``` MACA NO. 1734 OF 2015 ``` 7. The Tribunal has awarded an amount of Rs. 1,00,000/- towards loss of love and affection. The Hon'ble Supreme Court in **United India Insurance Company** _**v**_ **. Satinder Kaur (AIR 2020 SC 3076** ) has held that when compensation is awarded under the head loss of consortium, the legal heirs are not entitled for any compensation under the separate head 'loss of love and affection'. Therefore, the amount of **Rs.1,00,000/-** awarded under the head loss of love and affection has to be deducted from the total compensation. 8. Towards pain and sufferings, an amount of Rs.10,000/- has been awarded by the Tribunal. In the light of the decision in **Satinder Kaur** (supra), the petitioners are not entitled for compensation for pain and sufferings. So the amount of **Rs.10,000/-** awarded under the head pain and sufferings has to be deducted. 9. I find that the compensation awarded under other heads is just and reasonable. ``` MACA NO. 1734 OF 2015 ``` ``` 9 ``` Accordingly, the petitioners are entitled for an enhanced amount of **Rs.1,68,444/-** in the appeal. Out of the said amount, 10% has to be deducted towards contributory negligence on the part of the deceased. Therefore, the petitioners are entitled for an amount of **Rs.1,51,600/-** as enhanced compensation with 9% interest per annum from the date of petition till realisation with proportionate costs. The respondent Insurance Company shall deposit the said amount within a period of two months from the date of receipt of a copy of this judgment. The appeal is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-+.